12 Most Useful Things to Know About Social Media and Defamation

12 Most Useful Things to Know About Social Media and Defamation

The belief that we can say anything we want online and no one can do anything about it is not only wrong but, sadly, all too pervasive. Day after day we’re all bombarded with words that if said face-to-face would likely never be heard. It seems that gone are the days when parents used to scold their children with “If you can’t say something nice about your brother/sister, then don’t say anything at all.”

Defamation is a word often associated with celebrities and tabloids. We’ve all stood in line at the market and have seen the sensational headlines vying for our attention. Now, though, you don’t even have to leave the comfort of your beloved tech device to get messages that are not only not nice, but purposely false, misleading and hurtful.

Social media has made it easier for information to reach the masses. Regardless of where you live, with an internet connection and a basic computer you can establish yourself online. A world, a global table at which to sit and chat, welcomes us, our thoughts, and our words.

Online defamation is happening more and more frequently but it’s not something we all know enough about. These 12 most useful things to know about social media and defamation are the first steps to empowering ourselves, our friends and our colleagues.

1. Defamation covers written and spoken content

While traditional definitions of libel (written defamatory statements) and slander (spoken defamatory statements) did not contemplate the internet or mobile technology, the laws are expanding to wrap their arcane histories around modern communication. The ability to share our words with other people, the necessary 3rd party, is so easy today. We no longer have to actually get dressed in our finery and leave our homes to do that. With a few strokes of a keyboard our audience is easily accessible.

2. It’s not the truth, it’s not actual

People espouse their opinions all over the internet. It’s when that opinion turns into statements of fact or implying that what is said is fact we need to look more closely. The first question asked when considering if a statement could be defamatory is “Did the speaker/writer make this statement as a fact or imply it was factual?” Everyone can have an opinion, and we can choose not to agree with it. It’s when false statements of fact are tossed about and you knew or should have known they’re not true that we move from “it’s my blog I can say what I want” to alleged defamation.

3. It’s not what you intend, but what really happens

We’ve all done something that had unintended consequences. When it comes to social media and defamation, unintended consequences is often what makes the difference between a poor choice of words and defamation. For a statement to change from a “poor choice of words” to defamation, a person’s reputation must be damaged or others choose not to do business with them. In today’s multi-platformed social media world, it’s much easier to do damage to a person’s reputation or business than it had been in the past

4. New technologies may be libel or slander, and the distinction is important

With more people turning to YouTube to share content and feel both connected and anonymous, it’s becoming easier for people to toss aside their better sensibilities and say something they may not say if it was face-to-face. The courts are well settled that radio, video and audio are covered by libel, but what about newer technologies like podcasts, webinars, and Google+ hangouts? The distinction between libel and slander is significant because how you would go about proving your case is very different.

5. You can’t put the toothpaste back in the tube

There will always be someone who will see, screencap, download, or right-click-save what you put out there. Once you hit publish or upload, it’s out there for the entire world to see. You never know what’s going to catch on and go viral. We’ve all seen someone say/write stupid things online, only to delete it moments later and then an hour after that see blog posts run through our stream about said stupidity. That’s how fast we work, isn’t it?

6. You might not think you’re famous, but you are

In the world of defamation, the distinction between us regular folks and “public figures” is important. As bloggers, content creators, online professionals or “social media rock stars,” we may unknowingly have become a “public figure” which makes proving our case of defamation just that much more difficult. The legal definition of a “public figure” is someone who is so powerful, famous or influential that they are subject to public interest or scrutiny. Used to be that to be famous you had to have a sex tape or reality show. Now, though, bloggers are redefining powerful, famous and influential.

7. Lots of people talk about content, but context is king when it comes to defamation

Courts aren’t going to see that allegedly defamatory statements are peppered with LOL, IMHO or j/k and wave off a lawsuit. Social media platforms often limit how we use words and phrases — blog posts may be kept short for SEO, and online forums or communities may be comfortable spaces where we speak in shorthand. Nonetheless, a false statement of fact (defamation) must be differentiated from opinion (not defamation) by something more than throwing in a disclaimer that everything is your opinion and shouldn’t be taken as fact.

8. The U.S. Supreme Court says regular people get the same protections as big media

It’s not what you’d think, though. What this means is that blogs get the same constitutional protections that is afforded to the main stream media when engaged in the same activities. That means bloggers, and presumably users of other social platforms, would be able to claim their speech is protected. This isn’t as broad a protection as it sounds. Freedom of speech isn’t the same as freedom to say whatever you want.

9. You may be liable for what you say and what others say

Any social media platform that allows people to comment on what you say or allows you to share what that person says raises your level of liability. While there are protections for bloggers who permit comments on their site, that won’t necessarily insulate you from liability. Furthermore, with the ease of a few clicks we use our influence to share what others are saying and if we’re not diligent we could find ourselves perpetuating false statements of fact. Social media is still so new that there aren’t any significant cases to use for demonstration, but the fact remains that laws not specifically designed to cover social media are now being applied to these new and emerging technologies.

10. Social media requires us to trust total strangers

Used to be that it took many face to face conversations to gain someone’s trust. Nowadays, though, those conversations have moved to tweets, +1’s, blog comments, community engagement, status updates and replies and so forth. “We can’t see into someone’s eyes (or heart) to know if they’re “good peoples.” Befriending people is easier than ever, but also exposes us to liability we may not have contemplated.

11. Just because you don’t live in [insert country] doesn’t mean you’re safe

Defamation laws are on the books in over 100 countries across the globe. The courts in another country may not be able to force you to defend yourself in that country, but that doesn’t mean they won’t try. Furthermore, if you are the target of a defamatory statement what do you do when you’re “here” and the blog is based “there?”

12. The laws pertaining to defamation haven’t caught up to the realities of a virtually limitless medium

Actually, it’s not just the laws that haven’t caught up, but the judges that are overseeing the application of those law as well. As technology improves how people communicate, we’re faced with mediums and speeds that were never contemplated. If you have a blog or run a community, there’s a certain sense of control, so is the ability to delete a comment or reply now part of how a judge will determine what you’re supposed to do? Does the proliferation of indexing bots change how retractions will be made? Do privacy terms on websites now have a role in what is deemed public or private? Unfortunately, no one knows and that’s probably the biggest challenge we all face. Just because someone gets online doesn’t mean they understand the nuances of how it works.

The speed of sound has nothing on the speed of the internet when it comes to spreading information. Unfortunately, for as much truth as there is out there, it’s those instances where rumors, conjecture or straight up lies are asserted as truth that can be most damaging. Online defamation happens, and for many different reasons. Sometimes it’s bullying that’s gone too far, other times it’s just poor judgment in the heat of the moment. Maybe we should go back to that axiom our parents told us when we were seven, “if you can’t say something nice then don’t say anything at all.”

Has social networking and the ease of getting online changed how we talk about other people?

Featured image courtesy of Thomas Hawk via Creative Commons.

Sara Hawkins

http://sarafhawkins.com

Sara Hawkins is the creator of a Blog Law series to help other bloggers, entrepreneurs and online professionals gain legal confidence. Her goal is to make the law understandable and approachable without being overwhelming.

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