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.
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….