Simply stated, the tort of defamation requires five distinct elements: (i) the making of a verbal (slander) or written (libel) statement of actual fact (as opposed to non-actionable opinion); (ii) which is communicated to a third person (not only to the victim), (iii) which is false, (iv) which subjects the victim to ridicule and harms the victim’s reputation in the community, and finally, (v) which causes monetary damages to the victim, either actual or presumed. “Phil falsely holds himself out to be a doctor”, “Gregory is a thief”, “Damian is an adulterer”, “George beats his wife”, “Jane has a venereal disease”, “Company XYZ, Inc. cheats its customers”, “Victoria plagiarized her doctorate thesis”, “Barbara is a prostitute”, “John lied about his education on his resume” – are all examples of potentially defamatory statements. These become actionable in a court of law if they are false, communicated to a third party and result in damages. But what if one who heard Valentin state that “Gregory is a thief” then repeats the statement to another person?

For hundreds of years it has been the law in the United States that one who republishes a defamatory statement originally made by another, is equally responsible to the denigrated victim and must answer in damages. That same false republication could trigger other actionable wrongs, interference with business relations and infliction of emotional distress. The law with respect to republication remains the same in all matters, EXCEPT for content posted on the Internet.

Recognizing the ease with which communications are now spread through the web, including via social media sites such as Facebook, Twitter, My Space and the like, the United States Congress enacted The Communications Decency Act, 47 U.S.C.A. §230. Its purpose was to ease the free-flow of communications by removing the fear of tort liability for hosting or republishing content posted by others.

The Act provides immunity to “Interactive Computer Services Providers.” These include the hosting platforms themselves, such as Facebook, Twitter, My Space and the like. Courts have found that the Decency Act also immunizes providers even when such providers have been informed of defamatory material and they refuse to remove it.

In addition to protecting Providers of services, the Act also immunizes “Users of Interactive Computer Services.” These include all individuals or entities who blog, re-post or republish content authored by another. Section 230 of the Act specifically dictates that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Importantly, this section of the Act preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
Republishing another’s content is protected, but adding to those comments may not be. Intermediaries who republish statements may well be liable to the victims for new information they originate.

The ability to edit comments is protected, but within reason and limits. It is prudent not to test those limits. Therefore, for example, if one publishes a link to a previously published article, the republication is protected. However, if the intermediary also adds a defamatory comment along with the link, immunity may well be lost.

In sum, original publishers of defamatory content on the internet only, referred to as Internet Content Providers, remain of course liable to their victims. Intermediaries and those who republish the libel are generally immune from liability, unless they add original defamatory content of their own. It merits emphasis that the immunity afforded to re-publishers only applies to on-line formats. All other verbal and written defamatory republished content remains actionable and punishable.

My twenty five years of experience litigating defamation cases in state and federal courts for and against newspapers, public figures, reality show stars, doctors, lawyers, publishers and many others, teach that those who can afford it will stand up to protect their reputation and integrity, no matter what the cost.

A principal lesson to be learned is to be careful before making any false and derogatory statements about others on the internet. Resist spreading gossip, rumors and hurtful comments. Even if you are convinced of the truth of what you publish and that you can prove it, which is a complete defense to a defamation action, you may nevertheless be in for a protracted, stressful and very costly ride. The defense of a defamation case can easily cost tens of thousands of dollars. Even if you “win”, you do not recover your litigation costs in most cases. Therefore, before hitting that “send” key, you may want to ask yourself if it is all worth it to you.

Robert S. Popescu, Esq.