Defamation and Social Media: What You Need To Know

With the rise of social networks, content aggregation sites, and online commentary, the risk of defamatory content and false statements reaching a broad audience has increased tremendously in recent years. Some sites are even designed to encourage the sharing of sensational information without any fact-checking or regulation.

A Facebook status update or tweet about a negative employment incident may receive dozens of 'likes' and comments. Tens of thousands of users may see and rate a searing Yelp review. An edited photograph posted on Reddit may garner millions of views.

In today's social media world, it has become easier and more rewarding than ever for bloggers or online users to share false information about a person or business. Online content is occasionally moderated for pornographic or legal issues involving other inappropriate elements. But most content is unregulated for defamatory elements. It's important, therefore, that consumers, sharers, and potential victims better understand the landscape of online defamation and defamation law.

Who Do You Sue for Online Defamation?

Plaintiffs who have suffered online defamation might think they can go after their Internet Service Provider (ISP). Or they may try to go after the website that hosts the defamatory content at issue, like Facebook, Google, or Yelp. After all, these companies are wealthy. They can afford to pay the plaintiff's damage demand in defamation cases.

In the United States, however, pursuing an ISP or a hosting website is not a legitimate legal option for a plaintiff making a defamation claim. In 1996, Congress passed the Communications Decency Act. The Act protects ISPs, social media platforms, and website hosts from defamation claims. That law prohibits courts from treating an ISP as the publisher of a statement made by another content provider.

Instead, plaintiffs who believe they have been defamed online should bring a tort claim against the person or entity that actually made the defamatory statement. In doing so, the plaintiff will have to file their defamation suit in an appropriate state or federal court. A jurisdictional analysis will determine the appropriate court that hears the defamation lawsuit. An attorney conducts this process.

What Constitutes Defamation Online?

In personal injury cases, defamation is generally defined as a false, published statement injurious to the plaintiff's reputation. Under common law, a false statement of fact about a person's reputation must be made to a third party. Statements of opinion do not constitute defamation no matter how much mental anguish they cause.

At least a few people will likely see an online posting, even on an obscure website. This will satisfy the publication requirement. In most states, publication requires only that the statement be seen by one person other than the maker and the subject of the statement.

To protect the First Amendment right to freedom of speech, the Supreme Court has made it more difficult for public figures or public officials to claim defamation of character. This is so even when a defamatory comment can be proven to be a falsity. In those situations, a celebrity or famous person has to prove that a defendant acted with actual malice. That is, that they had the intent to do harm. Or that they had reckless disregard for the truth when they committed the civil wrong.

Statements of Fact

A plaintiff cannot succeed in their online defamation claim if the defendant's defamatory statement was true. For example, if a customer posts a review of your business on Yelp, claiming that there was a rat infestation, you may be able to sue them for defamation. You would then have to prove that there was no rat infestation, and thus, that the defendant's statement was false.

Opinions

Following that, the defendant may try to argue that the statement the defendant made about the claimed rat infestation was just the defendant's opinion. The law protects opinions. As a result, plaintiffs cannot bring a defamation claim for an opinion.

On the other hand, an opinion that may be viewed as a statement of fact by a reasonable person will be deemed a statement of fact. For example, a person might state, "I think that the restaurant has a rat infestation problem." Some courts or juries might interpret this as a statement of fact rather than a statement of opinion.

Modifications to Photos and Videos

Modified photos that have been altered to scandalize persons or businesses may constitute defamation violations. These are quite popular on social media. It is common for modified photos or videos to go 'viral'.

The less obvious and absurd the modification, the more likely it is that a court will find it defamatory. This is because it's more likely that a reasonable person will believe the modification as portraying “the truth" rather than being a joke or clear exaggeration.

As a sharer or creator of content, always make sure that any information about a person or entity is truthful, especially if it could be considered defamation injurious to their reputation. If you make a mistake and potentially defame someone, consider doing a retraction. A retraction is, a “take back" or correction to let the public know you didn't intend to be malicious.

Learn More about Defamation and Social Media

Social media has become a liability landmine. Whether you or a loved one has been a victim of defamation or has been accused of defaming someone, you'll want to consult a professional to best understand your situation. If you're a potential plaintiff, you have to make sure to file your defamation lawsuit within the time limit required by law. This limit is known as the statute of limitations.

Contact a local defamation attorney to get legal advice about what you can do about defamation and defamation accusations. Defamation lawyers are personal injury attorneys who can help you recover or defend against special damages and punitive damages that could arise from a defamation claim.