Friday, July 13, 2012

Defamation in the Internet Age

With the proliferation of the Internet, communication is fast, easy and convenient. Within the past few years, social networking has grown at an astonishing rate. Sites such as Facebook, YouTube and Twitter allow us to share our thoughts and ideas with the masses. But, what if those thoughts are not so nice?

Can you bring a defamation suit against others who have made negative public postings about you? It depends on what is said and to whom.

Defamation comes in two types: spoken statements (called slander) and written statements (called libel). On the Internet, I would submit that it is possible to encounter both types. For example, a YouTube video could contain spoken statements (such as from a person's webcam) that would constitute slander. On the other hand, Twitter or Facebook posts are typed statements and would be examples of libel.

The key to establishing a defamation case is to prove someone made false statements with a degree of fault to one or more third parties. There also has to be some type of harm.

Falsity is a must. Basic trash talk or calling people names does not count. Opinions do not constitute defamation either.

Most of the cases I see, especially from the Internet, fall into this category. That's not to say that you have to sit and take it, but it is not defamation. Such statements still could constitute false light, invasion of privacy, infliction of emotional distress, harassment, etc., but those are potential topics for other columns.

If someone makes a false statement to your face, that is not defamation unless it is heard by someone else. The statements have to be made to a third party, but it is not necessary that you hear it firsthand. As long as you can prove the statement was made (such as a public forum), that is good enough.

Whether the statement is made or published to a third party is a tough element to prove in slander cases. It usually is a he-said, she-said case. Who is the jury going to believe? If there is some type of recording of the statement, that is the best proof of what was said. Obviously, written statements are easier to prove as to their content. (If it was said on a private forum or private email - it can not be considered defamation or libel)

You also must prove there was some sort of harm done. You do not have to show actual monetary loss. Damage to your reputation, humiliation, and mental anguish are examples of harm.

What about that "degree of fault" language I mentioned? Well, if you are a private citizen, you have to prove only that the false statements were made negligently by the offender. However, for public figures, it is harder to prove defamation because you must show the statements were made maliciously. If you are a public figure, you have placed yourself in a position of some important public controversy. You are willingly in the limelight. So, if you ever run for public office, make sure you have a thick skin.

There are other nuances to the law, but those are the highlights. If you believe you have been the victim of defamation, consult an attorney.

DISCLAIMER: Every situation is different. Nothing in this article should be considered specific legal advice.

Jonathan Schmidt is a partner with Benson & Schmidt LLP.

(this does not cover "False Light" when truthful statements can be made in a 'false light' to discredit another's reputation - which is actionable in many states in U.S.)

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