Legal question re : falsely attributing

Factual Questions
1

So Poster B wants to sue Poster A . I assume for defamation.

Ignoring the fact that Poster B is obviously a nimrod (and yes, I am dying to find out who Poster B is), I have a question.

The fact the we have user names here makes us anonymous, doesn’t it? I could write that I’m a lawyer, but I could actually be a janitor, a teacher, Bill Clinton, etc…

So my question is this. Can you defame an anonymous entity? Can that anonymous entity actually be damaged in any way that could possibly be demonstrated in court? Certainly not his/her professional reputation, since we do not know a) who he/she is or b) his/her actual profession.

What gives? Is there a possibility that Poster B wouldn’t be laughed out of court?

2

IANAL, but I don’t see a lot of difference between the user names we have here and, say, a pen name that an author of fiction might use, or the stage name of an actor.

Injury and insult happens to the person to whom the name is attached. Anonymity is a factor, I’m sure, but posters here build up reputations and respectability just like they do in the real world; the fact that I don’t know their real name or location doesn’t seem (to me) to have any bearing on the matter; Agatha Christie is still insulted if I defame Mary Westmacott (or she would be, were she alive).

3

In the UK, defamation or libel means lowering the victim in the eyes of right-thinking people.

The classic definition is (from a Canadian site I think):

“a publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.”
(Parke, B. in Parmiter v. Coupland (1840) GM&W 105 at 108)

With libel, identity is an issue. The victim has to be positively identifiable by the libel for a case to succeed. It doesn’t have to explicity mention them by name, but it does have to obviously refer to that particular person.

“A top hollywood filmstar is reported to be a pedophile” would not likely be defamatory, but “a top hollywood filmstar and ex-Olympic 100m champion known for his love of racehorsing and eight ex-wives is reported to be a pedophile” would certainly start to approach it.

Then there is the issue of dissemination. Is defaming somone among a virtual community the same defaming them in an actual community? What I mean is Big_Cock99’s friends and neighbours probably don’t know him as Big_Cock99. They probably know him as Robert, the nerd at no. 74. They probably don’t even visit the same community board, let alone recognise Big_Cock99 as Robert should they visit it.

But Big_Cock99’s peers on the community board do know him. Does this count as a valid entity? Is he suing as Big_Cock99, or Robert Nerd? Do we count a virtual reputation (one that exists solely online) as we would an everyday one? Do we count “hatred and ridicule” from people that wouldn’t recognise Big_Cock99 in everyday life?

Does a webcommunity board count as a publication? (If not it would be slander). I would argue it does, a teacher successfully sued an ex-pupil for a defamatory posting on a schoolfriends-reunited type website.

So I would say it hinges on the issue of what constitues an identity, reputation and peer group.

4

It gets more complex in communities like this because some people do use their IRL names as their screen-names and at least theoretically a “slander” against one person using their IRL name as their screen-name could be perceived to damage others.

Yes, there have been successful cases fought about stuff published on messageboards (I think it was in ATMB that I asked this question almost a year ago when Geoffrey Robertson took on just such a case -I just can’t remember the thread title).

It has been held already that messageboards can be regarded as “publication”, and in fact one of the key arguments AGAINST the case Robertson took on was the launch of the legal action in Australia as opposed to the US (Australia’s defamation laws in the case concerned were far more favourable towards the complainant than the laws of the country in which the hosting server was located).

Defamation laws vary widely, to the extent that in some countries something said in a postcard can be held to be “public” but that same thing said in a letter enclosed in an envelope is not.

Theoretically at least, if I was to post something defamatory in my LiveJournal which damaged someone else who was identifiable, the fact that my LiveJournal can only be read by my friends is no defence. Something defamatory and which harms another is defamatory whether I repeat it to my friends or my enemies (OK, I know that in Australia as in the UK there are exceptions if it’s only communicated to someone in a “special” or “privileged” relationship); the EXTENT of publication might influence the damages awarded, but it doesn’t change the essential nature of the offence.

While our screen-names might offer us a degree of anonymity, there are legal circumstances under which administrators would have no choice but to disclose information which would ultimately allow posters to be identified.

I admin another messageboard - as do many people here - there are circumstances under which I could be compelled to reveal an IP. While those circumstances are mostly criminal (in which case the authorities wouldn’t really need me to reveal ANYTHING, but it would be a lot quicker for them if I did), websites and messageboards are not essentially much different than talking over the fence to your neighbours in a small town or publishing something in a small circulation newspaper.

The fact that someone doesn’t know me - personally - doesn’t prevent me from being defamed. I don’t know most celebrities personally or know where they live or know their real names, either, but it doesn’t mean that I can say whatever I want about them with impunity.

Heck, I’ve probably made enough references to SPOOFE and toothbrushes on these boards that I should be paying him damages forever.

Until the international litigation which is happening right now is resolved, none of us are really going to have many answers, and to be honest messageboards like this one can’t afford to defend even the most frivolous of actions - so if people keep threatening lawsuits, we’ll lose these kinds of forums…

5

That is what I’m talking about, though. I would not be identifiable IRL from this board unless I was to go out of my way to link my user name and my actual name.

6

I just want to say I appreciate the very helpful, informative, and on-topic answers in here. I wanted to ask this as well, but was fearful it would turn into a flame-fest over Poster A, or else be too specific and be closed.

Good info, all.

7

Not entirely spooje.

Let’s assume for a moment that you’d posted something along the lines of (don’t stress mods, just using this as an example) “reprise is clearly an unfit mother who allows her children to be sexually abused and never feeds them”.

You might not PERSONALLY know me, but I can pretty much ultimately be traced via this messageboard if the concern about the welfare of my children is such that the authorities wish to find me.

Now let me UP the ante for a moment.

I’m a long-time poster of this community, and I’m often very open about my life.

Let’s assume for a moment that I have a REALLY bad night and I hit one of my children too hard; let’s assume that I hit them hard enough to do them physical harm. Believe me, my IP can be traced pretty fast and through that my ISP details - including (if warranted) my name and address.

No - messageboards DON’T routinely hand over IPs just because someone asks for them, but there are circumstances under which they are legally required to do so. And even if a messageboard is CERTAIN that they would prevail legally, it doesn’t mean that they can afford the legal costs involved in defending themselves.

8

istara and reprise have provided some good information. The question of damages is another consideration.

Note that the torts of slander and libel is designed not to compensate injured feelings but an injured reputation. Damages for a succesful action are awarded to consolidate (for personal distress); reparate (for harm done to personal or business reputation); and vindicate (demonstrate to the public that the allegation was false).

Even if one could sue for defamation of one’s user name (which I very much doubt), there would be no point. What monetary value would a court attach to injury done to Poster B’s online reputation? What evidence could Poster B lead to show he or she has suffered a compensatable loss? IMO, Poster B could only hope for, if anything, an award of nominal damages (about a buck :))

This is a very different to an injury done to B’s real-life reputation. This type of injury can be proved by evidence and perhaps quantified in monetary terms.
Hmm, on hindsight, perhaps it woud be different if Poster B ran an online emporium, “Poster B’s Pornhouse”. If Poster A defamed Poster B (“his p0rn 'aint no good!”), maybe Poster B could show that A’s words lead to a loss of business, which would be a quantifiable and compensatable loss. Food for thought. :slight_smile:

9

Also if the defamed poster had some official capacity at the message board in question?

10

The point I was trying to make issy is that even if the plaintiff had no possible hope of winning an action against a messageboard, most messageboards can’t afford to defend the action anyway, so they’ll either settle, hand over the information, or just abandon the messageboard entirely…

11

This is the issue I’m questioning. Narrad phrased it much better than I could.

12

Oh, thought of something else.

Generally, everyone involved in the process of publishing defamatory material can be held liable. That is, everyone who communicates (republishes) the defamatory material to a person other than the plaintiff commits a tort against the plaintiff.

So… in this on-line context, perhaps it’s worth considering the liability of message boards (or rather, their owners), web-hosters , even ISPs. Perhaps it could be argued that these parties, although more remote than the person writing the defamatory material, “re-publish” the material and thus are liable to our fictional Poster B.

There is a defence to re-publication - “innocent dissemination” - that could be claimed. However, only “subordinate distributors” can claim this defence: for example, television stations and printers can’t; newsagencies and libaries can. Analogise to Message Boards, web-hosting services, ISPs, etc. as you will.

13

Who’s sporting a brand-new “BANNED” flag under their name?

I’m a nosy sod, me.

14

BTW, I’m just throwing these ideas out here for discussion (it’s all food-for-though really.) I was never a great student of torts law and I haven’t kept abreast of any recent developments in that area. Moreover, what law I do know is confined to that of Australia, specifically Western Australia. So buyer-beware, okay?
:: quickly hits submit while the Board’s are running hot ::

15

Here’s an old thread I started for more opinions.

Defamation on SDMB… Is It Possible?

16

Here’s my conclusion at the end of my linked thread…

17

The Communications Deceny Act of 1996 addressed this very point, and creates some immunity for ISPs. It states in relevant part, “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.” AOL has escaped liability in several defamation lawsuits under this law; see here for some details.

I don’t know whether that same law could shield the Chicago Reader or other message board owners, since they’re not ISPs in the same sense that AOL is. Answering that question would take some heavy-duty legal research that I don’t have time to do. Anyone else want to take a stab at it?

[Standard legal disclaimer here: I’m a lawyer, but not your lawyer. No attorney-client relationship is implied. Rely on this post at your own risk.]

18

You know, I really think the virtual reputation I have as Triskadecamus has value to me. Real value. I have spent a lot of time reading, and responding in 1800 (1800! wow, I should check that once and a while) posts. I am not really Triskadecamus, but I am Triskadecamus, here, and on a few other forums. The reputation in the cyber community is important to me. Important enough to establish the habit of one single cyber handle, and use it in all cyber exchanges where I am not identified by legal name.

I don’t know that I would sue over a misattribution. But I know that if someone actually convinced the cyber world that I had spewed some bigoted hated mongering at this site, or some other, I would be pissed. Bib league pissed. Cyber hunt the bastard down and take virtual vengeance on his sorry ass pissed.

I have, on other forums published poetry under the cyber handle Triskadecamus. I consider those poems to be my intellectual property. I don’t much worry about someone making a big bundle of money on them, and not paying me my share. But I would claim the words to be my own, if I saw them in a pop forty song. I would decline to have them used to sell fallout shelters, or Alpaca breeding stock. I don’t know what legal ground I might have in that, but it is my belief that an author is an author, and a virtual author is an author, under the legal definition.

IANAL, hell IANEAWIARSOTW, (I am not even a writer, in any real sense of the word) but I know what would piss me off. Who steals my purse steals trash, but he who sullies my good cyber handle is in for a whole virtual world of shit.

Tris

19

Yeah but… what if the post made it clear that you were being parodied? And that the result of your lawsuit could possibly spoil the fun for thousands of other people? Are lawyers really that narrow-minded?

20

jimm

A parody is not normally defamatory , and is not actionable. Conceiveably a parody could be libellous (not necessarily of the person being parodied) and in that case it could be actionable just like any other publication. Otherwise we would have the ludicrous result that, if I accuse you of being a child sex abuser, you can sue me, but if make the same accusation in a witty pastiche of the style of WB Yeats, I’m home free.

On the main question, a writer may have a reputation attaching to his pen-name, and his reputation may be lowered even in the eyes of people who do not know his real name. Similarly I can recover for defamation even if very few people actually know that I am the person referred to. These things may go to the amount of damages I recover, but they don’t undermine the principle. So if you defame a poster on this board I think it is not a defence to say that few people, or even nobody at all, knows his real name. But it would limit the damages he might recover.