Social Networking : Defamation 1

Q: I own a chain of restaurants.  One day, somebody transmitted text to a newspaper’s internet discussion forum.  The text accused me of maintaining dirty and unsanitary-looking food-service places and allowing trash from those establishments to drift into the nearby river.  That text was published, to the general public.  A month later, somebody else (it seems) transmitted text to the forum.  The text accused me of torching a beautiful historical home it, to make way for one of my establishments, and having no sense of decency.  I want to sue these posters for defamation.

A: The law is that posters have a First Amendment right to retain their anonymity and not be subject to frivolous suits for defamation.  On the other hand, meritorious causes of actions for defamation should not be barred in the Internet context.  The courts do not want to limit free speech on the Internet, but they do not want to unjustifiably inhibit you from pursuit of a meritorious defamation claim.

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it will require the plaintiff to do three things.  One, you must undertake efforts to notify John Doe that he is potentially a defendant in your lawsuit, like posting a message of notification on the site’s message board.  Second, you must you must give John a reasonable opportunity anonymously to file and serve opposition to your proposed lawsuit.  Third, you must set forth the exact defamatory statements supposedly made by John.

Once you have met those three requirements, the court will still need to determine whether your complaint has set forth a ‘prima facie’ defamation action against the anonymous poster.  From what you have told me, the answer sounds like ‘no’: these posters merely are voicing an opinion, concerning a restaurant owner who operates in the public arena.

Even if you have made out that ‘prima facie’ case, a court still can decide that any injury to you is relatively trivial.  Here, that seems likely to be the case.  The court will conclude that, on balance, the anonymous poster’s First Amendment right of free speech far outweighs your prima facie case of defamation and any necessity for disclosure of this poster’s identity.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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