Internet defamation is of personal interest to this law firm. While we primarily practiced business and real estate law, Paul J. Sulla, Jr. became a victim of Internet Defamation in 2010. The activity since died down but the impacts remain, which is why this issue is being examined in more detail to better educate the public.
This article is part of a continuing series on Internet defamation. For the first part of this series, we discuss the elements and nature of Internet defamation.
Generally stating, defamation is a statement that injures another party’s reputation. The tort involves written statements (libel) and spoken statements (slander). Defamation can be limited to libel or slander or involve both.
To advance a successful cause of action, Plaintiffs must prove four elements:
- False statement claimed to be true;
- Communication to a third party or parties;
- Statement communicated with malice or negligence; and
- Damages to the person who was the subject of the statement.
If defamation involves a publicly known figure, there must be malice but negligence is sufficient when the subject of defamation is a private citizen.
There is no specific cause of action regarding Internet defamation. So, the elements for common law defamation (listed above) are adjusted to apply to it.
Online defamation is evaluated as follows:
- Information presented online intentionally or negligently via writing, video or photographs as a statement of fact;
- Online information causes harm or is designed to cause harm to an individual’s online reputation;
- The statement presented online is false and made without research to verify truthfulness; and
- The statement presented online at least negligently causes harm to a private citizen or maliciously ruins the reputation of a public figure.
Internet defamation is often the creation of online agitators often called “trolls.” Another blog post will address the psychology of trolls in more detail, however for now, know that they are common. Many trolls or groups of trolls maintain multiple websites in order to better spread misinformation about their targets.
Hawaii Defamation Laws
Hawaii defamation laws provide a cause of action under the criteria listed above. However, it also adds two other important elements that could enhance or compromise a defamation lawsuit in this state.
One, Hawaii recognizes “Qualified Privilege” as a defense in defamation law. Qualified Privilege only works if the author and subject share a common interest in the subject matter and the author researched the subject matter.
Once that is determined, Qualified Privilege applies if:
- The statement is a “reasonable” action involving a public, private, legal, social or moral duty; and
- The statement’s subject matter involves the public interest.
Second, Hawaii recognizes Defamation Per Se. This establishes a class of statements assumed harmful so a Plaintiff does not have to prove they faced impacts from the defamation. These include the following type of statements:
- Criminal conduct;
- Trade libel or product disparagement;
- Carrier of a loathsome disease; and
- Certain sexual accusations.
Internet defamation often involves defamation per se. The way trolls attract followers is by presenting sensational content. Accusations involving drugs, child porography, sexual assault or conspiracy theories often garner online fame and success. However, many of these claims are unproven and likely actionable in a civil lawsuit.
Challenges Brought by the Online World
Current laws are egregiously insufficient for addressing Internet defamation. Once these laws applied to spoken statements, gossip, printed articles, and other means that did not have the international reach that the Internet provides today. There is also speed of delivery–passing around a newspaper in a cafe spreads information much slower than an article or video that is easily shared on thousands of social media accounts across the planet.
It is unfortunately easy to attract a gullible audience online. If the information is sordid enough, it will not only show up in search engines by people seeking it out but spread widely as those people share it. Online involvement involves individuals seeking the high of multiple post likes and shares which increase if content is especially defamatory or controversial. On this end, Internet defamation spreads on vulnerability and insecurity: a vulnerable or noteworthy subject, trolls who seek attention and followers, and followers who crave recognition.
The online world also supports false credibility. Social media especially is designed for individuals to present themselves in their best light. Most people may show only the best sides of their life and never share the struggles. Artists show only their best work and not their mistakes. Spend enough time on social media and it feels as if everyone is a celebrity with a perfect life.
This “best light” can create credentials where few or none exist. It is simple to create false resumes and use the manufactured background to make defamation statements seem true. If someone is a “doctor”, an “investigative journalist” or any other title held in high esteem, that allows for greater acceptance of their “truth” and the willingness to spread the false information.
Finally, Internet defamation is engaging and interactive. Once upon a time, people took in news on paper or in a quick summary on TV. It was normally impossible to watch the same content multiple times or share it on an international platform. Video editing options available now add more to make false information appealing and more likely to be shared.
Currently, there is no criminal cause of action for Internet defamation, only civil action. In Hawaii, the statute of limitations is two years meaning, if you find yourself the victim of an Internet troll, you have two years to file suit in court.
Paul J. Sulla, Jr., Attorney at Law, is an experienced real estate attorney in Hilo, HI. If you wish to discuss a business or real estate matter, or you find yourself facing Internet defamation, please contact our office to schedule a consultation.