I was asked by a user whether someone could recover monetary damages against you for a post they find offensive on Facebook. My answer was obviously in the affirmative. “If you bully or harass other members, Facebook may just deactivate your account and possibly inform the law enforcement in extreme cases, but if you defame them or invade their reasonable expectation of privacy, you can be sued for monetary damages”, I told him. When prompted to explain, I promised the user that I would do a little write-up on the issue on my blog at a later time since this is an area of law I find very interesting. Perhaps, someone else may find the information beneficial. Why not, if you consider that as a matter of fact anyone with an Internet connection in this day and age is a potential “publisher” and Facebook usage has gone beyond its original scope of a small audience of friends and family. So let me expand on that quick answer here, without delving into other potential claims.
Although there have been just a handful of defamation lawsuits filed involving the Internet so far, you need to be aware that if you damage someone’s reputation by trying to embarrass him or her in a public forum, you could be sued for defamation or libel. It’s that simple. Some people may look at Facebook as a private medium to share information with friends and family, but courts in various jurisdictions have found that there is no legitimate expectation of privacy on Facebook, even when users take precautions to keep certain content private. Once you let something go on the internet, it is public in nature. The most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world.
Now, do you need to have intentionally published the offensive material? No. In law, “publication” merely requires that you communicate to a third party. So going by this broad definition everything posted on the internet and therefore even on a Facebook private wall would suffice. The reason is not far fetched. People who operate Facebook can see everything, including all postings on your “private” pages. In the same manner, negligence requires only that the tortfeasor’s act or omission create a risk of the consequences complained of by the injured party. So you do not necessarily have to intend the result of your action.
What happened to free speech? You may ask. In the eyes of the law, you are allowed to express your honestly-held opinions, but if those opinions or comments go beyond cutting remarks and become serious allegations, then you could face legal repercussions if your claims are unfounded. Defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” that is as a result of negligence or malice. Laws of some countries and US state laws often define defamation in specific ways, but the same principles apply broadly. Generally, “A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society”.
It’s important to note that you may also be sued even if you do not name a person in a defamatory statement. Basically, if the “defamed” person can be identified from what you have said, then you can be sued. Nonetheless, there are different standards that may apply if the person being posted or tweeted about is considered a public figure as the law recognizes that public figures put themselves in a position to be ridiculed. Typically, if a public figure brings a defamation action against you, he must show actual malice behind the statement in order to prevail. Of course there are other valid defenses to a defamation law suit which include justification or truth, fair comment; and/or privilege. Some states also limit liability if a person quickly removes a post.
In certain situations when you decide to make a party’s “private facts” public, you may also be liable for invasion of privacy even if your posting is factually accurate. In most US states and many other jurisdictions you can be sued for publishing private facts about another person, even if those facts are true and verifiable. Consequently, any time you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability. The term “private facts” refers to information about someone’s personal life that he or she has not previously revealed to the public, the publication of which would be offensive to a reasonable person, and the matter is not of legitimate public concern. They include things like person’s medical condition, family and sexual life, or financial issues.
Since Facebook encourages users to like and spontaneously share posts, it raises the question whether referencing someone else’s post or repeating it may be construed as defamation and hence actionable. In some jurisdictions you may not have made the original allegation, but re-posting or re-tweeting it could be seen as an endorsement. Hence, you are as liable as the original poster. In some others, a re-tweeter or re-poster is not considered the publisher of the original information. So it’s fair to say that it will depend on the jurisdiction. Usually a jurisdictional analysis is conducted by the injured party’s attorney before bringing a defamation action against a person or an entity.
In California, the Supreme Court has ruled that only the author of the defamatory statement can be sued over it. Anyone else who reposts the material is in the clear, even if they know that it is defamatory. This implies that Facebook users, as individuals, are not guilty of libel when they distribute a post, because these types of statements are constitutionally protected by the First Amendment. However, there is one very important term and condition towards this ruling: the internet users have to be individual and are not conspiring to commit libel and slander. If two or more internet users conspire to commit libel and slander, they are capable of being charged with libel and slander, but only on grounds of conspiracy to commit the libel and slander. Perhaps one may obtain a civil judgment against the re-poster for civil conspiracy to commit libel.
As for Facebook, the social media is protected under US laws. In United States, Section 230 of the Communications Decency Act of 1996 holds the Internet Service Provider (ISP) or the website that hosts the defamatory content in US totally immune from any libelous content they distribute, either knowingly or unknowingly. This broad immunity covers defamation and privacy claims, as well as negligence and any other tort claims associated with publication on the online services website. Therefore, the victim’s only recourse is to sue the poster, but not Facebook or any other website directly or indirectly.
Of course this is a section of tort law with many grey areas, but if you feel defamed or think that there has been an unreasonable invasion of your privacy, you may have a case. Print out a screen shot of the page immediately and consult your attorney to evaluate your damages. Without damages, a lawsuit may cost you more than you could likely recover. If your damage is minimal you may consider just filing a civil restraining or no-contact order, or simply ask Facebook to block the user. Sometimes, just asking them to refrain from such offensive behavior may stop the matter from escalating to a more serious dimension.
For your protection, the best practice would be to use the social media wisely. To avoid liability, refrain from posting unfounded rumors, injurious stories and embarking on a campaign of calumny. If you are sued for defamation, you could end up paying tens of thousands of dollars. Especially when the action is accompanied by claims for invasion of privacy, intentional infliction of emotional distress, and interference with prospective and advantageous business relationship.
Finally, be aware that any court in US can obtain personal jurisdiction over any defendant wherever you are under the “minimum contact” test, and therefore the authority to rule on the law for defamation or invasion of privacy action. Simply put, Facebook is protected, but you are not. You can easily be sued for your post on Facebook.
(Disclaimer: I am a lawyer, just not your lawyer. The content of this post is personal opinion, not legal advice. No attorney-client relationship exists as a result of this post. If you are in need of legal advice, please contact an attorney in good-standing with your state’s bar association.)Share