Authored By Tim O’Keeffe, Esq. & Samantha Pendley
The depth and breadth of communication on social media today includes not just cat pictures and memes, but also falsehoods, untruths, lies, and libelous, slanderous, and defamatory speech. Social media sites such as Tik Tok, Instagram, Facebook, Snapchat, Reddit, Twitter, YouTube and others facilitate widespread virality and dissemination of various types of communication, for good or ill, while algorithms focused on views, clicks, and likes will incentivize hyperbolic, sensational, false, and defamatory statements.
Defamation is a false, published statement that is injurious to the user’s reputation.1 A true statement cannot, by definition, be defamatory, while a statement of opinion is privileged under the law. Slander is defined as verbal defamation, while Libel is categorized as written defamation2. Social Media defamation can take the form of posts (to one’s social media page), comments, videos, tweets, and reviews, and are often seen in the context of cyber bullying, public shaming, and online harassment. Even photoshopped or modified images and video can rise to the point of defamation if they are false, published, and injurious to a person or business’s reputation. In most States, publication requires only that the statement be seen by one individual other than the maker and the subject of the statement. As such, any shared online post, so long as it is seen by at least one other person, may satisfy the publication requirement for defamation. The implications of false, defamatory statements include: (1) harm to relationships and one’s reputation; (2) loss of business and opportunities; and (3) damage to one’s mental health.
What if someone posts a false statement about you that damages your reputation? Those harmed by potentially defamatory statements should go after the social media poster themselves, rather than the platform, because the 1996 Communications Decency Act protects social media platforms from liability for the defamatory speech of their users.3 Lawsuits can be time consuming and expensive, and it may not always be financially practical to take legal action to remove a social media post. Fortunately, some social media platforms are taking action against users or pages that use defamatory statements or otherwise false information without the need for legal intervention. For example, Facebook has implemented a policy where third-party fact checkers review content and may put a disclaimer over posts deemed false. Users of Facebook, Instagram, Twitter and other platforms may flag content or submit formal requests that content be removed. Other platforms are also moderating for provably false, violent, or inappropriate speech.
Most content on social media, however, is unregulated for truth or falsehood. As improvements continue to be made to social media defamatory statement policies, users are encouraged to adjust their privacy settings, report and flag defamatory content and/or sign up for digital risk protection services.