Looking for online forum libel advice

[sjakal]

What is the name of your state (only U.S. law)? California

I'm a frequent contributor on a town-wide online forum for several years now. In the past year I was critical of the local school district and I used the forum to express my opinions about the district, specifically how it is managed, and to campaign against a tax measure the district put on the ballot.

Now, someone who has identified themselves as an employee of the district may have libeled me. They have written that I, through my husband's company, would financially benefit from converting the district's schools into charter schools. None of what they wrote is true and I think they have either convinced themselves that I am someone who I am not or they are simply trying to "out" my real identity, which is a concern for me because my children attend schools in this district and I know others who have had issues with the district and their children due to the parent being critical of district management. Either way, it is clear to me that this person is looking to personally attack me (not necessarily physically). Having such a lie printed about me casts doubt in the minds of other readers about my credibility and my past criticism of the district's management.

The company that operates the online forum does not require registration to post, but has registration. I always make it a habit to log into my account when I post and my account is my real first name plus my neighborhood. This way what I write is always attributable to me. The person who wrote the false information about me is doing so anonymously so the only way to currently identify them would be through server logs. None of the moderators of the site have removed the posts due to potential libel yet they've done so for others in the past.

In my town there are several people who know my real identity and know that I write on the forum. After the anonymous person wrote the falsehood, I received an unasked-for private email from one of these people asking if I would mind sharing with them where my husband works. Therefore I feel that this case could clear the requirement of "recognizable and identifiable".

I have since explained on the forum that the person is wrong and requested that person to "cease and desist" in making this claim, that they are allowing me to make a case of libel against them (Should I also ask them to retract their statement?). I also refused to divulge any details about my family or myself on the forum so they are continuing to libel me. I feel that I have no obligation to do so because I believe that finding out my real identity is their true goal. I asked a friend who posts and may be recognizable by the anonymous poster to vouch for me by making a post that I've been misidentified. It doesn't seem to have had an effect other than to inspire another poster who knows me to also inform the forum that the other person is wrong. The anonymous poster who wrote the libel is continuing with their assertion about who I am and is laughing off the idea of a libel suit due to their belief that I'm wholly anonymous.

I'm wondering if I have a real case. I'm not happy about it at all and don't want to really go to that extreme. I made the threat of a lawsuit in the hopes that they and others could see that I would be willing to go to such an extreme because I know that my version of the truth in this matter is the most correct, that I would not make such a threat if the other person were telling the truth. So far they just think that I'm trying to bully them into silence. I feel that if they want to find out my real identity in such an adversarial manner, then they need to meet me in court so that I can seek a way to protect my children from harassment by the anonymous poster and other employees who may agree or sympathize with the anonymous poster when my real identity gets very publicly disclosed in a court case. I suppose I should ask the forum operator to remove the posts too.

My only concern that could complicate the case is if I could be considered a public figure due to the online reputation I've built up over the years with readers of the forum. If nothing works and the libel continues, I may need to seek further legal advice.

 

[Mass_Shyster]

In order to prevail in a libel suit, you must prove:

• That somebody made a false statement about you
• That somebody else believed that statement
• That the belief in that statement has caused you financial damages
• That you actually had financial damages

I don't think it's possible to do financial damage to an online persona. The fact that others don't believe you anymore is not a financial hardship.

For the sake of argument, let's say you've got an extra $10,000 kicking around that you can use for a lawsuit. You could

• file the lawsuit against an unknown party
• subpoena the records of the forum for the IP address of the unknown party
• subpoena the records of the ISP that owns that IP address for the person responsible for paying the bill for that IP address
• amend your complaint to add the name of the person responsible for paying that bill.
• Serve the IP owner with the complaint.

You'd better make that an extra $25,000.

If that person has an unsecured wireless router, it will be difficult to prove, with a preponderance of evidence (more likely than not) that said IP owner actually penned the libelous post.

A subpoena is the only effective way to get the IP address. A cease and desist letter from your attorney to the forum admins may get them to remove the offensive post(s).

 

[quincy]

I am seeing several complications that you would have in pursuing a defamation action against this anonymous poster, sjakal, even though it is possible to successfully sue a person for defaming an online persona, given the right facts.

Based only on what you have posted here (and a review of what exactly was written would be needed to make a clearer judgment), I question first of all whether what the anonymous poster wrote about you would even be viewed by a court as defamatory. Claiming, even falsely, that a person may gain financially should a certain measure pass is not necessarily defamatory. You can support a measure and campaign for its passage, even when you stand to gain from its passage. In fact, very few people will support a measure that does not benefit them in some way.

I also question whether the necessary element of "fault" could be demonstrated (fault is proof of negligence or actual malice, depending on how the court views you - as a private figure or a limited public one), when the anonymous poster does not know who you are. Actual malice, for instance, is shown with proof that a person made a knowingly false statement.

Because this poster apparently does not know who you are and you, likewise, do not know who he is, and because both of you are reluctant to reveal your true identities to settle the matter online (you proving to him the falsity of his statements and he apologizing to you for his error), this creates obvious problems. Which anonymous person do you believe? If you are trying to "save" your online credibility, you have to reveal online who you really are to shut him up, or attempt to sue him after getting his identity through a court order, and this will also reveal who you really are, which will shut him up. Either way, your real identity must be revealed.

You can certainly run your situation by an attorney in your area. The attorney can review all of the facts and he can review the online exchanges between you and the anonymous poster, to see if there is enough there to support a suit. I am afraid I am not seeing it from here.

You could just post online California's defamation law (Civil Code §§44, 45a and 46) as a broad (even though perhaps inapplicable) hint to the poster that you are considering suing - and leave it at that. Or you could list those who DO stand to gain (financially and otherwise) from converting district schools to charter schools, thereby diverting attention away from your alleged financial benefits - and leave it at that.

An online forum gives you the opportunity to refute what others say and to provide evidence to support what you say. How much evidence you are comfortable providing is up to you. People can choose to believe you or not based on what you post.

But, if you decide to investigate the possibilities of pursuing legal action against this anonymous poster, you should see an attorney in your area to go over the facts. For a defamation action in California, you have one year to file from the date of first publication of the defamatory material.

Good luck.

Edit to add: Stevef, financial damages are not necessary for a defamation suit - just reputational injury - but it is possible for an online persona to be defamed and to suffer both - and the average cost of a defamation action in the U.S. is around $180,000, although many will be much less. Online actions, especially those involving anonymous posters and those involving more than one state, tend to be pretty costly.

 

[sjakal]

Thank you for your responses!

 

[Mass_Shyster]

it is possible for an online persona to be defamed and to suffer both (reputational injury and financial injury)

It seem to me that an online persona would have to suffer both. I don't see how he could recover for only reputational injury unless that also had the potential to create financial injury.

In the case of an author using a pen name, reputational injury to that persona could cause a financial hardship to the person behind the persona.

In the instant case, the person behind the persona is receiving no financial benefit from the persona. I don't think the persona deserves the protection of the courts.

I've looked around (very briefly) and was unable to locate any information on the subject on Westlaw. Do you have any pointers?

 

[tranquility]

No matter the theory, at least at this point, the damages are not that great. Of more concern, I'm not sure the OP's goals.

Many things can be accomplished and each has a different amount of time and money to invest on getting it done. I think we'd all agree there are many issues here which are on the edge of where case law is on the matters. It's not always easy to apply black-letter law to on line defamation cases. To prosecute anything, as quincy said, is going to take a lot of money as the attorneys will spend a lot of time in research for the briefs and motions.

To have a low damages lawsuit for a high cost seems a difficult calculation, especially when there is a good risk as to success too. I could see something like this to lead to a discovery nightmare.

 

[tilwch24]

Networking sites

At what point would someone have grounds to sew someone over Libel? If a person speaks ill mannered of someone calling them liers, greedy, then to end it all a bad mother, would that be considered Libel? Would it be Libel be considered if the spouse of that person actually states a name? Maybe it wouldn't be worth going to court over but maybe it can later be used in a child custody case? I understand that someone that goes after Libel/Slander really needs to have lots of money, well maybe not so for people of divorce?

 

[quincy]

tilwch24, every case is fact-specific, so there is no way to tell you what, exactly, would lead to a successful defamation suit. For all defamation suits, however, you need to prove that a defamatory statement was made about an identified or identifiable person, the statement was made with negligence or actual malice, the statement was published to a "third party" (someone other than the person defamed) and reputational injury resulted. Reputational injury can be shown through economic losses or through demonstrable shunning, ridicule, a lowering of esteem in the community, etc.

So, simply, for an actionable defamation case, there must be proof of publication to a third party, identification, the defamatory statement, fault, and injury.

As to the question of whether comments that referred to someone as a liar, greedy or a bad mother could support a defamation action, the answer is probably not, even if a person is identified by name or identifiable by the comments made. These comments would generally be considered opinion and protected by the First Amendment's right to free expression. However it would depend on the context. Again, everything in law is fact-specific. Whether these comments could be used in a child custody case is a question for the attorney representing the client in such a case. I would guess, however, that comments like these would not be regarded as having a whole lot of importance in a custody decision, as parties in divorce and custody cases often name-call.

I agree with everything tranquility said. A review of all of the facts is necessary to determine whether an action is worth pursuing.

Stevef, here is one case you can review, and I can provide others if necessary. Jane Doe v Friendfinder Network, Inc, and Various, Inc, Civil Action No. 07-CV-286 (D.N.H., March 27, 2008). Most of these cases have broken no new legal ground.

In Jane Doe, Doe brought suit against a website that displayed an online profile created by "petra03755," purportedly about "petra03755" but resembling the profile of another anonymous internet persona. Members of Jane Doe's community linked the petra profile with Jane Doe and her profile.

The suit was for defamation; intentional infliction of emotional distress; intentional, reckless, negligent and/or willful and wanton conduct; violations of the New Hampshire Consumer Protection Act; violations of the Lanham Act.

Many of the claims were dismissed by the Court because the Communications Decency Act protects websites, for the most part, from publications made by third parties on their sites, under Section 230 of the Act. However, on the right of publicity claim (under New Hampshire's publicity rights law), and under the Lanham Act's false designation of origin and false advertising, the case was allowed to proceed.

Claims were that the site's profile caused injury to Doe's online persona's reputation, causing lost job opportunites for this online persona as a result. The fake persona based on the "real" Doe persona was used by the website to attract business to the site by linking the petra persona (ie. Jane Doe persona) falsely with the site.

Now, had Jane Doe filed suit against the user who created the "petra03755" profile, she may have had success with her defamation claim. Targeting the website instead, however, led to its dismissal under §230.

The facts in this case are a bit confusing to explain briefly.

 

[Mass_Shyster]

Claims were that the site's profile caused injury to Doe's online persona's reputation, causing lost job opportunites for this online persona as a result. The fake persona based on the "real" Doe persona was used by the website to attract business to the site by linking the petra persona (ie. Jane Doe persona) falsely with the site.

Thanks for the link. I still think this is distinguished from OP's case for several reasons:

First, Jane Doe claimed that she suffered due to the perception that she was the false online persona. It was not an anonymous online persona that was defamed, but Jane Doe.

Secondly, the defamation was based on economic harm (lost job opportunities) and reputational injury based on claimed sexual activities (which are often categorized as defamation per se).

In the OP's case, the injury was to the online persona's reputation, causing a loss of credibility for the online persona, not that the OP was being 'shunned or avoided'.

It is interesting to note the problems the plaintiff had attempting to track down the person who actually posted the defamatory statements. The posts were made from a public computer in a college, and tied to a Yahoo email account, both of which were untraceable.

 

[quincy]

Yes, the Jane Doe case IS distinguishable from sjakal's case, just as ALL cases are distinguishable from any other case by the facts presented. And, with sjakal's facts as presented here, there IS no case, which distinguishes it in a most important way from Jane Doe's action.

But I would reread the facts of Doe's case again and the facts as presented by sjakal here.

As I said earlier, and will repeat, ALL cases are fact-specific. Nothing new was presented in Doe's case to make it stand out as especially exceptional (at least for a 2008 case). There are others, as I said, that argue for reputational injury of an online (and offline) persona. Most of these can be based on case law dating back before the internet, to authors who based their fictional characters on real people (or so a suit would claim).

Perhaps examples, Steve, can explain it better? If Abigail Van Buren had only been known as Dear Abby, her "Abby" persona could be defamed by another, if Abby were used, say, to promote a porn site. Abigail Van Buren would not be defamed, as such, but her Abby persona could be, as that is how she was known - this even if NO ONE knew who the real Abby was. A Mark Twain could defame a Dr. Seuss.

Anonymous online posters are treated no differently, legally, than authors who use pseudonyms or pen names as a way to protect their identities and privacy. There can be reputations built on these anonymous names, pseudonyms, pen names. Whether a defamation suit is worthwhile could depend on what sort of reputational value can be attached to the anonymous name.

It is possible, in other words, to defame an online persona. Reputational injury does not need to express itself as a financial injury (although, for the most part, most defamation actions that are filed that clearly demonstrate reputational injury will also clearly show economic losses resulted, as well).

You are right that it is not always possible to trace the originator of an online post, although it is more possible now than it was even in 2008. It depends on how many dollars one wishes to spend on it. Often the costs will outweigh any benefits that could be realized.