Lyrissa Lidsky discusses bloggers’ liability for defamatory statements

Professor Lyrissa LidskyLyrissa Lidsky taught two of the most interesting classes I took in law school: jurisprudence and a defamation law seminar. My final paper for the seminar focused on the ways defamation case law was likely to apply to statements made in Internet chat rooms and other online forums.

I also served as Lidsky’s research assistant and became intimately familiar with U.S. courts’ early approaches to Internet libel cases. This was in the mid-90’s, before the advent of blogs. The most common cases at that time involved suits by large corporations seeking to silence wronged, or allegedly wronged, consumers.

Since then, Lidsky has written extensively on Internet defamation and argued on behalf of the ACLU in some online libel cases. The Internet and the law have evolved. The blogosphere has exploded. Yet many bloggers are unaware of, or curious about, their potential liability for defamation. I’ve tried to keep up, but have effectively done so only as a layperson. Earlier this week, Terry Teachout and Mark Sarvas were inquiring about bloggers’ potential liability for defamatory statements left in the comments sections of their sites.

Since she’s working on an article that addresses some of these concerns, Lidsky has kindly agreed to answer a few questions about the current law on blogs and defamation.

Can you set out the basics of defamation for the lay audience?

A defamatory statement is one that is harmful to the reputation of the person about whom it was made. Typically the person claiming to be defamed by the statement must prove that it is false. Classic examples of defamatory statements are false accusations of crime, fraud, or immoral behavior.

What liability do bloggers have for their own defamatory statements?

Posting a defamatory statement on your blog can make you subject to a civil lawsuit for money damages. That’s the bad news.

The good news is this. You can only be liable for false statements of fact. Statements of opinion are protected by the First Amendment. However, attaching “I believe” or “I think” in front of a factual assertion doesn’t turn it into a statement of opinion. The statement “I think that Smith is a child molester” is not a statement of opinion protected by the First Amendment. On the other hand, the statement “His most recent novel doesn’t match the quality of his earlier works” is a statement of opinion. By its own terms, it is not verifiable as true or false.

Can you explain the liability that can arise for traditional publishers upon “republication” of someone else’s defamatory statement?

Traditionally, publishers have been liable for defamation even if they merely “republish” the defamatory statement of someone else. So if a letter to the editor contains a defamatory statement, the newspaper that publishes it may be liable for defamation.

Earlier this week, a discussion on the book and culture blogs arose about bloggers’ potential liability for defamatory statements made in the comments that appear below their posts. Can you talk about this issue, and about the potential liability for bloggers republishing defamatory statements that originated in magazines and newspapers?

You may have read that bloggers are protected if they merely “republish” the defamatory statements of someone else. Be careful! It is true that at least one federal court has suggested that the Communications Decency Act, a federal statute, gives bloggers immunity from defamation liability if they simply act as a conduit in “republishing” the defamatory statement of someone else. (Batzel v. Smith, 333 F.3d 1018 (2003)).

However, this decision was not really about bloggers; it dealt with the operator of an electronic newsletter who forwarded a defamatory email. In addition, this decision may or may not be followed by other courts. More significantly, the decision does not protect bloggers who republish a defamatory statement made by someone else in order to comment on the statement. A blogger who comments on someone else’s defamatory statement might very well be seen as ratifying it or amplifying it, and the blogger could then be liable for defamation.

Obviously this a thumbnail sketch of a complex area of law, and you may want to do further research if you are especially worried or if you have a specific question. The main points to take away from it are this.

First, if you publish a defamatory statement of fact on your blog, you can be subject to liability just like anyone else. Second, be particularly cautious when asserting facts about someone that would be harmful to his or her reputation. Evaluate your source of information and the degree of confidence you have in the truth of the statement. But don’t be too paranoid. Much of your commentary is likely to be opinion, for which you won’t be subject to liability. Third, you may (and I stress the word “may”) be immune from liability for “republishing” the defamatory statements of others, so long as you merely republish them and don’t inadvertently ratify them or amplify them.


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