Libel and slander claims for posting on Facebook, Twitter, Instagram, TikTok, Snapchat and all other social media platforms.
With the rise of the internet, and consequently social media, legal issues have arisen with it, including defamation.
Online defamation can spread like wildfire and do irreparable damage to a person’s reputation. When defamation leaves a permanent scar on one’s reputation, victims often seek damages. Sometimes the defamation is wrongful enough that its damage is compensable, and a Florida court will grant monetary compensation.
What is Social Media Defamation?
Social media defamation occurs when one person makes a statement about another that is false but is presented as a fact to a third party, via a social media platform. The “third party” is usually the people who “follow” the defamer. The false statements must be presented as “true” in order to be defamatory. Statements that are opinions are protected forms of speech and not grounds for a defamation claim.
The most common types of social media defamation that we see are between ex-lovers, competing businesses (false reviews), cyber-bullying by teens, customers and clients of a business, and former employees of a company. Social media defamation can occur in the form of a Tweet, post, caption, review, comment, Instagram photo, and any other form of published, user-generated content. As long as the defamatory content is read, it is likely grounds for a defamation action (However, just reposting may not be unless the party reposting makes “material and substantive” changes to the post.)
Quick Fact: A defamation claim based, in part, on using a hashtag to spread false information on a social media post can and has been the subject of a lawsuit.
Was it Libel or Slander?
Simply stated, slander is a form of defamation that is spoken, while libel is written or published. In a social media defamation case, your claim will most likely be one of libel, as it will be based on a written post or published photo. Although, there is debate about whether online libel and slander should just be referred to as defamation.
Modified photos can be cause for a defamation claim, depending on the extent to which they were modified. If a photo is altered to the point that it is obviously a parody, then it does not justify a defamation suit. However, if the photo is deceiving to the point that it appears real (again, falseness being passed off as fact) then it could be a case.
How Do You Prove It?
To prove defamation of character in Florida, a victim must provide admissible evidence of four elements (these elements apply to both libel and slander claims).
The four elements are:
- the defendant published a false statement;
- the statement is about the plaintiff;
- the statement is made to a third party; and
- the falsity of the statement caused injury to the plaintiff.
These criteria are no different simply because the defamation occurred via social media – you must prove each of these four elements.
Who Can You Sue?
You may think that the platform on which the defamatory statements were posted might owe you for damages as well, by allowing false content to spread about you. However, the Communications Decency Act (CDA) protects websites, social media platforms, and Internet Service Providers from such litigation, and leaves the blame to fall on the shoulders of the users. As long as the website, platform, or ISP did not itself upload and post the content, they are protected.
An individual user will most likely be to blame for your anguish. An individual user can be difficult to locate, though. Many people who spread defamatory information about others hide behind pseudonyms and take on an online persona or remain completely anonymous to other users. However, just because someone is anonymous does not mean that can’t be held to account. There are steps that allow for the “unmasking” of an anonymous poster.
Why is Social Media Defamation So Serious?
Everyone wants to keep the internet free and open to allow ideas to be unreservedly expressed globally. Exercising your first amendment right via social media is a sensitive topic to most users. However, the influence of social media could yield detrimental consequences if allowed to be completely unregulated, which is why people have to be held accountable for their defamatory statements.
In today’s world everyone is online and many people don’t know how to control themselves; they tend to be quick to take to social media when they have an issue. Those people who have a disregard for what they post on the internet do not realize the impact or permanency of their posts. Defamatory statements made online can actually do more damage than statements made through traditional outlets. Today, social media gives defamatory statements the ability to “go viral”, which would mean the false claims could reach thousands or even millions of people with ease.
Before You File a Lawsuit
If the defamation is reoccurring and you want to avoid a lawsuit, you can send a Cease and Desist Letter first. This will let the poster of the defamatory content know that you are aware of the statements being made against you. This warning is sometimes enough to stop the harassment. However, if the defamatory statements do not stop (or are not deleted/retracted), then you may want to file a lawsuit.
If you feel that it has already gone too far and a Cease and Desist will simply not be enough, then file the lawsuit first.
In one of our recent cases, a client had already begun receiving death threats and could barely leave her home due to statements being made against their character. Obviously, a lawsuit was filed immediately and no Cease and Desist Letter could make an impact at that point.
5 Issues to Consider When Filing a Social Media Defamation Lawsuit
1. Platforms, Followings, and Reach
You must consider the medium through which the defaming occurred, or what platform you were defamed on. This is critical in getting information regarding the individual user.
The audience who were consumers of the defaming statements is just as important. How many followers the person had, the status of those followers, their engagement, etc. is extremely important when determining the dollar amount associated with your damages.
2. Getting Platforms to Cooperate
Social media platforms can be difficult to deal with, as they want to protect themselves as much as possible. Online platforms are subject to a lot of scrutiny and legal problems, due to their freshness in society.
Getting Facebook, or other larger platforms alike, to cooperate and take something down or share info about an account holder is a process in itself. These platforms base their companies off of privacy, which makes obtaining personal information harder than it should be, as far as building a case goes.
Further, if you are located in Florida it is often hard to deal with a California-based company simply because of the geographical aspect. However, it can and is routinely done.
3. Gaining the Identity of the Account Holder
If the identity of the person that is defaming you is unknown, it can be difficult to learn the identity of the account holder. A lot of people hide behind anonymity on the internet. File the lawsuit against the person, and get them to admit it was them.
Trying to get their information from the platform can be tricky but is possible.
If you have an idea of who the anonymous account might be, you can file a lawsuit against an anonymous person and then engage in discovery (subpoenas and other legal discovery methods). This may allow you to get a deposition from who you think is defaming you, to find out if your suspicions are correct. Your attorney will do a deposition to find out and then file suit, or not, depending on if they are the alleged perpetrator of the defamation.
4. Original Content or Re-Post/Republishing of Content
Many people “follow” people on the internet that they do not know. Whether it be a celebrity, an organization, or a movement they support. Most people follow people that they like and trust, which can get them in trouble. Blindly believing a social media post, without confirming or fact-checking the information in the post, and sharing it for more people to consume can be problematic as far as defamation goes. Believing something to be true and reposting, although the information is actually false, is an honest mistake in most cases. The CDA protects people from this, knowing that the intention was probably innocent in regard to the reposter’s role.
An account user is protected if he or she simply reposts or shares false information, but if something is added, then all bets are off. In a case we recently dealt with, a call to action from the defendant’s followers against our client led to a lawsuit for online defamation.
Quick Fact: Reposting of a defamatory statement that the victim has made clear is untrue or defamatory may be grounds for a separate defamation claim against the reposter.
5. Deleting the “Evidence”
Even if you remove the post from social media, the damage has been done and can continue after the deletion. There is no “getting rid of it” after something has been posted to the internet, it is out there forever and there is really no telling how many people will gain possession of or replicate the posting.
Here’s what the defense is likely to say:
The defamation claim fails because…
- The poster did not know that the statements were false and did not have the intention to make and/or spread false statements
- The statements made were protected opinions, and opinions cannot be defamatory.
- If defamation occurs in a privileged conversation, the plaintiff must prove express malice
- Statements that are opinions are protected under the first amendment, which society is very eager to jump to protect. The First Amendment and the internet have a notoriously squirrely relationship, though.
- The statements were made to others with a corresponding interest, meaning the statements were qualifiedly privileged.
- This could simply mean that a user’s followers have corresponding interests simply because they follow the person
Against defamation per se claims:
- “Defamation per se depends on intentionally false statements meant to deceive and harm”
- the false statements must have been made knowing the statements were false, and also with the intent to deceive and harm
If it is a reposting issue:
- the contents of the repost are subject to statutory immunity under the “Communications Decency Act (CDA) which grants immunity to providers and users of an interactive computer service. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” – again, the issue is adding original content to the information already presented
For more information, read: Defenses to Libel and Slander Claims
Damages You Can Recover
The post has to have been heard by the public, and not made privately between two people. As long as the post was available to others and defamed you in some way, you can recover damages for your claim. As far as making your claim, it does not matter how many people have encountered the information, whether it be 8 or 8 million, for the statements to be defamatory. However, the viral aspect does matter when it comes to receiving compensation for the damages you received at the hands of the user’s statements. The larger the post grows, the more damage will have been done to your reputation, and possibly your mental health.
Here are the types of damages you could receive in a social media defamation lawsuit:
- Presumed – humiliation, damages to reputation, anxiety, mental and emotional distress (Emotional distress claims are not easy to win. They must be accompanied by evidence that the victim was/is being treated by health care professionals for the distress).
- Actual or Special- if you lost your job (lost wages) because of defamation, or other forms of damages that have economic value
- Punitive – the perpetrator is punished for their statements through monetary fines (Again, these damages are not easy to recover.)
What Should You Do Now?
If you believe you’ve been publicly harmed by online defamation and believe a lawsuit is needed to recover compensation, a good piece of advice is to speak with an experienced defamation lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover.
Most defamation lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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