Defamation

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Danny Karon, your Lovable Lawyer, speaks about defamation:

“I talked to my son who is in high school about the issues he’s dealing with online and some of the things that kids his age are concerned with. He went through a few things and one of them is online defamation, or saying and posting stuff you shouldn’t. Posting and retweeting false statements can get you into trouble if you don’t have any idea about the law and the limitations. So, I thought today we’d talk a little bit about defamation so you have some guardrails. This way, you’ll know what you should and shouldn’t do and can educate your kids.

Defamation law is controlled at the state level. Each state has its own version of it but they tend to all look at it the same way. Defamation is generally defined as a false and unprivileged statement of fact that’s harmful to someone’s reputation and published with fault, meaning as a result of negligence or malice.

Defamation branches into two areas:

  • Libel – this has to do with putting something in writing
  • Slander – this has to do with speaking something

The way I remember the difference is: libel = literature and slander = spoken. The general elements of a defamation claim (what someone has to prove to a judge or jury when suing) are:

  • A publication to someone other than you (the person being defamed)
  • A false statement of fact
  • that is understood as a) being of concern to you and b) intending to cause harm to your reputation

If you’ve been on the receiving end of a statement that qualifies, that might trigger a defamation claim by you against someone else. If you’re a public figure, such as an athlete, actress, or the president, you have to prove higher malice.

On the other side of it, how do you defend against defamation? The truth is an absolute defense. If what you said is true, there is no defamation there. However, the truth can be elusive and hard to prove. It can also be expensive. So, don’t say something that you just think might be true.

People sometimes ask me if their opinion can be defaming. Generally, it can’t be but merely labeling something as your opinion doesn’t make it okay. Courts look to whether a reasonable reader or listener can understand your statement as asserting a verifiable fact.

Let’s say you publish an opinion or say something more affirmative. Does retracting it help your case? Certain states have retraction statutes. But, if you retract something, the retraction has to be as conspicuous as the defamation.

You don’t need to mention someone’s name in order to defame them. The plaintiff just has to be reasonable identifiable. If you don’t come out and say the name but everyone knows who you are talking about, that’s bad enough.

What if you republish someone else’s defamatory statement? For example, if you retweet something you shouldn’t have. Anyone who repeats someone’s statement is just as responsible for the defamatory content as the original speaker if they knew or had reason to know of the defamation.

Section 230 of the Communications Decency Act provides protection against liability for internet intermediaries who provide or republish speech against others. If you do a lot of retweeting, you may want to look into that.

Here are some real-life examples of defamatory vs. non-defamatory speech or writing.

  • Defamatory statements: saying someone is a white supremacist, saying a lawyer is a thief, or accusing someone of being a child molester when he or she is not
  • Most likely not defamatory statements: calling someone a jerk, calling a political opponent a loser, or saying someone is full of it

We are all online all the time, publishing and retweeting statements. These are principals we need to know and make sure our kids know. They have no aptitude or interest in this stuff unless we show them why its important to be smart, safe, responsible, and open-minded. If we aren’t safe internet users, our actions can have real consequences.

That’s your quick shot of legal wellness. Until next time, I’m Danny Karon, your Lovable Lawyer.”

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