During a Comedy Central roast of Bob Saget, Gilbert Gottfried, comedian and voice of the Aflac duck, asked the audience, “Why should we pick Bob Saget who raped and killed a girl in 1990? Should we even waste two seconds on Bob Saget who raped and killed a girl in 1990? Well, first of all, it’s not true. It’s not true that Bob Saget raped and killed a girl in 1990.”
Gottfried, of course, made these statements for the sake of comedy and in no way intended anyone to believe them. Popular talk show host Glenn Beck, however, has been accused of using a similar rhetorical technique in attacking those with whom he does not agree. The tactic involves coming up with a wild accusation and then suggesting that the accused party’s failure to prove its falsehood is proof of its veracity (see here for an example.)
In September of last year, a user from the Fark.com forums decided to create a parody website turning Beck’s method back on him and asked why he has not denied that he raped and murdered a young girl in 1990. The trouble came, however, when the site was registered under the domain name “glennbeckrapedandmurderedayoungirlin1990.com.” Within a few days, Beck’s lawyers fired off a complaint to the World Intellectual Property Organization asking that the domain name be cancelled because of potential for confusion with Beck’s trademarks.
That news has since passed and Beck lost his case. After the WIPO decision explaining that the website was permissible parody, the domain owners nonetheless gave control to Glenn Beck and there is no longer any content at that domain (although the same content is now hosted here. )
Defamation by Domain Name?
A more interesting question than the trademark dispute, I think, was raised in an Ars Technica posting discussing the controversy. In that post, Ars Technica quoted Public Citizen attorney Paul Levy who explained that there was a significant chance for a defamation claim based solely on the domain name. Levy said that the domain name could be actionable if the statement is false and stated with actual malice. Certainly, the statement is false. Glenn Beck did not rape or kill anyone in 1990 (but why hasn’t he called me to deny it?), and it’s possible a court could find the statement was made with the malice requisite for a successful defamation claim.
The problem here is whether a court should regard a domain name standing alone as statement. There have not yet been any cases that find defamation based solely on a domain name. But in PETA v. Doughney, 113 F.Supp.2d 915, the People for the Ethical Treatment of Animals sued a man who had registered the domain “peta.org” and created a parody site entitled “People Eating Tasty Animals.” The Eastern District of Virginia held that the defendant’s domain name could not be protected by a parody defense because the domain name did not simultaneously project two antithetical ideas. The court refused to consider the domain name in context of the entire site and instead analyzed it independently. The Fourth Circuit affirmed the decision.
While Peta v. Doughney was a trademark case and considered under the Anticybersquatting Consumer Protection Act, if a court were to apply a similar analysis to a hypothetical defamation suit arising from glennbeckrapedandmurederedayounggirlin1990.com, then it would very likely be considered a defamatory statement. But would this make sense?
A Domain Name Should Not Be Considered In Isolation
In my opinion, although there does not seem to be well-established law on this point, courts should not consider domain names in isolation. A domain name is a way of signaling the origin of a website or allowing people to view the content associated with the domain name. Domain names are not generally posted as free-standing statements, but are almost invariably linked to a description or preview of the web page’s content. Even those people who type the domain name directly into their browser’s address bar would almost certainly have an idea of the site’s content before they type it in.
So how could an otherwise defamatory statement made only through a domain name and clearly identified as false in the content of the web page cause any actionable harm? If in real life a domain name is not used independently from the site’s content, or knowledge of the content, then it should not independently give rise to a defamation claim.
To illustrate the point, take this purely fictional example. Suppose I registered “joesmithrobstheelderly.com” and create a site with a header stating “Joe Smith does not rob the elderly, but why won’t he deny the rumors? A parody website.” To a person reading the domain name alone, it would appear that I am stating that Joe Smith does, in fact, rob senior citizens. Equally clear to a person reading just a few sentences of the website, however, is that the domain name is not an independent statement, and that Joe Smith does not rob senior citizens. Under reasoning paralleling Peta v. Dougney, I could be found liable for defamation even though in context of site it is abundantly clear that I am not asserting the domain name as an independent statement.
In the context of web sites, courts should analyze the respective components in the manner in which they are generally understood. A domain name is not generally understood as a statement of fact, but as a locator for the content on a web site. A defamatory statement in a domain name that is not refuted by the site’s content would reasonably give rise to a defamation claim because in context it is still defamatory. If reading the domain name in context makes it clear, however, that the domain name is not a statement being asserted as truth, then there should be no potential for defamation liability. If someone does register “kylebarnettmakesunfoundedassertionsabouttrademarklaw.org,” I promise not to sue. So long as the truth is clear in context.