Facebook is a popular forum for users to express their opinions and ideas, but at what point do they become liable for what they post? Is there a limit to what you can say on Facebook, how far you can go in expressing your opinions? Too many Facebook users forget they are expressing themselves in an on-line forum, not just in the privacy of their homes or with their close friends. Free speech guarantees are in place to protect the individual poster in the United States, but just what is the scope of that guarantee?
The First Amendment guarantees, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (Cornell Univ.) But where does the Internet, a concept never contemplated by the Founding Fathers, fall under this law?
There are four accepted qualifications for posting to the Internet to meet the level of defamation:
- The post or article must be provable as a false statement of fact. This is different from an opinion, which is not an actionable cause of defamation.
- The statement must be harmful to the reputation of the recipient or business targeted.
- The statement must be made without due diligence (i.e. not properly researched).
- Public officials or celebrities targeted must prove the intention of malice.
There are also differing definitions for the terms “libel”, “slander” and “defamation”.
Defamation: a false statement of fact which harms the reputation of a person or company. This can include both libel and slander.
Libel: written defamation. “Most on-line defamation occurs through libel by posting a web page, comment, bulletin board post, review, rating or blog post.”
Slander: Defamation that is spoken such as through a transcribed video, podcast or audio file.
An opinion is not defamatory. However, “merely labeling a statement as your ‘opinion’ does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.)” (Electronic Frontier Foundation)
A Hopewell City, Virginia councilwoman is currently being sued by a former candidate for sheriff who claims the councilwoman defamed her on Facebook by stating she was part of the Ku Klux Klan. The allegedly defamed candidate is asking for $2 million in compensatory damages and $350,000 in punitive damages. If she prevails, that would be a big price to pay for Facebook “opinionating”. (Llovio)
Additionally, an ex-NFL cheerleader has been in the news over her lawsuit against an Arizona-based gossip website which published allegations that the woman had sex with an under-age male while employed as a teacher. A federal judge ruled that the lawsuit could proceed, and a jury found the website, thedirty.com, liable to the tune of $338,000. Though the case is on appeal, several Internet providers, such as Twitter, Amazon, Google and Facebook, are up in arms over the judge’s ruling to allow the lawsuit to proceed in the first place. They have warned that this will have the potential to cause a “significant chill” in the freedom of on-line speech by users of social media.
A Michigan man found himself the object of a defamation lawsuit as a result of using his Facebook page for revenge against a towing company that had towed his car when his parking permit was not visible. The man, from Kalamazoo, Michigan, started a Facebook page critical of the towing company. The company claimed this had damaged their business and harmed their reputation, and subsequently sued for $750,000 in damages.
Many attorneys consider this type of lawsuit a resurrection of the SLAPP suit (strategic lawsuit against public participation). It’s apparently not a new phenomenon and has been characterized as a way for businesses and public officials to seek redress when citizens speak out against them. First Amendment proponents consider these lawsuits meritless and see them as more a method of intimidation than a form of legitimate litigation.
In the wake of these lawsuits, many states are enacting legislation to protect Internet users from prosecution due to their free expression of opinions. For those who consider the Internet their personal forum and the First Amendment their protection from prosecution for expressing their opinions, this is a saving grace. Legislation being proposed in California would make a plaintiff found to have filed a lawsuit which qualifies as a SLAPP suit liable for the defendant’s legal fees. Currently, 27 states have laws regarding SLAPP suits. (Frosch)
“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.” (Berg) Some websites screen for illegal or defamatory content, but it’s virtually impossible to screen every post. An important test for being potentially libelous is whether or not the statement is true or false (and can be proven as such); and if false, whether the person posting the statement knew it was not true.
There have been a number of posts on Facebook and other social media claiming that users can protect themselves from prosecution by posting a legal disclaimer to their wall. It goes something like this: “In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, photos and videos, etc.” However, this is a hoax and users are being duped into thinking they have complete freedom from responsibility by posting this disclaimer. You cannot just invalidate the privacy and copyright terms you agreed to when you joined Facebook by posting some quasi-legal jargon. (snopes.com) Yet another Internet rumor that is passed on without substantiation.
There is nothing wrong with expressing your opinion, however, have the facts and know your subject when you do. Vet re-posts through snopes.com and hoax-slayer.com before you pass on everything that comes across your in-box. Sharing on Facebook is a great thing, but don’t leave yourself open to misinterpretation or “shoot from the hip” when pontificating on subjects about which you are not informed. You are not sitting in your living room chatting with your friends. You are on a public forum posting information (or misinformation) which may continue to circulate for a long time or be re-posted and embroidered upon. Just make sure you are on the right side of the law when you are “giving them a piece of your mind.”
Berg, David, “Social Media and Online Defamation,” http://www.nolo.com/legal-encyclopedia/social-media-online-defamation.html
Electronic Frontier Foundation, “Defending your Rights in the Digital World,” https://www.eff.org/issues/bloggers/legal/liability/defamation
Frosch, Dan, “Venting Online, Consumers Can Find Themselves in Court,” The New York Times, May 31, 2010
Llovio, Louis, “Hopewell Official Sued for Defamation over Facebook Post,” Richmond Times-Dispatch, Mar. 6 & 9, 2014
“What is Defamation, Libel and Slander?”, http://www.traverselegal.com/internet-defamation/defamation-libel-slander/