Defamation is not new, but social media has made it even easier for people to make harmful comments about others. Unfortunately, defamation cases based on social media comments are on the rise, and their results are often devastating on the mental and emotional state of the people on the receiving end.
Understanding social media laws and defamation in the digital age requires understanding what defamation is.
What is Defamation?
According to NOLO, an untrue oral or written statement that can harm someone’s reputation describes a defamatory statement. When the defamatory comment is online or in the media, it’s libel. When it’s communicated orally, it’s called slander.
Even countries with freedom of expression have to weigh in on the right of people to defend their reputation.
The difference is that traditional defamation appears in newspapers, magazines, radio, and TV broadcasts, whereas online defamation can appear on any social media platform, blog, or other website.
Unlike cyberbullying and harassment, which are crimes, defamation constitutes a tort (civil wrong) in most states that allow the plaintiff to sue the defendant for compensation.
How Can You Prove Online Defamation?
Defamation laws differ in each state and country, but the principles are the same everywhere. The plaintiff needs to show that the defendant did the following:
- Placed a false statement online
- The false information was made public
- The statement damaged the reputation of the plaintiff
- The defendant acted negligently because they didn’t consider whether the statement was true or false before placing it online. Celebrities, public figures, and politicians must prove negligence and actual malice by the defendant, meaning they knew it was false and disregarded the truth.
Defamation is not always easy to prove because the statement must be a false fact. Moreover, a defendant might argue that it was accurate and not defamatory. Sometimes they may say they didn’t express a truth but an opinion. Another typical argument is that they couldn’t harm an already bad reputation.
Examples of Online Defamation
If you make a false accusation in a tweet on Twitter or a Facebook post, you have committed libel if you cannot prove it’s true. Your defamatory statement has damaged the person’s reputation, requiring no further proof of harm. Here’s an example of a typically worded 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 making a statement of opinion that protects you from defamation laws. In some circumstances, it doesn’t automatically protect you from getting hit with a defamation claim because people may believe your statement.
Sometimes, a person may post a partially true statement online. For example, “Mandy Grey lost their position as an accountant because of negligence that cost the organization millions.” This is defamatory if it’s false, but what if part of it is true? Your comment is untrue if Mandy lost her job, but not because of negligence.
Having all the facts before posting online is vital because you cannot retract once something is posted.
Anonymous Defamatory Statements
Not everyone uses their social media accounts or blogs to make defamatory statements. Filing a defamation lawsuit is difficult 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 defendant to ensure you stay within your state’s statute of limitations. Once the process starts, the discovery process can begin so that your lawyer can get a subpoena to find their identity from their internet provider.
How Does the Communications Decency Act Protect You Against Defamation?
U.S. Congress enacted the Communications Decency Act (DCA) as part of the Telecommunications Act of 1996 to regulate sensitive material on the web.
Attorneys experienced in content removal use the Act as a basis for a strategic lawsuit. They can also use the Act with other legal strategies to remove harmful material from the web, as seen in this article from NetReputation.com.
Categories of Damages in Defamation Cases
Compensation for harm caused by a defendant is known as “damages” in legal terms. It’s difficult to calculate the damages in a defamation case, but some cases end in huge awards, and others with far less.
These are the most common categories for calculating damages:
1. Special Damages
Special damages refer to compensation for financial harm caused by defamatory statements. We recently saw Johnny Depp receive such economic damages for losses from acting roles and endorsement deals caused by his ex-wife’s accusations of abuse. Therefore, you can claim for lost income and other business opportunities. You can also claim for out-of-pocket expenses like therapy costs, removing the online defamatory comments, etc.
2. General Damages or Non-Economic Damages
General damages compensate the plaintiff for intangible losses like pain and suffering. Not all defamation cases qualify for general damages because, in some states, they are only allowed in libel defamation cases.
Therefore, if the digital defamation was in a written post, it qualifies as libel. However, when posted on a video on YouTube or the popular TikTok, it may not fit the slot for defamation or stand as slander. The reason is that the law has not settled on whether it’s written, published, or gossiped publicly. The quick pace of technology requires the law to evolve quickly in deciding matters in this area.
3. Punitive Damages
In some defamation cases, the plaintiff can seek punitive damages to penalize the person who made the defamatory statement. Its purpose is to act as a deterrent to others about spreading false statements online.
Overview of Social Media Laws
Social media laws vary depending on the country and region, but there are global standards that generally apply. Generally speaking, posting false information or malicious personal attacks against another person or company in a public forum is illegal. These posts can be considered online defamation, punishable under civil and criminal laws in many countries. Additionally, it is important to understand that certain forms of speech are prohibited regardless of whether they are posted online or not — for example, hate speech.
Legal Consequences for Online Defamation
The legal consequences of online defamation can include both civil and criminal penalties. Civil penalties may include monetary damages such as compensatory, punitive, and attorney’s fees if applicable. Criminal penalties may include fines, jail time, or a combination.
Strategies for Preventing and Responding to Online Defamation
To prevent online defamation, it’s important to be aware of the laws in your region and adhere to them. Additionally, it is important to take steps such as monitoring your social media accounts closely. If you become aware of false information posted about you or your company online, the first step should be to contact the website hosting the content and ask them to remove it. If that fails, you may need legal help to pursue a defamation claim against the person who made the post.
Lastly, if you are accused of online defamation, it is important to seek legal advice immediately. Depending on the laws in your region, you may be able to file a counterclaim against the accuser or have the post taken down through the website hosting it.
Defamatory remarks have become easier to make in the digital age. It is up to you, the social media user, to consider the truth behind any comments you post or re-post.
If you are the person defamed, you should see an attorney before you file a defamation lawsuit since some states require that you first ask the person to retract their allegedly defamatory statement. A case will get thrown out in these states if this step is not followed.
You can file a defamation case in your state or where the defendant lives. You can also file in the state where you experienced damages or losses from the defamatory online comments. Finally, you will need proof, so act fast and keep screenshots of the slanderous remarks, URL links to them, and a record of any expenses incurred. Witnesses who have read the offending posts can also help your case.
What are the legal consequences of online defamation?
The legal consequences of online defamation can include civil and criminal penalties, such as compensatory damages, punitive damages, fines, jail time, or a combination.
How do I file a defamation lawsuit?
You will need to contact an attorney who specializes in defamation law and provide them with evidence that supports your claim of being defamed online. Once they verify that your case meets the criteria for defamation under the laws in your region, you may be able to initiate court proceedings against the person responsible for posting the defamatory remarks.
Are there any steps I can take to prevent online defamation?
Yes, it is essential to familiarize yourself with the laws in your region and be aware of the prohibited speech types. Additionally, monitoring your social media accounts closely is vital to catch any false or malicious posts before they spread. If you become aware of such a post, contact the hosting website immediately and ask them to take it down.
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