Defamation on the Internet: Accommodating the Growth of Social Media

A person may be a victim of defamation when another person has said something false about her. Defamation is a generic term for libel (a defamatory statement that is written) and slander (a defamatory statement which is spoken). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false. Further, the statement must actually be harmful to the victim’s reputation or have caused monetary losses. In most cases, the victim must be able to identify and quantify her actual damages, hurt feelings are often insufficient.

In order to be considered defamation, one person or entity must make false factual statements about another and communicate (or “publish”) those statements to a third party. The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and it must actually be false. When the statement involves public figures or issues of public concern – such as with political candidates – in order to protect the open debate and discussion regarding these public figures, there must also be some malicious intent and affirmative knowledge that the statement is false.

However, courts balance the free speech rights protected by the First Amendment with a person’s claims of defamation. Thus, defamation suits can be particularly difficult to win in New Jersey where the courts are especially concerned with the effect defamation lawsuits have on discouraging free speech, particularly in areas of public concern. Courts have stated that even the threat of prolonged and expensive litigation can have a chilling effect on journalistic criticism and comment upon public figures and public affairs which are important to our free speech rights.

Traditionally in defamation lawsuits, this publication of defamatory statements has been communicated through newspapers, radio, or television. However, the ever-expanding use of the internet and social media has made defamation a growing issue on the internet, especially where the author of the statements is anonymous.

However, the New Jersey Supreme Court has determined that, pursuant to the New Jersey Constitution, people have a reasonable expectation of privacy in the subscriber information they provide to their internet service provider (“ISP”). This makes it difficult to identify who is making allegedly defamatory statements on the web. The only way to proceed would be to file a suit against a fictional name, and then serve a subpoena on the ISP to identify the real defendant. However, the plaintiff must follow a strict set of procedures and set forth a valid claim of defamation before the court will consent to the subpoena.

A defamation suit based upon a statement on the internet is also difficult because of the short time period in which a plaintiff is permitted to bring such an action. Courts have determined that the one year statute of limitations for defamation actions is applicable to internet publications, meaning that the plaintiff only has one year to file a lawsuit and that the one year period begins to run the first time the defamatory statement is published, not by any later republication of the same statement.

The attorneys at McLaughlin & Nardi, LLC are experienced with the law of defamation and familiar with its evolution in New Jersey. To learn more about what we may be able to do to help, please visit our website, or contact one of our New Jersey lawyers by e-mail or telephone at (973) 890-0004.