Cyberbullying is on the rise. In fact, it is itself pandemic in nature. There are numerous possible legal claims that could be brought in a lawsuit against a cyberbully. These include lawsuits for intentional infliction of emotional distress, violations of privacy and defamation of character. Defamation is perhaps the best bet for eventual success in a lawsuit because it is covered by most homeowner’s insurance policies.
Defamation Elements that Must be Proven by Victim
Defamation is not a particularly easy claim to bring. There are a number of factual elements that must be proven to establish defamation. If the elements are all there, then there will be a good chance of succeeding in a defamation lawsuit. Each of the elements below is from the New Mexico Uniform Jury Instruction, NMRA, Rule 13-1002:
(1) The defendant published the communication.
Published simply means to make public. Anything posted over the internet as with cyberbullying is by definition going to be considered a publication.
(2) The communication contains a statement of fact.
The statement must be factual in nature. Expressions of opinion, for instance, are not considered factual. There is a thin line between fact and opinion. This will typically be one of the areas most contested in a defamation lawsuit.
(3) The communication was concerning the plaintiff.
This is a fairly obvious requirement. For instance, a person cannot sue for defamation when the statements are not about that person. By way of an admittedly simplistic example, Mama jokes are not defamation for the child, but may be for the Mama.
(4) The statement of fact was false.
This is another area that will be hotly contested in many cases if for no other reason than the fact that truth is an absolute defense. In other words, if the statement is true, then it is not defamatory and a lawsuit will be unsuccessful. Keep in mind that it is up to the victim to prove the statement was false, not the cyberbully to prove it was true.
(5) The communication was defamatory.
The statement must call into question the victim’s character, reputation, honesty and so on. For instance, calling someone an ass is probably not defamatory whereas calling someone a lying cheating ass likely is.
(6) The person[s] receiving the communication understood it to be defamatory.
The person or more likely persons that receive or view the statements must understand and see the statements as an attack on the victim’s character. Returning to the example above, few are likely to view the label “ass” as an attack on character. The term could mean all kinds of things independent of character traits such as honesty, sexual proclivities and so on.
(7) The defendant [knew that the communication was false or negligently failed to recognize that it was false] [or] [acted with malice].
This one is pretty straightforward. The cyberbully/defendant must know the statement is false or negligently fail to recognize the statement as false. With cyberbullying, the last possibility is perhaps most likely to be present in that cyberbullies typically clearly show malice in their online posts. However, malice is not required for the typical private citizen. Malice is required in statements regarding public figures.
(8) The communication caused actual injury to the plaintiff’s reputation.
This is among the more challenging elements to prove. Proof of injury to reputation will require a great deal of evidence to show how the defamation harmed the victim’s reputation. In the case of cyberbullying, this is perhaps a little easier than typical cases. For instance, reposts of a defamatory statement with comments will help to illustrate that post was indeed harmful to the victim’s reputation
(9) The defendant abused [its] privilege to publish the communication.
A privilege to publish might exist in some situations such as statements given to law enforcement investigators, the press and other statements given in a privileged communication. However, the privilege will be qualified in most cases meaning that simply because there is a privilege does not mean anything goes.
Seek Legal Guidance
To reach a successful financial recovery for the harm done by the cyberbully, it is important to frame the lawsuit in the right way. Cyberbullying will almost always include intentional infliction of emotional distress. It might include violations of privacy and other torts. These should be included in a lawsuit. However, unless the cyberbully has assets to cover a judgment, it is extremely important to allege defamation in the lawsuit if it is present. To do otherwise, might lead to a rather empty victory in that the jury issues a verdict against the cyberbully but the amount of the verdict cannot be recovered due to the lack of assets and lack of insurance coverage.
Defamation is covered by most homeowner’s policies and therefore there would be the possibility of financial recovery for the harm done by the cyberbully. In terms of finding an attorney willing to take on a cyberbully case, there are very few attorneys that will take a case where there is no possibility of a financial recovery. This would be a very poor business model for a law firm as these cases are difficult, time-consuming and expensive to pursue. In other words, the attorney would lose a great deal of money and time.
Contact Collins & Collins, P.C. online or by phone at 505.242.5958 for a free review of your situation and evaluation of possible recoverable claims.