As and the internet become larger parts of our lives, issues of internet defamation, revenge pornography, and will inevitably become more common. If you or your child has been the victim of disparaging online content—lies told to harm reputation, nude photos posted to embarrass, or threats of violence through social media—you may have a civil case, in addition to any criminal charges. This article discusses the parameters of internet defamation and the civil actions available to victims.
Defining defamation, slander, and libel
Online defamation can include two different, but similar concepts called: slander and libel.
Defamation is an intentional false statement, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. It might help to understand that the word defamation comes from the idea of defaming someone.
Libel is anything defaming that appears in writing, such as a Facebook post or public comment on Instagram.
Slander is anything defaming that is spoken. On the internet, this would mostly come in the form of something like a YouTube video or a podcast.
Legal defamation may bring on a criminal charge or result in a civil case. For our purposes, we will be talking mostly about the civil repercussions (when a citizen sues another citizen for damages. Likewise, because we are dealing with the internet in this topic, we will mostly be talking about libel, since most things appearing on a social media post would be considered written. However, videos and audio recordings could be posted on the internet, in which case, we would be talking about slander.
You'll the following to win an internet defamation lawsuit
- It may sound obvious, but two things should be met first: that the statement was published and that it was published about the plaintiff (the person being defamed). This means that first, the information had to be available for people to see, or published. If it was posted on the internet, you can bet it fits this requirement. Second, it had to be about the plaintiff. It does not have to explicitly say their name, however. For example, if someone posts directly onto someone's Facebook wall with a comment that reads, “I know for a fact that you are a…” it can be assumed that the poster is talking to the owner of that page. If it is completely unclear whom the post is about, it probably didn't hurt anyone's reputation. Similarly, you could not sue someone for writing something libelous in a private email.
- Second, the statement must be false but presented as a fact. This prevents people from suing others strictly for giving their opinion. For example, you can't sue someone for posting on the internet, "I don't like Sara." However, if someone says something like, "Sara is a rapist", and you're not a rapist, then you could sue.
- The false statement must be made intentionally. The must be able to show that the person who defamed them knew, or reasonably should have known, that the statement was false. This means that if the defendant was tricked into thinking something was a fact, and then they shared it, they could not be held responsible. This would not be the case if the defendant should have reasonably known the statement was false.
- The statement must . This means that the person who is defamed must show that they were harmed in some way by the comments. This could include physical harm, emotional harm, psychological harm, or financial harm. This might come in the form of a libelous commenting causing someone to need hospitalization for attempted suicide or simply because someone lost their job over the comment. Likewise, if the comment caused someone to be attacked, perhaps for telling the whole school that they are racist, then the libel caused them physical harm.
What is, and isn't, considered defamatory?
What is and isn't considered to be true or false, or defaming or not is not always clear. What might appear to be an opinion, may actually be fact.
Defamation must be a statement of fact, which means that it could be proven or refuted. This means that opinions, name-calling, and exaggerations are not defaming because they aren't facts.
Let's look at some example scenarios:
- If you write on a classmate's YouTube video of her singing, “You're the worst singer I've ever heard,” you would be exaggerating. It cannot be proven that she is the worst she's ever heard.
- Someone comments on a makeup tutorial video and says "This person sucks at applying makeup. I could do a better job with my eyes closed." This is an opinion, it cannot be proven if the person sucks or if the other person could do a better job. For that reason, this isn't defamation.
- Someone posts a status on their Facebook about a classmate in which they say, "Sally had an abortion." If the poster knows this is untrue, it is most definitely defaming.
- Prefacing a statement of fact with "I think" or "I believe" does not make it an opinion. For example, “I think Sally had an abortion” does not become an opinion. It is still being passed off as fact.
- “If you go out with John, he might rape you.” Even though they left some doubt, by using the word might, this is still intended to present the concept as fact. It could definitely be considered defaming.
What about posting photos online? Can that be defamation?
If you post a photo of someone online, without their permission, that is not considered defamation. This assumes that the photo was taken in a public place, where people do not have a reasonable expectation of privacy. This also assumes that you are not trying to sell something or using it for some other commercial purpose.
If the photo is taken somewhere in public, but in a place where you do have a reasonable expectation of privacy, like a bathroom or dressing room, then it would be considered defamation.
This may beg the question, “What if someone posts nude photos of someone else online?”
Nude photos fall into their own category called revenge pornography. You may not post nude photos, in which the person is identifiable—either from their face or through some other means, like a tattoo—without their permission. In Florida, someone who posts revenge porn online is guilty of a first-degree misdemeanor and also susceptible to a civil lawsuit.
What if my child is the victim of internet defamation?
If your child comes to you about something someone posted online that is upsetting them, you have a few options. Everyone wants to protect their child, and it can be tempting to fight back, but instead, follow the proper channels so that you do not find yourself committing an illegal act in response.
- Your first plan of action should always be to contact the person who posted it. If you know who posted the defamatory content, contact them, in writing, directly. You can do this by email or by traditional mail, but you'll want to retain a copy. In the correspondence, politely request that they take down the post, comment, photo, etc.
- Your next option is to contact the host site directly. This means contacting Facebook, Twitter, etc. directly and asking them to remove the material. If it's a big company like these, they will most likely be happy to remove the content—mostly to avoid any legal action you might take later. It doesn't harm their business to remove one or two pieces of content. In your email, politely explain to them why the content is defamatory and request that they remove it immediately.
- Your final option to have the information removed, if the first two didn't work, is to send a ‘cease and desist' letter. This is basically a letter to the host site that demanding that they take down the content, or else. Basically, you will be threatening legal action if they do not remove the content. This letter will be taken more seriously if you and have them write and send the letter.
How can a lawyer help?
We all know how fast information spreads on the internet. Once something is posted, especially if it's scandalous and in the hands of malicious teens, it could be in thousands of places within hours. As the saying goes, “The internet is forever.” Even if the person takes down the content, it could be screenshotted, shared, reposted, archived, and saved countless times by that point.
For these reasons, internet defamation can be seriously harmful to your or your child's reputation.
A personal injury attorney with experience handling defamation can help you decide whether or not the content rises to the level of defamation. If the content does meet the criteria of defamation, they can then help you begin legal action to recover for your and to punish those involved.
Contacting an attorney right away is often your best course of action since as mentioned, information can spread quickly online. For this reason, you will want the information to come down as soon as possible to control is dispersion.
Unfortunately, internet defamation is becoming more and more common, and will most likely gain more popularity as technology helps us to spread information rapidly. Let the experienced team at Dolman Law Group Accident Injury Lawyers, PA find a solution within the legal system.
We fight for the victims of these cases and obtain the compensation they deserve for the embarrassment, mental and emotional anguish, and damage to their reputation. If you or a loved one has suffered from losses, be it emotionally, physically, or monetarily; experienced a loss of enjoyment of life; or of someone's negligent and bullying defamation, you may be eligible to be compensated for your injuries. Please contact the attorneys of the Dolman Law Group Accident Injury Lawyers, PA at (727) 451-6900.
We look forward to standing up for you.