Cybersmear Law and Legal Definition

Cybersmear is essentially same as defamation, except that the alleged defamatory material is posted on the Internet. Defamation may also be referred to as libel, slander, disparagement, defamation of character, etc.. Defamation in the Internet can be classified as libel in view of that material communicated on the Internet is published e.g. bulletin boards, emails, chat rooms etc.

In order to proof defamation, one has to prove that the statement published was false, and not merely a matter of opinion. The false and defamatory statement referring to the plaintiff must be made about another's reputation or business. Direct evidence, innuendo, insinuation or reference may establish this. And the statement must not be privileged.Also, the defamatory statement must result in actual or presumed damages.

The burden of proof is more demanding for public figures. Depending on whether the plaintiff is a public official or figure or the state law, a plaintiff may be required to prove some degree of fault or negligence on the part of the defendant. He/she has to prove the defamatory statement was made with actual malice. Actual malice is the act of publishing or broadcasting the statement with prior knowledge the statement was false or with reckless regards as to whether that was false or not.

Under the common law, there are four main defences to defamation. These are: (1) justification; (2) consent to the publication; (3) fair comment; (4) absolute and qualified privilege; and (5) innocent dissemination.

Cybersmear is still a developing area of cyberlaw, clear precedents have not yet been set. One of the most important issues in cyberlibel is whether ISPs, operators of bulletin boards or website owners are common carriers, distributors or publishers. Tension exists between the right to free speech and the legal duty to protect people being defamed because of the increasing ease and potential harm in the face of Internet publication.