What Defamation Means to Kickstarter Creators

22 November 2015 | 13 Comments

You’re in the middle of running a crowdfunding project. Things are going well–you haven’t quite reached your funding goal, but you’re getting close. Then, out of nowhere, someone says some truly horrible things about you on the main comments thread. You refute the claims, but the damage has been done, and you lose some backers as a result.

Hopefully this will never happen to you, but if it does, our lawyer guest-blogger, Zachary Strebeck, has some insights into defamation and libel as it relates to crowdfunders. Thanks for writing this, Zack!

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The Internet can be a dark, dark place. Anyone who has put themselves out there, particularly in the average comments section of a blog or (god forbid) a YouTube video, knows that people can say some nasty things.

They are often just hyperbolic insults. Sometimes, though, commenters and other content creators may present false information as fact. Once these “facts” get out there, it can be hard to engage in damage control and correct them. This can have a devastating effect on product launches, careers and even people’s personal lives.

Because of this, we have a number of defamation laws that allow the victim to sue the person or entity making those statements. This post will take a deeper look at the law surrounding defamation in the United States. Hopefully it will allow developers to both avoid defaming others and understand their rights against those who would defame them.

Some introductory information

Defamation comes in two flavors: slander and libel.

Generally, slander is going to describe verbal defamation and libel describes written defamation. However, the real distinction has to do with the permanency of the delivery mechanism. Something less permanent, like someone speaking in public or even on a podcast, is classified as slander. On the other hand, defamation in a printed newspaper or on an online forum is going to be called libel.

A claim for Defamation is also tempered by a few things:

  1. First, the truth is an absolute defense to a defamation claim.
  2. Second, the First Amendment is another buffer against a claim of defamation in the US, making it more difficult (but not impossible) for plaintiffs to prevail than in other countries;
  3. Lastly, there may be some differences between the various state defamation laws and with federal law.

If there’s a potential defamation situation, you should speak with a lawyer to address your specific facts. I’m a lawyer, but I’m not YOUR lawyer, so call one up.

The three levels of defamation

There are three levels of defamation, each with its own standard. These levels are determined by the status of the person being defamed.

Public figures need to show that there was a defamatory statement made to a third party, but they also need to show that there was “actual malice” in the publication of that statement. This means that the one making the defamatory statement must either know that it’s false or with “reckless disregard for the truth.”

Public figures” include government officials and others who are generally dealing with matters of public concern. This also includes actors and other celebrities.

Limited purpose public figures are public only in a narrow scope of public concern. According to the Supreme Court, these are people who “have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.”

This could include someone like me, who may be writing about a particular issue in the public eye. Activists for certain causes can also be limited purpose public figures. However, this is kind of a squishy definition that can be hard to pin down. Check out this page from the Digital Media Law Project for more explanation.

In cases where these limited purpose public figures are involved, the “actual malice” standard for public figures applies to those limited purposes. Outside of those purposes, the standard for private figures applies instead.

Private figures are just regular folks – they live their lives without trying to influence the public on any issues. In these cases, the standard for defamation is lowered to “negligence,” giving these private plaintiffs an easier time to prove that they’ve been defamed.

What can show negligence on the part of the one who published the defamatory statement? Perhaps they failed to do any substantive research before publishing or speaking. Maybe they used untrustworthy sources or failed to look for contrary views or information. As usual, the outcome of one of these cases is very dependent on the specific facts.

In the context of business, a Mark Cuban or Bill Gates would be a public figure, while the owner of your local laundromat would be a private figure. In the context of a Kickstarter campaign, I believe that a Kickstarter creator is putting themselves out there in a particular public matter – their campaign.

So I (and others that I’ve discussed the matter with) think that a Kickstarter creator would be a “limited purpose public figure” for the purposes of their game. If someone starts defaming them on personal or non-game issues, however, the private figure rules would apply.

As we’ll see in the next section, however, there may be an easier way for defamed Kickstarter creators who are in the business of making games.

Defamation per se

There’s one more way to show defamation, which doesn’t require a showing of actual malice or negligence. Defamation per se is a state law-based cause of action, so the specifics of it may differ by state.

Essentially, if the defamatory statement meets one of four categories, damages don’t have to be proven and the statement is assumed to be defamatory.

  1. that they have committed a criminal offense or, in some cases, crimes of “moral turpitude”;
  2. that they carry a loathsome disease;
  3. that they’ve engaged in a practice “injurious to another” in their business, trade, profession, or office; or
  4. they’ve done some serious sexual misconduct.

This is, of course, if the statement itself is false. Remember, if something is true, that’s a complete defense to defamation.

In the context of a Kickstarter campaign, does a false and defamatory statement about the creator’s business practices constitute defamation per se? Let’s look at the California law on this, as an example. You can check out the jury instructions for defamation per se here. If the following are true:

  1. this is the Kickstarter creator’s business;
  2. the statements could potentially do harm to the business’s reputation;
  3. the publisher of the false statement failed to make reasonable efforts to check on whether or not the statement was true;

then there could potentially be a cause of action for defamation per se. With this type of cause of action, damages are assumed. However, if the actual damages that can be proven are greater than those provided by statute, it may be worth it to prove them in court.

As an aside, readers should be aware that many states also have criminal defamation statutes.

Is the forum-owner liable?

When the defamatory statements are made on an Internet forum like Board Game Geek or the comments section of your Kickstarter, is the owner of that site liable for defamation as well? After all, they are technically in charge of hosting and displaying the statements, right?

The US Congress, in enacting the Communications Decency Act of 1996, has got their back. It states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

So basically, the online service cannot be held liable for what someone else says on their service. For more info about the CDA, check out the EFF’s infographic and article. Who doesn’t love infographics?

Wrapping it up

Hopefully this gave you a little more understanding about US defamation law. When you go making claims about others on the Internet or when someone does that to you, you’ll be better equipped to now whether or not there’s going to be legal trouble.

As I said before, though, contact a lawyer before moving forward with anything. They can help you understand the legal effect of your specific fact situation.

Lastly, I’ve got a course coming out soon to help new game studios get started. Sign up for the mailing list and get information as I get closer to release!

Additional Resources

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When he’s available, Zachary is really great at answering comments in the questions, though it’s not official legal advice (that’s for between you and your lawyer). Zachary is also available to be your lawyer, as he’s extremely well versed in the world of board games, Kickstarter, and contracts.

13 Comments on “What Defamation Means to Kickstarter Creators

  1. Thanks, Zack. Good to see the EFF also getting a mention : )

    I think what probably stumps most people these days is defining who has jurisdiction over a case of defamation? I know it’s open for debate, but how does it usually work out when the lawyers get involved? Is the court of jurisdiction based on the source, victim, or the service?

    1. IANAL

      Libel tourism is a thing that exists in the UK – That is people coming over to the UK for something that was at some point published within these shores, and there are very spurious standards for that – in order to sue them for libel on account of our… Err…Looser standards for it than most places. That is, people coming over to the UK to sue someone from their own country for libel, on grounds that probably wouldn’t get ruled as libelous anywhere else. Tom Scott briefly dips his toe into our ridiculous libel laws in one of his videos: https://www.youtube.com/watch?v=z49LjJj3VTI

      So I /think/ it’s service.

  2. Now if only there was a way to prevent, or gain restitution from, people who make outlandish, absurd, and opinionated claims about people and games in the gaming market; both on the person level and the professional level.

    My games have more than one insulting and ridiculous comment on the BGG game page (that I can’t even respond to!); and we have at least 1 scathing review by a big name online gaming site wherein there is evidence that he didn’t even play the game!

    It’s those people that there needs to be a “let’s go a round or 2” room for. I’m a little old-school and a martial artist, so “sound beatings” ring as valid “restitution” to me. : ) …I’m just saying. : )

    Zach, any word of “sound beatings” laws coming up in some states? : P

    1. As a practitioner of Filipino Martial Arts, I understand your feelings :)

      I was going to link to “internet revenge” clips from Jay and Silent Bob Strike Back, but they’re not very family-friendly!

  3. Hey Zachary,

    Thank you for this article, it comes at a good time. I am actually dealing with a defamation issue from an artist that we parted ways with. Do you think we should make a public statement on our blog or facebook page regarding the defamatory statements? Or should we just let sleeping dogs lie at this point?

    Thanks!

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