Recently, I formally requested that a forum owner remove libelous statements about me from her website. Some statements were particularly damaging – I was reeking havoc on a website, I was stalking someone’s family member, I was hacking and crashing her computer. Among other things.
The first step in pursuing legal action is to request in writing that the individual remove the libelous material. This I did.
As a result of my request, she banned my IP address, and I am unable to see if she complied by removing the libelous material. She has not contacted me via email. As the damaging information may still be on her site, I have no choice but to rebut her accusations here.
One published method to combat internet libel is to respond on the forum in question with a rebuttal of facts – effectively removing the damaging effects of the allegations. But since I have been both locked out and had my IP address blocked, I am posting my rebuttal here, with full disclosure of the moderator and the website so the allegations and the rebuttal can both be found.
I wanted to understand internet libel, and this is my initial foray into the rapidly growing field. Because I am not a lawyer, I have quoted large sections from US and international law websites to ensure I am not misinterpreting these issues. At the end of this post, I will ponder how this information applies to my case, as a rebuttal to her claims.
What is Libel?
“When an injurious false statement is made about an individual, the individual is *defamed*. Defamation can occur in two forms: libel or slander. Libel occurs when there is a written statement injuring an individual, and slander occurs when there is an oral statement that injures an individual.
“Since on-line is considered to be written material, on-line defamation is considered to be libel.
“The [libelous] statement must be about an individual and the readers must be aware that the individual is the subject of the false statement.”
There are several differentiators in establishing libel, some more significant than others. In court, a combination of many are considered. The primary issue seems to be establishing the difference between “opinion protection” and “truth”.
Internet Libel
“The websites of news and media organisations are increasingly embracing user generated content – text messages, comments, discussions, reviews, images and videos submitted by members of their audiences …
“Despite the benefits, websites publishing this content also make themselves open to a number of risks, including liability for publishing defamatory material.”
(http://www.cybersoc.com/2006/08/user_generated__1.html)
“With respect to the Internet, defamation claims are generally filed for comments made in message boards or other posted material. This would make them libel, so these cases are frequently termed cyber-libel.”
(http://www.praetoriate.com/t_webstalker_168_libel_malice_.htm)
The plaintiff must show both “malice” and “reckless regard for the truth.” That they harm the individual’s personal interests and that “[t]he offender knows that the statement is false or acts in reckless disregard to its truth or falsity.” If the information remains available, it has the potential to create bad opinion or “cast aspersions on you.”
(http://injury-law.freeadvice.com/libel_and_slander/defamatory_statements.htm)
(http://www.praetoriate.com/t_webstalker_168_libel_malice_.htm)
Distinguishing between fact and opinion.
Defamation revolves around statements that can be proven true or false, rather than opinions stated about an individual. In a nutshell,
libelous based on false facts – BAD.
Potentially libelous statements based on opinion – POSSIBLY OK.
“In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other.”
“Furthermore, the defamatory statement must not be an opinion, but rather one of fact.”
http://www.law.buffalo.edu/Academics/courses/629/computer_law_policy_articles/CompLawPapers/holland.htm, (http://www.citmedialaw.org/legal-guide/opinion-and-fair-comment-privileges)
“Under U.S. law, truth is an absolute defense. That is, if you can prove that what you wrote is true, you are not at fault.”
(http://mindymcadams.com/tojou/2007/libel-suits-blogs-and-comments/)
Legally in the US, the difference in law between facts and opinions/ideas is this:
“[O]nly false statements are actionable, and the Supreme Court has held, under the First Amendment, there is no such thing as a false idea.”
Okay, so “facts” can be proved, and this is the basis for establishing or denying that internet libel occurred. Can what was written be proved or not.
On the other hand, many opinions fall in the “opinion privilege” category. This means that an individual can place information on a website or forum that may be completely ridiculous, but are opinions protected by free speech.
An example of a “protected opinion” is “John Smith is a slum lord”- offensive, but clearly an opinion. On the other hand, “[I]n my opinion, the mayor killed her husband” is likely not a protected opinion. It is irrelevant that the writer used the term “in my opinion” or “alleged.” (http://www.citmedialaw.org/blog/2008/california-developer-sues-homeowners-libel-over-disparaging-blog-comments)
So why is the first likely protected while the second is not? It all comes down to whether a reader assumes the writer has access to addition, instated facts, that make the statement appear to carry more weight. This is the case with the second statement – “A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.”
So, if you had unstated information (that is true) that the killing did occur and it was the mayor who did it, you are fine. If the statement can be proven false, the statement is defamatory. (http://www.citmedialaw.org/book/export/html/1823)
Here is a better example from (http://www.citmedialaw.org/legal-guide/opinion-and-fair-comment-privileges)
Compare the following two statements. The first is not libelous, while the second is.
1) “During the last six months I’ve seen Carol in her backyard five times at around 1:30pm on a weekday seated in a deck chair with a beer in her hand. I think Carol must be an alcoholic.”
2) “I think Carol must be an alcoholic.”
No libel exists in the first because facts “upon which a reasonable conclusion … is based” are presented. These facts can be proven to be true. In the second, no facts are presented. Again, the unstated facts thing if the “underlying facts” turn out to be false.”(The courts would consider the larger context of the statement to make the determination, i.e., the entire blog site).
Anonymity
Anonymity of the internet increases the willingness and boldness of an individual to criticize. Some supporters contend that internet content is protected by Free Speech and that all comments online should be protected. On the other hand, libel can be proven in a similar manner as libel outside the realm of the internet. The balance comes between “protecting free speech and protecting against defamation.” (http://www.law.duke.edu/journals/dltr/articles/2002dltr0004.html)
Can you sue people you don’t know? What about owners of forums/website who maintain anonymity? Turns out, you don’t need to know their names in order to sue.
“Libel lawsuits have been leveled against individuals, both known and anonymous; against the bloggers who let others post comments on their blogs.”
To serve a lawsuit, plaintiffs use the SLAPP, or “”strategic lawsuit against public participation.” The lawsuit is filed against a “John Doe” and John Doe’s identity is pursued by subpoenaing the Internet Service Provider. This always doesn’t work, although sometimes the identity of the anonymous libeler can be made public. Another option available to a judge is to force the shutdown of the website or forum. (http://www.firstamendmentcenter.org/speech/Internet/topic.aspx?topic=online_libel)
An interesting compromise between free speech and anonymity (not publically revealing the name of the defendant) is that the plaintiff be allowed to prove that the statements were libelous. If proof is provided, the libeler’s identity is revealed and the plaintiff may then make the decision to pursue legal action. (http://www.law.duke.edu/journals/dltr/articles/2002dltr0004.html)
If the individual being defamed is a public figure or not
In the US, the burden of proof is larger for public figures (senators, sports figures, movie stars, etc) than for non-public figures (the rest of us). The “public figure must prove that the libeler knew the statement was false, or had serious questions regarding the truth of the statement.” Actual malice must be proven. The criteria for non-public figures is less stringent – the plaintiff must only prove negligent on the part of the libeler. Accusations of internet libel by public figures are common and often suspected to be false by the general public. But statements about you and me may carry more “weight” with a reader because of the assumption of “unstated facts.”
http://www.law.buffalo.edu/Academics/courses/629/computer_law_policy_articles/CompLawPapers/holland.htm
(http://www.praetoriate.com/t_webstalker_168_libel_malice_.htm)
International efforts
This is not just a US problem. In other countries, such as Great Britain, the burden of proof is slightly different, but internet libel is being recognized as an international problem. Examples of lawsuits in Britain prove that a forum/website can be classified a “publisher” or creator of new content, or the equivalent of a “phone book” which just makes previously published information available. A publisher is more likely to be sued for libel as it creates information (e.g., new opinion, discussion, etc. via original posts and contributions by the forum owners and visitors).
Japan and Singapore are cited as other examples, with Singapore being the most stringent, with severe punishment for internet defamation.
Forums versus webpages and blogs
“Forums” are in somewhat a more precarious situation regarding legal action.
“When a message is placed on a bulletin board on the Internet, each location that accesses the message becomes a potential forum. As long as the jurisdictional requirements for the forum are met, the plaintiff can file suit.”
This potentially allows the forum owner to be sued in the countries “where the libelous material was distributed.” The forum owner may be exposed to lawsuits based on the regulations for each country where the content is available. (http://www.law.buffalo.edu/Academics/courses/629/computer_law_policy_articles/CompLawPapers/holland.htm)
What if forum content is pre-screened and not read by the content providers
Forum operators may claim that they were unaware of the content presented in their forums. Precedent exists for forum operators to be liable even if they have no knowledge of the content, as the operator is responsible for propagating the content.
“Court [in Germany] states that operators of Internet forums are liable for all comments posted there, even if the operator has no knowledge of their content…. and parties [who] had originally pressed charges had a right to demand that the operator cease and desist.”
(http://www.heise.de/english/newsticker/news/89368)
Forum owner liability
The owner of a forum/website is considered the “publisher and speaker” of all content posted on the site. This individual can be sued for libel even if the individual did not create the libelous content, and did not remove the libelous content from the site.
Forum owners can remove complete posts as is their right as owners of the forum in question, either to control overall content on the site or to comply with requests to remove libelous material. In addition, a forum owner may edit a poster’s comments. However, editing another’s post is allowed “so long as the edits do not materially change the meaning of the statement.” (http://www.citmedialaw.org/blog/2007/libel-lawsuit-filed-against-ibrattleboro-founders-grotke-lepage).
Significant edits can create misleading and potentially libelous situations for the owner in posts originally authored by the plaintiff.
What can be done about internet libel?
The internet is somewhat self-policing and self-regulating. “Users of the Internet [who] violat[e] *netiquette* take the risk of getting *flamed*.” “In addition to flaming, Internet users often combat abuse by condemning the libelous statement and providing the public with the truth.”
Revealing the truth is a common method to prove the libelous statement wrong and make the truth available. However, this assumes that the plaintiff has the opportunity to respond to the libelous comments. In an example sited here, an anonymous post was placed on a forum with an assertion that one type of potato sold by a company was actually another type of potato. The libel was effectively combated when the accused “replied by posting a message on the same bulletin board” with the facts.
This assumes that the plaintiff has the opportunity to respond in a manner where readers would see both the libelous statement and the rebuttal of fact. Without this opportunity, self-policing and the most common method to combat internet libel is no longer available. (http://www.law.buffalo.edu/Academics/courses/629/computer_law_policy_articles/CompLawPapers/holland.htm)
How to protect yourself from charges of libel and how to sue for internet libel
First, webmasters and site owners/operators should “take extra care to check your facts [which] can go a long way toward reducing legal risk.”
If an individual feels that they have been defamed, their first step is to inform the webmaster or person responsible for the site to remove the libelous content.
Two options are presented online for the next step for the accused.
First, if [webmasters and site owners] feel that the material in question is just an opinion or criticism,
“reply and confidently point out that criticism is not libel. Ask the complainant to tell you what page they’re complaining about (they’ll need to be specific, and it’ll help you). Go through the posts and remove any that are a bit iffy.“
(http://james.cridland.net/blog/2008/01/30/how-to-deal-with-legal-threats-for-forum-owners/)
The second recommendation is that webmasters and site owners can protect themselves if someone threatens legal action by simply “Remov[ing] any potentially libelous content at once.” (http://www.ehow.com/how_2040840_sue-someone-internet-libel.html)
Normally, these actions should resolve the issue. In addition, the libeler may not want to pursue defending the case because libel cases can become protracted due to the various laws and precedence. These cases can become expenseive. For this reason, cases are often settled out of court if the case against the libeler is strong.
From the plantiff’s perspective, if the libeler does not remove the libelous information after be requested to, next steps include understanding the laws in your area. Track subsequent blogging based on the libelous material and line up witnesses. Consider a lawyer and pursue the next easiest solution for all parties – settlement out of court.
My specific experience
I when I originally addressed the statements made about me, I was angry at not being able to defend myself on the forum in question because I had been locked out. I decided to blow it off, but then received feedback that left me concerned about having the statements remain online in that forum.
To address this, I followed the first step for addressing internet libel. I submitted a request online to the owner of that website requesting that the libelous material be removed (my request at the bottom of this post). Sadly, I had to create a new login and email in order to get back into her site, which caused me some concern, but I was completely up front about who I was and why I had to do it. I included all negative statement made about me, but since doing this research, I realize that only some of the statements are libelous, and others are merely opinions.
I’d like to review what I learned, and items I got wrong and right.
Item 1) (and potentially the most damaging).“You are either the person who has been reeping havoc on another forum, or the person who has been stalking a family member on forums for a completely unrelated subject. … If you are that stalker, it means you are the person who has been hacking and crashing our computers.”
Libel. It can certainly be proven false that I have reeped havoc or stalked anyone or crashed any computers. She would have to provide proof of this – it cannot be relegated to “protected opinion.” This could certainly cause me personal and reputation damage.
Item 2). “NOTICE TO VISITORS!
THIS PERSON PROCEEDED TO EXHIBIT HARRASSMENT BEHAVIORS FOLLOWING THIS INITIAL POST. SHE SPREAD THE TOPIC OVER 2 CATEGORIES IN ATTENTION-SEEKING, MANIPULATIVE BEHAVIOR. PLEASE REFER TO THE OTHER BORAD WHERE THIS TOPIC SHOULD HAVE BEEN LEFT INSTEAD OF SPLIT UP.
IN ORDER TO PREVENT VISITORS FROM BEING SCARED OFF BY HER BEHAVIOR, CERTAIN EDITS ARE BEING MADE TO THIS THREAD AND IT WILL BE LOCKED.“
This entire statement raises several concerns. This warning statement is placed at the start of the post I initially posted. It is also posted under MY NAME rather than in a separate post with her name.
There are several issues here.
a) “THIS PERSON PROCEEDED TO EXHIBIT HARRASSMENT BEHAVIORS“
Libel? We could look at the laws for harassment and determine if my actions constituted harassment. This could be proven true or false, so it is probably libel. Could she prove these true? Since she edited the posts significantly, she has probably removed any information (if it ever existed) that she could use to back up her assertion.
b) “CERTAIN EDITS ARE BEING MADE TO THIS THREAD” and for completeness I am including other similar statements in this category ,”I HAVE NOT SEEN [YOUR] BEHAVIOR AS PSYCHOTIC, THEREFORE AM ONLY EDITING OUT THE MOST OFFENSIVE STATEMENTS FROM YOUR POSTS.” and elsewhere “IN ORDER TO PREVENT VISITORS FROM BEING SCARED OFF BY HER BEHAVIOR, CERTAIN EDITS ARE BEING MADE TO THIS THREAD AND IT WILL BE LOCKED.”
Forum owner liability – yes. These three references announce that she made significant edits to my posts. Any liability this moderator’s service provider may have been exposed to is effectively removed (and placed on the shoulders of the owner/moderator of this site) because she admits in writing that she significantly edited my posts. Service provider now gets immunity, she loses immunity.
c) “ATTENTION-SEEKING, MANIPULATIVE BEHAVIOR“
Opinion? I am not sure there is any way “prove” this statement, so it may be protected opinion. I probably screwed up this one.
Item 3). “(remember, I also looked at your site), and nothing but what appears to be unsubstantiated one-sided simple literature research to which you can’t give references, is far from enough to give reasonable logical conclusions of any sort.”
a) Libel? This states that the work I present is “unsubstantiated” even though I can prove otherwise by pointing to the “All References” section on my website.
b) I am not sure about reference to my inability to “give reasonable logical conclusions,” although perhaps one versed in the science of logic could prove otherwise. After all, the same “logic” is used when professional articles and their references are peer-reviewed for publication.
Item 4). “[YOU WERE INDEED] BEING ANTAGONISTIC THROUGHOUT [YOUR] POSTS, INCLUDING WHAT [I] EDITED TO PREVENT VISITORS FROM [YOUR] ASSAULT“
a) “ANTAGONISTIC THROUGHOUT [YOUR] POSTS, INCLUDING WHAT [I] EDITED“
Forum owner liability. Another example that frees her service provider from liability based on the fact that she edited nontrivial content.
b) “PREVENT VISITORS FROM [YOUR] ASSAULT“
Libel. Okay, this is significant – what “assault” did I perpetrate? There is no proof of the factualness that statement, although definitions of “assault” can be used. It is possible that there WAS proof, but she edited the post(s).
Item 5). “IN ORDER TO PREVENT VISITORS FROM BEING SCARED OFF BY HER BEHAVIOR, CERTAIN EDITS ARE BEING MADE TO THIS THREAD AND IT WILL BE LOCKED.“
If I had not been locked out, I could have addressed the libelous statements by “mak[ing] the truth available.” I was unable to “effectively combat” the libel by “reply[ing] by posting a message on the same bulletin board with the facts.”
Otherwise we might have been able to resolve this easily.
In summary
There seem to be a few clear-cut examples of internet libel and assumption of forum liability on this woman’s site.
The accusations of abuse, stalking, reeping havoc, and crashing computers are the most serious.
She makes this harder on herself to prove truth because she edited posts significantly. She showed “reckless regard for the truth.”
She seeks to damage my reputation. She states the opinion (or is it?) that visitors will be scared of by my behavior, and specifically addresses visitors in a way that can damage my reputation (at the top of the posts, in bold red capital letters).
She also claims to be a practicing therapist in this field, which increases the probability that her “unspoken facts” will carry more weight in defaming me than the accusations of a general moderator with expertise in an unrelated field.
She hides behind anonymity, making it impossible to contact her unless you register on her site. If your IP address is not blocked.
Post Script 1: the website in question
Since I am unable to confirm the continued existence of the libelous content, here is the website in question so that the libelous statements and my rebuttal can possibly be matched up.
The following links have been updated as my interaction with her occurred. I have print outs of the exchange and also the changes in website and content. I am now blocked and unable to comment on current content.
The owner/moderator goes by the screen name of “silence“.
The main website is: Survivors Garden Support Community for Multiples & Abuse Survivors:
http://survivorsgarden.homestead.com/
The forum where the interchanges occurred is: Survivors Garden Support Forum:
http://www.survivorsgarden.proboards33.com/
Post Script 2: The content of my formal written request:
This letter is addressed to the webmaster, administrator, and/or owner of the Survivor’s Garden website (survivorsgarden.homestead.com/).
Your site contains enough defamatory and libelous material about me for me to pursue legal action. I believe that we can settle this easily and without further action if you comply with this legal request.
Please note that I wanted to contact you privately and make a more friendly request about this, but I have no other way to contact you other than creating a new account to post this message. You list no email and you locked my original account. But be assured I will not post anything else, and you can delete it after you consider complying with this legal request.
According to the guidelines for addressing Internet Libel, I am hereby informing you in writing a request that you remove all offensive and libelous information about me from your website.
I received the following legal advice:
“The complainant must first ask the webmaster or person responsible for the offensive content, in writing, to remove it before legal action can be taken.”
Technically, I don’t even need to know your name as there is precedence for legal action between “anonymous” users on the internet.
The offensive content includes (but is not limited to) your assertions that I am reeping havoc or stalking a family member on another forum, and that I have been hacking and crashing your computers. It also includes accusations of harassment, abuse, and offensive behavior – including all of your assertions in bold capital red letters.
You have no proof of these assertions that would stand up to legal scrutiny.
There are two ways you can comply with the request. I believe one you will find acceptable, and one you will not find acceptable.
First, you can restore all of my original posts in their entirety, unedited by you, with all the capital red letter statements removed. And all of your original posts must be restored for any information you had edited out. I do not believe you will agree to this because of your concern that my posts would scare off visitors because they might feel the site is unsafe. It is your prerogative to remove someone’s content if you don’t like it – but you must remove all of it – not edit it or change it with your own comments embedded in my posts.
The second option is that you remove all evidence of me from your website – all posts, all mentions of me including my username, website, etc. I believe that this option will satisfy both of our needs. It will allow you to control what your visitors see. It will also remove the libel from your website and prevent further action on my part.
I had hoped it would not come to this, but after you locked both the thread and my account before I could respond to your libelous statements, I have no choice but to pursue this more formally.
I will check back on your site to assess how you respond to my formal request. If this can be resolved to our mutual satisfaction quickly and easily, no further action will be required.
Sincerely,
Emily
Formally known as member “Emilyfirstgirl” on your site.
Wow!!! I’m sort of speechless. I’m sorry you had such an experience. I can see how hurtful this is for you, and I don’t blame you. I wish I knew more to say, but I just wanted you to know I was here reading and caring and “listening.” It’s hard dealing with situations like that.