Social media has the power to put people or businesses on the map for the right or wrong reasons. But where does putting someone on blast on social media put you at risk? How do you avoid defamation and other lawsuits as a content creator? Simply put, don’t misstate your opinion (as a fact) or the facts.
What is defamation?
The key elements of a defamation claim are: (i) a false statement (ii) that was published or shared with someone else (iii) that caused harm or injury to someone’s reputation.
There is a heightened standard of “actual malice” when the defamatory statements are about a public figure. Meaning that the person either knew that the statements were false or just acted with reckless disregard for the truth. Typically, these claims involve celebrities or politicians.
Defamation is not about hampering free speech. People are free to share their honest thoughts and opinions. However, the moment those opinions turn into false statements—that’s when defamation may enter the chat.
Last year, in the case of Cardi B versus blogger Tasha K, a jury awarded Cardi B $4 million in damages for defamation. In that case, Tasha K reported that Cardi B was a prostitute, had an STD, and did hard drugs, among other allegations on her YouTube and other social media accounts.
The case went to court, and the jury found in favor of Cardi B that Tasha K defamed her. This verdict was later appealed by Tasha K. A federal appellate court, however, affirmed the jury’s verdict.
Under the law, there are certain categories of statements that are deemed defamatory on their face (per se defamation), such as accusing someone of a serious crime; making false statements that would injure a person’s business or career; accusing someone of having an infectious disease; or imputing that someone is promiscuous (commonly referred to as “unchaste” in the legal field).
In the case of Simon Blake and drag artist, Crystal against actor, Laurence Fox, Fox called Blake and Crystal “pedophiles” in a post on X (formerly known as Twitter) published in October 2020. A British High Court ruled in favor of Blake and Crystal finding Fox’s statements, “harmful, defamatory and baseless.” In an interview after the court hearing, Laurence stated that he plans on appealing this decision.
Also check out: TikTok Changed Its Terms of Service, And Now It’s Harder to Sue
Does defamation apply to social media?
Given the power of social media, more and more defamation cases stem from social media videos or posts.
Recently, a Chicago man sued 27 women in a private Facebook group called “Are We Dating the Same Guy” for publishing certain posts about him. Even though the Facebook Group is private, the posts and comments about specific people are published/shared with other members of the group. In this case, it’s unclear which posts or comments that were attached as exhibits were defamatory versus an opinion or truthful statement.
Last year, a plastic surgery clinic in Los Angeles sued Tina Kim for defamation after posting a negative review about her experience at the clinic. In her video, Kim detailed her negative experience with clinic staff when she dropped by without an appointment. Throughout her video, she repeatedly told her followers in the video not to go there due to the poor customer service.
You may have a defense to a defamation claim but do you want to go through the time and effort to defend that lawsuit? And potentially risk paying the price of an unfavorable judgment? It takes a ton of resources and money to get a case to trial. Months of motion filings, discovery, and back and forth between attorneys could force either side into a holding pattern for years while costing thousands of dollars in legal fees.
Because lawsuits are so expensive to file and litigate, most cases don’t make it very far. This often forces creators into taking down alleged “defamatory” content because of the threat of a lawsuit.
In 2022, we covered Meredith Lynch’s brush with defamation allegations when she posted about Bethenny Frankel’s foundation and trademarks. After receiving a cease-and-desist letter from Frankel’s legal team, she removed her TikTok videos to avoid legal trouble.
How to avoid defamation on social media
It’s important to understand that defamation is designed to prevent false statements—not truthful but damning ones. It’s one thing to share an opinion or recount a series of events, but another to make an accusation or assertion about someone without having the proof to back that up.
So, if you’re going to call someone out publicly, which may have a damaging effect on their reputation, it’s important to come with:
Before you make yourself a target of a defamation lawsuit.
If the statements are truthful, even if damaging, then that is considered a defense to a defamation claim. When lawyers talk about truthful statements though, we expect that you’ll have proof to back that up. Otherwise, you’ll be in for a tough conversation. Opinions are also not actionable under defamation.
One thing to note about defamation is that you can’t excuse yourself from defamation just because you throw in a disclaimer before you’re about to “get a little spicy.” For example, statements like “these are just my opinions,” or “no defamation intended,” will not automatically bail you out.
Ignorance will not protect you either. You can’t avoid a defamation lawsuit or demand by simply ignoring or refusing to respond to it. If left unaddressed, a court could issue a default judgment.
A default judgment is essentially a court order issued by the judge ruling in favor of the person accusing you of defamation and ordering you to pay damages since you failed to defend yourself.
In October 2023, a Jamaican court issued a default judgment against Andre Stephens for failing to respond to a defamation lawsuit filed by an investment banker. Before being sued, Stephens acknowledged that he received a cease-and-desist from the investment banker’s attorneys and claimed his lawyers would handle it. However, after the lawsuit was filed, he failed to respond to the lawsuit and received a default judgment against him.
So it’s important to consult an attorney as soon as you get slapped with a cease and desist letter or lawsuit for defamation!
The content discussed in this article is for educational purposes only and not to provide legal advice. Use of and access to this article does not create an attorney-client relationship between Curator Counsel PLLC and you. The material and information presented should not be relied upon or construed as professional advice. You should not take action based on this information without consulting legal counsel.