As the use of social media websites continues to grow, so to do the legal risk associated with them. While Twitter, Facebook, Instagram and the like are valuable resources for sharing your thoughts and opinions, it’s important to recognize the legal pitfalls that await uninformed social media users. Now more than ever, social media sites can serve as breeding grounds for rumors and falsehoods, some of which could have potentially serious consequences. Below is a brief explanation of some of the relevant law to be aware of, as well as a few tips to consider when communicating online or via social media. While some of the suggestions might seem basic, they can go a long way in avoiding unwanted legal trouble.
So what is Defamation Anyway?
To begin, it’s important to understand the point at which statements normally protected under free speech cross the threshold of defamation. Generally speaking, defamation occurs when: (1) someone makes a false statement that is harmful to another’s reputation; (2) the statement appears to convey a fact, not just an opinion; (3) it is published or communicated to a third person (online posting counts); (4) the person making the statement is at fault; and (5) the subject of the statement is harmed as a result.
Consider the following example: John, suspicious of his co-worker, Jane, but knowing he has no evidence of any wrongdoing goes on Twitter and tweets, “Jane Doe has embezzled thousands of dollars of company funds.” Several people read the statement, including Jane’s boss, who soon after decides to let Jane go. Now jobless, Jane spends months frantically trying to repair her reputation and find new work. Suppose that John was mistaken, and Jane had never actually embezzled money.
Jane would have a strong claim for defamation against John for the following reasons: 1) John made a false statement about Jane that hurt her reputation because she did not actually embezzle money, and the statement affected her boss’ opinion of her; 2) the statement appeared to convey a fact because there was no indication that John was voicing his opinion about Jane’s actions, or that he was joking; 3) the statement was published to a third party because it was posted online where several people read it, including Jane’s boss; 4) John was at fault because he used incorrect information knowing that it had no factual basis whatsoever; 5) Jane was harmed financially because she lost a important source of income, and possibly emotionally from any mental anguish caused by John’s false statement.
With just a little extra effort and care, this situation can easily be avoided. Below are some important points to remember and actions one can take to avoid liability on social media.
1. Think carefully about what you’re writing.
Before you post or tweet, take a second to read it over. Then, consider how it might effect someone’s reputation. It might be useful to ask yourself, “How would an reasonable person interpret this?” If the message clearly targets the reputation of a particular person or group, it might be wise to revise it.
2. Be specific.
It is important to avoid ambiguity where possible. The last thing you want is for an angry reader to accuse you of saying something that you never intended in the first place. For example, suppose you post the following statement: “The Big Bacon Burger at Bob’s Tavern = emergency room. It’s baaaadd!!” While it may seem innocuous, several meanings can be implied here. The statement could be a hyperbole, meant to emphasize just how filling and delicious the Big Bacon Burger is, but it could also mean that the “Big Bacon Burger” literally causes food poisoning and will result in a trip to the hospital. Interpreted this way, the post may be considered defamatory. Make every character count in order to avoid ambiguity.
3. Don’t post anything when you’re angry or emotional.
Many of us say and do things we don’t mean, especially in the heat of the moment. If your feeling fired up, wait until you’ve cooled off and are thinking clearly before clicking “send.” A few extra minutes could go a long way in preventing backlash from disgruntled readers.
4. If it looks like a fact… make sure it’s actually true before posting.
At the heart of every strong defamation claim is a factual statement that turns out to be false. With that in mind, it’s not enough to believe what you’re saying is true—the information should also come from a reliable source. For example, if you suspected that an online author used copyrighted content without permission in his latest article, you wouldn’t want to post a message saying that he “plagiarized his material” unless you had the facts to back it up. To help back your point up, you might also consider inserting a link to source material if it’s available.
5. Make it clear when a statement is opinion or joke rather than fact.
In order to avoid having your opinion mistaken for fact, try prefacing statements with language that clearly tells the reader that your message is opinion-based. For instance, instead of calling the leader of a Wall Street investment corporation a “corrupt businessman” or a “thief,” begin the sentence with “I think,” or “it seems.” Ideally, you should still specify which facts provide the basis for your opinion, i.e., “I think that he’s a thief because he has made billions of dollars from the retirement funds of the public employees he claims to protect.”
If you post material that makes a joke about a person or business, consider whether the average reader would be able to tell you are joking; if they could mistake your joke for fact, it’s probably better not to post it. Also, keep in mind that on social media folks are likely to read your post quickly, so a joke that would otherwise be okay could still be problematic if a quick skim wouldn’t reveal it to be a joke.
6. Avoid making criminal allegations or associating people with terrorist/hate groups.
If you accuse someone of a crime or associate them with an undesirable group such as a terrorist/hate group, you need to have strong evidence that they committed that crime or are associated with that group. It tends to be safer to talk about their conduct, rather than to label it. For instance, instead of saying “Bob Smith committed fraud,” highlight the facts that you know for sure, i.e., “Bob Smith was misleading when he assured customers they would get their money back.” Similarly, rather than identify a police officer as a “Nazi,” or “white nationalist,” explain instead that they “brutally injured an African American during a recent arrest.”
7. Be cautious when writing about private citizens.
Generally, the law is less forgiving when you write about private citizens than it is for public figures. But even for public figures, the law prohibits you from knowingly making a false statement, or recklessly disregarding the truth of the statement (i.e. the facts were available but you actively avoided looking at them before posting).
8. Be careful when adding hashtags to the end of your tweets.
It’s possible that adding a hashtag to a tweet could alter the context of the original message enough to make it defamatory. For example, if you tweeted out “Actor Mike Jones was arrested on Tuesday for domestic violence,” the statement would be perfectly acceptable so long as the arrest actually took place. However, if you added the hashtag “#rapist”, the statement could now be considered false and possibly defamatory. Using something like hashtag “#Speakup,” could help call attention to the issue while minimizing liability on your end. Also it’s a very good idea to search a hashtag before adding it to the end of your post, just in case that hashtag has taken on a new and offensive meaning.
9. Avoid modifying photos & videos in order to portray a person or business in a negative light.
It’s common to come across viral photos and videos that have been modified in order to make someone look bad. While some of these are funny and harmless, the same can’t be said for others. Generally speaking, the less obvious and absurd the changes are, the more likely they will be considered defamatory. For example, suppose you want to create an Internet meme by modifying an image of a popular athlete. If you altered the image to depict the athlete wearing a diaper and holding a rattle, it may be acceptable as a parody. In contrast, consider an image that depicts a popular athlete holding hands with his wife. If the image were distorted to make it appear that he was beating his wife, it could now be considered defamatory. If you’re looking to expose a person for unlawful or immoral activity, stick to original images and unaltered footage.
10. Avoid posting re-used clips that are taken out of context.
For those of you who make films or shorts, you may be aware that it is often acceptable to re-use copyrighted works when your video brings new meaning to the borrowed clips under fair use. However, video clips that are fair use in the context of your video as a whole may no longer receive the same protection if posted out of that context or individually. For example, suppose that after proper analysis, you determined that it was fair use to include a short clip of a Rolling Stones performance in an hour-long documentary that comments on how their song helped to shape pop culture in the 60’s. Your use of this video clip would likely not be protected if you then decided to post that same clip online as a teaser for the rest of your film.
11. Chose appropriate thumbnails for you online videos.
Thumbnail photos can be helpful in peaking a viewer’s interest in a video that you have created. Because they are the first images people see before clicking “play,” thumbnail photos should not only be relevant to video content, but should also reflect their messages. For example, a photo of a celebrity who has admittedly undergone numerous plastic surgeries may be an appropriate thumbnail for a video that sheds light on cosmetic surgery addiction, whereas a photo of a random man in a park would not be an appropriate thumbnail for a video about child abduction.
12. Be prepared to issue a correction or apology.
From an ethical standpoint, it looks a lot better if you can show that you acted responsibly after a mistake was made. Correcting posts and apologizing for mistakes can also go a long way in easing tempers. In these situations it’s also best to address matters as soon as they arise—not weeks or even months later.
While it might seem like a lot of information to remember at first, the main idea is rather simple: it’s best to take a careful and measured approach when expressing your thoughts and opinions on social media. By understanding the types of posts and tweets that are problematic, one can go a long way in avoiding unwanted legal trouble.
This guide will serve as a useful reference for those who have questions about how the content of their posts could affect the reputations of others. However, it’s worth noting that the above suggestions are not a substitute for legal advice, but simply best an assortment of best practices that can help one avoid liability.
Special thanks to NMR Intern Nick Petruolo for his hard work putting together this guide!
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