The Internet gives people the ability to express themselves however they want.
But it doesn’t allow them to talk with impunity. If you publish misleading or inaccurate information about someone, they can sue you.
Here are the key terms you need to know and some examples of what might constitute defamation. I am not a lawyer and this is not legal advice. As with any lawsuit, the outcome will depend on interpretation by lawyers, judges and juries.
“public figure” – Someone who is famous. If you’re a celebrity, elected official or someone in a position of significant authority, you are likely a public figure. In the tech world, Larry Page and Mark Zuckerberg would be considered public figures. A CEO of a 5-person startup wouldn’t be. (Unless they are a public figure for some other reason.)
“limited purpose public figure” – Someone who is an expert or influencer on a specific topic and has chosen to engage in public discourse. But they are only a public figure for purposes of the topic area.
“private figure” – Someone who isn’t one of the above. This would be most people. Despite the fact that I’ve appeared on TV a lot and in print and other outlets, I would be considered a private figure.
“negligence” – You were careless or acted recklessly. You didn’t exercise proper care.
“actual malice” – You knew what you were publishing was wrong and did it anyway. Or, you didn’t really care to check if it was true.
The standards are different for public figures and private figures. For a public figure to be successful, they need to prove actual malice. For a private figure to be successful, they need only prove negligence.
The public figure vs. private figure distinction applies to the person who the claim is being made about, not the person making the claim. From a legal standpoint, there is no difference in me making a statement about someone and Anderson Cooper making that statement. In practice, there is. And smart targets will understand the Streisand effect.
Truth is an absolute defense to defamation claims. If you publish something accurate that someone doesn’t like, that’s not defamation. You can, of course, be sued for it. Which is the real danger. The wealthy can bleed the pockets of the less wealthy. Do that enough (or threaten to do this) and people will be less likely to criticize you.
Opinions are not libelous. Defamation relates to facts. A negative opinion is not defamation. It isn’t nice, but feel free to call anyone a jackass, douchebag, jerk, moron or similar terms without worrying about defamation.
This post is about defamation in the United States. Our system is very different from other parts of the world. In the UK, for example, the publisher has to prove the truth of a statement. In the US, the subject has to prove that the statement is false. Sometimes, this can discourage suits in the US. For example, if I were to say Acme Corp has revenues of $5,000 instead of the $50 million they claim, if their revenues are only $5 million, they likely wouldn’t want to challenge my statement in court because they’d have to release the $5 million figure.
Some made up examples to illustrate the concepts:
Sergey Brin is an ineffective manager.
Not defamation because it is an opinion. Sergey Brin is also a public figure.
Carly Fiorina was fired from HP.
Not defamation because she is a public figure and it doesn’t meet the standard of actual malice. Also, truth.
John Doe was fired from his job.
John Doe is a private figure. But if he was fired from his job, it’s not defamation, even though it might be embarrassing. If he weren’t fired, it is defamation. But it’s up to him to prove that he wasn’t fired.
John Doe is a lazy jerk.
Not defamation because it is an opinion.
John Doe is a jerk because he strangles chickens.
If John Doe actually strangles chickens, this is not defamatory because it is true. If he doesn’t strangle chickens, it is defamatory.
Donald Trump is a racist, xenophobic, misogynist.
Not defamation because it is an opinion. Trump is also a public figure.
Donald Trump is only worth $1 billion, not the $10 billion he claims.
Trump is a public figure. To be successful in this claim, he would have to prove to be worth more than $1 billion and that you knew that and that you didn’t care it was wrong and published it anyway. If he’s worth $3 billion, he wouldn’t want to bring this claim because he’d have to show that he is only worth $3 billion. That would make him a liar on one of his key talking points.
Donald Trump is the son of an orangutan from the Brooklyn Zoo.
This is a famous bit from Bill Maher. Trump is obviously a public figure. Despite not showing his long-form birth certificate, he is not the son of an orangutan from the Brooklyn Zoo. But this likely falls under parody because no one would reasonably believe that he is the son of an orangutan.