Publishing Information that Harms Another's Reputation

When you publish online, whether it's on a blog, in a podcast, in a video you upload to YouTube, or simply in a comment on another's website, you might say or do something that harms the reputation of another person, group, or organization. Fortunately, not everything you publish that harms the reputation of others will open you up to legal liability. For example, you won't generally face legal liability if you simply state your opinion, even if your opinion is harsh, critical, or wildly off-base.

Nevertheless, if you find yourself about to publish something that could harm another's reputation, you should spend some time familiarizing yourself with the various laws that protect reputation. The sections that follow are not intended to make you an expert on libel law, but merely to help you identify potential "red flags" so that when you publish something that might negatively impact the reputation of another person, group, or organization, you will know to be extra careful and will take the necessary steps to minimize your potential legal liability.

First, ask yourself whether what you intend to publish would UPSET YOU if someone else were to publish the information about you. This simple test won't tell you for sure whether you will be liable if the information you publish turns out to be false, but it will get you focused on the statements that should be of greatest concern. Moreover, putting aside the legal implications of what you publish, statements that upset others are more likely to draw their ire and result in a lawsuit, even when they don't actually have a viable legal claim. Depending on what you say and how you say it, you will likely need to be concerned with two different, but related, legal doctrines that aim to protect against reputational harm:

  • Defamation: Defamation is the general term for a legal claim involving injury to one's reputation caused by false statements of fact and includes both libel and slander. The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

  • False Light: False light is similar to defamation. Claims for false light generally involve untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a photograph you pulled from Flickr of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.

Keep in mind that the republication of someone else's words can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).

However, there is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

So, what should you do if you are facing the prospect of a lawsuit for defamation or false light?

First, familiarize yourself with the section on Practical Tips for Avoiding Liability Associated with Harms to Reputation. While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize the likelihood of your being on the receiving end of a defamation or false light lawsuit.

Second, if you think you've been improperly sued in retaliation for your speaking out on a public issue or controversy, you may be able to get the case dismissed or file a counter claim under your state's law protecting against Strategic Lawsuits Against Public Participation (SLAPP). If you are sued in a state that has an anti-SLAPP law, you may be able to end the lawsuit quickly and recover your costs and attorneys' fees.


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