Did you know you could be sued for telling a lie about someone? It’s true – it’s called defamation. Of course, it’s not quite that simple. You can’t be sued for every minor falsehood or white lie. It has to be public and damaging. But social media has opened up our harmless little comments to the world, and everything we post is more public than ever before.
In order to understand how social media slander works, we first need to understand how it works in general.
You’ve probably heard the terms “libel” and “slander” before. They’re two different versions of the same thing: defamation. Libel is written and slander is spoken, but they both refer to a harmful and false statement about another person or party and they’re illegal. Defamation is a “tort,” which is a civil offense. That means you can’t go to jail for it, but you can be sued in civil court and made to pay money to the person who sued you.
But how can this be illegal? Don’t we have the First Amendment to protect our freedom of speech? This is where things get complicated. The First Amendment does protect freedom of speech. However, there are conflicting interests at stake.
We want people to be free to speak their minds and voice opinions, but some statements are truly harmful and we don’t want people to be able to get away with that. Imagine someone went on TV and announced that the owner of your favorite local restaurant was stealing cash from his customers’ wallets. You and everyone else in town would stop eating there and the restaurant would likely have to close. That announcement would have cost the restaurant owner his business.
Now, this restaurant owner has lost his business and his livelihood. His only legal recourse is to sue for defamation. In order to succeed, he’ll have to prove the 4 elements of defamation in Ohio:
First, he’ll have to show that someone made a statement to the public and held it out as fact. In the case of our restaurant owner, it’s easy. Someone made this claim on public television, so it’s certainly public. The statement was also made as if it were a fact – there was no disclaimer that the statement was a joke or otherwise not serious.
This element can get more complicated. In some cases, the statement is implied or suggested rather than outwardly stated. In others, it may be meant as a joke or hoax. Making a statement “public” can also be fuzzy – how many people have to hear the message for it to be considered public?
It’s obvious that a television or radio broadcast, magazine or newspaper article, or online article or podcast is public. At the same time, it’s obvious that a comment made to a friend in private doesn’t qualify. In general, a statement to 2 or more people may be considered public. A loud conversation in a public place where people can overhear you is enough; you don’t even have to be intentionally broadcasting the information.
We’re describing defamation as a statement, but remember that it can be written, spoken, drawn, acted out, or otherwise portrayed. It doesn’t have to be an announcement or an article. Any method of conveying information can potentially be defamatory.
The ultimate defense to a defamation claim is truth – you can’t sue someone for saying something true, even if it is harmful to you or your business. Opinions are also protected. Someone can go on TV and announce that they had the worst meal of their lives at the restaurant and the restaurant owner can do nothing about it. In order for a defamation claim to succeed, the statement must be false.
If someone made a false statement about you but it didn’t cause you any harm, you can’t make a defamation claim. The point of a tort is to get monetary repayment for the harm you suffered – if there’s no harm, there can be no compensation. In the case of our restaurant owner, he can show that he was forced to close his business. An individual can also show lost job opportunities, lost wages, and in some cases, even emotional harm resulting from the defamatory statement.
“Negligence” is a legal standard that essentially boils down to not taking reasonable precautions to ensure that what you’re saying is true. Inventing a fact out of thin air doesn’t involve taking reasonable precautions – that meets the standard. Doing a moderate amount of research on the subject is a reasonable precaution against falsehood. Let’s assume the person who spoke out against the restaurant owner had no evidence for his claims – perhaps he was acting out of spite or boredom. If that’s the case, then he was negligent when he made the statement.
So, our restaurant owner’s case meets all 4 of the requirements for a defamation claim in Ohio. He could take this case to court and win monetary damages from the person who made the original statement. Those damages could cover the loss of business, emotional harm, and other costs incurred as a result of the false statement. Remember that all 4 elements are necessary. If any one of them isn’t present, there is no case for defamation.
As complicated as the above scheme seems, it’s actually the simplest part of defamation law. There are also a variety of defenses to the charge and exceptions to the rule.
First, Ohio has a per se defamation law. This means that certain types of statements will always be defamatory, meaning they are always assumed to cause harm. In other words, a per se defamatory statement always meets the third element of defamation in Ohio, with no further proof necessary.
Ohio’s per se defamation law is unusually broad; other states limit it to certain categories but Ohio’s law extends to any statement that “reflects upon the character of [the plaintiff] by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or profession.” Becker v. Toulmin, 138 N.E.2d 391, 395 (Ohio 1956). In practice, this typically involves falsely accusing someone of a crime or heinous behavior. Our restaurant owner would likely fall into this category.
Media outlets fall into a special category with respect to defamation law. They tend to receive greater leeway in their statements as long as they can prove that the statements are substantially true. In other words, they don’t have to be 100% accurate all the time or risk litigation. This is a balance between the needs of the public for factually accurate information and the needs of the media for protection from litigation.
Remember, the media (and anyone else) can say whatever they want if it’s true. They can report on arrests, criminal cases, and other matters of public record even if you don’t want them to. They can also give any opinion they want. Defamation only applies where someone is holding a falsehood out as a truth.
Public figures also fall into a special category because they place themselves in the spotlight. In order for a public figure to win a defamation case, they must prove a 5th element in addition to the 4 described above, actual malice. In other words, a public figure must show that the speaker knew the information was false. That’s why tabloid magazines, blogs, and TV shows can report the way they do. Public figures have a much harder time proving defamation than average citizens.
It’s mentioned above, but it’s worth mentioning again. Truth is an absolute defense against defamation. If the statement is true, there’s nothing anyone can do about it even if it causes harm.
So, how does all this relate to social media? The real issue is that it makes public what used to be said in private. By broadcasting a message via Twitter, Facebook, or Instagram, your private statements become public ones. By that same token, they have much greater reach than they used to and can cause much greater harm. Before the advent of social media, your comments and claims were limited to a small circle of friends and thus limited in influence. Now, a single post on social media can have global ramifications.
For example, say a woman gets fired from her job at a local pizza place. She posts on social media that she hated working there anyway because the food was “so gross and always expired.” It’s not true – but the post gets out. It goes from her friends to the rest of the town and the pizza place loses most of its business. She is potentially liable for all of the money the pizza place lost – all from one post on social media!
Defamation used to be the province of newspapers and television stations and other public disseminators of information. Now, it’s easy for all of our comments and statements to become public and potentially cause serious harm. Defamation is a tort, so you won’t end up in jail, but you could end up owing thousands of dollars in damages.
So how can we protect ourselves from defamation lawsuits? The simple answer is that we can’t post anything online without checking the facts. There is some room for expression of opinions, but even that isn’t a clear protection. Starting a statement with “I think” isn’t enough to make it an opinion rather than a fact in the eyes of the law. Keep your facts and intentions clear so that your words don’t have unintended consequences.
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