Blog Law: Defamation and Social Media

Online Defamation

We’ve all heard the phrase “If you can’t say something nice, don’t say anything.” When it comes to social media and online content, though, its seems the phrase is actually “If you can’t say something nice, blog, tweet, facebook, or post it online.” While I shouldn’t be, I am surprised at what people post online. It’s as if there is no internal filter on some people. For others, Shakespeare has nothing on the drama they call life.

While it may not seem like many, as early as 2007 several hundred bloggers have been sued on a variety of legal theories, with defamation topping that list. And, as recent as 2011 a blogger was held liable for defamation and assessed $2.5 million in damages. Legal liability for what you post (and even comments made) on your blog is not a theoretical discussion. It is very real and is happening more often than you may imagine.

What is Defamation?

Defamation covers two types of communication, written (libel) and spoken (slander). Generally, defamation is a statement that is communicated to a third party and makes a claim, either expressly or implied to be factual, that injures another’s reputation or causes others not to associate with the person or business. Malicious intent is not generally required. And given that few bloggers would likely be classified as Public Figures within the very narrow definition, don’t rely on the “but they have to prove malice” defense.

With blogging, the main concern will be libel. Even if it’s not a written blog post but rather a vlog or podcast or some other type of internet-oriented medium, you’re likely going to be dealing with libel.

How does this apply to bloggers?

Your Own Statements

While 40 states do have Media Shield Laws which protect members of the media and media organizations, not all of those states include the internet in their Shield laws. As such, bloggers are not able to use those same protections when they write negative things about other people or organizations when those statements are implied to be or stated as factual when in-fact they are not.

We’re not talking about bloggers giving a review and sharing their opinion and their personal experiences which happen to be negative. Truth is always a defense to a defamation claim, but you have to have some proof that what you state is, in fact, true.

In addition, one of the key words in the definition requires that the statement be asserted as fact. This is why many bloggers and users of online forums, chats, and social networks and platforms are very clear to assert that their statements are merely their opinion.

For most bloggers, when it comes to their blog the risks of defamation are low. The topics covered don’t generally lend themselves to the assertion of allegedly false statements of fact nor do the comments and discussions move in that direction. However, with the US legal system as easy to use as it is there is a real possibility of being sued. Because being sued isn’t the same as being held responsible, someone can sue you just because they have a good faith belief that you’re defaming them. (Just ask Donald Trump.)

Comments On Your Blog

One of the great things about blogging is connecting with our readers. Engagement and comments are what we live for. In general, bloggers keep an eye on the comments. We need to filter out the junk, make sure people aren’t taking advantage of our generosity with the link juice, and try to keep the haters at bay. Some people moderate all their comments so they can control what goes out publicly on their blog. Others feel that moderation impedes conversation so they allow anyone to comment and it be available in real time.

Are bloggers really responsible for what a commenter says on their blog? As a lawyer, the answer is a resounding … MAYBE! In general, we’re not responsible for libelous statements made by others. So much so that Section 230 of the Communications Decency Act (47 USC 230) offers protections that apply to bloggers who permit comments on their sites. However, this won’t prevent someone from filing a suit against you or subpoenaing you and/or your blog records, but it will be an affirmative defense you can raise. And while you may not be liable, having to spend your time and money being involved in a lawsuit are often very high costs to standing your ground.

Where Can You Be Sued?

I’ve been asked this a few times. And while the answer is somewhat complicated, at the same time it’s very easy. The short answer is Everywhere! It is the world wide web, afterall. And that first word, world, is quite broad. Chances are though, that if you were sued for defamation you’d likely be sued in the US in some state other than where you live. And that creates lots of problems.

Jurisdiction, the ability of a court to hear a case involving you and your actions, can be pretty tricky. For example, criminal courts can only hear cases about alleged violations of criminal laws. It can’t rule on divorce or probate or contract disputes. Civil courts, though, hear cases about civil matters. That’s called subject-matter jurisdiction.

With any court, though, they also have to have authority to hear a case involving you specifically. Known as personal jurisdiction, the state has to have some relationship to the parties or the matter to haul you into their system. You can’t just file a lawsuit against someone anywhere in the US. The parties involved have to have some relationship with the state to be subject to their court system. Even in Federal Court, the courts have special rules about which court you can use.

If you blog in California and the person or company that alleges you have defamed them is in Florida, where do they sue? Besides looking at the question of state or federal court (which I won’t discuss), should you have to go to Florida because it’s convenient for them? Why shouldn’t they sue you in California? Afterall, you are there and that’s where the alleged defamation occurred. Right?

As recently as 2010, a Washington State blogger was sued in Florida for defamation. The Washington blogger didn’t think she should have to go to Florida to defend herself because she had nothing to do with the state. Unfortunately, the court disagreed. The rule that came out of that case is that if your posts are accessible in Florida then you’re subject to Florida courts.

That’s not a US Supreme Court ruling and therefore not the ultimate law of the land. However, as precedent it is very strong. As such, just understand that even if you’re sitting in your jammies in middle of now where USA you may need to haul yourself into any court in the land to defend yourself for claims relating to your blog.

Comments, Discussions and Updates Made to Social Networks or Platforms

You may have heard that rocker (and wife to the late Curt Cobain) Courtney Love was sued over an allegedly defamatory tweet. In less than 140 characters, Ms. Love made allegations against a former clothing designer she had been working with. And while the case never went to trial so we won’t know if there is any legal basis, Ms. Love settled the defamation suit. However, Ms. Love didn’t think she needed any type of internal filter when using Twitter after that experience and later in that same year she was sued again for defamation, this time by her former lawyer.

While most people aren’t using Twitter or other social platforms to make allegedly defamatory statements, the increase in what are believed to be private discussions within social media and social networks are beginning to pose concerns. A defamatory statement does not require publication to any specific number of people. In fact, all that is required is that such a statement is made to a third party. One person! A defamatory statement sent by Direct Message on Twitter, the chat feature in Facebook, instant message or even text is all that’s needed. You may wonder how the person/company/business being defamed would learn about it, but really do you.

7 Important Takeaways about Defamation (specifically, Libel)

1. You only have to publish your statement to ONE person! – Contrary to what many believe, you don’t need to tell millions of people to be held liable for defamation. With the ease of screen capping or forwarding a text, what you say to one person can easily get to the allegedly defamed person. As for those private conversations on DM, IM, chat or text, they’re fair game. As are anything said in those “secret groups” on various social media platforms.

2. You can likely be sued anywhere in the US – Anything published on the interent will likely expose you to jurisdiction in courts across the country. Be prepared. Even if what you did say turns out not to be defamatory, it doesn’t prevent you from being hauled in to court in another state to prove it.

3. You may be sued for what other people say on your blog – As a blog administrator, you have a great deal of control over comments made on your blog. And while Section 230 of the Communications Decency Act may protect your from liability, it won’t protect you from being sued and having to defend yourself. Sure you’ll be able to raise a valid defense but you’re still being sued and it sucks.

4. What you write is asserted as fact either expressly or impliedly – Defamation does not apply when the statements are your own opinion. It’s when asserting things as fact that you can get in to trouble. If you’re ranting about someone (or something, or a company) and it’s just your opinion then make sure it’s clear that it’s your opinion. If you’re stating facts be clear about that as well. If you know for a fact so-and-so was smoking weed and you can back it up with either first hand knowledge or a reliable source then write about it. But if you just think so-and-so is a pothead don’t risk it with hyperbole and grandstanding. But remember you can’t shield your source and expect the court to just wave you past go to collect your $200.

5. Bloggers often aren’t treated the same as traditional media – Even for those bloggers who take a more journalistic approach to their craft, many courts still aren’t ready to extend traditional media protections to a blogger. While some states have attempted to close this gap on how bloggers are classified, most have not. But, like traditional media, bloggers should check, double-check, and possibly triple-check any sources they rely on for their information.

6. Be careful with photos and images you use – The saying that a picture is worth a thousand words can be a detriment to you if you use a photo that implies a fact that is untrue. Stay away from juxtaposing images with stories to imply something that isn’t there.

7. If you are sued, find a lawyer in your city that specializes in defamation – Don’t immediately take down the post or delete the tweet. You can’t unring the bell, but you can find out how to best defend yourself. If not handled appropriately, removing the allegedly offending piece can make the problem bigger.

While I mention this in the context of a blogger, really it’s applicable to any type of online professional or entrepreneur that publishes content on the web. While the adage is that “if you can’t say something nice, don’t say anything at all”, we need honesty and authenticity. Others may not like what you have to say about them or their product, but the truth of the matter is that we’re all allowed our opinion and the ability to tell the truth.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Defamation – When Online Statements and Free Speech Collide

Words are Weapon image (c) http://www.photos8.com/

Remember when you were a kid and your mom or dad told you “If you can’t say something nice, don’t say anything at all.”? And then you rolled your eyes (with your head turned so they couldn’t see you) and under your breath called your brother a jerk? OK, maybe it was just me. But, in a hypothetical sense you know what I’m talking about, right?

As we grew up we learned about constructive criticism, sharing our opinion even when it was against the grain, providing honest input and playing devil’s advocate. We figured out (well, most of us) that saying mean things about other people, whether or not they were true, often created more problems. And sometimes we were the one having to deal with being called things that we didn’t like.

In the online world, it’s not just bloggers that are potential targets for the words they write. With Facebook, Twitter, location-based apps and online communities, anything your write online could be the basis of someone’s wrath. No longer is it just websites focusing on celebrity gossip that are catching the discerning eye.

And as much as we think that what we say online is ‘Free Speech’, most of it is not protected by the First Amendment. The First Amendment only protect individuals against the US Government trying to ‘oppress’ your freedom. Bloggers, as well as people on Twitter have been sued by individuals and businesses for the words they’ve put out in the internets.

Generally speaking, defamation is a false statement about someone that causes them harm. It is not limited to live people and can apply to corporations and their products or services as well. Defamation of the products or services of a business or company has its own special name, trade libel.

Defamation has two categories: Slander and Libel. Slander is defamation in a non-fixed medium. The easiest way to remember slander is that it’s spoken and both begin with an ‘S’. Libel is defamation in a fixed medium. Libel is written, whether in traditional magazines or newspapers or in online publications.

What is defamation?

Defamation is the publication to one other than the person defamed of a false statement of fact that is understood as being of or about the person and tending to harm the reputation of the other person. If the targeted person is a public figure (a legally defined word) they must prove actual malice by the statement maker.

But it’s the truth!

Just as my brother used to tell my mom that’s it’s OK for him to call me ugly because it’s the truth, truth is one of the most significant defenses to defamation. Keep in mind, though, that it may be expensive, time consuming and difficult to prove something is, in fact, the truth.

Not identifying the person by name

Just because you don’t name the person by name doesn’t mean they can’t be identified. If you provide enough information about the defamed person it’s easy for enough people to identify them. For example, referring to someone on your Facebook as ‘my neighbor’ may sufficiently identify them. On a blog, if you can identify a person sufficiently so that other know who you’re talking about, maybe not even naming them on your blog but linking to their blog, twitter or even a flickr image.

I was just stating my opinion

As the requirements state, it must be a false statement of fact. In context, if the statement can be determined to be your opinion then it can’t be defamation. For most people, in the online world we often preface or follow our opinion with a variety of acronyms such as IMO (in my opinion), IMHO (in my humble opinion) or even FWIW (for what it’s worth). However, just by saying it’s an opinion doesn’t mean it is.

Who is a public figure?

The law treats people in the public eye differently. If the one being defamed is a public figure they must prove that the one saying has done so with actual malice. Actual malice means that there is knowledge of the falsity  or reckless disregard for the truth. It is a very high threshold. And it is set very high because courts want people to engage in dialogue without constant fear of repercussions. A public figure is a legal term used to describe a person who has a continuous and powerful influence on a public matter.

People often mix up ‘public figure’ with celebrity. A celebrity, or even a very popular blogger, may be a public figure in the general sense in that they are very public about their goings on. However, in the legal sense they may not be a public figure. It is very fact specific. And there are many instance where very private people have been thrust into the public limelight and have become public figures, for example the pilot who landed the plane in the Hudson a few years ago.

Is there insurance available to protect me or my business?

There are a growing number of insurance companies providing media liability coverage for online libel claims. For the average blog the premium is too expensive. However, if you think you may need this type of insurance the Citizen Media Law Project has information on obtaining media liability insurance.

It is also possible that homeowners or an umbrella liability insurance will provide coverage for media liability. Check with your insurance agent if you think you might need to rely on that coverage. In many instance it will exclude any type of business liability and if you’re a blogger that is likely to mean it won’t cover what you post on your blog or blog related online media outlets.

Conclusion

Every day millions of people say negative things about other people. Only a small fraction of those statements would rise to the level of either slander or libel. I’m sure you’ve read something within the last 48 hours that made  you stop and think that maybe the writer shouldn’t have said that.

But just because it’s not at the level of defamation doesn’t mean it’s not hurtful. Nonetheless, knowing that you have a large umbrella of protection is what keeps most of us creating content. It’s not to say that bullying is OK or that being rude and obnoxious is acceptable. However, to know that you can write openly will continue to encourage people to share and push boundaries.

For blogger, especially, knowing that your honest opinion in a product review would be a defense is significant. To know that you can call someone out for foolish behavior is important. And, in general, to know that our right to rant, rave and complain is afforded great protection will keep the interwebz going.

It doesn’t mean someone you’ve ticked off won’t sue you. But what it does mean is that if that does happen you’re prepared and equipped to put up a fight. There are many cases of defamation based on online statements, however most end up getting dismissed. Still, I am a firm believer that sometimes it is better to say nothing at all. Because, really, I may be in the right but dealing with foolish people in court is no fun. And no matter how right you are it’s still your time and your money.

What are your thoughts about what is said online? Will you change your way of writing now that you know more about defamation?

Note: Just because it’s not defamation doesn’t mean it is not another crime (or tort) such as Cyber Bullying or Cyber Stalking.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.



Image Credit: Sam Mugraby

Sara