Are you careful about what you say in e-mails and chat rooms? You should be.

Respected primatologist Jane Goodall once said, “I think e-mails are the most dangerous form of communication because people are wedded to the screen. They feel compelled to answer e-mails immediately, and they’re under huge pressures with the number of e-mails pouring in.

“Sometimes, e-mails come from people full of things you know they wouldn’t say on the telephone.”

Who needs a telephone to do dirty work these days?

It’s much easier to vent anger, hurt and gossip in the seemingly safe, inviting white frame of an e-mail. After all, your computer shields you from direct confrontation while also satisfying the urge to write something derogatory about someone you don’t like and pass it along to everyone on your e-mail address list.

It’s a sad fact that e-mail, online forums and chat rooms have become one of the world’s favorite ways of spreading negativity, rumor and innuendo.

“E-mail can be cathartic,” said attorney Dave Marburger, Cleveland, Ohio. “It’s a way of letting off steam, and, a lot of times, our steam is directed at others.

“People say things over the Internet that they would say to their friends while sitting in a bar or while having dinner at their houses. The general way of thinking is, ‘These are fleeting conversations, and the only people who will hear them are here with me.’ You feel like you can say anything.”

The problem is, although e-mails and chat rooms feel personal, they are not. The minute you send a thought into cyberspace, it becomes available to thousands of people, which means that any negative personal comment featured in that once clean, white e-mail screen can leave you open to being accused of defamation.

That’s right. The person you’ve written about can actually sue you for damages done to his or her reputation or business income – if he or she can prove that your e-mail contained false statements that contributed to the losses.

Most people don’t realize this type of defamation is possible. Nor do they see that it runs rampant and mostly unchecked in the close-knit horse industry.

If you are now wondering if you’ve ever been on the sending or receiving end of what could be construed as Internet defamation, following are the facts about it as they stand today. What our experts have to say may just inspire you to dust off your home telephone.

The definition of defamation
In July of 2006, an e-mail that attributed the deaths of 28 horses in South Texas to the popular Land O’ Lakes Purina feed Strategy tore through the horse industry like a bullet fired from a Colt .45. The fact that it had not been proven that Strategy caused the deaths was of little importance. People read the e-mail and took its speculation as fact. The originator even encouraged readers to pass the information along to other horse owners and to post it at shows, thus further legitimizing the content in the minds of even those who might normally have been skeptical.

A few weeks later, Texas A&M University veterinarians researched the case and cleared Strategy of all blame in the deaths, but it was almost too little too late.

“It was frustrating because a lot of innocent people and animals were in danger of being hurt, and there was not a whole lot we could do about it,” said Purina Land O’ Lakes Equine Specialist Dr. Karen Davison. “It wasn’t just about the damage it could have done to our brand. It was about the fact that people could have just pulled their horses off of Strategy, drastically changing their diet and potentially hurting their horse’s health.

“It’s a helpless feeling because, we all know, that if another e-mail goes out correcting an incorrect statement, it’s not going to be passed along like the more controversial e-mail. Good news never travels as fast as bad news.”

The Strategy e-mail is just one example of the power of Internet communication. What would have normally have been shouted from ear to ear, quietly reached an entire country of consumers within hours.

“People believe what they see in print,” Davison added. “It comes from years of reading newspapers and knowing that those reporters had to double-check their facts and get it right, so the information we saw there was correct.

“That seems to give any written communication an aura of truth. No one seems to realize that anyone can write an e-mail or make a chat room posting.”

Although Purina never pursued legal action against the writers of the e-mail (“We believe that although their facts were wrong, they had good intentions – to help horses,” Davison said.), the Strategy e-mail could also be an example of what the law would refer to as defamation – a verbal (slander) or written (libel) attack that causes injury to a person or organization’s reputation in a particular community.

In fact, there have been few major cases of e-mail and chat room defamation that have gone to trial and, therefore, case precedents are hard to find. However, according to Marburger – who in 1994 tried the first major case of Internet defamation in the United States – that doesn’t mean that the already established defamation laws don’t apply to computer communication.

“There’s no reason why Internet libel, or defamation, would be different from libel in a newspaper or slander in a TV broadcast,” he said. “The same laws would apply. The same principals would apply.

“If you write something false about someone, it could get you into trouble.”

At this time, there is only one major federal statute in place that distinguishes Internet defamation from other kinds of defamation. The Telecommunications Act of 1996 was instituted to protect Internet Service Providers from liability in defamation cases. This statute dictates that the sender or writer retains sole responsibility for whatever he or she says in e-mails, chat rooms or on bulletin boards – even in cases where the Internet Service Provider has supplied a moderator.

“The closest analogy would be a radio station,” Marburger said. “If listeners call in to a talk show, the radio station, as well as the caller,  can be liable for defamation any caller expresses. In an e-mail setting, only the ‘caller’ is liable, not the ‘station.’

“The only exception to this rule would be if the Internet provider originates its own defamation or gets involved with the content of somebody else’s defamation.”

While there is little else separating Internet defamation from other forms of communication defamation – it could be argued that the Internet is different and can be much more damaging.

“What becomes problematic is that 50 years ago, if something was published in a newspaper, it might just affect the community in which the newspaper is being circulated,” said Daniel Batterman, a Boston, Mass., attorney and Internet law specialist. “But something on the Internet can be sent worldwide in a relatively short amount of time, so the harm can be much greater.

“And it can come back again and again because a lot of search engines are constantly bringing up content. Nothing really ever dies in cyberspace. While the Internet does provide a very convenient means of communication, it has really opened up a Pandora’s box in terms of the damage it can do to a person’s reputation.”

That Pandora’s box brings with it a lot of as-of-yet unanswered questions about how the special circumstances involving Internet defamation should be handled. In the meantime, the most an individual can do is to know what defamation actually means and to keep track of what is being said.  

Wording makes a difference
The keyboard can be mightier than the sword when it comes to spreading negativity. Libel revolves around words – words used to hurt the reputation of another person.

Still, there are certain negative statements that probably wouldn’t constitute defamation. Calling someone a “jerk” or “stupid,” or using curse words more than likely would not lead to a serious defamation suit. On the other hand, criminal accusations and statements that suggest someone is unsuitable for his job probably would be considered defamation.

“There is a category of defamation, which almost all states recognize, only a handful do not, which is called defamation per se,” Batterman said. “This is a type of defamation where a statement is considered defamatory in and of itself and is not really capable of being given an innocent meaning. These categories include statements imputing a criminal offense to someone,  such as being a thief or murderer. Or, they could be accused of having what we call a ‘loathsome disease,’ such as AIDS or a sexually transmitted disease. Another area is ascribing conduct to someone that would be incompatible with a person’s trade, business or public office.”

For those in the horse industry, this kind of defamation per se would probably involve abuse to animals, dishonest business practices or negative lifestyle choices, such as drug use, that might keep someone from doing a job to the best of his or her ability.

“Let’s say someone who attends a horsemanship clinic sends out an e-mail accusing the trainer of abusing horses,” suggested Rachel Kosmal McCart of Equine Legal Solutions Inc in Oregon. “Or a former assistant goes into a chat room and says that the owners of a certain barn aren’t feeding the horses that are being boarded there, but using that money to buy drugs, instead.

“These types of accusations could lead to loss of business. And, if the person who is defamed can prove the accusations are false, the accuser would probably be subject to defamation charges.”

Additionally, e-mails that state negative facts in the form of an opinion or that include some doubt of truth in the midst of the accusations are not immune from being considered libel. In the case of the Strategy e-mail, the writer used such phrasing as “IN CASE the tests end up pinpointing the toxin to the grain” and “tests are underway,” but this careful wording didn’t lessen the e-mail’s influence.

Batterman says this is why the United States Supreme Court has been firm in its view that simply because you are stating an opinion doesn’t omit you from being found liable for defamation.

“If you say, ‘John Smith is a criminal’ versus, ‘In my opinion, John Smith is a criminal,’ it really comes down to the same thing,” Batterman said. “Because regardless of whether or not the person states the factual basis for his opinion, the opinion may still imply a false assertion of fact, and it’s still going to mean the same thing for John Smith. The Supreme Court has been very clear about this and simply adding ‘in my opinion’ isn’t necessarily going to insulate you.”

False accusations are false accusations, according to defamation law. And the more specific the false accusation (for example, suggesting that someone paid off a show judge in the tunnel behind John Justin arena at 3 in the morning), the more serious the damage can be to a person’s reputation – and the more likely a damaged person will win should the situation go to court.

Clicking ‘SEND’
The claim that a defamatory e-mail or chat room posting is libel is null and void without a third party to read the e-mail or posting. However, as far as the law is concerned, it doesn’t matter whether a negative e-mail or posting reaches the eyes of only one person or 1 million people. Once a third party views it, the e-mail becomes defamatory.

“If I’m sitting here talking directly to you, and I say, ‘I think you’re a thief,’ it is not defamatory,” Batterman said. “But as soon as I start transmitting that thought to a third party, it can become actionable defamation.”

Marburger says the only time the number of people seeing the message might matter is if an injured party or judge is trying to calculate the amount of damage caused.

“If you want to gauge the injury, the fewer people who have seen the statements tends to reduce the damages,” he said. “But, I know of cases outside of the context of the Internet where only a handful of people have seen the defamation and the jury has awarded substantial money.”

And, unfortunately, those receiving e-mails that contain inflammatory statements are likely to pass the e-mail along. For some, there is something exciting about being in the middle of a little bit of controversy, even if that controversy has nothing to do with you directly.

A receiver or reader would be wise, however, not to join in chat room discussions or forward e-mails that contain defamatory statements. This is because simply forwarding an e-mail can make you a “republisher” in the eyes of the law, and, under certain circumstances, republishers can be held liable in defamation cases.

“If you actively participate, and your participation includes forwarding e-mails, you could be held responsible also, even though you were not the one who started it,” Batterman emphasized.

The uniqueness of the Internet can also give way to an additional problem. E-mails and chat room postings easily cross state lines, and this leaves senders and republishers open to being sued in different regions of the country.

“There have been cases where someone in California learns of a defamatory e-mail halfway across the country, and the sender has to defend himself in California,” Batterman said. “Even if the e-mail was written in Pennsylvania, if the defamed person has actually experienced the effects in California, the sender has to defend him- or herself in the state of California.

“If you have someone who has the resources to sue in all 50 states, they can do that under certain circumstances. But, most of the time, people tend to bring defamation claims in their home state and make the sender come there to defend himself.”

Private vs. public figures
Even with all of these facts to consider, defamation can still be an extremely complicated violation to prove – and harder for some than others.
Defamation law recognizes a difference in violating private figures versus public figures. Famous movie stars, politicians and musicians qualify as public figures, while private figures are the average man on the street.

“The law usually recognizes the public figure defense to defamation charges,” McCart said. “What this basically means is that if you are someone who is in the public eye, you have to be able to tolerate a certain amount of public criticism. It comes with the territory, so it is harder to prove that a public figure has been defamed.”

Thanks to the landmark 1964 case of New York Times vs. Sullivan,  for a public figure to prove he has been defamed he has to demonstrate that the defamer wrote with “actual malice.” In other words, it has to be shown that the writer knew that what he was writing was false when he wrote it – or that he didn’t know whether or not it was a factual statement, but he wrote it and distributed it anyway.

Actual malice can be very difficult to establish, but it can help a public figure win a defamation lawsuit that he might not normally have won.
So, who in the horse industry can be considered a public figure? A case precedent has yet to be set, and McCart said the horse industry is one in which it may be difficult to distinguish private figures from public figures.

“I think, for pretty much everybody in the horse industry, your reputation is part of your business,” McCart said. “I don’t think reputation is a fair test of whether or not you are a public figure in this business.

“I think that if you’re a famous clinician who appears on RFD-TV, or if you appear on the back cover of the Quarter Horse Journal every month,  then you are probably a public figure within the horse community.”

It can be argued that horse association board members, champion trainers,  top breeders, horse publication journalists – and horse associations themselves – might all qualify as public figures within the horse world – even if they might not be household names outside of the equine industry.

“Some of these people can fall into the category of ‘limited purpose public figures,’ ” Batterman said. “For example, the public at large might not have heard of someone within the horse racing industry, but everyone in the horse racing industry has heard of that person. That can make him a limited purpose public figure.”

Options for the defamed
Whether they are private or public figures,  individuals who feel as if they have been defamed have a great deal to consider before they actually sue. There are reasons why, despite the commonness of Internet defamation, very few cases have made it to trial.

First of all, a defamed person must be able to prove that he or she has suffered mentally, physically or financially because of what was written about them – and that what was said was not true. Loss of business, loss of position or being shunned by a person or people because of false statements provide great grounds for a defamation case.

However, even if damages can be verified, there is still one huge issue that can keep a defamed person from pursuing a trial – money.

Internet law is considered a specialty, and there are comparatively few lawyers who concentrate on it. Those lawyers who do specialize in Internet law mostly represent organizations such as television stations and newspaper companies, and this makes their expertise expensive for individuals who wish to hire them.

“Let’s say you have been defamed in a chat room,  and it goes on and on for days, with people digging into you and not just with opinions, but with false statements being portrayed as fact,” Marburger offered as an example. “And it amplifies and develops until you’re the principle subject of the chat room and multiple people are participating, not to mention the hundreds of thousands who are maybe just reading it. You come to me and say, ‘Help. I want to hire you.’ And I say, ‘Well, my hourly rate is X hundred dollars an hour and it will probably cost you $100,000 to pursue these people.’ You’ll probably say, ‘Forget it. I’m not mortgaging my house or going into debt for that.’

“The problem is, the average Joe doesn’t have the resources to pay for representation, and the people you are suing generally don’t have the money to cover what you’re paying your lawyer – even if you are awarded a great deal of money. What good is being awarded $1 million if the person you sued can’t pay it and you can’t pay your lawyer? That’s why most people back down from pursuing defamation damages.”

Besides financial challenges,  a person trying to sue for defamation damages may also have trouble simply finding the person who defamed him in the first place. Anonymity is huge on the Internet and a giant advantage for people who like to spread rumors using the World Wide Web. With addresses and screen names such as “cowboy123” or “ponypirate04,” a defamer can spout negativity without anyone knowing his true identity.

“You’re sort of anonymous on TV and radio,” Marburger said. “You can lie about your name or have your name withheld. But on the Internet, everything can be anonymous. If someone is searching for the person who defamed them,  but the sender has an anonymous screen name, they have to go to the Internet Service Provider to ask for help. And usually, all this can ultimately lead you to is a computer,  which can be a public computer. It doesn’t necessarily lead you to the poster.

“People can still open accounts with fake names and it is really hard to trace them.”

In many cases, Internet Service Providers must be issued a subpoena before they will identify an alleged defamer. This often means an additional lawsuit – and additional money spent on yet another court procedure – for the person who feels he has been defamed.

“Being able to publish things anonymously is a First Amendment right,” Batterman said. “It goes back to the time this country was founded. The problem is, we’ve seen nothing in the past that allows for such widespread anonymous defamation.”

If the most obvious doors of retribution are closed to an injured party, there are a few somewhat less effective ways to curb the damage done by Internet defamation. For starters, Batterman points out that an injured party can use the same venue that harmed him to help clear his name.

“One of the Internet’s biggest disadvantages can also be one of its advantages,” he said. “If a person hears that there are negative remarks out there, he can just as easily send out the facts to the contrary. I’m not saying that’s going to make everything better, but it is the first course of action that most people probably need to take to curb the damage.”

McCart offers a slightly different view of self-help when it comes to Internet damage control.

“I think sometimes it’s smarter not to address defamatory e-mails or chat room posts because it tends to give credibility to rumors that otherwise wouldn’t have any,” she said.

The lawyer gives the example of the mother of a competitor who, after a breed world championship, went into a popular horse-related chat room and posted complaints about the ability of the judges who evaluated a class that her daughter didn’t win.

“One of the judges got on the forum and defended his placings,” McCart said. “He did it very nicely and in a very eloquent way. But,  it prompted the discussion to go on and on. While I totally understand what he said and why he did it, if he hadn’t responded, the discussion would probably have ended.

“People with an axe to grind, they just want to lash out. They’re not going to be influenced by or see the reason in truth.”

The defamer and the future
For the accused defamer in an Internet defamation case, the best defense is truth. Truth outweighs any other evidence when it comes to defamation. Writing that a person has committed animal cruelty is one thing,  but being able to prove it with photos or video is another.
Beyond this, there is little else that an Internet writer can do to defend him- or herself if taken to trial.

Apologies sent to the same people who received the defamatory e-mail may be considered helpful, but probably will not get a defamer out of paying for false statements.

Judges also tend to not be impressed by the element of emotion that was involved with sending the e-mail or making the posting.

“Emotion is not an excuse for defaming somebody’s character,” McCart said. “If you got up in a court of law and your defense was, ‘Well, Judge, I was just really pissed off,’ the judge wouldn’t be that interested. If anything, it might prove that you had the intent to harm.”

In the end, keeping emotions in check before an e-mail is sent or prior to making a posting is the best way to keep from having to pay defamation damages.

“Especially with e-mail, if you find yourself really angry about something and you find yourself with something to say that is not complimentary,  and you’re ready to forward it to 100 people, save it in your draft box and wait to send it until the following day,” McCart suggested. “Just don’t put yourself in the position of committing defamation.”

Regardless of how laws regarding the online world evolve,  there is one thing about Internet defamation that probably will not change. Despite its negativity, it remains an area that is ultimately protected by the First Amendment of the Constitution – by an American’s right to free speech. Defamation only narrows this right. It does not supersede it.

“My own view is, I don’t see the value in going into a rant and defaming someone over the Internet,” Marburger said. “I don’t see what good that does for our society.

“I’ve always been a huge supporter of our right as Americans to free speech. Probably more so than a lot of lawyers I’ve known. But the Internet is changing my mind about that.”

Which is defamation?
Both of these e-mails make FALSE accusations about a horse trainer. Can you decipher which one might be considered defamation in a court of law?

 E-MAIL 1
Dear Friends,
    I have some information that I think anyone who has a horse with trainer John Doe should know.
    Last week, John Doe beat one of his new 2-year-olds with a chain prior to a training session. This is apparently a habit of his and, believe me, it is not the first time he’s taken such action when he’s having trouble with a new trainee. He seems to not know any other way to handle a difficult situation.
    He also does not feed his horses at certain times during the week. He pockets the grain money instead.
    It seems he has enough problems (he’s cheating on his wife with a rich client), so I don’t know why he’s creating more trouble for himself.
I, for one, think everyone who has a horse with him should remove it right away. He is not someone who deserves to be in the horse industry.
    Please think of your horse and plan accordingly.
    Pass this along to anyone who has dealings with Mr. Doe.
Sincerely Yours,
Suzy Owner

E-MAIL 2
Dear Friends,
    I heard something that I think anyone who has a horse in training with John Doe has a right to hear.
    I’ve been told that John Doe was seen beating one of his new 2-year-olds with a chain prior to a training session. In my opinion – and it saddens me to say so – it seems he knows of no other way to deal with a problem horse.
    I think maybe we, as his clients, should discuss moving our horses for the time being.
    Please pass this along as you see fit.
Sincerely Yours,
Suzy Owner

Answer: BOTH e-mails could be considered defamatory. E-mail #2 is more softly worded and contains such phrases as “I think” and “In my opinion,” but in the eyes of the law, those phrases don’t make the information any less damaging to the targeted individual’s reputation.

About our legal experts
David L. Marburger is a partner in the Cleveland, Ohio, office of Baker Hostetler. He is recognized as an authority on legal issues related to the content side of the communications industry, particularly constitutional law litigation, libel and privacy, state and federal freedom of information and copyright.

He has been named one of the best First Amendment lawyers in the country in The Best Lawyers in America, and has received the “Best Defense of the First Amendment” award from the Society of Professional Journalists.

Marburger has represented, among others, all major national television networks, newspaper, book and magazine publishers, online service carriers, outdoor advertising companies and news syndicates.

He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Daniel A. Batterman, Boston, Mass., is a member of the Massachusetts and Pennsylvania Bars and has practiced in the Technology Law field since 1995.

He has represented a wide range of clients, including e-commerce companies, software developers, manufacturers, publishers, government agencies, entertainers and artists.

Additionally, he has lectured extensively in such areas as contracts, intellectual property, licensing, e-mail and privacy.

Batterman is a graduate of the University of Pennsylvania and the New England School of Law in Boston.

He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Rachel Kosmal McCart of Equine Legal Solutions is a graduate of Duke University School of Law with years of experience at major law firms in New York and California.

Most recently, McCart served as in-house counsel for a major Silicon Valley company, and she is a member of the New York, California and Washington State bars.

McCart grew up on a horse farm in Tipp City, Ohio, and is currently a member in good standing with such associations as AQHA Professional Horsemen, United States Equestrian Federation,  AQHA, APHA and the American Association for Horsemanship Safety.

She can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .