Defamation of Character on the Internet

May 10th, 2012

Defamation of character claims are relatively challenging because you have to prove a variety of different things. Each of which presents legal challenges. The first is, you actually have to prove that someone has, in fact, posted a false statement of fact about you. If someone posts on Facebook something about you that really hurts, because it’s like, whoa, they said something really negative about me. That may or may not be defamation of character under law. It has to be a false statement of fact, as opposed to a false statement of opinion. Even the difference between fact and opinion can be very difficult to understand, sometimes.

Welcome to Defamation Law Radio. Internet defamation of character is as easy to perpetuate as a blog post, Facebook update, rating submission, or a forum comment. Your online reputation is measured by the websites return as Google search results. Do you know what people are saying and writing about you?

Matt Plessner: Hi, it’s Matt Plessner for Defamation Law Radio, and today we’ll be talking about what defamation of character means. We will be covering as well, Internet defamation including Facebook, Twitter and other social media. To help us understand this better, we are speaking with attorney at law, Enrico Schaefer, from the Traverse Legal office in Traverse City, Michigan. Enrico, how are you?

Enrico Schaefer: Doing great today, Matt.

Matt Plessner: Well, tell us, Enrico, exactly how common is defamation of character on the Internet? Especially on social media like Facebook or Twitter?

Enrico Schaefer: It’s huge, Matt. In our law firm, we get calls and emails just about every day from folks who believe that they have been defamed on the Internet. They are trying to understand what their options are. The problem, of course, unlike a newspaper, the Internet is permanent. So, when someone posts something on Facebook or Twitter or on a blog post or their website, that post can literally be there for the rest of your life and beyond.

Matt Plessner: How do you prove a defamation of character claim?

Enrico Schaefer: Defamation of character claims are relatively challenging because you have to prove a variety of different things. Each of which presents legal challenges. The first is, you actually have to prove that someone has, in fact, posted a false statement of fact about you. If someone posts on Facebook something about you that really hurts, because it’s like, whoa, they said something really negative about me. That may or may not be defamation of character under law. It has to be a false statement of fact, as opposed to a false statement of opinion. Even the difference between fact and opinion can be very difficult to understand, sometimes.

If someone says, Matt, hey so-and-so went to the supermarket, and I saw them shoplifting. It turns out that someone posts that on Facebook. Well, then that’s something that, as an attorney specializing in defamation law, I can prove that statement either true or false. Therefore, it qualifies as a false statement of fact. If, on the other hand, someone posts on Facebook or Twitter, I believe that so-and-so is a really bad person, and I think that if they had the chance, they would shoplift. Well, that is much closer to a statement of opinion than a statement of fact. That’s going to be protected by the first amendment, and that may not be actionable as defamation under law.

The next thing you have to prove is that the statement tends to harm your reputation. Typically, that’s not much of a challenge because you wouldn’t be calling a defamation attorney if, in fact, you didn’t feel that the statement is harming your reputation in some way. Then, there are a variety of privileges that apply to the defense side for the person who actually has posted the defamatory comment. There is the issue of damages, you have to prove different categories of damages in order to have a claim. You have to prove that the defamation was published. That’s typically not a problem, it’s on the Internet in the case of social media. Someone has posted it on Twitter or Facebook. So, the real challenging issues are showing that it was a false statement of fact, and that, in fact, it harms your character in a way that you have suffered damages from.

Matt Plessner: What about those people who re-publish, or re-tweet or Facebook share somebody else’s defamation?

Enrico Schaefer: That’s a great question, Matt. What people fail to realize is that, when they re-tweet, Like, or share a post that’s defamatory written by someone else, they become a publisher of that information, and you may end up taking on some liability under defamation law if you re-publish, re-tweet, re-share, or share a particular post that the court of law finds at some point, is defamatory. So, you do need to be very careful about what you re-publish in any of these different social media, because you could get hit with your own defamation of character threat letter or even worse, Matt, someone could actually sue you along with the person who actually published the original defamatory post.

Matt Plessner: Well, thank you, Enrico, for enlightening us on Internet defamation. One final question. What tips would you have for somebody who’s been defamed on Facebook?

Enrico Schaefer: Well, if you end up getting defamed on Facebook or Twitter or some website, the first thing that you need to do is get a screen capture of the post. Sometimes, people will take them down, sometimes those posts may be very difficult to find later on. As a defamation of character attorney specializing in defamation law, the first question I have for a client is, OK, do you have evidence of what was posted? Sometimes, they will send me a link, and we’ll go through the effort of getting the screen capture to preserve that evidence. So the first tip is, get the evidence.

The second tip is that you need to remove your emotions from your analysis. When you are the target of a defamatory statement that is posted on the Internet, and that becomes part of the online experience, your first reaction is emotional, of course. It’s, wow this really hurts, we have to do something, we have to sue someone for defamation. You need to remove your emotion from it because you’re going to need to make some very important decisions moving forward in terms of how much money you’re going to spend to have it removed, understanding the challenges that you may face as a plaintiff if you decide to file a lawsuit claiming defamation of character on the internet. You need to be able to make these decisions in a rational way. So, try to remove your emotion from it.

The third tip is you need to hire an attorney that specializes in Internet and online defamation. You really have two big issues here. You have, what is defamation under state law, and then you have the challenges of having that content removed from the Internet. There are specialized Internet laws that apply to trying to remove content from a website or from Facebook, or from Twitter that the attorney is going to have to be aware of. We end up dealing with these issues so often we tend to know how different web sites deal with a threat letter or a notice letter or a request to take down defamatory contents. We know how to work through the terms of service on that website.

Matt Plessner: Thank you very much for your time, Enrico. My name is Matt Plessner. Join us next time on Defamation Law Radio.

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