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Don Burleson Blog 









US cases on cyber libel in message boards and forums

Don Burleson


Burleson is co-author of Web Stalkers: Protect yourself from Internet Criminals & Psychopaths, $19.95 by Rampant TechPress.

These are just a sample of selected cyberlibel cases, but many may be been superseded by later case law.  Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.   Also see the book on protection from Cyberstalkers

Sabbato v. Hardy,  Case No. 2000CA00136 (Ohio Ct. App., Dec. 18, 2000).  An Ohio appellate court reversed a lower court's decision concerning immunity under Section 230 of the Communications Decency Act (CDA). Hardy operated a website that allowed users to post and read opinions on the website. Sabbato sued Hardy for defamatory comments that were posted on his website. The appellate court found that the lower court had erred in granting Hardy immunity under the CDA. The court determined that Hardy was not automatically entitled to immunity under Section 230 of the CDA because the complaint alleged that Hardy had personally participated in creating the defamatory comments. 
Opinion at 

Varian v. Delfino and Day,  (Santa Clara Cty, 2001).  In one of the first Silicon Valley Internet libel cases to reach trial, a jury awarded $425,000 to Varian, the former employer of two disgruntled workers. The two former employees had libeled Varian executives by posting more than 14,000 defamatory messages on over 100 different websites. The jury found the defendants liable for defamation as well as misappropriation of the executives names. 

Curzon-Brown v. Lathouwers,  N.D. Cal., settled Oct. 4, 2000.  Two San Francisco City College professors brought a defamation suit against the webmaster of Teacher Review, a website offering anonymous reviews of teachers. Several profane and homophobic reviews of the plaintiffs were posted on the site. The plaintiffs settled the case and agreed to pay $10,000 in legal fees to the defendant amidst concerns that the court would award a higher amount to the defendant. Plaintiffs also agreed to stop posting reviews of themselves in their efforts to balance the commentary. 

Griffis v. Luban,  633 N.W. 2d 548 (Minn Ct. App. 2001).  A Minnesota court ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. Luban, a resident of Minnesota, repeatedly posted messages on an Internet newsgroup attacking Griffis's professional credentials. Plaintiff Griffis obtained a default judgment in Alabama, which she sought to enforce in Minnesota. The Minnesota court held that the Alabama court had properly exercised jurisdiction because the effects of the messages were felt in Alabama, and Luban should have forseen that she would be sued in Alabama as she had actual knowledge of their effect on Griffis. Accordingly, the Minnesota court enforced the default judgment.  Update December 12, 2001:  Review granted by the Minnesota Supreme Court.

Stratton Oakmont, Inc. et al. v. Prodigy Services Company, et al., 1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995). motion for renewal denied 1995 WL 805178 (Dec. 11, 1995).  The plaintiffs alleged that defamatory statements had been posted by a third party on a bulletin board maintained on Prodigy. The plaintiffs sought to have Prodigy's liability tested by the standards applicable to publishers of information, as opposed to distributors. The significance of this differential was explained by the court: "one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it. In contrast, distributors such as book stores and libraries may be liable for defamatory statements of others only if they knew or had reason to know of the defamatory statement at issue. A distributor, or deliverer of defamatory material is considered a passive conduit and will not be found liable in the absence of fault." The court concluded that Prodigy, based on the manner in which it had in the past conducted its business operations, was a publisher and not a distributor for defamation purposes.

The court, in reaching this conclusion, relied on a number of factors, including: 1) Public pronouncements by Prodigy that it was different from other services because it exercised efforts to control the content of what was published on its bulletin boards; 2) Prodigy's promulgation of content guidelines; 3) Prodigy's use of software screening programs to automatically prescreen bulletin boards for certain offensive language; and 4) Retention of Board Leaders to enforce the content guidelines with respect to particular bulletin boards. By attempting to exercise such editorial control over the content of its bulletin boards, (even though such attempts were by no means comprehensive or covering all messages posted to bulletin boards), the court held that Prodigy was subject to liability as a publisher, rather than a distributor. The decision recites that Prodigy contends that it changed its method of operation sometime after 1993.

North Carolina cyber libel cases

561 S.E.2d 276

"Libel is defined as written defamation." Market America, Inc. v. Christman-Orth, 135 N.C. App. 143, 149, 520 S.E.2d 570, 576 (1999).

The three classes of libel long recognized under North Carolina law are:

(1) publications obviously defamatory which are called libel per se;

(2) publications susceptible of two interpretations one of which is defamatory and the other not; and

(3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod.

North Carolina Libel cases citing other cases

520 S.E.2d 603

Individuals found to be limited-purpose public figures bear the burden of proving that alleged defamatory statements against them were published with actual malice in order to recover damages. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); see also Gertz v. Welch, 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983). The

United States Supreme Court has defined "actual malice" as publication of a statement with knowledge that it was false or with reckless disregard as to whether it was false. New York Times Co. at 279-80, 11 L. Ed. 2d at 706.

Proving reckless disregard requires the plaintiff to offer "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323 (1968).

Because plaintiffs are limited-purpose public figures, they bear the burden of not only showing that defendants knew of the falsity of their statements, [*14] but also of proving that defendants acted with actual malice. Whether a plaintiff has proven actual malice on the part of a defendant is a matter that is properly determined by the trial court. See Proffitt v. Greensboro News & Record, 91 N.C. App. 218, 371 S.E.2d 292 (1988).

When a public figure's libel action is considered at the summary judgment stage, "the appropriate question for the trial judge is whether the evidence in the record would allow a reasonable finder of fact to find either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not." Id. at 221, 371 S.E.2d at 293-94 (citation omitted).

573 S.E.2d 376

We conclude that Cannon is a limited-purpose public figure, within the context of the public controversy surrounding the Crisp County facility, and his failure to seek a retraction before filing his complaint precludes him from recovering punitive damages.

568 S.E.2d 893

"Under North Carolina law, an individual may become a limited purpose public figure 'by his purposeful activity amounting to a thrusting of his personality into the "vortex" of an important public controversy.'" Gaunt, 139 N.C. App. at 786, 534 S.E.2d at 665 [*18] (quoting Taylor v. Greensboro News Co., 57 N.C. App. 426, 435, 291 S.E.2d 852, 857 (1982), disc. review denied, 307 N.C. 459, 298 S.E.2d 385 (1983)). Defendants offer no conclusive evidence, however, that all of the present plaintiffs are public figures, limited purpose or otherwise.

"the actual-malice standard is not an impenetrable shield for the benefit of those who engage in false speech about public figures." McKimm, 89 Ohio St. 3d at 147, 729 N.E.2d at 373 (holding that there was sufficient evidence of record at trial to support a decision by the Ohio Elections Commission reprimanding a successful candidate for political office for his false and misleading political cartoon depicting [*19] the opposing candidate engaging in unethical behavior). The context of a political campaign does not alter the fact that

"false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth." "The use of a known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection."

Georgia cyber libel citation

276 Ga. 16

"public figures," defined as individuals who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large."

"Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact." (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19 [111 L. Ed. 2d 1, 110 S. Ct. 2695].)

North Carolina Libel Per Se

516 S.E.2d 907

This Court has defined libel per se as a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

568 S.E.2d 893

In an action for libel or slander per se, malice and damages are deemed presumed by proof of publication, [*9] with no further evidence required as to any resulting injury. See Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993).

561 S.E.2d 276

Under the law of North Carolina, a libel per se is a publication which, when considered alone without innuendo or explanation: "(1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace." Renwick, 310 N.C. at 317, 312 S.E.2d at 409.

Privileged communications and Libel Per Se

561 S.E.2d 276

"However, even where a statement is found to be actionable per se, the law regards certain communications as privileged." Market America, 135 N.C. App. at 150, 520 S.E.2d at 576. A qualified privilege exists when a communication is made:

"(1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right, or duty, (3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest."

Phillips v. Winston-Salem/Forsyth County Bd. Of Educ., 117 N.C. App. 274, 278, 450 S.E.2d 753, 756 (1994) [*23] (quoting Clark v. Brown, 99 N.C. App. 255, 262, 393 S.E.2d 134, 138 (1990)). "The essential elements for the qualified privilege to exist are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a manner and [to] the proper parties only." Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 602, 439 S.E.2d 797, 800 (1994). "Whether a communication is privileged is a question of law for the court to resolve, unless a dispute concerning the circumstances of the communication exists, in which case it is a mixed question of law and fact." Market America, 135 N.C. App. at 150, 520 S.E.2d at 576. Where the privilege exists, a presumption arises "that the communication was made in good faith and without malice." Phillips, 117 N.C. App. at 278, 450 S.E.2d at 756. To rebut this presumption, the plaintiff must show actual malice or excessive publication. Harris v. Procter & Gamble, 102 N.C. App. 329, 401 S.E.2d 849 (1991).

North Carolina Libel Per Quod

516 S.E.2d 907

Defendant's third claim for relief is the alternative argument that "the publications were not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances became libelous, [causing] plaintiff general and special damages." This is, in essence, an argument that the comments were actionable per quod. See, e.g., U v. Duke University, 91 N.C. App. 171, 181, 371 S.E.2d 701, 708, disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988). The damage plaintiff claims to have suffered, as required to recover for libel per quod, is the loss of a seat on the Board which in turn damaged "his opportunity for employment" and resulted in a "loss of income and benefits [*8] derived therefrom."

Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.



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