Libel and slander are considered “torts.” The law of torts is designed to provide a remedy that will “make the plaintiff whole” to the fullest extent possible. Usually, we’re talking about money: how much money would it take to fully compensate the plaintiff for the harm caused caused to the person’s reputation by the defamation? What is the value of the reputation and what amount would fairly compensate the plaintiff for his or her emotional anguish? Often, however, plaintiffs are less interested in money than in halting or removing the damaging statements (especially if they were published online and continue to reach readers), or forcing the defendant to make a public retraction. This latter form of relief–asking the court to order someone to refrain from making certain statements or to perform an affirmative act–is considered “equitable” in nature, basically meaning that it will be guided by vague principles of fairness. A court order granting this relief is called an injunction. It’s almost impossible to get.
One might think that if the purpose of tort law is to provide plaintiffs with a complete remedy for the harm, an injunction would be a logical choice because it has the capacity to prevent harm from happening in the first place. Moreover, many affected by online defamation take the position that no amount of money can truly restore a damaged reputation or bring an end to the emotional distress caused thereby. But that’s not how the legal system works. Virginia law (like the law in most states) has a strong preference for money damages over injunctive relief. If the court finds that an award of money will fully compensate the plaintiff, it will not issue an injunction as a general rule. This means that unfortunately, there is often a huge disconnect between what victims of online defamation want and what the court is willing to give them.
The irony is that reputational harm is extremely difficult to place a value on. How does one measure in monetary terms the degree of humiliation one feels when false and harmful rumors are circulating among neighbors or co-workers? It’s difficult enough to prove a reputation has been diminished, let alone place a number on the degree of that harm. The Virginia Supreme Court itself once observed, “It is difficult, if not impossible, to prove with mathematical precision the quantum of damages for injury to reputation, humiliation, and embarrassment which may flow from a defamation.” See Great Coastal Exp., Inc. v. Ellington, 230 Va. 142, 148 (1985).
My clients are often frustrated to hear that social media sites like Facebook and Twitter usually cannot be held responsible when defamatory content appears on their sites. After all, they argue, sites like those are the reason the statements are being circulated to a worldwide audience. Without online content providers, the number of people that would be exposed to a defamatory statement would be much smaller. Alas, Section 230 of the Communications Decency Act grants immunity to most interactive computer service providers.
The major reason injunctions are not available to force people to remove defamatory online postings has to do with something called the First Amendment, which protects the freedom of speech. An injunction that prohibits future speech is known as a “prior restraint.” Prior restraints on free speech under the First Amendment are subject to the highest level of scrutiny because of the peculiar dangers they present to free speech. A prior restraint not only prevents speech from ever reaching an audience, but subjects the speaker to possible contempt-of-court penalties for disobedience. In exceptional cases (such as where there is an ongoing pattern of repeated defamation that will likely continue indefinitely unless stopped by the court), prior restraints can still be issued, but it is the rare case indeed that will justify one.
What to do? First, although courts will generally not order a defendant to apologize or make a public retraction, those remedies can often be negotiated in an out-of-court settlement. Suppose “Boyfriend” and “Girlfriend” have a nasty break-up, and Boyfriend becomes spiteful and posts a defamatory comment on Facebook falsely claiming that Girlfriend is a prostitute. Girlfriend could sue for an award of money, but she may be more interested in having the post removed. At the same time, there’s a good chance Boyfriend would rather delete the post–which he can do quickly, easily, and without incurring any expense–than spend thousands of dollars on legal fees defending a defamation suit. For this reason, it’s usually a good idea to explore settlement options when considering legal action.
Another option to consider when faced with online defamation is to simply ask the website to remove it. Many websites have procedures in place allowing you to report content that is defamatory or which otherwise violates the site’s terms of service. With some notable exceptions, most sites are not interested in hosting false and harmful statements about a person, and even though the sites usually cannot be held liable themselves, they will sometimes remove such content voluntarily if a convincing showing can be made that the statement is false.
If the online harassment amounts to cyberbullying and the victim is a student, you won’t need to rely on defamation law at all, as there are laws in Virginia against bullying at schools. The Virginia Department of Education has helpful information on its website that addresses this important issue.
Virginia also has a relatively new “revenge porn” statute, effective since July 2014, which makes it a crime to post nude pictures of a person online “with the intent to coerce, harass, or intimidate” that person. (See Va. Code § 18.2-386.2). So if the online harassment includes the unauthorized sharing of private and intimate photos, consider getting the police involved.
Of course, when all else fails, it may be necessary to hire a defamation lawyer and take the matter to court. Even if the money you win does not fully remedy the situation, if your victory includes a court order ruling that the statements at issue are defamatory, those sites that initially refused to remove the information will often change their stance and take the posts down. In addition, many judges are willing to enter injunctions enjoining future conduct if (and only if) that conduct was adjudicated to be false and defamatory. What is clear is that if you do nothing, the injurious falsehoods may live online forever, appearing in search engine results every time someone is interested enough in your reputation to look you up.