ONLINE SNARKING: IS IT LIBEL OR FREE SPEECH?
0by Joy R. Butler
0Libel claims generated by online activities are on the rise. With Facebook, Twitter, Yelp, online forums, and so many other digital venues in which to share our thoughts with the world, it is easier than ever to become the target or the perpetrator of libel.
Some Defamation and Libel Basics
0Defamation law varies from state-to-state but there are several general, common principles. You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if you write it down and share it with other people. When you simply speak the defamatory statement, that’s slander. Defamatory statements posted online are libel.
0To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Similarly, a statement of opinion is not defamatory. However, do not take this as carte blanche to make any statement you want hoping to pass it off as an opinion. Merely labeling a statement as opinion does not insulate the statement from being defamatory. “I think Mr. Jones is a dishonest person,” may be a valid non-defamatory statement of opinion. In contrast, “I think Mr. Jones is embezzling money from the company,” is likely defamatory if Mr. Jones is innocent of embezzlement.
Libel Do’s and Don’ts for Online Speech
DO understand that you are accountable for your Internet speech. Just because you present it in 140 characters or place it in a Facebook posting does not mean you are not accountable for your defamatory language.
DO realize that every online, negative comment about you or your business is not libel. The First Amendment protects a customer’s right to cybergripe, that is share online the truth about any bad experiences he has had with your business. In many cases, the disgruntled customer may even use a website name that mimics and parodies the business’ name – JonesConstructionIsAwful.com. The cybergriper steps outside legal boundaries only if his criticism includes false statements and those false statements harm the business.
DO realize there is more leeway when making comments about public figures and issues of public concern. The risk of libel decreases if the real people mentioned are public figures or other people involved in events of public concern.
DO realize the benefits of the Communications Decency Act (CDA). Thanks to this federal law, online forum operators, bloggers, and website owners are not legally responsible for libelous statements posted by visitors to their sites. This is starkly different from the offline world in which a publication like a newspaper or magazine would be liable for printing a reader’s defamatory comments.
DON’T think you can hide behind anonymity. While you have a First Amendment right to speak anonymously, the First Amendment does not make it okay to violate someone’s rights. A person you libel online may be able to uncover your identity by serving a subpoena upon your internet service provider.
DON’T think eliminating or changing names is sufficient. The person about whom you make untrue statements might still have a libel claim even if you don’t mention him by name. The person might still be identifiable through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved. If readers can identify the person about whom you make a false and harmful statement, there is potential risk for libel.
Libel Versus First Amendment Protected Speech
0To place some of these principles and do’s and don’ts into context, here are comparisons of what is libel and what is not libel.
Not Libel. “This architect lacks compassion. He doesn’t care about the needs of his customers or the community.”
Libel (if untrue). “Don’t hire him for your project. He is on illegal drugs and has been hospitalized for mental instability.”
Not Libel. Posting a photograph or video of someone online. (However, depending on the circumstances, the posting might yield copyright, privacy, or other claims.)
Libel. Posting a photograph or video after adding a misleading caption or editing it in a way that misrepresents what actually happened.
Not Libel. “This firm charged $10,000 when other firms charged only $5,000. The quality of their work was not worth the extra money.”
Libel (if untrue). “After demanding full payment upfront, this firm started work two months later than promised and delivered a structure that was not up-to-code.”
About the Author: Joy R. Butler (www.joybutler.com) is a Washington, DC-based business and intellectual property law attorney who regularly advises clients on their internet activities. Her published books about doing business online include The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence (www.GuideThroughtheLegalJungle.com/cyber/cyberdescription.htm)