- I Think I’m A Victim of Defamation Based on an Online Post…Now What?
I Think I’m A Victim of Defamation Based on an Online Post…Now What?
Despite what an old children’s rhyme about sticks and stones may say, words can hurt both your mental state and your wallet. Defamatory statements can affect your reputation, business dealings, and your status in your community. As an artist or entertainer, your public persona inherently makes you a potential target for all kinds of slander or libel that can dramatically affect your career. If you think you are a victim of defamation, there are many things to consider—who said the offensive statement, how they said it, where they said it, who heard it, the social status of the parties, and how drastically you were damaged among other issues. The internet complicates things further, making the individual behind the screen difficult to initially identify. The best party to help you untangle this web of information is an attorney, and I would recommend you contact one quickly. Most states have short statutes of limitation on bringing defamation cases, including Illinois, where such cases must be brought within one year.1
What is Defamation?
Defamation is defined similarly across most states. Illinois defines defamation as a (i) false statement, (ii) with unprivileged publication made to a third party, (iii) and fault by the defendant amounting to at least negligence, which results in (iv) damages.2 Put simply, to bring a defamation claim, another party or person must recklessly spread a false statement about you to others which results in harm (i.e. damages) to you in some measurable way. Damages can mean many things, including losing your job, losing a contract you had previously entered into, or causing you mental anguish resulting in therapy or hospitalization at a monetary loss to you. This is the basic framework, but there are many factors at play that can modify this slightly.
Without getting too in the weeds about the various types of defamation, know that if a “public figure” is involved, the framework will require an additional factor. On the other hand, there is a special type of defamation claim that can be brought for comments that are harmful “on their face,” and thus, it is assumed the victim was damaged by the very nature of the statements communicated. This type of claim is reserved for an extremely limited number of instances and your particular instance of defamation may not fit. You should rely on your attorney to determine how many different defamation claims to bring and which specific ones are likely to be most successful to your case.
It is important to keep in mind that proof of damages is typically the largest hurdle. As noted above, courts will want to see a measurable harm. Remember that a defamation lawsuit ultimately involves the First Amendment and ideas of Freedom of Speech. In a sense, a defamation lawsuit is a demand to restrict and punish speech. Courts do not like restricting speech and they will not restrict speech for things like opinions that may harm you (“You’re an idiot!”), harmful statements that turn out to be true, or statements that may well be false, but ultimately did not result in any measurable harm.
Two examples of “close but no dice” defamation from my career come to mind. I once encountered a former member of the military named Mr. Strife (name changed to maintain privacy) who was interested in filing a defamation lawsuit. Mr. Strife brought me a war memoir book that was written by a member of his troop about his experiences fighting in a war. Mr. Strife was upset about how the author and member of his troop depicted “him” in the book as an incompetent klutz. The author, likely at the advice of the publisher’s attorney, had wisely chosen to change the names of the troop members in his book to hide identities (similar to what I’m doing in this paragraph presently.) While it may have been possible for the other members of his troop to identify the “character” as Mr. Strife, no one else who read the book would reasonably be able to associate the “character” in the author’s book with Mr. Strife. Filing a defamation lawsuit on behalf of Mr. Strife would have been a waste of time and resources. Similarly, my firm had a fairly high profile individual approach us for defamation work involving something a journalist published about them in a large newspaper. However, not only had the statute of limitations passed, but we were having a hard time showing a tangible connection between the article and measurable lost earnings, business opportunities, or a loss in their character or reputation. Note that although a defamation lawsuit may not have been appropriate for these two folks, a savvy attorney may be able to find other ways of solving these issues including other causes of action to bring that have different frameworks or statutes of limitation.
What if I don’t know who said the defaming statement?
This is becoming a much more common issue. Almost every major social media site allows for varying degrees of anonymity. Courts have also ruled that the right to anonymously publish information is protected by the First Amendment across numerous decisions. Still, rumors can spread like wildfire, and unhinged posters looking for small crumbs of attention are becoming more emboldened to post reckless, false, or unproven statements while believing they are protected by free speech laws and a veil of anonymity. Should one of their posts go viral, an individual, business, or celebrity can have a major public relations issue on their hands. The best advice I can give in this situation is to be ready to be in it for the long haul and really consider how much damage you are suffering before using the courts to retaliate against these anonymous posters. Your attorney will likely have to subpoena the various social media companies who will likely turn over nothing more than IP addresses or e-mail addresses3 (whatever information is used to register an account.) The attorney will then have to take those IP addresses and subpoena Internet Service Providers. It can be a pain to locate one individual posting the defamatory statements. It’s important to note that with more targets comes more work—if you find yourself a victim of online “brigading” or a collective effort by a community to defame you, it is unlikely that they will all have the same internet service provider. While it is possible to pry this info from social media sites and Internet Service Providers, know that is a long and uphill battle. If it is not clear already, this is a lot of legwork on your attorney’s behalf, which often is not cheap. The final results of these subpoenas can lead to more issues or expenses as well, such as posters from out of state or out of the country.
If you are faced with an issue involving defamation, it is best to contact an attorney to evaluate your case and your rights. These cases require careful strategy to ensure statutes of limitation are not missed and multi-state or multi-county laws are adhered to.
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1 735 ILCS 5/13-201
2 Green v. Rogers, 234 Ill. 2d 478, 491 (2009).
3 Social media companies have widely different approaches to how they respond to these types of requests. Some, knowing they are not targets of these lawsuits, are quick to turn over information. Others feel strongly about protecting user anonymity and will fight you tooth and nail. Further, many take it on a case-by-case basis as well. As seen in the recent fight between All Time Low and Twitter, this stage can turn not only public but can be a very long process.
Thomas Kliebhan is an Executive Board member and the Social Media Chair of the Lawyers for the Creative Arts’ Associate Board. He practices entertainment law at Swanson, Martin, and Bell and lives in Chicago, Illinois.