Frustrated with the service you receive from your online service, you post a message on a USENET newsgroup claiming that the service "has repeatedly misdirected my email, and lost my files." In fact, this happened once. Have you defamed the service?
Yes. Defamation law protects businesses as well as individuals. You are liable if you falsely ascribe to a business conduct, characteristics, or a condition incompatible with the proper conduct of that business. Saying (falsely) that an online service provider repeatedly misdirected mails is an example of this. Saying that an attorney bribed a judge is another. Claiming that a pharmacy mislabeled a drug is a third. In each case, if what you say is false, and it undermines confidence in the business or professional's job, then you are liable. In some cases, if the defamation ascribes to another conduct that would adversely affect his fitness for is job, trade, profession, or office, the defamation can be actionable without an actual showing of harm.
Trade libel will become even more important online. As the number of commercial transactions online increases, the ability for consumers to "publish" their complaints will increase the incidence of trade libel. It is unlikely, however, that companies will resort to suing customers who complain: The (true) report that a company is suing a complaining customer is itself not libel, and may do more harm to the company than the customer's original complaint.
Where trade libel is most likely to affect online speech is with online service providers. While the defamed company is not likely to sue the complaining customer, it is quite likely to threaten to sue the online service that keeps the complaint posted. That threat is quite likely to induce the online service provider to keep complaint boards at a minimum.
authors:
| Larry Lessig | David Post | Eugene Volokh |
Copyright © 1999 Social Science Electronic Publishing, Inc. All Rights Reserved