Cybersmear If You Dare… But Be Prepared to Pay
Just as the use of the Internet for a wide variety of purposes has been rapidly evolving for more than a decade, its affect upon many causes of action likewise continues to develop. “Speech from a ‘multitude of tongues’ may lead to truth, but it may also lead to the Tower of Babel. And the level of discourse on [certain internet sites] also suggests that fostering unmediated participation may make public discourse not only less rational and less civil; it also runs the risk of making public discourse meaningless. A discourse that has no necessary anchor in truth has no value to anyone but the speaker, and the participatory nature of Internet discourse threatens to engulf its value as discourse.” Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855 (2000). Internet access enables any individual to send or post basically anything the user pleases about anyone or anything. One of the more offensive forms of communication on the Internet is referred to as “cybersmear” or “cyberlibel.” This article is intended to introduce the reader to some of the legal issues regarding cybersmear.
What is Cybersmear?
Libelous messages placed on the Internet, regardless of whether the message or statement appears on a website, on a computer bulletin board or chat room, in an on-line newspaper, diary or weblog (“blog”) or in an e-mail, may be actionable. As will be discussed later in this article, the motives for cyberlibel range from product boycotts, scams, disparaging rumors and gossip to furthering political agendas and securities manipulation. Most cyberlibel shares a common pattern; the common attributes of cybersmear include:
- A website or blog detailing the purported injustices committed by the target company, individual or political organization;
- References and/or links to statutes, regulations or other legal sources and/or an amateur/unlicensed interpretation of the law (conclusions are usually provided as well);
- Information or quotes taken out of context or represented in very small segments as to be presented in a more misleading manner;
- Cybersmearers almost uniformly claim to be “independent,” “neutral,” and attribute the purpose for the blog, website, chat room or e-mail as being a “public service,” protection of the “unsuspecting consumer/customer,” concern for “innocent victims” and the like;
- Cybersmearers categorize their comments as “informational” or “opinion” when in fact, the statements represent propaganda or libel;
- Many of the people who post on such sites post anonymously;
- Cybersmear web site operators, for the most part, will utilize SEO (Search Engine Optimization) so that their sites receive high rankings in search result pages by doing things such as linking their sites to other sites, choosing key words to include in the titles of their posts/body of their text and in meta tags so that someone searching for the company or individual targeted by the cybersmearer will find the cybersmear website; and
- Posting “actual e-mails from readers” when discussing comments received from readers, none of which can be verified as actual or all of which comes from fellow perpetrators of cybersmear.
Who are the Cybersmearers?
“There’s never been a lack of hostile people with a motive to attack. Aggression is as old as Cain and Abel. Until recently, very few people had the means or the opportunity. The geometric growth of the internet has provided attackers with these last two ingredients. One result of the internet’s growth has been an upsurge of attacks against people, products and institutions that can be launched anonymously, and, therefore, with impunity.” Eric Dezenall, Nail ‘Em: Confronting High Profile Attacks on Celebrities and Businesses, 156, Amherst, N.Y. Promethus Books 1999.
Regardless of their motives or their targets, cybersmearers share several common characteristics, including:
- they have a delusional sense of importance as a result of the number of people they can reach via the world wide web;
- they are generally negative people to begin with who hide behind the notion that they are simply expressing their opinions, exchanging ideas or providing a public service;
- they are typically motivated by revenge against a perceived wrong;
- they believe that they are on a mission and that their efforts will either assist a friend, company or organization that they believe will benefit by the victim’s demise or benefit them financially;
- they are typically disgruntled in their personal and/or professional lives;
- many cybersmearers are dysfunctional people who may have technical skills but lack practical abilities or have failed in their relationships and professional life; and
- they always have an agenda and always have a motive.
What to Do About It
The authors and disseminators of cybersmear typically seek to hide behind the First Amendment, claiming that they are merely expressing their “opinion.” 1 A victim of cybersmear should select a response strategy based upon whether the perpetrator can be identified, the nature of the false statements and the potential impact upon the victim from the cybersmear. A cybersmear consisting of false statements about an entity’s regulatory compliance, financial and tax accounting, or product defects on an isolated basis may require a different strategy than a similar cybersmear timed just prior to a crucial corporate event, such as an initial public offering or a quarterly earnings report.
While a demand for retraction followed by a civil action for defamation represents the most common claim pursued to remedy a cybersmear, counsel should consider related and alternative causes of action, including: unfair competition, harassment, false light invasion of privacy, and negligent or intentional infliction of emotional distress. There are other claims that may arise in particular situations, such as breach of contract and breach of the duty of loyalty in an employment
relationship, trademark and copyright infringement actions when an internet poster unlawfully posts covered materials, and misappropriation of trade secrets when the cybersmear involves the publishing of a company’s confidential and proprietary trade secret information on the internet.
The tort claims mentioned above are determined on the basis of state law. “Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him.” Lowe v. City of Shelton, 83 Conn. App. 750, 765, 851 A.2d 1183, cert. denied 271 Conn. 915 (2004); Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901 (2003) “To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.” Cwelinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004); Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004).
Connecticut General Statutes §52-237 provides that a plaintiff is limited to actual damages specially alleged and proved unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to detract the libelous charge in as public a manner as that in which it was made, failed to do so within a reasonable time. However, in Connecticut, libel is actionable per se if the charge is improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his/her professional business, or if the charge is a crime involving moral turpitude or to which an infamous penalty is attached. Lowe v. City of Shelton, supra; Moriarty v. Lippe, 162 Conn. 371, 384, 294 A.2d 326 (1972); Proto v. Bridgeport Herald Corp., 136 Conn. 557, 566-67, 72 A.2d 820 (1950). Special damages are not a required element of a cause of action for libel per se. Marczeski v. Law, 122 F. Supp.2d 315, 325 (D. Conn.) (2000). A plaintiff will be entitled to recover general damages, for the injury to his reputation and mental suffering which the defamation caused him. Devito v. Schwartz, 66 Conn.App. 228, 234-35, 784 A.2d 376 (2001).
There is a distinction between slander per se and libel per se that is worth noting here: spoken words are actionable per se only if they charge a general incompetence or lack of integrity. Written words “are libelous per se if they charge only a single act, provided that act is something derogatory to the plaintiff in the operation of his business or in the practice of his profession…and if the charge is of such a nature that it is likely to injure the plaintiff in that business or profession.” Proto v. Bridgeport Herald Corp., 136 Conn. at 566-67.
Damage awards in libel cases tend to be quite large and include damages actually caused by the defamation (e.g., lost profits, emotional distress), expenditures incurred by the victim to counteract the defamation and other pecuniary losses. Punitive damages are also a possibility when there is a finding of libel per se or when the plaintiff proves actual malice by the defendant. In Lyons v. Nichols, 63 Conn. App. 761, 768 (2001), the Court held; “Both nominal and punitive damages also may be awarded where the defamatory material is libel per se…In turn, an award of punitive damages is appropriate where the plaintiff has recovered nominal damages…punitive damages are appropriate in a libel action where the Court has found that the defendant acted with actual malice when publishing the defamatory material.”
In Matos v. AFSCME, 2001 WL 1044632 (Conn. Super.) (August 13, 2001), the plaintiff, a public official, alleged that the defendant published defamatory content about him on a web site controlled by the defendant. The Court entered judgment for the plaintiff, awarding the plaintiff monetary damages for defamation, invasion of privacy by false light and intentional infliction of emotional distress. The Court also awarded the plaintiff punitive damages on his defamation claim in the form of attorney’s fees. Notably, in considering the amount of monetary damages to award on the defamation and invasion of privacy by false light claims, the Court took into consideration the length of time “that the plaintiff’s reputation and good name were under a cloud and his privacy interests were impinged upon.” Id. at 10. The defamatory Internet article was removed within a month of publication. Id. It stands to reason that the longer the defamatory content is posted to the internet and the more meta tags and links utilized to draw traffic to the site, the greater the monetary exposure for the perpetrator. See also Lattanzio v. WVIT NBC-30, 2007 WL 2035673 (Conn. Super.) (May 15, 2007) (Court denied defendants’ motion to strike plaintiff’s defamation claim arising out of broadcasts and subsequent publication on defendant’s website concerning plaintiff’s business practices); Kinsale v. Tombari, 2005 WL 1097144 (Conn. Super.) (April 1, 2005) (Court found probable cause to support plaintiff’s defamation claims arising out of e-mails sent by the defendant and granted plaintiff a $100,000 prejudgment attachment against defendant’s home); Thorpe v. Infopulse, 2004 WL 1050861 (Conn. Super.) (April 22, 2004) (Court held that defendant published libelous statements about the plaintiff on a web site, entered judgment for the plaintiff and awarded economic damages, punitive damages and costs); Crane v. Northwestern Connecticut Young Mens Christian Association, 2005 WL 1755064 (Conn. Super.) (May 25, 2005) (Court denied defendants’ motion to strike claims for alleged defamation arising out of statements about plaintiff published via e-mail and letter and prayer for relief seeking, among other remedies, punitive damages).
In order to establish a cause of action for invasion of privacy by false light, the plaintiff must show (1) the false light in which the other was placed would be highly offensive to a reasonable person and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131 (1982). “The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true….and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.” Id. at 131.
In a cybersmear case, there are typically two potential defendants: (1) a speaker (i.e., the author of the cybersmear) and (2) the operator of the service displaying the defamatory content (e.g., the bulletin board/blog, the website, the e-mail, chat room, etc.). Section 230 of the 1996 Communications Decency Act creates immunity for providers of internet service functionality unless the provider is actually involved in the “creation and development” of the defamatory content. Frequently, the perpetrators of the defamation are difficult to find because they use screen names and other devices to make tracking difficult. Often, despite the deplorable nature of cybersmear, victims opt to do nothing because they find themselves relatively unaffected by the defamatory statements and do not want the perpetrator to receive the additional attention they so typically crave.
In 2004, two California Appellate Courts held that Section 230 of the Communications Decency Act of 1996 did not curtail distributor liability. In Barrett v. Rosenthal, 114 Cal. App. 4 1339, 1392, 9 Cal Rptr. 3d. 142, 152 (Cal Ct. App. 2004) the Court found that a “user or provider of an interactive computer service” can be held liable for the defamatory statements of third parties if that user or provider has reason to know of the statements’ defamatory nature. The Appellate Court also noted that “under the common law, those who publicize another’s libel may be treated in one of three ways: as primary publishers (such as book or newspaper publishers); as conduits (such as a telephone company); or as distributors (such as a book store, library or a news dealer).” Id. at 150. Primary publishers, also known as “original publishers,” are generally held to a stricter standard of liability comparable to that of authors. Id., citing Rest. 2d Torts, §581(1), comm. c, pp. 232-233; Prosser and Keeton, The Law of Torts (5th ed. 1984) §113 at p. 810. “Conduits, which lack the ability to screen and control defamatory speech that may occur over their systems, and are therefore the least culpable, are ordinarily immune from liability.” Id. at p. 150 citing Anderson v. New York Telephone Company, 35 N.Y. 2d 746, 361 N.Y. S. 2d 913, 320 N.E. 2d 647 (1974). Distributors are considered secondary publishers whose ability to control defamatory speech lies somewhere between that of primary publishers and conduits and therefore should be subject to an intermediate standard of responsibility and may only be held liable as publishers if they know or have reason to know of the defamatory nature of the matter they disseminate. Id., citing Rest. 2d Torts, §581(1), coms. D&E, pp. 233-234. The common law principal that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character remains intact. Id. at 152.
Similarly, in Grace v. EBay, Inc., 120 Cal. App. 4th 984, 16 Cal Rptr. 3d 192 (2004), a different panel of the California Court of Appeal held that §230 of the Communications Decency Act of 1996 provides no immunity against liability as a distributor.
The Supreme Court of California held last year in Barrett v. Rosenthal, 40 Cal.4th 33, 146 P.3d 510 (2006), that primary publishers are liable for common law defamation on the same basis as authors but other “distributors” may be held liable only if they knew or had reason to know of the publication’s defamatory content.
If the victim of a cybersmear decides to seek redress through litigation, there are a wide variety of issues that can be implicated by such a strategy. Establishing personal jurisdiction can be a challenge when the person who has engaged in cybersmearing is anonymous. Zippo Mfg. Co. v. Zippo.com, Inc., 952 F. Supp. 1119 (W.D. Penn. 1997) represents the most common analysis undertaken by courts reviewing the personal jurisdiction issue. See also Calder v. Jones, 465 U.S. 783 (1984). Subject matter jurisdiction, especially if the defendant’s identity is unknown to the plaintiff at the time that the action is commenced, may also be an issue.
If the plaintiff seeks to bring the action in federal court once any jurisdictional hurdles are overcome, the question of which state’s law applies comes into play. Many courts dealing with internet cases have adopted the Restatement (2nd) of Conflict of Laws approach to determine which jurisdiction’s laws should apply. Thus, consideration of the certainty, predictability and uniformity of result, the ease of determination and application of the law, relevant policies and interests of the states involved, the protection of justified expectation and the promotion of interstate order must be considered. A defamation lawsuit is a tort claim, thus, the jurisdiction that has “the most significant relationship” to the occurrence (i.e., the place of injury; the place where the injury-causing conduct occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered) must be evaluated. Restatement (2nd) of Conflict of Laws §145. Section 150 of the Restatement (2nd) of Conflict of Laws addresses multi-state communications and similar to Section 145, provides the law of the state with “the most significant relationship to the occurrence and the parties” applies. It may be necessary to subpoena the internet service provider in order to identify the internet speakers responsible for the defamatory statements.
As the law continues to develop in this area, those who use the internet as a playground for the hobby known as cybersmear will likely find that theirs is an expensive hobby indeed. Lawyers representing the victims and perpetrators of cybersmear would be well served by closely monitoring developments in the law and advising their clients accordingly.
1 “The distinction between fact and opinion cannot be made in a vacuum…for although any opinion may appear to be in the form of a factual statement, it remains all opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the fact which he has stated.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 438 A.2d 1317 (1982).