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The law on defamation and posting on discussion boads

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  • The law on defamation and posting on discussion boads

    So you found this web site and want to let loose. Go ahead, make your day count. Fire away. Here is a mini primer on the relevant law and why you can't sue our web host or the underdog.

    1. Try to post in a way that is phrased so it is clear to be "my opinion", "I found her to be ..."
    2. Try not to say she is infected with a loathsome disease, unless you passed it to her so it is a fact.
    3. See this web site, it is way cool.
    4. We do not need to delete most postings. 47 U.S.C. sec. 230 gives ISPs and message board hosts the discretion to keep postings or delete them in response to claims by others that a posting is defamatory or libelous.
    5. Refrain from publication of private facts. The basic elements are (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern. Publication on the web is considered public disclosure. However, if a private fact is deemed "newsworthy," it may be legal to print it even if it might be considered "offensive to a reasonable person."

    Private facts are personal details about someone that have not been previously disclosed to the public. A person's infection with a ***ual disease, or mental disorder, ***ual orientation or personal "private" romantic encounter could all be private facts. Once publicly disclosed by that person, however, they move into the public domain. There may be an issue (defense) if previously disclosed.

    6. The six primary defamation defenses are:

    1. Truth. This is a complete defense, but you must prove it. See also below about facts v. opinion.
    2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." (Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
    3. Privilege. The privilege may be absolute or qualified. Privilege is a strange animal, in some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
    4. Consent. Look for this if you have a model release and a nude photo, otherwise forget it.
    5. Innocent dissemination. In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. E.g. the host or the underdog.
    6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. This is the most fun defense. You can start slinging the mud!

    7. Try to only express your "opinions". While you cannot simply label a statement as your "opinion" to create a defense. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is like I said above, how you state your opinion is important, she is an unprofessional scoundrel, vs. she failed her law school ethics class at USC is a statement of fact.

    A few courts have even held that statements made in the context of an Internet bulletin board or chat room are very likely to be opinions or hyperbole, and interpreted as such (especially if posted by an alias).
    The Underdog's bite is much worse then his bark!