Criminal Defamation
Criminal Defamation laws are an alternate weapon having the potential to combat cyberbullying, but they appear to be a rather weak weapon. Defamation and Libel are criminalized in about half of the United States, but it tends to be a minor crime and is almost never prosecuted. This leaves some cyberbullying victims without the option to use criminal defamation laws to combat cyberbullying, while leaving others with the option, but a low rate of success.
Because the specific elements required to prevail in a criminal defamation action will vary based on individual state law, this section will introduce general issues applicable to criminal defamation.
General Elements of Criminal Defamation
Most state’s criminal libel statutes fall into two categories: (1) those focusing on causing a breach of the peace, and (2) those focusing on publishing a statement or object tending to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of someone and thereby to expose him to public hatred, contempt, or ridicule.
Additionally, for a cyberbully to be found guilty of criminal defamation, it must be proven that: (1) the cyberbully published a false statement of fact regarding the victim to any person besides the cyberbully (sending the statement to the victim qualifies), and (2) the cyberbully was guilty of some level of fault when making the statement. Importantly, a person can be found guilty of criminal libel, but not civil libel, if they send the communication to the victim and no one else.
In light of these general prerequisites for criminal defamation liability, a cyberbully could be prosecuted for criminal defamation if he or she: (1) published to one or more persons, (2) information having the capacity to provoke a breach of the peace or expose the victim to public hatred, contempt, or ridicule, (3) that was false, and (4) done with fault. The first three elements shouldn’t be difficult to prove. Cyberbullying typically involves the use of electronic communications sent to the victim or third parties. Additionally, the falsity of the statement and the potential effects it could have should be readily able to be established. The potentially problematic issue here, as with civil defamation, is proving that a cyberbully acted with the requisite level of fault when making the defamatory statement.
Level of fault required for conviction in a Criminal Defamation case
It is well established that actual malice must be proven to sustain a criminal conviction when the defamatory statement concerns a public official or public figure, but courts disagree over the requisite fault if the statement concerned a private person. Many courts require that actual malice must be proven to sustain a criminal conviction, regardless of the victim. See, e.g., State v. Powell, 839 P.2d 139, 145 (N.M. Ct. App. 1992) (holding that defamation involving matters of public concern “can be subject to criminal penalty only if made with actual malice.”). Other courts hold that actual malice must be proven if the victim was a public official or public figure, but allow lesser standards of fault for statements concerning private persons. See, e.g., Mink v. Knox, 566 F. Supp. 2d 1217, 1224 (D. Colo. 2008) (stating that Colorado's criminal libel statute could "be applied ... to private defamers who knowingly publish or disseminate ... any statement or object tending ... to impeach the honesty, integrity, virtue, or reputation of a private individual, even when no showing of actual malice is made.")
Criminal Defamation Conclusion
Overall, criminal defamation law is either a weak option to combat cyberbullying, or it is not an option at all. The law, as it currently stands in most states, is especially unreliable to stop cyberbullying that targets private persons due to the requirement that the cyberbully act with actual malice. As a matter of policy, if actual malice is not required to sustain a conviction for defamatory statements regarding private persons, then criminal defamation prosecutions could be a more useful combatant to cyberbullying. Until then, civil defamation law is a much more potent weapon to use against cyberbullies targeting private persons.
Sources:
Because the specific elements required to prevail in a criminal defamation action will vary based on individual state law, this section will introduce general issues applicable to criminal defamation.
General Elements of Criminal Defamation
Most state’s criminal libel statutes fall into two categories: (1) those focusing on causing a breach of the peace, and (2) those focusing on publishing a statement or object tending to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of someone and thereby to expose him to public hatred, contempt, or ridicule.
Additionally, for a cyberbully to be found guilty of criminal defamation, it must be proven that: (1) the cyberbully published a false statement of fact regarding the victim to any person besides the cyberbully (sending the statement to the victim qualifies), and (2) the cyberbully was guilty of some level of fault when making the statement. Importantly, a person can be found guilty of criminal libel, but not civil libel, if they send the communication to the victim and no one else.
In light of these general prerequisites for criminal defamation liability, a cyberbully could be prosecuted for criminal defamation if he or she: (1) published to one or more persons, (2) information having the capacity to provoke a breach of the peace or expose the victim to public hatred, contempt, or ridicule, (3) that was false, and (4) done with fault. The first three elements shouldn’t be difficult to prove. Cyberbullying typically involves the use of electronic communications sent to the victim or third parties. Additionally, the falsity of the statement and the potential effects it could have should be readily able to be established. The potentially problematic issue here, as with civil defamation, is proving that a cyberbully acted with the requisite level of fault when making the defamatory statement.
Level of fault required for conviction in a Criminal Defamation case
It is well established that actual malice must be proven to sustain a criminal conviction when the defamatory statement concerns a public official or public figure, but courts disagree over the requisite fault if the statement concerned a private person. Many courts require that actual malice must be proven to sustain a criminal conviction, regardless of the victim. See, e.g., State v. Powell, 839 P.2d 139, 145 (N.M. Ct. App. 1992) (holding that defamation involving matters of public concern “can be subject to criminal penalty only if made with actual malice.”). Other courts hold that actual malice must be proven if the victim was a public official or public figure, but allow lesser standards of fault for statements concerning private persons. See, e.g., Mink v. Knox, 566 F. Supp. 2d 1217, 1224 (D. Colo. 2008) (stating that Colorado's criminal libel statute could "be applied ... to private defamers who knowingly publish or disseminate ... any statement or object tending ... to impeach the honesty, integrity, virtue, or reputation of a private individual, even when no showing of actual malice is made.")
Criminal Defamation Conclusion
Overall, criminal defamation law is either a weak option to combat cyberbullying, or it is not an option at all. The law, as it currently stands in most states, is especially unreliable to stop cyberbullying that targets private persons due to the requirement that the cyberbully act with actual malice. As a matter of policy, if actual malice is not required to sustain a conviction for defamatory statements regarding private persons, then criminal defamation prosecutions could be a more useful combatant to cyberbullying. Until then, civil defamation law is a much more potent weapon to use against cyberbullies targeting private persons.
Sources:
- State v. Powell, 839 P.2d 139, 145 (N.M. Ct. App. 1992).
- Mink v. Knox, 566 F. Supp. 2d 1217, 1224 (D. Colo. 2008).
- Susan W. Brenner and Megan Rehberg, "Kiddie Crime”? The Utility of Criminal Law in Controlling Cyberbullying, 8 First Amend. L. Rev. 1, 48-49 (2009).
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