6 Steps to Protecting Yourself Against Social Media Defamation
Social media might seem like a lawless environment where cruel comments and reckless libel are simply the order of the day—but there have been instances where courts have classified social media posts and comments as defamation. This is true both in a country like the UK, where defamation is generally easier to prove, and the US, where the legal threshold is much higher. There are two kinds of defamation. Written defamation is referred to as libel, while spoken defamation is slander. Not every vicious online comment is necessarily libel. For a statement to meet the legal definition of defamation, it needs to be a false statement by a third party that can seriously harm your reputation. It also has to be done “with fault,” meaning a failure on the part of the person making the statement to act reasonably and according to their duty. In other words, you have to be able to show that someone was acting unreasonably and irresponsibly when making the statement. In the case of a newspaper or news website, for example, it’s reasonable to expect the organization to do some fact-checking before printing a contentious statement.
So should you find yourself the victim of social media abuse and libel, there are steps you can take. However, you need to first confirm that you are dealing with a case of defamation.What Is Defamation?
According to the Electronic Frontier Foundation (which has a great web page on online defamation law), there are three elements that must be shown during a defamation claim:
- The statement has to be false
- It has to be communicated (published) to someone other than the person being defamed
- It has to be about the plaintiff and have the potential to harm their reputation
6 Steps to Dealing with Social Media Defamation
If you’re confident that you are indeed dealing with an instance of online defamation, there are several steps you can take to remedy the situation.
1. Do Nothing
As difficult as it can be to do, your best choice is sometimes simply to do nothing. You have to consider the true damage that the statement is likely to cause. Is it worth the cost and frustration of a legal matter? Will responding perhaps only make the situation worse and throw fuel on the fire? Even if you do intend to take action, you should still resist the urge to immediately jump in and leave your own angry online defense. Getting embroiled in a Twitter flame war is almost always counterproductive—a far better strategy is to capture the post or comment in question before it is deleted by the author.
2. Collect Evidence
As mentioned above, there’s always a risk that a defaming statement will be edited or deleted, so it’s important to act quickly. You want to capture and preserve the article, post, or comment—preferably with a forensic preservation tool that’ll create an authenticated and defensible copy that can stand up in court. (Read this related article to learn more about capturing social media and other online evidence of defamation.)
3. Get a Lawyer
To help you understand if you’re dealing with a genuine case of defamation, as well as explain your best options in addressing the issue, it’s a good idea to consult with a lawyer. A lawyer will be able to provide expert advice and guide you in the right direction. Once again, it’s important to consult a lawyer early on—before you make any rash decisions or take any steps yourself.
4. Send a Cease and Desist Letter
Another useful service that a lawyer can provide is the drafting of a cease and desist letter. A cease and desist letter is simply a document sent to a company or individual to demand the cessation of some activity. They can always decide to ignore the demand, in which case you would have to take the matter to court, but a strongly-worded letter from an intimidating law firm is often enough to get a defamatory article retracted or social media post deleted. Of course, the damage might already be done, but sending a cease and desist letter is still a good early step.
5. Publish Your Own Statement
While it’s a bad idea to jump into a shouting match on Twitter or Facebook, creating your own statement to refute a claim can be a smart move. Importantly, it should be a calm and measured response delivered through an appropriate channel (this could be through a personal or company website, a press release, LinkedIn, or even a news site). Just like it’s important to consult with a lawyer for expert legal advice, it’s worth getting the help of a PR firm or some other communications expert when drafting and distributing your statement.
6. Sue for Defamation
While never to be undertaken lightly, suing is sometimes the only way to deal with defamation, especially if a cease and desist letter was ignored. As mentioned at the start of the article, the success of a defamation suit can depend greatly on the particular jurisdiction, but courts across the globe have thankfully shown a willingness to keep social media trolls accountable.
Want to learn more? Check out our page, The Essential Online Investigation Guide for Websites, Social Media, and Team Collaboration Tools.
Peter Callaghan
Peter Callaghan is the Chief Revenue Officer at Pagefreezer. He has a very successful record in the tech industry, bringing significant market share increases and exponential revenue growth to the companies he has served. Peter has a passion for building high-performance sales and marketing teams, developing value-based go-to-market strategies, and creating effective brand strategies.
FAQs
What are the 5 defenses to defamation? ›
The defamation defenses are truth, absolute privilege (including litigation privilege addressed here), qualified privilege, innocent construction, and opinion. Truth is the absolute or complete defense to defamation.
What are the six elements that must be present to sue for defamation? ›- publication. Was there sufficient publication for a defamation case?
- Identification. Was there sufficient identification for a defamation case?
- Defamation. Was it defamatory?
- Fault. Was it their fault for the publication?
- False. Were the allegations false?
- Injury/ Harm. Was the reputation injured or harmed?
To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject ...
How do you defend yourself against defamation of character? ›- Do Nothing. ...
- Collect Evidence. ...
- Get a Lawyer. ...
- Send a Cease and Desist Letter. ...
- Publish Your Own Statement. ...
- Sue for Defamation.
First and foremost, truth is an absolute defense to a defamation lawsuit. If the statement that is the subject of the suit is true, and you can prove it, your attorney can move to have the plaintiff's claim dismissed. No one is punished for speaking the truth, even if it is an ugly truth.
What is the truth defense to defamation? ›The substantial truth doctrine is an important defense in defamation law that allows individuals to avoid liability if the gist of their statement was true. Defamation is a false statement of fact that harms another's reputation. It is rooted in the idea that people have a right to their good name and reputation.
Are defamation cases hard to win? ›Is it hard to win a defamation case? Defamation lawsuits are challenging because they require a lot of fact-finding. It may require experts to testify on your behalf about the psychological and emotional harm you've suffered. Unless your lawyer is working on a contingency basis, it can also be quite costly.
What is the test for defamation? ›To succeed in a defamation action, the plaintiff must demonstrate that the words are defamatory, the words referred to the plaintiff, and the words were “published” to a third party.
What are the 7 elements of libel? ›- Defamation. a communication is defamatory if it is likely to injure the reputation of the plaintiff among upstanding members of the community.
- Identification. the defamatory communication is either explicitly or implicitly about the plaintiff.
- Publication. ...
- Falsity. ...
- Injury. ...
- Fault. ...
- libel.
The Supreme Court ruled that, for a public figure to recover damages in a defamation case, he must prove not only that the statement was defamatory but also that it was made with actual malice.
How hard is it to prove defamation? ›
Unfortunately, defamation of character claims are extremely difficult to prove in the court. As the plaintiff (the accusing), the burden of proof falls on you to prove the defendant (the accused) did what you're claiming.
Can you sue someone for posting about you on social media? ›Defamation of Character
A Facebook post that defames the character of another person can be grounds for a lawsuit. To prove defamation of character, the victim must show that a false statement of and concerning the victim was published, caused the victim injury, and is not protected by any privilege.
Any person aggrieved of cyber defamation can lodge a complaint to the Cyber Crime Investigation Cell at the National Cyber Crime Reporting Portal.
What can I do if someone is slandering me on Facebook? ›If you believe someone else's rights have been violated by content on Facebook, you may wish to ask them to contact us directly. For each piece of content you'd like to report, we ask that you provide a URL and explain why you believe it is defamatory. Learn how to obtain the URLs for the content you'd like to report.
Is defamation worse than slander? ›Libel and slander are types of defamatory statements. Libel is a defamatory statement that is written. Slander is a defamatory statement that is oral. At common law, libel and slander were analyzed under different sets of standards, with libel recognized as the more serious wrong.
Who bears the burden of proof in a defamation case? ›The defendant bears the onus of establishing on the balance of probabilities that the defamatory imputations arising from the publication complained of are either true, or substantially true. This is because the law of defamation assumes that the publication is false until a defence of truth is raised and proven.
Is a defamation lawsuit worth it? ›Suing for slander can be worthwhile if you can successfully prove a defendant spoke falsely about you and you were harmed. If you can make your case, a slander lawsuit allows you to recover compensation for damages you experienced including lost business opportunities, pain and suffering, and medical expenses.
What are the three essentials of defamation? ›- 1.The statement must be published. ...
- 2.The statement must refer to the plaintiff. ...
- 3.Defamation must be published. ...
- 1.Justification or truth – ...
- 2.Fair Comment-
Libel and slander are both types of defamation. Libel is an untrue defamatory statement that is made in writing. Slander is an untrue defamatory statement that is spoken orally. The difference between defamation and slander is that a defamatory statement can be made in any medium.
What is punishment for defamation? ›Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
What percent of defamation cases won? ›
Their study found that most — roughly 90% at the time — litigants lost in court and those who won tended to win rather small monetary awards in damages. In other words, libel suits were hugely expensive and tiresome to both news outlets and to the people suing them.
How much is a defamation settlement? ›Uncontested cases are often resolved for an average total of $15,000 (although this amount is not billed all at once), or roughly $1,000 to $3,000 per month. This number can increase if more discovery is required in cases where the identity of the defendant is unknown.
Does defamation Need evidence? ›Under defamation law, this can include written material, pictures, or spoken statements. To succeed in an action in defamation, the plaintiff needs to prove that the material published by the defendant contained one or more defamatory “imputations”.
How do you win a slander case? ›In order to be successful in a defamation lawsuit, you must prove: The defendant made a false statement of fact. It must be objectively untrue and it must be presented as a fact rather than as an opinion. The statement was communicated to a third party.
What do you have to be able to prove in order to sue for defamation? ›There are several factors that must be proven by the plaintiff or the injured party in order for the tort of defamation to be established: the published words must be defamatory; the claimed defamatory words must pertain to the plaintiff; the words must have been published with malicious intent.
What are the four pillars of defamation? ›- Untrue. The first pillar of defamation is the written or spoken statement must be untrue. ...
- Published. ...
- Unprivileged. ...
- Injurious.
Truth is the most important defence or justification for defamation. This is because only false statements against a person constitute defamation. Hence, if the person making the statements proves them to be true, he can escape liability. However, this defence might not apply in criminal proceedings for defamation.
What are the 3 common defenses used against a negligence claim? ›The most common negligence defenses are contributory negligence, comparative negligence, and assumption of risk. This article will discuss all three defenses, when they're used, and how they're established.
What are the five defenses involving justification or excuse? ›Excuse defenses are used when the actor's mental state or belief demonstrate that he should not be held responsible for the criminal act. Excuse defenses include insanity, diminished capacity, duress, mistake, infancy and entrapment.