The Internet has already changed the defamation law scene in many ways. Perhaps most important, as Toronto defamation lawyer Gil Zvulony notes,
In the past, only famous people had libel and slander issues. Today, it is the common person who must deal with this issue. For example, a disgruntled consumer, an angry ex-spouse, a competitor, or a peddler of gossip can now “vent” their frustrations about their victim cheaply, easily, and seemingly anonymously. A Google search of the victim’s name usually reveals the poisonous words for anyone that is interested.
The harm to reputation and character is real. A malicious customer review by a competitor could destroy a small business. A false accusation of adultery on a social networking site could destroy a marriage. An allegation that someone is a “crook” could be read by a potential employer or business partner.
Readers may recall that a while back I noted the story of a restaurant that ended up closing due to false (though not defamatory) information posted to Google Maps. Google does try to police malicious edits, but it is fighting a losing battle when anyone can enter “information.”
A couple of recent defamation lawsuits give some idea of the new types of cases we are seeing. One is the John Doe/Jane Doe type of lawsuit. As The Scientist explains,
Wayne State University pathologist Fazlul Sarkar is suing certain users of the post-publication peer review forum PubPeer, demanding that the website’s moderators release identifying information pertaining to anonymous comments that—according to his lawyer, Nicholas Roumel—allegedly contain defamatory statements about Sarkar.
The allegation is that anonymous comments by “John and/or Jane Doe” had cost Dr. Sarkar a job after he had already resigned his current position. There was a time when anonymous comments simply would not have had this effect on a typical academic career.
In Canada, the government broadcaster, the CBC, has fired star interviewer Jian Ghomeshi. He has responded by filing a $55-million defamation lawsuit against the (Crown) corporation, which was allegedly concerned about “perceived negative public perception” of his sex life. He accuses the CBC of having an “antiquated perspective,” claiming that, in any event, a former girlfriend shared a “fabricated” story with a reporter. He posted his own account on Facebook.
At one time, this would mostly have been office gossip (he was popular, but hardly a national icon). But now it is all public, so the stakes are much bigger.
In any event, employment law expert Howard Levitt comments that as a union member, Ghomeshi can’t really sue,
But if Ghomeshi knows, as he must, that his civil case will be quickly dismissed, there appear to be two good reasons to file the suit anyway: One, it gets his story onto the public record, without any possible recourse. Statements of claim are privileged; through this claim, Ghomeshi, like any litigant, can get anything he wishes onto the public record with absolute legal impunity. The arbitration process where his case must ultimately end up due to his unionized status, is entirely private.
The value of being able to say whatever he wants without fear of recourse, Mr. Levitt suggests, can be a “PR masterstroke.” Yes, especially in an Internet age.
But whatever happens in his case, suing people may no longer be as effective as it once was:
While teaching in Malaysia several years ago, Lee David Clayworth dated a woman named Lee Ching Yan. After they broke up, the woman started posting slanderous material about him on websites, suggesting, for example, that he was a pedophile and that he was having amorous relations with his students.
He sued her in Malaysia, where she was found guilty of defamation and ordered to pay Clayworth the equivalent of $66,000 in damages. The Malaysian judge also ordered search engine providers Google, Yahoo and Bing to block Clayworth’s name from being searchable.
But due to differing international interpretations of cyber-law, a Malaysian judge cannot compel a company in California to remove offensive material, and so Clayworth’s name continues to come up in search engine results.
Mr. Zvulony offers ten tips if you believe you are the victim of defamation, including:
After getting legal advice about the strength of your case, and understanding the scope of the defamation the best approach in some situations may be to simply ignore the defamation. In some cases responding to the defamation may actually amplify the defamation. Truth is always a defence to defamation and in a case where the person who made the libellous comments strongly believes that they are true, it may be wise to let the fire die out. Threatening to sue someone who honestly believes that they are telling the truth may backfire. A lawsuit or the threat of a lawsuit will give the person a new opportunity to repeat the defamatory words. Ignoring it usually the best choice when the scope of the libel is very limited – i.e. very few people could actually read the libel. This is often the case where a large business has been defamed by a blogger.
Yes indeed. Let us say that Jane Bloggo is routinely enraged by the US Conference of Catholic Bishops, and posts many defamatory claims. Perhaps a routine search shows that we seldom hear anything about Jane’s TruthBlog—from anyone except Jane. Suing Jane might create the impression that there is something in her claims anyway, an impression that perhaps few would gain otherwise.
Mr. Zuvlony notes that these decisions should be made carefully, after research and consultation. Other options include, of course, refutation, contacting the Internet provider, and writing a cease and desist letter, with lawsuit as a last option—which he compares to chemotherapy.
Denyse O’Leary is a Canadian journalist, author, and blogger.