One of my favorite YouTuber is Tristano TGV of the @urbangentry channel. I was looking thorough posts on the Facebook group for the Urban Gentry Watch Group a few weeks ago when I saw a message regarding ongoing defamatory and harassing comments made by some of the members.
So it made me think. What remedies are available to YouTubers against such defamatory statements? So … I made this video.
Lior Leser, Esq.
Technology, Internet and Software Law
Let’s be clear … What we are talking about here is Defamation. Yes there are other crimes and causes of actions that may be involved whenever someone throws nasty and hurtful insults and threats at you.
… and what is Defamation?
Defamation is the communication of a false statement of fact that harms the reputation of the YouTuber
Defamation is a creation of state law (not Federal) but it is subject to Constitutional Law with regards to first amendment right to free speech.
As you know, the Constitution affords each one of us the right of free speech … even when it comes to saying things that everyone else disagrees with or finds objectionable.
But defamation is an exception to that right and a Defamatory comment is not entitled to First Amendment protection.
So … there is a fine line between exercising our right to free speech and making defamatory statements that cause harm to another.
Some examples … a commentator writes (falsely) that a YouTuber lies about his opinions and is in fact being sponsored by the company whose products he is reviewing.
A commentator writes (falsely) that a vlogger is lying about his family life and is in fact cheating on his/her spouse.
A commentator writes (again falsely) that YouTuber does not have purported number of genuine subscribers but has been buying subscribers.
All these statements, if false may be a cause for defamation.
And what can you do about it?
Usually the best thing you can do is expose them to daylight. Remove the anonymity behind which they hide and have them face the consequences of people knowing who is saying what.
And how do you do that? You start by filing a lawsuit.
And how do you get such an order? You file a lawsuit and ask for a court order.
but its not that simple.
Why? because while you are concerned about the harm caused to you by these defamatory statements, anonymous speakers seek the protection of the First Amendment. They will claim that revealing their identity will chill speech and subject speakers to harassment even if the complaining party, the plaintiff, fails to prove his case.
That really is the key. Hateful and vile speech almost always takes place behind the veil of anonymity. Unveil them and expose them to public shame.
You’ll find that commentator, once revealed are far more receptive to a settlement.
So how do you get the court to grant you an order to remove the commentator’s
While different states may have different standards, most of them include the same elements.
First, the court will require that you take reasonable steps to alert the commenter (the defendant )that he or she may be subject to a court order.
Afterwards, the court will require that you give the defendant reasonable amount of time to respond. to hire counsel and oppose the motion.
The Courts will then consider whether you provided enough evidence to support each of the individual elements of a defamation claim.
At this stage, you are not proving your case of defamation. You’re showing that you have a strong enough case that can survive a motion for summary judgment or a motion to dismiss.
If you can show this evidence, there is a good chance (not a guarantee) that the court will grant you an order forcing the site or the ISP to reveal the identity of the commenter.
Now I know this sounds daunting. Its not easy. There is no simple solution to this prevalent problem of online defamation.
But for you who have suffered, there is a solution … expose the anonymous commenter to the light of day.