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Defamation And Internet Postings

When it comes to making anonymous statements about anyone and anything, the Internet is an open field. Are there any limits to the bad things that may be said about a person or a business? Or does every posting escape the law against defamation by being shielded as "opinion"? A new case decision answers these two questions "no."

In Bentley Reserve L.P. v. Papliolios [July 30, 2013] the court explored the characteristics by which an expression of opinion (protected by the First Amendment's guarantee of free speech) turns into defamation for which the author can be sued. The task is not easy. Indeed, the Internet itself creates difficulty in drawing a line between mere opinion and defamation. Because so many postings contain extreme, hyperbolic expressions of dislike, the court had to ask whether any reader takes those expressions seriously enough so as to harm the reputation of the targeted person.

First, we must backtrack from the Bentley Reserve case to a decision by the United States Supreme Court in Milkovich v. Lorain Journal Co. in 1990. There the Court dispelled the notion that the First Amendment protects any and all expressions of opinion. Instead, if the expression of opinion is sufficiently factual to be susceptible of being proven true or false objectively, or if the opinion implies a provably false, existing fact, then it loses its protection.

The Supreme Court identified four basic tests: 1. The type of language used; that is, is the language hyperbolic or vituperative, thereby suggesting that the author may simply be venting his feelings and not seeking to damage someone's reputation? 2. What does the statement mean in the context in which it is made? 3. Does the statement express, or imply, a fact that can be proven either true or false objectively? 4. What are the "broader social circumstances" in which the statement was made? This last test is significant because the Internet, especially after 1990, affords a platform for speech which may be outrageous yet immediately recognizable as not tied to any objective facts.

The Bentley court adopted the tests described by the Supreme Court in Milkovich. Then the court in Bentley went on to answer a new and somewhat different question: When do we take postings on the Internet seriously?

The court identified some additional criteria. If the statement sounds satirical or hyperbolic, or if it is too generalized, nonspecific and vitriolic, then it will likely fall into the category of mere opinion not rising to the level of defamation. On the other hand, if the author claims to be unbiased or to possess specialized knowledge of the subject matter, and especially if the author includes specific facts in his statement, then the speech will likely not receive protection. At bottom, it all depends upon what a hypothetical, reasonable reader understands the speaker to have meant.

Unfortunately there is no single "reasonable reader" on this planet. So the test involves a legal fiction; it allows a judge to apply his own interpretation of the challenged statement. That interpretation is not predictable, except in extreme cases.

This was true in the Milkovich opinion itself. The majority of seven on the Supreme Court and the two dissenting justices agreed on the legal principles. But the dissenting judges, unlike the majority, would not have found liability for defamation based upon the very same evidence.

Common sense does not always help. Consider this series of statements:

  1. "John is a liar."
  2. "He lied about his education."
  3. "He said he held a PhD in physics."
  4. "He claimed he received his degree from MIT."
  5. "He said he received his degree in 2003."
  6. "He put that false information on this resume in 2013."
  7. "He then gave his resume to me with his application for employment."

Contrary to common sense, statement no. 1 is not defamatory on its own. Statements nos. 1 through 7 taken together are, if false, defamatory. The boundary line falls somewhere between nos. 3 and 5 (in my interpretation).

Let's look at a couple of concrete examples from the Bentley case itself. There the landlord of the apartment building sued a former tenant for defamation based upon a posting the tenant placed on Yelp. The posting called the landlord a "sociopathic narcissist." Although the Court of Appeal's opinion is not clear on that statement, it appears that it falls into the category of name-calling which is not actionable even though a psychiatric diagnosis might prove the statement true or false. The tenant also stated that the landlord's conduct had led to the death of three tenants. In fact, two of the tenants remained alive, and the third had died from an unrelated cause (cancer). That statement crossed the line into liability for defamation.

Balancing the competing interests of freedom of speech, on one hand, and protection of reputation, on the other hand, can never be an exact science. However, at least we now know that freedom of speech on the Internet does not include a blanket immunity from liability for defamation.

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