Social Media Has Become Our Primary Means of Communication

Facebook, Instagram, Twitter, Shapchat, Pinterest, LinkedIn.  How many of these apps do you have on your phone or tablet?  Most of us are connected in some way to at least one social media outlet or social network.  And as we know from news headlines and, too often, from personal experience, the things people post online aren’t always true.  What if somebody posts grossly false information about you?  If they say you’re a thief or that you cheated on your spouse?

And then there are all the dating apps that represent a special consideration.  What if somebody on Tinder or eHarmony or Grindr says that you are some sort of molester or have an STD?  What if someone posts private or intimate photos online?

Traditionally, the law of defamation dealt with just two types of false statements: written or verbal.  If someone went into the town square and shouted (falsely) that you were a thief, then they could be held liable for slander.  If someone wrote an article in the newspaper saying (falsely) that you got fired for embezzlement, then you could sue them for libel.

Today, we still have these same torts: libel and slander.  And for the most part, the law is the same, even though the world we live in is entirely different.

Online Defamation

You’re at work, minding your own business, when you get a text message from a friend

Friend:  Please tell me it isn’t true.  🙁

You:  WTH are you talking about?

Friend:  Umm, Erica’s FB post about you having an affair with her.

You:  WTF!!?? Hell No!  She’s lying.

Friend: Well you better do something about it.

Is there anything you can do about this?  Absolutely.  If someone writes false information about you online, then you can sue them for whatever damages it causes.  Using the example above, if Erica’s post that you’d hooked up with her caused your wife to divorce you, then you would have a case against Erica for libel.  Please note, though, that you would not have a case against Facebook, even though it is their platform and website that contains the information.  Courts have routinely held that those sorts of websites are more akin to community bulletin boards than independent publishers of information, and that they have no duty to police the truth or falsehood of the things that get posted there.

This can be a bigger problem than you think, because very often, the people who are the least responsible about their online commentary are also the lease financially able to pay a judgment.  So if you got a $1,000,000 judgment against Erica, if she’s unemployed and broke, then your judgment isn’t going to get you any money.

How Much Money Can You Get?

So let’s say you have someone dead to rights guilty of slander.  What can you get out of them?  This depends greatly on the facts of the case.  If they did the slander intentionally and refuse to retract it after a written notice, then you can sue them for punitive damages.  Note that in Alabama, you have to write a retraction request before you can sue for punitive damages – see Ala. Code 6-5-186.  If they refuse to publicly retract the false statement in the same manner that they published the false statement, then you can sue them for slander or libel and possibly obtain punitive damages. Punitive damages are damages over and above the actual harm that the slander caused you, and are designed to punish intentional wrongdoing.  So if the lies were spread with malice, and caused you $10,000, then the judge or jury could award you an extra $30,000 of punitive damages.  This is rare, though.

Some cases don’t require you to prove actual harm at all, because there are certain categories of slander that are considered defamation per se.  This means that even if you can’t prove any financial harm came from the slanderous or libelous words, you can still recover a reasonable amount of money.  Some examples of defamation per se are: false accusations of a crime of moral terpitude (i.e. theft, assault, murder, rape, fraud); impugning a woman’s chastity (yes this still counts); and lies that make you appear unfit to carry on your trade or profession.  For example: if were a brain surgeon and someone falsely said that you had severe arthritis in your fingers, that would be defamation per se.

Truth is a Complete Defense

You may notice that I repeatedly use the word “false” in this article.  That’s because it’s an essential element of a defamation claim.  If someone says something nasty about you and it is true, then you cannot sue them for libel or slander, no matter now bad it is.  For example, if someone accused you of theft, and you did in fact steal something, you can’t do anything about it.

Another related defense is statements of opinion.  Since proving falsehood is an element of any defamation claim, a statement of mere opinion can’t be proven false, and therefore won’t get you anywhere.  For instance, if a customer wrote a bad Google review of your business saying that “They did a horrible job cleaning my carpet,” that wouldn’t be slander or libel, because they are entitled to their own opinion about what is or isn’t a “horrible” job.  By contrast, if they said “They came to clean my carpet and spilled ink and blood everywhere,” when in fact you did not spill ink or blood anywhere, then that would be slanderous, because whether or not you spilled blood or ink is a statement of fact – it is either true or it is false, and if you can prove it false (for instance, by having photos of clean carpet when you left the job), then you can recover for slander.

Next: Online Distribution of Private Photos and Videos