The Law Firm of Bucknam & Black PC

Defamation on Social Networking Sites—is anyone liable?

The news is full of stories of victims of false statements on the internet. One ad says that the internet is like the “Wild West” and that there is nothing a victim can do.  That is not quite true, but a victim’s options are limited.

First, here is a primer on the law of defamation. Defamation against non public figures (those of us who are not politicians or celebrities) requires the following:

• a false and defamatory statement;

• fault on the person who made the statement;

• publication;

• damages.

• Lack of privilege

A statement must state a false fact, not an opinion. It must be defamatory. Defamatory means a false and disparaging statement about a person’s business dealings, criminal record, or moral turpitude. For example, if someone publishes a false statement that his neighbor walks his dog every morning at 6:00 a.m. (the neighbor doesn’t have a dog), the publisher of the statement cannot be liable, because although the statement is false, it is not defamatory.

The person making the statement must be at fault. That means the person either deliberately lied, or was negligent in making a false statement without verifying the truth of the statement. For example, if a newspaper publishes a police report that is false, the newspaper will likely not be liable if the police reports in the are something that a reasonable person can rely on.

Which brings us to the next requirement: publication. Publication means making or repeating a false statement to a third party. For example, if two people were in a room alone with no one listening in, and one called the other a crook, there would be no “publication” as defined by the law of defamation. Publication means speaking, writing, or publishing to a third party. A person accuses another of committing a felony; another person hears the statement, and tells a local reporter, who publishes the false statement in the newspaper. The person who made the original statement, the person who repeated it to the newspaper reporter, and the newspaper which published the statement are all liable if they are found to be either deliberately lying, or negligently repeating a false story.

In addition, there must be damages. Damages can be a loss of a job; but it can also be loss of reputation, embarrassment or humiliation.

Finally, many defamatory statements are considered by the law as “privileged”, making giving the speaker either limited or absolute immunity. Statements made in the course of litigation are absolutely privileged. Thus a person can file false claims in court documents, and not be held liable under the defamation laws. An employer has limited privileges to make statements about an employee. Legislators and judges are also absolutely immune from defamation claims in the course of their official business.

There is a statutory privilege passed by Congress which relates to social networking sites.

The Communications Decency Act. (47 U.S.C.A. §230) provides immunity to “interactive computer services providers” . Courts have found that the Decency Act also provides that providers are immune even if the providers have been told of defamatory material and they refuse to remove it.

Thus while a newspaper can be held liable if it prints a letter that it knew or should have known contained false and defamatory material,  Craiglist, Facebook, My Space, Twitter cannot be held liable for  any defamatory material posted on their sites. Other entities and individuals, such as companies with a page on Facebook are also immune under the Decency Act’s definitions, because they provide a forum for posting interactive comments from the public.

The person who posted the defamatory statement on Facebook or Twitter is not immune under the Decency Act and can be held liable for the defamatory posting. And companies or individuals who have a presence on a social networking site may be found liable under certain narrow circumstances if a third party posts on their site. While the caselaw is sparse on the issue, at least one recent court case has found a company potentially liable when one of their forum moderators defamed a competitor—and the posting was allowed to remain on the site. The court found that because it appeared to the public that the moderator was a representative of the company at the time the post was written, (he later became an employee), and because the company made no effort to remove the post, the company could be held liable for the moderator’s comments.

Thus while companies which have a Facebook presence cannot be held liable if the public posts defamatory statements on their page, if someone connected to the company publishes a defamatory post , the business may be held liable. It is an area of the law that has yet to be fully developed, and it would be prudent for businesses to monitor their sites in case other courts interpret the Decency Act immunities more narrowly to exclude from immunity companies who allow defamatory postings by company representatives.

Victims of defamation, then, have virtually only no recourse:  they can sue the person who posted the defamatory statement and generally no one else.

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