The First Amendment of the Constitution gives us freedom of speech—including the freedom to express negative opinions about others. On the other hand, the law recognizes the damage that malicious lies can do to a person’s reputation. Defamation laws help resolve this tension by creating a path by which certain victims of libel and slander can pursue recourse for the damage done by untrue statements.
Defamation is commonly misunderstood, but given the ease of posting content online, it has become increasingly important for people to know what constitutes a simple negative opinion and what actually crosses the line into illegal defamation. In particular, as a company or an executive in a business, you have an additional interest in protecting your reputation from defamation, as well as ensuring that your speech doesn’t defame a competitor. If you want to learn more about defamation laws and how they apply, consider talking to a defamation lawyer from the Priori network.
What Is Defamation?
Defamation is any statement that damages a person’s reputation. While technically the term includes truth that makes a person look bad, from a legal perspective, defamation must consist of false statements.
There are two types of defamation: libel and slander. Libel is written defamation, while slander is spoken. In the past, libel was considered much more damaging than slander since the spoken word is more easily forgotten, but because of the rise of shared videos, slander can be equally damaging and has accordingly been taken more seriously.
Making a Claim for Defamation
In order to make a claim of defamation, four elements must be established:
- An unprivileged statement of fact was made. A statement of fact was spoken, written, or otherwise expressed in some manner. If it is simply an opinion (I think these are the worst potato chips), it cannot be considered defamation. Just because something is expressed as though it is an opinion doesn’t necessarily protect it, however. Broadcasting that you think your neighbor is a terrorist without good reason could be considered defamation, regardless of whether or not you start the statement with “I think” or not. This excludes any “privileged” testimony, for example statements made by witnesses in a trial or to law enforcement, testimony from depositions, statements made by lawmakers in the legislative chamber, and other legal statements, regardless of whether or not it becomes public.
- It was published. A third party has to hear or see the statement. This doesn’t only include formal means of publishing—a blog, a tweet, a Vine, and even potentially yelling something in a public place could suffice for this requirement.
- The statement was false. Simply because something causes negative press doesn’t make it defamation. Exposing a truthful embezzlement scandal, for example, isn’t defamation, even if it does a company or executive’s reputation serious damage. It’s important to note that a statement must be provable one way or another in order to be false. A statement that is an opinion is similarly excluded by this requirement.
- It caused you or your company injury. The statement must have objectively hurt your reputation in some way. Losing business over a statement is one way to meet the requirements of this element.
Libel, Public Officials & Companies
Because the public has an interest in being able to express opinions about politicians, celebrities and other public officials, the burden to prove defamation is much higher if the subject of the statement is considered a public figure. In order to prove defamation, a fifth element must be proven: the statement was made with actual malice or with the intention of hurting the reputation of the public figure.
The subject of the statement can be considered “public” in general or in the context of the statement. For example, a lawyer in a highly publicized trial or an activist who spoke to the press about an event may become a public figure for a time, even if they were relatively unknown before. Companies and company officials are not automatically considered public figures, but often are. Just like in any other person, companies embroiled in scandal or CEOs of well-known businesses are generally considered to be public figures, at least to the extent that the statement made is related to the reason the subject is well-known.
Between social media fora and easy to use online publishing products, nearly everyone has a platform online to express their negative opinions, making it that much easier to cross the line into defamation. When you publish a blog, record a YouTube video, write a Facebook post or even just tweet, you are still “publishing” statements, which means that anything you post is subject to defamation laws. If you slander or libel another person or company online, you are still subject to the same consequences—and may even face worse penalties if the statement quickly spreads across the internet.
When is a bad review online considered defamation?
If your business gets a particularly negative review online, the standards for proving defamation are the same as any other situation. It is only possibly defamation if it can be proven factually false. Therefore, a review that says your service is the worst in the city probably won’t count as defamation, even if you think it’s unfair. On the other hand, a review that says you stole credit card information when it is untrue can be construed as libelous and you may have recourse against the speaker.
Overall, it really depends on the context of the review—and whether or not the review contains negative opinion or a false claim of facts. A first amendment lawyer can help you if you are unsure whether or not a review counts as libel. Keep in mind, however, that unless you can definitively identify the person who wrote the content, you will be unlikely to get any damages—although you may be able to get the review taken down if it is hosted on a third party site.
Can I get libelous content removed from Google or other sources?
Sometimes. If something that can be proven as defamation is posted on a website, you generally can request to have it removed or even get a court order forcing the action. You also can apply to have it unindexed from Google through Google’s own process. That said, anything on the internet is difficult to eradicate entirely, regardless of whether or not it meets the legal test for defamation.
Am I responsible for defamation if I repost a libelous statement?
Traditionally, yes, anyone who repeats or reposts libelous statements is just as responsible for defamation as the originally person making them if they could have reasonably known the statements to be false. Under the Communications Decency Act, however, there is a strong protection for third party “intermediaries” reposting content online, especially in social media. Because it is difficult to corroborate the truth of memes and viral content, you generally can’t be held responsible for reposting someone else’s libelous content online. Still, it is more prudent to look for the truth before reposting, especially as a company or a public figure, because such protections are not absolute.