The use of social media for communication has exploded in recent years. Much of what people post on sites such as Facebook, Twitter and others is negative and even mean-spirited.
Posting something negative or mean-spirited is not illegal or subject to a lawsuit. The question of whether you can be sued for negative comments you post on social media depends on whether your words constitute defamation.
Defamation involves writing (publishing) or saying something about someone that damages that person’s reputation. In addition, the statement must be presented as true but, in fact, be untrue. It also must not be subject to immunity as it might be, for example, in the case of a public figure (see more on this below) and under some other circumstances.
There are two types of defamation: libel (written or published defamation) and slander (spoken defamation). Defamation involving social media is considered libel since the statement is published (posted).
Two Forms of Defense
The best defense against a defamation lawsuit based on comments you make online is that what you have posted is true. If your statement is verifiably true, you are off the hook. Proving truth, however, can be time consuming and expensive.
Alternatively, if you can prove that your posted comments are merely your opinion – and not a purported statement of fact – that is sufficient to get a defamation lawsuit dismissed.
Opinion – like truth – is not always easy to prove. Saying “I think” or “It is my opinion that …” is not sufficient to prove a statement is an opinion. If, for example, your online post says, “I think my neighbor killed his wife,” it sounds like opinion. But the fact that you know your neighbor and that readers may believe you have knowledge about the situation transforms that statement into one of potentially verifiable fact.
Separating your opinion from a statement of verifiable fact is key to defending yourself against defamation (libel). Context is important.
If you post a comment saying, “That guy is a loser,” you have made a statement that is not verifiable one way or the other. It is simply your opinion that the object of your comment is someone of low social standing.
However, if you post, “That man has never held a job,” you’d better know he has never been employed or you may find yourself on the receiving end of a defamation lawsuit.
Public figures (politicians and high-profile individuals) cannot sue you for posting negative comments about them unless they can prove “actual malice,” which is defined as knowingly making statements that are false or acting with reckless disregard for the truth or falsity of your statements.
There are two types of public figures: The first type includes people of power and influence, such as the president of the U.S., members of Congress, professional athletes, movie stars and others whose names are well-known. They are considered all-purpose public figures.
The second type of public figures are people who would normally be considered private individuals except for certain causes or activities in which they voluntarily participate. This group is known as limited-purpose public figures.
The distinction matters because limited-purpose public figures only have to meet the “actual malice” condition if the defamation relates to the specific cause or activity in which they are engaged.
Following are some examples of both libelous and non-libelous statements. Remember: If the statement is true and you can prove it, it is not defamatory.
• Calling someone a crook
• Accusing someone of stealing
• Charging someone with being an Islamic terrorist
• Referring to a game-show contestant as a “total idiot”
• Saying a politician is “ruining the country”
• Calling the Beatles “the worst band you’ve ever heard”
The Bottom Line
Common sense is the best guide for determining whether something you are about to post is defamatory. One meme that appears often on social media uses the acronym THINK and suggests that before you post something online, you should make sure it is True, Helpful, Inspiring, Necessary and Kind. The chasm between statements that meet the THINK criteria and statements that are defamatory is huge.
There’s plenty of room for humor, sarcasm and even strong opinion on social media. What there is no room for is lying about another person.
To protect yourself against defamation lawsuits, see How Umbrella Insurance Works.