defamation

Defamation is a false statement of fact that hurts your reputation. This sounds simple, but it is not. These can be complicated cases that involve the interplay between civil litigation, the First Amendment and, frequently, the court of public opinion.


We can represent you in a defamation case (sometimes called libel or slander). Sara has handled these matters on both the plaintiff and defense side, including winning a groundbreaking trial over online defamatory reviews.


Our defamation clients have ranged from small business owners to large private corporations. We have also advised clients about how to remove harmful online reviews. Finally, Sara has written and spoken frequently to trade groups about defamation law and how to deal with negative online reviews.


Some information about the basics of defamation law is below.

defamation law 101

Defamation is also known as slander (when defamatory words are spoken) or libel (when defamatory words are written). There are five elements that must be proven to win a defamation case. 

  1. There was a “published” statement, meaning that the speaker made the statements to at least one person other than the plaintiff.
  2. The statement must be false. A true statement is never defamatory.
  3. The statement must be a statement of fact, not opinion.
  4. The “speaker” must have either been negligent in making the statement or acted with malice, depending on the type of case.
  5. The plaintiff must prove some amount of damages.

You should be aware that there is some variation in defamation law across states, and there may be nuances in the law of a state that affect the chances of any particular defamation case’s success. 


Some states have passed laws against what they call "Strategic Lawsuits Against Public Participation" or "anti-SLAPP" laws. These laws make it more difficult to file defamation lawsuits and often allow for early dismissal and recovery of attorneys' fees if someone files a frivolous defamation lawsuit against you.


Many people want to have negative reviews simply removed from a website. This may sound simple, but it is not. The First Amendment protects free speech. Although defamation is not protected by the First Amendment, courts are hesitant to stop someone from posting about a business or to force someone to remove online reviews. At a minimum, you first have to prove that the review is defamatory before the court will even consider ordering the removal of the reviews.


In addition, some people think they will simply sue the website that posted the negative reviews (such as Yelp). This is nearly impossible. A 1996 federal statute completely protects those companies from defamation lawsuits. Section 230 of the Communications Decency Act of 1996 reads:


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.


This means that Yelp and similar websites do not “publish” the statements, the very first element of a defamation claim as described above. Only the person who authored the negative reviews can be sued for the harm he has caused. This often means that even if you win a defamation case, you may never recover your losses.


You can read more about defamation and my experience taking a landmark online defamation case to trial in this article. I've also written about defamation claims by physicians based on online reviews. 


Note: this is not intended to be legal advice. You can read the full disclaimer here.