There are two main types of defamation: libel, or written defamation, and slander, or verbal defamation. When a potentially defamatory statement is made online or through social media -- such as via Facebook or Linkedin -- that involves the written (or "posted") word, and so it is considered libel.
In this article, we'll discuss key legal issues related to online defamation, and we'll look at some real-life examples. (For in-depth information on defamation law, check out all of the articles in Nolo's Defamation, Libel & Slander section.
The Problem of Online Defamation
The internet and social media are certainly a great thing for people and society in general, but they are also a uniquely effective breeding ground for potentially libelous statements.
Many people have learned (to their dismay) that the internet allows people to speak their mind almost too easily. The internet is chock-full of interesting web sites where someone could intentionally or accidentally leave a potentially defamatory comment or post.
Just a few of these locations are:
- letters to the editor of local newspapers
- public comments on media (i.e., newspaper or magazine) web sites
- blogs and comments to blog postings
- social media like Facebook, Linkedin, and Twitter, and
- chat rooms or listservers.
While some web sites screen posts for inflammatory or illegal content, the screening systems are not geared to examine every post for defamatory content, and so many defamatory postings end up online.
What State’s Law Applies? Where Can I Sue?
This is a complicated issue that depends on what state you live in, what state the alleged defamer lives in, and the contacts that the defamer has had with your state, if any. If you think that you have been defamed online, you should contact a qualified attorney as soon as possible to discuss your legal options and the best course of action.
Can You Sue an Internet Service Provider?
ONe reason you might want to sue the host or internet service provider (ISP) of the website that posted a defamatory statement is the "deep pockets" argument.
ISPs or website hosts might have more money -- and therefore more ability to pay a judgment -- than some blogger who posted a defamatory statement about you. But, for better or for worse, a federal law called the Communications Decency Act has specifically exempted website hosts and ISPs from most defamation claims.
Examples of Online Defamation
Let’s look at a couple of examples of the kinds of communications that might amount to online defamation. Let’s say that you have a blog and that you wrote that John Smith hit his wife two weeks ago. If this statement is not true (remember, truth is one of the absolute defenses to defamation), it is defamatory. There is no way that this statement, if false, is not defamatory.
But let’s qualify this statement. Let’s say that you wrote, “I think that John Smith hit his wife two weeks ago.” Statements of opinion are not statements of fact, and so theoretically are protected from libel suits. But is this really a statement of opinion? Sometimes statements of opinion really are viewed as statements of fact, depending on the circumstances. In this case, the average person may very well look at your statement as a statement of fact, depending on how well you know John Smith and his wife, and why you believe that Smith hit his wife.
The bottom line: Just because you phrase something as a statement of opinion -- "I think" or "I believe" -- does not automatically protect you from a defamation claim.
Let’s take another example. Let’s say that you wrote on someone else’s Facebook page that Mary Johnson was fired from her job because she made a serious mistake and, as a result, her company lost an important client. Again, if this is a false statement, it is almost certainly defamatory. But what if it is true that she made the mistake, but that the company did not lose the client? What if, in fact, her company fired her to appease the client? You have certainly written something that was false (at least in part), but maybe overall it was not defamatory.
The bottom line on this type of situation: If you are blogging or writing on your Facebook page, or submitting comments on someone else’s blog or Facebook page, make sure that you have all of your facts absolutely straight before posting your statement to the internet. Once you have clicked “send,” you can’t take it back.
Or, alternatively, if it is a close call, why say it at all? To use our example, why do you need to write on someone else’s Facebook page about Mary Johnson being fired? Unless you’re the one who fired her, you don’t know all the facts. In submitting posts or comments online or on social media, it is a good idea to exercise the utmost caution and avoid making any "gray area" statements that could be construed as defamation.