What Is Defamation and Libel and How Does It Apply to Web Publishing?

Disclaimer: This article is for informational purposes only, and does not constitute legal advice. For expert legal advice that relates to your area and particular situation, please consult a legal professional.

Defamation and libel lawsuits are nothing new. But with high-profile cases like E Jean Carroll's defamation lawsuit against Donald Trump and actors Johnny Depp and Amber Heard's defamation trial dominating the news in recent years, the topic has become top of mind for many people, including web publishers. Could you face your very own defamation lawsuit for creating and publishing online content? And if so, under what circumstances?

In this article, we’re going to explore how defamation and libel apply to the world of web publishing. We’ll go over what they are, how they apply to online publications, and the big question that may be on your mind, whether or not a web publisher can be sued for making defamatory statements.

What Is Defamation and Libel?

Before we get into some examples, let’s clarify exactly what we’re talking about here. Without using too much legalese, defamation occurs when an individual provides false information that can damage someone else’s reputation. 

It typically falls under one of two categories:

• Slander, which is verbal defamation
• And libel, or written defamation

So, as you may imagine, the libel form of defamation is most relevant for web publishers who post written information on the internet. In fact, it has become such an issue that online defamation like this now has its own name: cyber libel.

How Does Online Defamation Apply to Web Publishing?

You may only hear about the high-profile cases, but cyber libel and other forms of online defamation can happen in a variety of situations. They just need to have the following elements:

• A false statement of fact about the plaintiff (so an opinion piece doesn’t count)

• Publication of this statement to a third party

• The statement was non-confidential and published maliciously, or at the very least negligently

• The published statement harmed the plaintiff’s reputation

Of course, the exact requirements for an online defamation case will depend on the laws in your area. But generally speaking, if you’re publishing the type of content that fits this criteria, you could be on the receiving end of an online defamation lawsuit.

Examples of Online Defamation and Cyber Libel

Now, you may be thinking that as long as you do your due diligence and avoid including any false information or accusations in a blog post, then you’re in the clear. But online defamation doesn’t just occur in articles - it can happen in any kind of content you publish on the internet.

For example:

• Online reviews on review sites like Yelp or Google Business. Business owners can sue for bad reviews against their business. However, honest reviews are protected by the Consumer Review Fairness Act (CRFA), and California’s Anti-SLAPP laws prevent businesses from using lawsuits to intimidate people exercising their right to free speech. So, it’s important for businesses to tread lightly here.

• YouTube reviews. If a reviewer verbally makes false claims about a company’s products or services, it could be considered slander.

• Social media. If you’re making false statements or sharing modified images that show a company or individual in a bad light on Facebook, Twitter, or Instagram, then the target of these accusations could pursue legal action.

• Industry-specific platforms: One of the elements for an online defamation case may be publication to a third party, but note that this doesn’t mean it has to be available to everyone on the internet. If you’re posting malpractice allegations against lawyers or other types of professionals on industry-specific websites, for example, then you could be held accountable.

It may not seem like a single post can make a huge difference in the lives of individuals, especially if only a few people see it. But while it is harder for someone like a public figure to prove defamation than a private citizen (since they have put themselves in the public eye, they have to prove actual malice, not just negligence like a private figure), the effects of one post can still be devastating if the right person or people see it. So devastating, in fact, that they may just come after you for damages.

Who Can Be Sued for Online Defamation and Libel?

While you may think that online defamation accusations should be directed at the Internet Service Provider (ISP) or hosting website, this isn’t an option due to Section 230 of the Communications Decency Act. The law states that:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (See 47 U.S.C. § 230)

This means that you are directly responsible for what you post online, and can therefore be sued for online defamation. Even if you republish someone else’s defamatory statement and credit the source, you can still be held liable for putting this information out there.

What If Someone Leaves Defamatory Comments on Your Website?

In this case, Section 230 will likely offer you some protection. Since bloggers and other web publishers can be considered both a user and a provider of interactive computer services, you should not be held responsible for any defamatory statements in those comments.

What If I Publish AI-Generated Content That Contains Defamatory Statements?

Since the technology is still so new, there isn’t really a consensus on whether AI can be sued for defamation yet. That doesn’t mean that there haven’t been any lawsuits, though. For example, a man named Jeffery Battle is currently suing Microsoft for libel because Bing's AI was confusing him with a terrorist by the name of Jeffrey Leon Battle.

So, until the laws are clarified here, the best thing you can do to protect yourself is assume that you are responsible for publishing any AI-generated content that contains defamatory statements. If you’re publishing work from other writers, this may mean running the content through an AI checker to see how much of it has been generated by AI, and then fact-checking any highlighted sections. You might even consider using a fact checking tool as well.

There’s no doubt that legal battles can be incredibly time-consuming and costly, so it’s better to be safe than sorry in this situation.

Final Thoughts

Since web publishers can be held liable for posting defamatory statements online, it’s important to take steps to avoid a potential lawsuit. Fortunately, by learning about what constitutes a defamatory statement, how it applies to web publishing, and who can be sued for online defamation, you’ll be in a better position to avoid any kind of legal trouble.

Ultimately, though, as long as you’re committed to posting honest and factual content, you should be able to avoid any kind of defamation accusations.