Many people use Facebook, Instagram, and other popular social media so frequently that it becomes a routine part of their day. (You can decide for yourself if that is a good thing or a bad thing). The purpose of this post is to remind people to be careful, because when something becomes routine, we tend to think less carefully about it. Also, with so much nastiness on the internet in general, after seeing so many negative posts and statements, we can forget to use our personal “filter” that we would remember in other contexts.
All of that to say: you can be sued for saying the wrong things online. I have seen it happen to clients. Many people are somewhat familiar with the terms “libel” (for written matter) and “slander” for spoken words). In more modern legal jurisprudence, these terms have come under the heading of “defamation.” If someone thinks your statements online have defamed them, they could file a lawsuit.
In order for a defamation suit to have any merit, an offended party would have to prove that the statements: 1) are false, 2) are defamatory, 3) were published with negligence or intent, and 4) caused harm or were defamatory per se. Let’s break those elements down a bit.
First, true statements cannot support a defamation claim. Saying something bad about someone that happens to be true is protected speech. Second, a plaintiff would have to show that the speech was defamatory. This means the statement reflects upon a person’s character in a manner that will cause him to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade or profession. Examples would be accusing someone of a crime, a business of fraud, or something specific to their profession (that is false), etc. Incidentally, this is why news stations refer to someone as a “suspect” instead of a criminal, (even when there is video of the person committing the crime). They want to be careful not to falsely accuse someone of a crime in their reporting.
The third element has to do with the mind state of the speaker. Intent is when one purposefully makes the statement, knowing it to be false. Negligence means the speaker may not have actually known the statement was false, but the circumstances indicate he should have known. Finally, a plaintiff must show how the statement harmed him. If a business shows that an article came out accusing it of defrauding customers, and the next few months sales dipped dramatically, that would probably be enough to show the damage. Alternatively, defamation per se means that the court can award damages even without proof of actual financial damage. For example, if someone falsely accuses another of being a child molester, knowing it to be false, the plaintiff does not have to show financial harm. The harm to his reputation is presumed.
In Ohio (but not everywhere), expressions of opinion are protected by our state constitution. However, you have to be careful, because sometimes opinions can imply facts, which still get you into hot water.
While you are free to express negative opinions, be careful not to post anything false and defamatory. When in doubt, maybe it’s just best to take your mom’s advice: if you don’t have anything nice to post on Facebook, don’t post anything at all. (She used to say something like that, didn’t she?)
In a future post, I will talk about when you might be held responsible for a comment another person posts on your website or comment section.