Internet defamation is staggering. People and companies are increasingly using the Internet to voice their resentment against each other. It might be that our society has always harbored these feelings and the Internet made easier to vent them, or we are becoming extremely competitive and less willing to yield to the success of others. Whatever the case might be, the fight is not worthy. Defamation has always been sanctioned, and it is not different when the Internet is the publication forum. Tort law applies to defamation cases, and state case law usually sets precedent (please note that most states have adopted the Restatement (Second) of Torts). This article provides an example of two companies engaged in a defamation case under Arizona state law.
The elements of the tort of defamation are (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Restatement (Second) of Torts § 558 (1977). When a private person is the target of the defamatory, liability will attach when the publisher of the defamatory statement knows that the statement is false and that it defames the other, "acts in reckless disregard of these matters," or "acts negligently in failing to ascertain them." Restatement (Second) of Torts § 580B. According to Arizona law, defamatory statements "must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation." Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). Thus, harm is a special requirement of the tort of defamation. However, a defamatory statement may be actionable in the absence of special harm "if it is libelous or imputes to the targeted individual a criminal offense, a "loathsome disease," serious sexual misconduct, or conduct that would adversely affect the target's "fitness for the proper conduct of his lawful business."" Restatement (Second) of Torts §§ 569, 570, 573, 575.
The case of Xcentric Ventures, LLC v. Stanley, (U.S. Dist. AZ. 2007) is a good example of endless litigation experienced by two companies engaged in an Internet defamation case, and, at the end, economic losses and rage is the common factor. QED Media Group is a company registered under the laws of Maine that offers Internet marketing, software, and website design services. QED also offers clients protection from online defamation by "communicating with operators of offending websites to remove objectionable content and utilizing technologies that optimize client profiles in search engine results." Robert Russo is the CEO and owner of QED. Xcentric Ventures is the operator of Ripoffreport.com, a website that allows users to post complaints about companies and individuals that engage in wrongful business practices. Xcentric's managing policy is not to remove postings from Ripoffreport.com, even if they are proven to be defamatory. Yet, business subject to defamatory statements may respond to those statements, but they are required to pay a substantial fee to Ripoffreport.com. Russo contacted Xcentric and requested them to remove from Ripoffreport.com some defamatory statements posted against some QED's clients. Xcentric refused to this request. Therefore, Russo used its technological skills to lower the ranking of Xcentric's postings in search engine results. This strategy helped QED's clients to avoid payment to Xcentric for the removal of defamatory statements. This strategy motivated Xcentric's fury against QED, and, as a consequence, Xcentric posted and sent some e-mails referring to QED as "Internet terrorist" and a member of an "Internet terrorist organization." Additionally, in some Internet blogs suddenly appeared comments accusing QED of "extortion scam fraud," "false promises, lies and extortion," and participation on a "dirty con game."
A tort lawsuit was initiated and both parties filed counterclaims accusing each other of Internet defamation, and filed motions for summary judgment. The Arizona District Court held that QED stated a claim for defamation. The court held that Xcentric's statements against QED were actionable under tort law, and that the statements were clearly quoted with the precise language used by Xcentric. Thus, Xcentric's motion to dismiss was denied.
Internet defamation involving companies might be easier to litigate because harm to businesses is apparently easier to be established. Yet, Internet defamation involving private individuals has proven to be difficult because the element of harm becomes thorny to demonstrate. When the tort of defamation becomes difficult to be proven for private individuals, the tort of false light invasion of privacy should be an option. The tort of false light invasion of privacy occurs when a person (1) "gives publicity to a matter concerning another that places the other before the public in a false light," (2) "the false light in which the other was placed would be highly offensive to a reasonable person," and (3) "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Restatement (Second) of Torts § 652E.