The internet seems like a place where you can do or say almost anything. But the truth is that you’re never free from the consequences of what you post. If you spread false information online that damages someone else, you could be the subject of a slander or libel lawsuit.
Defamation consists of making a false statement that you present as fact, which causes another person harm. If you tell a lie about someone online and that lie hurts that person’s reputation or leads to financial loss, the subject of that lie could file a civil defamation lawsuit against you.
Libel vs. Slander
Libel and slander are two forms of defamation:
Libel is a written lie. The subject of the statement can use any written content on social media—whether it’s a Facebook comment, tweet, or LinkedIn article—to prove libel.
Slander is a spoken lie. The subject of your statement can use any video posted to a social media account to support their claim.
Social Media Content Is Grounds for Defamation
You can make defamatory oral and written statements online, just like anywhere else. Digital content counts as writing, the same as a newspaper or magazine article. Even a short-lived video on Snapchat or TikTok counts as an oral statement like a TV interview would. “Although it often seems like the Wild West, the same defamation rules apply on social media as elsewhere,” said media attorney Jeffrey J. Hunt of Parr Brown Gee & Loveless.
Elements of a Defamation Case
For another person to successfully sue you for slander or libel based on something said or wrote online, they must prove several elements:
- You made a false statement;
- You presented the false statement as fact;
- You published the false factual statement in some way; and
- They suffered damages.
Did You Voice an Opinion or State a Fact?
You might claim what you wrote or said was an opinion. Depending on the facts of your case, this could be a strong defense. But you can’t argue it was an opinion simply because you made the statement on a social media platform.
“Prefacing a defamatory statement of fact on social media with ‘In my opinion...’ is generally not going to insulate you from defamation liability,” said Hunt. “Generally speaking, if the statement is capable of being proven true or false, it is a statement of fact and can be grist for a defamation lawsuit. Courts look at both the content of the statement and the context in which it was published when making the fact versus opinion distinction.”
Did You Repeat Something You Read or Heard?
One of the benefits—or detriments—of social media is how quickly information spreads. People retweet retweets. People republish Reddit threads on Facebook. Dozens, hundreds, or thousands of people can spread a lie, which is why false statements can cause significant damage.
You could lose a defamation suit even if you didn’t make up the lie. You don’t have to be the first source of the false statement. Instead, the subject of the statement can win if they prove you were negligent in considering or confirming whether the information was true or false.
The Rules for Defamation Are Different for People in the Public Eye
When someone files a defamation lawsuit against you, the court evaluates whether they are a private or public figure. For a public official or figure to win their suit against you, they have to establish more than that you negligently made a false statement. They have to prove you made the statement with actual malice, which means you knew it wasn’t true or recklessly didn’t care if it was true or not.
There are a few reasons for this. In general, courts find that public officials and figures need fewer legal protections. They can stand up to criticism, even if it’s false. They also have greater access to the media to refute false statements made against them. They can correct the mistakes or lies and mitigate any harm to their reputation.
Are Social Medial Influencers Public Figures?
The big question when it comes to social media is whether an influencer is a public figure under the law. “Depending on their reach, social media influencers certainly can become public figures for purposes of defamation law,” said Hunt. “If they are public figures, the law imposes a higher standard for them to prevail in a defamation action against someone who posts false information about them.”
Did the Other Person Suffer Damages?
A critical element of any defamation lawsuit is damages. The person who claims you defamed their character has to prove they suffered harm because of what you said or wrote. “The law governing recoverable damages in defamation actions varies from state to state,” said Hunt. “In some jurisdictions, depending on the nature of the statement, harm to reputation is all you need to prove, and a jury can decide how much that’s worth. Damages for emotional distress are also often recoverable.”
But emotional or reputational harm might not be enough, depending on where the person files the lawsuit. “In other states, a plaintiff must prove real, out-of-pocket economic damages caused by the defamatory statement before being entitled to recover damages for reputational harm and emotional distress,” explained Hunt. “That can be a significant hurdle for someone thinking about suing because it is often difficult to prove.”
Talk with a Media and First Amendment Attorney About Defamation Claims
If you’re concerned about a potential libel or slander lawsuit, you can learn more from an experienced lawyer who handles First Amendment and media cases. A local attorney will explain the law and how to defend yourself in a defamation case.