Negative statements about people or companies appear frequently on social media sites, such as Twitter and Facebook. If they are false statements of fact, they can be considered defamation in some circumstances, or more specifically libel because they are written statements. The ease of posting on social media and the absence of filters in many cases encourages users to post information or opinions that they might not post in a more formal setting. Comments sections on blogs or websites can feature personal attacks as well. Many news publications maintain an online presence, but they often do not monitor it closely. Automated screening systems cannot catch all instances of defamation, since their code is set to trigger upon finding certain words or phrases, such as obscenities.
Identifying Defamation Online
Sometimes people argue that a statement that is expressed as an opinion is not defamation. This is technically true, since defamation applies only to statements of fact. In some situations, however, a comment that may be phrased as a statement of opinion may be reasonably interpreted as a statement of fact. Just saying “I think” before making the defamatory comment does not necessarily shield the commenter from liability. Before you write something negative online, you should make sure that you understand the facts. You should not give the impression of knowing facts that you do not actually know but are merely inferring.
Not every negative comment is equally likely to result in a claim. You should be especially wary of making comments about a person’s private life or about their work. For example, a defamation claim is more likely when a comment attributes someone’s job loss to sexually harassing a coworker, or when a comment discusses a suspicion that domestic violence played a role in someone’s divorce. On the other hand, you are unlikely to be sued if you post a negative comment about someone’s clothes or hairstyle in an Instagram post. This is because this statement is subjective, and it likely will have no impact on the person’s reputation. If a situation seems borderline, it makes sense to refrain from commenting, since the risk is high and the reward is relatively low.
A statement may be defamatory even if it is framed as an opinion. For example, Anderson leaves a review on his dentist’s website saying, “I think Dr. Caine is practicing dentistry without a license.” Even if Anderson thinks that he has framed his statement as an opinion, Dr. Caine may have an argument that the average person would consider it a statement of fact.
You should be aware that once you have made a comment online, you may not be able to undo it. Even if you contact the administrator of the site to have it taken down, this does not count as a retraction that shields you from liability. You may be able to use the retraction defense, however, if you post a specific statement retracting the comment and apologizing for it in the same place where you posted the comment.
If a negative comment has a basis in truth, this is not defamation. Liability is only appropriate when the statement is untrue. Thus, even if someone does not appreciate your revealing their affair in a Facebook post, they have no grounds to sue you for revealing it if they are actually having the affair.
Limits on Liability
People who are victims of defamation often wonder whom they can sue in addition to the individual writer. The Communications Decency Act, a federal law, blocks liability for internet service providers or website hosts in most situations. In some cases, however, you may be able to sue the employer of the person who wrote the defamatory content. For instance, if a newspaper’s affiliated blog writes a false post that harms your reputation, you may have a claim against the newspaper in addition to the individual blogger. You should consult an attorney in your state to determine what your state’s law permits, as well as where you should sue someone who engaged in online defamation.
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