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. Sites are designed to encourage and incentivize the sharing of 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, a searing Yelp review may be seen and rated by tens of thousands of users, and 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. Though online content is occasionally moderated for pornographic or legal issues involving other inappropriate elements, 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.
Plaintiffs who have suffered online defamation often go after their Internet Service Provider (ISP) or the website that hosts the defamatory content at issue, like Facebook or Google or Yelp. That's because these companies are wealthy and can afford to pay the plaintiff's damage demand in defamation cases. In the United States, however, pursuing an ISP or a website is not a legitimate legal option for a plaintiff making a defamation claim. In 1995, Congress passed the Communications Decency Act, which protects ISPs, social media platforms and website hosts from defamation claims.
Plaintiffs who believe they have been defamed online should bring a claim against the person or entity that actually made the defamatory statement. In doing so, the plaintiff will have to file suit in an appropriate state court. The appropriate state court should be determined after a jurisdictional analysis is conducted by an attorney.
Defamation is generally defined as a false, published statement that is injurious to the plaintiff's reputation. An online posting, even on an obscure website, will likely be seen by a few people, thus satisfying the publication requirement.
Statements of Fact
A plaintiff cannot succeed in his or her 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 sue them for defamation. You would then have to prove that there was no rat infestation, and thus, the defendant's statement was false.
Opinions
Following that, the defendant may try to argue that the claimed rat infestation was an opinion. Opinions are privileged under the law. As a result, plaintiffs cannot bring a defamation claim for an opinion. Importantly, however, an opinion that may be viewed as a statement of fact by a reasonable person will be deemed a statement of fact. The courts may interpret, "I think that [restaurant] has a rat infestation problem," as a statement of fact.
Modifications
Modified photos that scandalize persons or businesses are clear defamation violation and are quite popular on social media. It is common for modified photos or video to go 'viral'. The less obvious and absurd the modification, the more likely it is that a court will find it defamatory.
As a sharer or creator of content, always make sure that any information about a person or entity is truthful and would not be considered injurious to their reputation.
Social media has become a liability landmine. Whether you or someone you love 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. Contact a local defamation attorney to learn more about what you can do about defamation and defamation accusations.
