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Defamation, Slander and Libel

“You’ve been served!” on Social Media

Recently, I saw a story that ran on a KEYE-TV (ch. 42, in Austin) newscast about a bill that has been proposed in the Texas legislature by Representative Jeff Leach (R) from Plano. That bill, HB 1989, is proposing to allow people to be served subpoenas through social media.  When I first saw KEYE’s story, I must admit I thought this proposal was one of the worst ideas to be proposed in our Texas Legislature in recent memory.

Opponents of the concept argue that most people (myself included) miss posts and messages sent through social media all the time, there’s no way to confirm receipt by the actual person, and it is hard to confirm that a particular account is actually created, monitored and maintained by the particular individual sought to be served. They also say that serving someone in this manner is inappropriate because it would make the fact that the individual was being sued more public than it should be. While it is true that most court cases are public record, they are passively so–one has to go to the courthouse or to an online site to specifically look for the case. It is not like when someone files a lawsuit, it makes the front page of the paper, except in rare high-profile cases of public interest, and most lawsuits don’t fit that category.

But after reading the article on KEYE’s website (http://www.keyetv.com/news/features/top-stories/stories/texas-bill-would-allow-serving-subpoenas-through-social-media-7193.shtml?wap=0) and reviewing the actual text of the bill (http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB01989I.htm), I realized it was not emphasized in the story that the same base criteria that have been in place for “substituted service” or alternative service plus additional safeguards/restrictions applicable only to social media under this bill, would be applied to these situations. Currently, under Rule 106 of the Texas Rules of Civil Procedure, which has been in place over 70 years,

(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by

(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or

(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.

(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit

Citation by publication, or serving someone through a newspaper or other published media, has also been provided for in our court procedural rules for over 70 years, and it provides,

When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue citation for such defendant for service by publication.

It is not being proposed that social media be allowed as the primary or first option for serving someone, only when under the rules that already exist here in Texas (and similarly in most states and under Federal court rules also) it would be okay to serve someone by a substitute or alternate method to personal service by a constable or authorized private process server. If a litigant can show a court that service in person or by certified mail as authorized has been unsuccessful and can show that the criteria for obtaining substitute service or citation by publication have been met, under under the procedural rules the court may allow service by such alternate means.

In addition, as described in HB1989, additional procedures and safeguards must be followed.

If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court may prescribe as a method of service under those rules an electronic communication sent to the defendant through a social media website if the court finds that:

(1)  the defendant maintains a social media page on that website;

(2)  the profile on the social media page is the profile of the defendant;

(3)  the defendant regularly accesses the social media page account; and

(4)  the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.

Bradley Shear, a Washington DC area social media lawyer, stated in an ABC News story last year, “Authentication [of the social media user who is sought to be served through such social media] is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.” This principle is addressed by the first two criteria, as long as the courts hold the attorneys and litigants hoping to use this method to strict and high burden of proof to show that the online person is actually the same person in “real life” who is sought to be served..

So, given the advancement of technology, and the reality that it is possible that it could even be MORE likely in some situations that someone might see the subpoena or other legal process if served through the social media source than by some other means currently becoming less used (i.e., newspaper), if implemented right, I believe that service of process through social media could actually be a better and more appropriate method than certain currently allowed alternative methods.

Service by social media has been allowed  in New York, Minnessota, Nevada (Federal appeals court – 9th Circuit), Australia, New Zealand, Canada, and the United Kingdom, and other jurisdictions are being added all the time.

We will have to wait and see if the Texas Legislature passes HB 1989 to know whether service through social media officially becomes a permissible means to serve someone in a case.

Internet Defamation: The Law About Attacks on the Cyber Frontier

The internet and social media, such as Facebook and Twitter, have become a huge part of life in 2010, and in recent years. We post  about everything from legal opinions, to what car to buy, to what political candidate to vote for.  We post about ourselves and we post about others. As many have experienced personally, the internet and social media have also become ground zero for
publication of all sorts of defamatory statements. Some sites allow the user to post “anonymously” while others require a user to post by name (or at least a “handle” or login alias). In any event, the opportunities to disseminate defamatory statements in very public ways are much greater now than ever before, and likewise, the opportunities to be held liable for defamation are greater as well. Slander (oral) and libel (written) are both forms of defamation. In my law practice, I receive several calls a year from those who
say they’ve been defamed on the internet.

“To maintain a cause of action for defamation in Texas, the plaintiff must prove that the defendant: (1) published a statement; (2) that it was defamatory concerning the plaintiff; and (3) that it was published with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. Further, the plaintiff must suffer damages as a result of the defamatory statement; i.e., the statement must impugn the plaintiff’s character or injure the plaintiff’s reputation.” (quoted from the article linked below, citing Texas appellate court and Supreme Court precedent, as well as US Supreme Court legal precedent) Statements of opinion, even if offensive, aren’t enough to satisfy the requirements to establish a case for defamation. (http://www.texasbar.com/Template.cfm?Section=Texas_Bar_Journal1&Template=%2FContentManagement%2FContentDisplay.cfm&ContentID=26431)

A Chicago landlord sued one of its tenants for tweeting about her moldy apartment, but lost because the court found that the statement, especially having been made in the social context and setting where it was published, was just that tweeter’s opinion.
(http://bit.ly/8g6Jig)

An Austin fashion designer sued Courtney Love for Love’s allegedly defamatory tweets that followed the development of a dispute over payment owed for some custom designed clothing pieces Love ordered from the designer. In response to Love’s attempt to
dismiss the lawsuit, the court found that the designer would likely prevail on her defamation case because many of Love’s comments could be construed as statements of fact, in addition to others that were merely opinion. (http://bit.ly/aDLNn0)

There have not been a lot of these cases yet, but there have been some others besides these two. But all the cases thusfar seem to turn on the same issues that have always governed defamation cases. So the land of Facebook and Twitter has not created new law, just a new forum in which that law can be enforced.

People have attempted to sue Twitter, Facebook and various internet service providers that host blogs and other sites that host  people’s posts about businesses, organizations and people. But the Communications Decency Act of 1996 comes to the rescue of these internet service providers and hosts. It protects the owners of these sites from defamation claims, based on the principle that the provider of internet-based services or other users of the same site should not be treated as the publisher; generally only the user who writes the material and posts it may be treated that way, but retweeters and those who share or forward such posts may also share in the potential for liability.

Our office recently received a call from someone claiming to have been libeled by someone’s post to a social networking site. To maintain the privacy of the caller and the attorney-client privilege of the context of the call, I have changed the names of those involved and some of the facts of the story:
Debbie was jogging with some friends on the trail around a small lake in a nearby town one afternoon. As she passed another jogger, that jogger slightly shoved Debbie and made a derogatory remark about Debbie’s weight. One of the friends Debbie had been
jogging with later posted about the incident on a social network site (comments of disbelief, such as “who would do such a thing?”). Word spread and the incident was picked up by a local media outlet. No one knew who the victim of the remark was, but
there were rumors spreading. One woman, “Jane”, in the little town contacted Debbie and asked that she make a public statement to make clear that Jane was not the jogger, which Debbie did (although I’m not sure exactly why). Various people in the town are
still talking about the incident. Debbie also says that Jane continues to say disparaging things about the incident and about Debbie even after she complied with Jane’s request. Debbie even mentioned to us that she is having to deal with an issue on a home loan with
her bank (although it was unclear how this tied into the allegedly defamatory remark). Debbie confirmed during her call to us that the incident has not caused her any issues with the bank or damages beyond “mental anguish” and certainly no identifiable financial
losses have occurred.

This call is muddied with lots of stray facts, but the bottom line here is that the comment made by the passing jogger was not defamation because it was opinion, albeit offensive. To prove defamation, the plaintiff must also show that the people who heard the remark believed it and that the plaintiff was damaged by the statement. It may be a closer call on the comments that Jane may have made about Debbie, but at the time of the call, Debbie could not show that there was anyone who actually believed statements that Jane was making or that she had any monetary damages; all she alleged was some mental anguish (and she had not even been to a therapist, counselor or psychologist to address the issue, which would have been helpful in establishing that kind of claim).

I hope my comments have been helpful and informative. Stay tuned for my next blog entry in the next week or so….