Defamation is not new, but social media has made it easier for people to make harmful comments about others. Defamation cases based on social media posts are on the rise, and the posts can be devastating for the people targeted.
Understanding defamation in the digital age, and the social media defamation cases that have reached U.S. courtrooms, starts with what defamation is.
What Is Defamation?
According to Nolo, a defamatory statement is a false statement, spoken or written, that harms someone’s reputation. When it is written or published, including online, it is libel. When it is spoken, it is slander.
Even countries that protect freedom of expression must weigh it against people’s right to protect their reputations.
Traditional defamation appears in newspapers, magazines, and radio and TV broadcasts, while online defamation can appear on any social media platform, blog or other website.
Unlike cyberbullying and harassment, which can be crimes in some states, defamation is generally a tort, or civil wrong, that allows the person harmed to sue for compensation.
How Can You Prove Online Defamation?
Defamation laws differ by state and country, but the basic principles are similar. In the U.S., the plaintiff generally must show that:
- The defendant published a false statement of fact, such as by posting it online
- The statement was communicated to at least one other person
- The statement damaged the plaintiff’s reputation
- The defendant was at least negligent about whether the statement was true. Celebrities, politicians and other public figures must prove actual malice, meaning the defendant knew the statement was false or acted with reckless disregard for the truth.
Defamation is not always easy to prove because the statement must be a false statement of fact. A defendant might argue that the statement was true, or that it was an opinion rather than a statement of fact. Another common argument is that the statement could not harm a reputation that was already poor.
Examples of Online Defamation
If you make a false accusation in a tweet or a Facebook post, you may be liable for libel. A false accusation of a crime is often treated as defamatory on its face, so the person may not need to prove specific harm. Here is an example of a false accusation: “Joe Dorsey hit his wife in a drunken rage last week.”
However, if you worded the same sentence like this, “I think (I believe) Joe Dorsey hit his wife in a drunken rage last week,” you may think you are stating an opinion that protects you from defamation law. It does not automatically protect you, because the statement still implies a fact that readers may believe.
Sometimes, a person may post a partially true statement online. For example, “Mandy Grey lost her position as an accountant because of negligence that cost the organization millions.” What if part of it is true? The statement is still false, and potentially defamatory, if Mandy lost her job but not because of negligence.
Having all the facts before posting is vital, because once something is posted and shared, it can be impossible to take back.
Anonymous Defamatory Statements
Not everyone uses their own name to make defamatory statements. Filing a defamation lawsuit is harder if the person uses an anonymous account or hides behind someone else’s account.
However, with the help of an attorney, you can file a lawsuit against an unknown “John Doe” defendant to stay within your state’s statute of limitations. Once the case is filed, your lawyer can seek subpoenas to the platform or internet provider to identify the person.
What Does the Communications Decency Act Mean for Online Defamation?
Congress enacted the Communications Decency Act (CDA) as part of the Telecommunications Act of 1996. Section 230 of the CDA generally shields social media platforms and other websites from liability for content posted by their users.
As a result, a defamation claim over a social media post usually must be brought against the person who wrote it, not the platform. Platforms may still remove posts that violate their terms of service, so a removal request to the platform is often a first step.
Categories of Damages in Defamation Cases
Compensation for harm caused by a defendant is known as “damages.” Damages in a defamation case can be hard to calculate, and awards vary widely.
These are the most common categories for calculating damages:
Special Damages
Special damages compensate for specific financial harm caused by defamatory statements, such as lost business or out-of-pocket expenses like therapy costs or the cost of removing defamatory posts. In his 2022 defamation case against his ex-wife, for example, Johnny Depp claimed losses from acting roles and endorsement deals.
General Damages
General damages compensate the plaintiff for intangible harm such as damage to reputation, humiliation and emotional distress. The rules vary by state, and in some cases general damages are presumed while in others the plaintiff must prove actual harm.
A written post is libel. Courts generally treat recorded statements, including online videos on YouTube or TikTok, as libel as well because they are fixed in a lasting form, though the rules vary by state.
Punitive Damages
In some defamation cases, the plaintiff can seek punitive damages to punish the person who made the defamatory statement and deter others from spreading false statements online.
Overview of Social Media Laws
Social media laws vary by country. In the United States, posting false statements of fact that harm another person or company can lead to a defamation lawsuit, which is almost always a civil matter. A few states still have criminal defamation laws, but prosecutions are rare. Many other countries treat defamation, and some forms of speech such as hate speech, more strictly than the U.S. does.
Legal Consequences for Online Defamation
In the U.S., the main consequence of online defamation is a civil lawsuit, which can result in compensatory and punitive damages and, in some cases, attorney’s fees. In the few states with criminal defamation laws, penalties can include fines or jail time.
Strategies for Preventing and Responding to Online Defamation
To protect yourself, be aware of the laws where you live and monitor your social media accounts closely. If you become aware of false information posted about you or your company online, the first step is often to ask the website hosting the content to remove it. If that fails, you may need legal help to pursue a defamation claim against the person who made the post.
If you are accused of online defamation, seek legal advice promptly. Depending on where you live, defenses such as truth, opinion or an anti-SLAPP law that allows early dismissal of lawsuits targeting protected speech may apply.
Final Take
Defamatory remarks have become easier to make in the digital age. It is up to you, the social media user, to consider the truth of anything you post or repost.
If you have been defamed, see an attorney before filing a lawsuit. Some states have retraction laws that can limit the damages you recover if you do not first demand a correction.
Depending on the facts, you may be able to file where the defendant lives or where you suffered harm. You will need proof, so act fast and keep screenshots of the defamatory posts, links to them and a record of any expenses. Witnesses who have read the offending posts can also help your case.
Common Questions
What are the legal consequences of online defamation?
In the U.S., online defamation usually leads to a civil lawsuit for compensatory and sometimes punitive damages. A few states also have criminal defamation laws, but prosecutions are rare.
How do I file a defamation lawsuit?
Talk to an attorney who handles defamation cases and gather your evidence, including screenshots and links. The attorney can evaluate whether the statement meets your state’s definition of defamation and whether your claim is within the statute of limitations, which is often short.
Can I sue Facebook or another platform for a defamatory post?
Usually not. Section 230 of the Communications Decency Act generally protects platforms from liability for users’ posts, so the claim is typically against the person who wrote the post.
Are there steps I can take to protect myself from online defamation?
Yes. Monitor your social media accounts, document any false posts about you, and ask the hosting platform to remove content that violates its rules. If that fails, an attorney can advise you on a defamation claim.
