Defamation lawsuit: online defamation on social networks

Defamation on social networks, and online protection of honor and reputation, is becoming an increasing challenge. Social networks often become a breeding ground for defamatory attacks. This blog deals with exactly this issue. Understanding your rights is essential to defend yourself against such attacks. The aim of this text is to provide a clear overview of legal protection mechanisms. We especially focus on defamation on social networks in Croatia. We’ll cover everything from the definition to the possibility of a defamation lawsuit.

1. What is defamation under Croatian law?

Defamation is a crime directed against a person’s honor and reputation. According to the Criminal Code of the Republic of Croatia, specifically Article 149, defamation is defined as the presentation or transmission of an untrue factual statement. This claim refers to another person. It must be such that it can harm its honor or reputation. It is crucial that the perpetrator knows that the claim is untrue. This knowledge of falsity is the basis for any further discussion of  the defamation lawsuit.

It is important to emphasize that defamation refers to a false factual statement. It is not a value judgment or a personal opinion. The line between the two can sometimes be thin. However, the law clearly targets false facts.

In order for someone to be convicted of a criminal offense of defamation, several key elements need to be proven:

• Making or Making a Claim: The disputed claim must be communicated to a third party. This means to someone other than the injured person himself. The thought alone is not enough.
• Falsity of a factual claim: This is the crux of slander. The claim must be objectively false.
• Damage to honor or reputation: A false claim made must be of such a nature that it may harm the honor (inner dignity) or reputation (opinion that others have of a person) of the injured party.¹
• Knowledge of falsehood (awareness of the perpetrator):  The perpetrator must be aware that the claim he makes is untrue. This indicates intent. If the offender was mistaken about the veracity, this can rule out the existence of defamation. However, then he can be held responsible for another criminal offense, such as insult.

The definition of defamation in Croatian law, although seemingly clear, sets a high threshold for proof. It is especially challenging to prove the element of “knowledge of falsehood”. Proving one’s inner state, or consciousness, is inherently difficult in legal proceedings. This implies that not every unpleasant or even incorrect statement is automatically defamatory. Such an approach can be frustrating for victims. On the other hand, it protects freedom of expression from light-hearted lawsuits. Victims must gather strong evidence. This evidence relates not only to the falsity of the claim and the damage suffered, but also to the perpetrator’s awareness of the falsity.

Also, there is a certain tension between criminal law protection against defamation and international standards. These standards often favor decriminalization and civil proceedings. Certain organizations are calling on Croatia to decriminalize insult and defamation.  They consider that legitimate concerns about defamation should be addressed primarily through measures that exclude criminal liability. This includes the right to rectification and reply, and compensation for damages. Although the Croatian Criminal Code still sanctions defamation, this call points to a broader international trend. It is possible that this will have an impact on future legislative changes. It can also influence case law, for example through lighter punishments.

2. Defamation on social networks

Defamation on social networks can take many forms. Often it is about publishing false accusations. These can be statuses, comments, or reviews on platforms such as Facebook, Instagram, Twitter/X, or LinkedIn. Creating fake profiles is equally dangerous. The goal of such profiles is to spread untruths about a particular person. Sharing edited photos or videos that show a person in a false and harmful context is also defamatory. Even sending defamatory messages in groups or privately can be punishable. That is the case if those messages are then further disseminated and made available to third parties.

It is especially important to point out that defamation committed through a computer system or network is a more serious form of this crime. The reason for this is that such posts become accessible to a significantly larger number of people. This multiplies the potential damage to the reputation and honor of the victim.

The spread of defamation in the online environment has its own specifics. They make it especially dangerous.

• Speed and Reach: Information, including slander, spreads exponentially rapidly. They can reach a global audience in a very short time. A single post can go viral within a few hours.
• Durability: Once posted, content is difficult to completely remove from the internet. The so-called “right to be forgotten” is complex and not always easy to achieve. The digital footprint often remains.
• Anonymity and pseudonymity: Perpetrators often hide behind fake profiles or pseudonyms. This significantly complicates their identification and subsequent defamation lawsuit.
• Lack of control: Once defamatory information has been shared, the victim loses control over its further dissemination.

The technological nature of social networks significantly multiplies the harmful potential of defamation. This is especially evident when compared to traditional forms of defamation. Traditional defamation, such as oral or printed defamation with a limited circulation, had inherent limitations in terms of speed and reach of dissemination. Online defamation, on the other hand, does not have these limitations. The damage can be immediate, massive and long-lasting. The legal system must therefore adapt to these specificities. This is partly reflected in the tougher penalties for defamation committed through computer systems. However, challenges in proving and removing such content remain.

The anonymity provided by social networks often creates a false sense of impunity for perpetrators. The ability to create fake profiles or use pseudonyms reduces the perceived risk of liability. People who would not dare to say defamation face to face or under their real name feel freer to do so in the online space. This, unfortunately, leads to an increase in online toxicity and defamatory behavior. Consequently, the need for effective methods of identifying offenders becomes essential for the pursuit of justice.

3. Proving the identity of the perpetrator of online defamation

Finding out who is behind a defamatory post online can be challenging. Still, there are ways. Direct confession of the perpetrator is rare, but possible. It relies much more often on digital traces. Every online activity, including a post on a social network, leaves a mark. This includes IP addresses, information about the device from which access was made, e-mail addresses used to register the profile, and the like.

Information from the platforms themselves (social networks) and Internet Service Providers (ISPs) can be crucial. They possess data that can help identify the user. However, this information is most often obtained on the basis of a court order. Platforms like Facebook and Instagram sometimes ask for an ID when reporting a fake profile. This indicates that they have internal identification mechanisms, but primarily for their own content moderation needs.

Technical methods used in identity detection include:

• IP Address Analysis: An IP address is a unique numerical identifier. It is assigned to every device connected to the internet. It can help locate internet service providers. Then, in addition to a court order, it can also lead to a specific user within a certain period of time.
• Metadata analysis: Files, such as photos, often contain embedded metadata. They can sometimes reveal information about the device on which the file was created or even the author.
• Profile and behavior analysis: Sometimes it is possible to associate a fake profile with a real person. This is done based on the writing style, expressed interests, circle of friends or specific mistakes that the perpetrator unknowingly makes.
• Court Order: This is a crucial tool. The court can order platforms (Facebook, Google, etc.) or ISPs to provide user data. This refers to the user behind a specific profile or IP address. The public prosecutor’s office can also officially investigate the offender if his name is not immediately known.

The role of the police and the State Attorney’s Office (DORH) is primarily evident in criminal offenses that are prosecuted ex officio. Defamation, as a rule, is prosecuted by a private lawsuit. However, if there are elements of another criminal offence in addition to defamation that is prosecuted ex officio (e.g. serious threats), the police may intervene. The police can also provide assistance in gathering evidence based on a court order, even in the context of a private defamation lawsuit.

Although there are technical methods for detecting identity, the process is often legally and technically complex. It requires collaboration with platforms. They may be slow or reluctant to provide information without a valid court order. Success also depends on the quality of the digital traces left by the perpetrator. Obtaining an IP address is often only the first step. The IP address itself usually only leads to the ISP and not directly to the individual. ISPs and platforms protect the privacy of their users. They will not disclose data without a legal basis. An additional complication is the identity obfuscation tools (VPNs, proxy servers) that perpetrators can use. Therefore, victims of defamation should be aware that identification can be a time-consuming and potentially costly process. Success is not always guaranteed.

There is growing pressure on online platforms. In part, this pressure comes through new regulations, such as the Digital Services Act (DSA) of the European Union. The aim is for platforms to take greater responsibility in identifying and combating illegal activities. The Digital Services Act aims to prevent illegal activities and create a safer online environment. The DSA, for example, imposes traceability obligations on traders on online marketplaces. While this does not apply directly to all defamation cases, the general spirit of the DSA is moving towards greater transparency and accountability to the platform. This could facilitate the process of identifying the perpetrator of defamation in the future.

4. Keeping evidence of defamation on social networks

If you are a victim of defamation on social media, it is crucial to preserve evidence quickly and correctly. Digital content can be easily modified or deleted. Therefore, your quick reaction is crucial. Here are some practical tips:

• Take Screenshots: Instantly capture screenshots of controversial posts, comments, messages, or profiles. Make sure that the date and time of publication are clearly visible in the recording. If possible, let the URL (web address) of the page also be visible.
• Copy URLs: Record and save the exact URLs of the defamatory content. Also save the profile URL of the person who posted the content.
• Archive websites: There are tools for archiving websites (e.g., the Wayback Machine or other specialized tools). They can preserve the appearance of the page at a specific point in time. This is useful if the content is later modified or deleted.
• Save the entire page: Most internet browsers offer a “Save Page As” option. This option can save the HTML code of the page and related files.
• Identify witnesses: If the defamation was made in an online group or is publicly visible, make a note of who the people who may have seen it are. They can be potential witnesses.
• Consider Digital Timestamping: For key evidence, you can use digital timestamping services. Such a mark certifies the existence of certain digital content at a specific point in time.

The importance of recording the exact time of publication cannot be emphasized enough. The evidence must be time-relevant. Recording the date and time helps establish a chronology of events. It is also crucial to prove when exactly the defamation was published. This is also important to comply with the legal deadline for filing a private defamation lawsuit. This time limit begins to run from the moment of knowledge of the criminal offence and the perpetrator.

Proactive and methodical evidence gathering is crucial. Perpetrators, aware of the possible consequences, often delete controversial posts. The platforms themselves can also remove content based on their internal policies, regardless of any legal process. If the evidence is not preserved in time and in a proper way, it is impossible or very difficult to reconstruct it later. Unsecured evidence is practically lost evidence. This may make legal protection impossible or significantly more difficult. Therefore, securing evidence is one of the first steps that the victim must take. It is advisable to do this even before formally contacting a lawyer.

While screenshots are extremely useful and often a first step, it’s important to know that their evidentiary force can be challenged. This can happen if they are not properly contextualized (e.g., the URL or information about who else has seen the post is missing). Also, there is a technical possibility of manipulating screenshots. Therefore, a combination of different methods of preserving evidence is the best strategy. For example, a combination of a screenshot, a saved URL, witness data and, if possible, an archived page or time-stamped evidence provides a much stronger evidentiary basis. In some more complex cases, it may be necessary to have an IT expertise to confirm the authenticity of digital evidence.

5. Initiation of proceedings: Private action for defamation

To initiate criminal proceedings for defamation, the injured party must file a private lawsuit. It is extremely important to take into account the legal deadline. A private defamation lawsuit must be filed within three months. This year is preclusive. This means that by failing to do so, the injured party loses the right to prosecute the perpetrator.

The three-month period begins to run from the day on which the injured party (private prosecutor) became aware of the commission of the crime. More precisely, from the knowledge of the publication of the defamatory claim. Also, the deadline runs from the knowledge of the identity of the perpetrator. This is the so-called subjective term. It is important to note that the Law on Protection against Defamation of Republika Srpska also mentions an absolute period of one year from the date on which the expression was presented to a third party. The Croatian Criminal Procedure Code does not specify such an absolute limitation period for filing a private lawsuit in this way. The general rules on the statute of limitations for criminal prosecution apply.

A private action is brought before the competent criminal court. According to the Criminal Procedure Code (CPC), as a rule, the court in whose territory the crime was committed or attempted has jurisdiction. With online defamation, determining where it is committed can be complex. This can be the place where the content in question is uploaded to the internet (e.g. server location). It can also be the place where the content became available and where the adverse consequences for the victim occurred (e.g. their place of residence). The law also allows for a private action to be brought before the court in whose jurisdiction the defendant is domiciled or domiciled.

The short limitation period of three months for filing a private lawsuit puts significant pressure on the victim of defamation. The victim must act quickly. He has to collect evidence and, which is often the most difficult in an online environment, identify the perpetrator. The process of identifying the perpetrator, as described earlier, can take time. If the victim misses this deadline, he or she loses the right to prosecute the offender through a private defamation lawsuit. Therefore, urgency is key. Victims are advised to contact a lawyer as soon as possible. A lawyer can help ensure that deadlines are met and evidence is collected properly.

Determining the territorial jurisdiction of a court for defamation committed online can be challenging. This is due to the transnational nature of the internet. A slander posted online can be available virtually anywhere in the world. The question arises as to where the crime was “committed”. The Code of Criminal Procedure offers a certain flexibility that works in favor of the injured party. As stated, the court in whose territory the act was committed OR in whose territory the defendant resides has jurisdiction. Case law often interprets the place of the commission as the place where the harmful consequences occurred. This is usually the place of residence of the victim, where his reputation is damaged. This makes it easier for the victim to initiate the procedure. He can sue in “his” court, instead of having to look for a court in the place of residence of the (perhaps unknown) offender or the place where the server is located.

6. Criminal proceedings for defamation: Course and possible sanctions

Criminal proceedings for defamation are initiated by a private action. This means that the injured party, as a private prosecutor, takes on the role of a persecutor. The court first examines the regularity of the private lawsuit. If the claim is valid, it is delivered to the defendant for a response. After that, the main hearing is scheduled. At the main hearing, the evidence proposed by the parties is presented. This includes the hearing of the private prosecutor and the defendant, the questioning of witnesses, and the reading of documents. In the case of social media defamation, the evidence will often include screenshots, URLs, and other digital clues. At the end of the evidentiary procedure, the court issues a verdict. The verdict can be convicting, acquittal or dismissive. The parties have the right to appeal against the first-instance verdict to a higher court. A detailed description of the course of the proceedings, including the rights of the civil claimant and costs, can be found in the relevant legal sources.

Possible penalties for defamation are prescribed by the Criminal Code. The basic form of defamation, described in Article 149(1) of the CC, is punishable by a fine. It can be up to three hundred and sixty daily amounts. Earlier sources mention a penalty of up to one hundred and fifty daily incomes or a prison sentence of up to six months. However, the current Criminal Code, referred to by a more recent source, specifies the fine. International sources also confirm that defamation in Croatia is punishable by a fine.¹

For a more serious, qualified form of defamation, a more severe penalty is prescribed. This refers to defamation committed through the press, radio, television, computer system or network (which undoubtedly includes social networks). It also includes defamation made at a public meeting or in any other way that makes it accessible to a larger number of people. In these cases, a fine of up to five hundred daily amounts is prescribed. The amount of one daily amount is determined depending on the financial circumstances of the defendant. It is important to note that if the convict fails to pay the fine imposed, it may be replaced by imprisonment.

Although defamation is a criminal offense, the prescribed sanctions are primarily financial. This reflects a certain trend that this type of crime is not treated with the strictest criminal law measures. The focus is more on achieving a certain satisfaction for the victim and on general prevention. It is less focused on long-term repression against the perpetrator. A fine aims to punish the offender. Also, it should provide some moral satisfaction to the victim and discourage others from similar behavior. Victims seeking primarily financial compensation for the damage suffered will have to consider taking civil action. The fine imposed in criminal proceedings is paid to the state budget and not directly to the victim.

A private prosecutor in criminal proceedings for defamation bears a significant burden. This also includes the costs of conducting the proceedings. These costs include court fees and lawyers’ fees. If the private plaintiff loses the dispute, or if the proceedings are discontinued under certain circumstances (e.g. withdrawal of the lawsuit), he or she is generally obliged to reimburse the defendant as well. This creates a certain financial risk for the victim. Therefore, before initiating a private defamation lawsuit , a careful assessment of the odds of success, as well as the potential costs, is required. The prospect of ultimately paying both one’s own and the opponent’s costs may deter some victims from seeking justice this way.

7. Damages: Civil proceedings with criminal

In addition to initiating criminal proceedings, the injured party who has suffered defamation is also entitled to compensation. This right is exercised in civil civil proceedings. This procedure may be conducted independently of the criminal proceedings, or in parallel with them. An action for damages is filed with the competent municipal court. The basis for the lawsuit is the violation of personality rights, specifically honor and reputation.

The Code of Criminal Procedure provides for the possibility of filing a civil claim (claim for damages) within the criminal proceedings themselves. However, the criminal court will decide on this request only if this would not significantly delay the criminal proceedings. In practice, criminal courts often, even if they establish the guilt of the defendant, refer the injured party with a civil claim in whole or in part to litigation. Civil (civil) proceedings for damages are conducted in accordance with the rules of the Civil Procedure Act and the Civil Obligations Act (ZOO).

Due to the violation of personality rights, such as honour and reputation, the injured party is entitled to fair monetary compensation. This compensation is awarded for the mental anguish suffered. Infringement of personality rights is the legal basis for compensation for non-material damage. The amount of the fee depends on a number of circumstances. The severity and duration of the mental anguish caused by the injury and possible fear are taken into account. The purpose of this compensation, which is to provide satisfaction to the injured party, is also appreciated. The court will take into account all the circumstances of the individual case when making its decision. This includes the intensity and type of defamatory statements, how they are made, reach (the number of people who have heard or seen them), and the impact of the defamation on the victim’s personal and professional life. The Civil Obligations Act gives the court the power to determine the amount of compensation at its own discretion. This is possible if the amount of damage cannot be determined, or could only be determined with disproportionate difficulty.

Examples from case law can illustrate how courts approach these issues. The case of an Austrian politician against Facebook before the Court of Justice of the European Union, although not directly Croatian case law for damages, is relevant. The Court of Justice of the European Union has ruled that Facebook can be ordered to remove defamatory content globally, indicating the growing responsibility of platforms. There are also domestic examples where defamation on Facebook was punishable by fines or damages. Of course, there are also cases where defamation charges have been dropped. Each case is specific and depends on the evidence.

Civil proceedings for damages are often a more effective way to obtain real material and moral satisfaction from the victim of defamation. This is because it is primarily aimed at compensating for the damage suffered, and not only at punishing the offender, as is the case in criminal proceedings. Although it is possible to make a civil claim in criminal proceedings, courts often refer to litigation in order to determine the amount of damage in detail. Therefore, victims should be advised to consider filing a civil lawsuit. They can do so even if the criminal proceedings are ongoing or have already been completed, in order to obtain full compensation.

Determining the amount of fair monetary compensation for injury to honor and reputation is a very subtle process. It depends largely on the case law and the specific circumstances of each individual case. There is no fixed “tariff” for mental anguish caused by defamation. The court assesses each case on a case-by-case basis. Factors such as the victim’s reputation before committing defamation, the reach of defamatory statements, and the specific consequences on the victim’s personal and professional life play a major role. This makes it difficult to predict in advance with great certainty the exact amount of compensation that could be awarded.

8. Reporting defamation to social networks and their obligations

In addition to judicial mechanisms, defamatory content can also be reported directly through social networks. Most popular platforms have built-in mechanisms for reporting inappropriate content.

• Facebook: On most posts and profiles, there is a “Report” (or “Report”) option. The user needs to select an appropriate reason for reporting, such as hate speech, harassment, or a fake profile. To report a fake profile, Facebook may also ask for the delivery of a scanned ID document to verify the identity of the whistleblower.
• Instagram: The process is similar to Facebook. Users can report questionable posts or profiles. It is also possible that Instagram will ask for an ID to report a fake profile. Sometimes it is necessary to use the English-language interface for certain sign-up options.
• Twitter/X: Users can report individual tweets or entire profiles that they believe violate the platform’s policies. This includes policies on bullying, hate speech and the spread of falsehoods.
• LinkedIn: As a professional network, LinkedIn also has mechanisms to report inappropriate content, fake profiles, or harassment.

Generally, when signing up, platforms will ask the user to specify the reason for signing up. It is often necessary to provide additional information or clarifications. It is advisable to attach a screenshot of the disputed content as evidence with the report.

The European Union has adopted  the Digital Services Act (DSA). This act imposes new, stricter obligations on online platforms operating in the EU. The main objective of DSA is to prevent illegal and harmful activities on the internet. This includes the spread of disinformation. The aim is also to ensure greater security for users and the protection of their fundamental rights.

The platforms’ key obligations under the DSA, relevant to defamation cases, include:

• Establishing clear and user-friendly mechanisms for reporting illegal content, including defamation.
• The obligation to act quickly and efficiently on received reports, and to remove illegal content.
• Greater transparency regarding content moderation processes and algorithms used to recommend content.
• The obligation to cooperate with so-called “trusted flaggers”.
• Specific, stricter obligations for very large online platforms (VLOPs) and very large online search engines (VLOSEs). These obligations relate to the assessment and mitigation of systemic risks, including the risk of the dissemination of illegal content. The decision of the Court of Justice of the European Union in the case of an Austrian politician against Facebook, made even before the DSA came into force, has already pointed to the growing responsibility of platforms to remove defamatory content.

The Digital Services Act (DSA) represents a significant step forward. It leads to greater accountability of online platforms for the content they host. For victims of defamation, this potentially means easier and faster removal of the material in question. It can also make it easier to sanction offenders at the level of the platform itself, regardless of lengthy court proceedings. Prior to the DSA, platforms often invoked “neutral broker” status. By doing so, they limited their liability for user-generated content. The DSA is changing that paradigm. It imposes specific due diligence and action obligations. For victims of defamation, this means that platforms now have a stronger incentive and a clearer legal obligation to react to notices of illegal content. Reporting defamation directly to the platform, invoking the provisions of the DSA, can become a faster and more effective first step to remove content. This, of course, does not replace the possibility of filing  a defamation action for damages or prosecution through a court.

Despite the new obligations imposed by the DSA, the effectiveness of reporting to platforms will still depend on several factors. The quality of the application itself is extremely important. Notices must be clear, supported by evidence and with a precise explanation of why certain content is considered defamatory or otherwise illegal. The internal processes of application processing platforms also play a role, as does their actual willingness to collaborate, which can vary. The platforms receive a huge number of applications every day. Their automated systems and human moderators can go wrong or be overloaded. It is important to know that the DSA also provides mechanisms to challenge the decisions that platforms make on content moderation. This provides an additional level of protection for users.

Conclusion

Defamation, especially that spread through social media, can have devastating consequences for an individual’s honor and reputation. It is important to remember that you are not helpless. Croatian legislation provides protection mechanisms. It is crucial to understand the legal definition of defamation and the elements that need to be proven. There is a possibility of filing a private action for defamation in criminal proceedings. It is also possible to initiate a civil lawsuit for compensation for the damage suffered.

Do not forget the importance of respecting the legal deadlines for filing a lawsuit. Gathering evidence quickly and correctly is crucial in the online environment. Defamation on social media is not a trivial matter. It constitutes a serious violation of your rights. New tools, such as the EU’s Digital Services Act, further strengthen platforms’ obligations to tackle illegal content.

We encourage you not to ignore defamatory attacks. Actively seek protection of your rights. This blog is for informational purposes only and does not constitute legal advice. Each defamation case is unique and requires individual analysis. Therefore, it is crucial to seek the help of a qualified lawyer for specific situations. A lawyer can assess your case, advise you on the best legal steps, and represent you in the process.

In case you need a defamation lawyer, please contact us at:

info@odvjetnik-bistrovic.hr