Internet Defamation of Character Primer: What is a defamatory statement?
An anonymous comment was posted about your company on a review web site stating that your company cheated them out of money, that the people at your company are crooks and that customers should avoid doing business with your company at all cost. The web site where the statement was posted is coming back as the third Google search result just below your web site and domain name. Your first impulse is that the statement is defamation. Your second is to contact an attorney to send a threat letter to the web site owner demanding that comment removed.
The First Question: In order for a statement to be defamatory under law, the statement posted on the internet must be a false statement of fact, rather than a statement of opinion. Clients are often confused about what is a fact versus an opinion. Surprisingly, so are courts, judges and many lawyers who do not practice defamation law. The reality is that defamation can law can be hard to decipher on this critical issue of “what is a false statement of fact” as the first element of proving defamation on the internet.
A defamatory statement is one that diminishes your reputation or causes people to think less of you. Statements that are merely offensive, are not defamatory. Defamatory statements that disparage a company’s goods or services are called trade libel, which damages the company by disparaging its goods or services.
A statement of opinion cannot be defamatory because it cannot be proven true or false. In general, facts are statements that can be proven true or false. “XYZ Company was sued by the Attorney General of the State of Arizona for defrauding customers” states several fact that, if false, could be considered defamatory. “I think XYZ Company should be investigated by the State of California” is a statement of opinion. Opinions are matters of belief or ideas that cannot be proven one way or the other.
There are many gray areas under defamation law between facts and opinions. Courts will review the context and medium in which the alleged defamation occurred as an important part of the analysis. Unfortunately, courts have little experience understanding how defamation on the internet, say on a review site or blog comment, should be treated against the First Amendment right to free speech. Even attorneys who do not understand the internet often misjudge the merits of a case originating with a statement.