Defamation is defined as the publication of statements meant to ridicule or disgrace another, without care as to whether the statements are true or false, and which statements result in damage or injury to the person defamed. While there may be certain exceptions to the rule for privileged communications, it is generally accepted that statements which are made intentionally and which injure one’s reputation or one’s business are actionable.
Currently, it is Internet based defamation suits which are at the forefront, as memberships in social networking sites have exploded around the world. Some lawsuits are more challenging than others as they involve anonymous statements. Here courts have mostly held that if a complaining plaintiff can show that the identity of the defendant is material, relevant and necessary, is crucial to the case and cannot be obtained from alternate means, then the anonymity of the offending party may be discovered. A few courts have insisted that the plaintiff first prove the defamation before the identity of the defamer can be disclosed – a difficult, if not impossible standard as the state of mind of the offender is a crucial factor in proving defamation and obviously that can’t be determined with questioning the actual offending party.
Other claims are more straightforward. In a recent case, a doctor filed suit against a lawyer who posted allegedly defamatory statements about her on the lawyer’s Facebook account, complaining of an apparently botched enhancement surgery performed by the doctor on one of the lawyer’s clients. The doctor accused the lawyer of making deliberate and malicious statements meant to destroy her reputation and practice. It is noteworthy that the protesting doctor did not belong to the lawyer’s network of Facebook friends. In another case, a landlord was quick to sue when it found out that one of its tenants had posted a tweet complaining of her moldy apartment. The landlord alleged that the tenant’s posting on the popular network, Twitter, contained false information and greatly injured its reputation.
These lawsuits and others like them are clearly warning shots across the bow of all those inclined to post negative comments or information on any social networking media. Though posting your feelings about a person, company or incident may allow you to vent, it may also come at a high price. The law remains somewhat unsettled on what is or isn’t a permissible post, and you could quickly find yourself in hot water. You would do well to always stick to the facts upon which your opinion or comment is based. While the truth is an absolute defense to a claim of defamation, the way you deliver your message also matters. You don’t want to be ill-willed. If you post false information, or cause someone to suffer embarrassment or disgrace, you can be sued.
If you think this isn’t a serious problem, think again. Dozens of such suits are being filed each year, and some plaintiffs are recovering very large awards. One woman falsely accused of being a crook recently won 11.3 million dollars, and she won it in a suit brought in her home state, not where the offending post originated – half way across the country and thousands of miles away from her. This raises yet another issue. Telephonic, electronic or written communication delivered into one state can generally expose the sender to legal action not where it is conceived or composed but rather where it is received. This applies even to statements made in a chat room accessed through the Internet. Courts are concluding that posting information on a website available to anyone with an Internet connection can result in the sender being susceptible to a lawsuit where the material is eventually accessed.
Since misfortunes can spawn opportunities, you will not be surprised to learn that there are now any number of companies marketing services to remove complaints, negative reviews or other unfavorable comments posted on the Internet. The reputation repair industry is experiencing exponential growth.
Like it or not, social media and the Internet now make it possible for us to immediately connect with those we know and those we don’t. Therefore, one would do well to think twice before posting a negative comment as the old idiom that “words will never hurt me” is just no longer true.
Patrick C. Barthet, Esquire
Founder and President
The Barthet Firm