Remember back to when your Mom would say, “if you don’t have anything nice to say, then don’t say anthing at all.” Well that key advice is still relevant and applicable today, especially in the world of social media. Facebook posts, twitter, blogs and anonymous posting sites are like honey to a bee when it comes to the unwary opinionated social media user. Texas recognizes the tort of defamation in its two capacities as either libel or slander. Libel is a defamatory statement published in some form of writing. Slander is generally an oral defamatory statement. In most social media circumstances, we are seeing cases regarding libel. Although as youtube and other video posting sites and video blogs become more popular, the defamation suits for slander will probably rise as well.
A major confusion with those making a defamatory statement is that they believe they can make the statement because of their First (1st) Amendment Protection of Free Speech. Yet, the First Amendment Protection of Free Speech has many different limitions and is certaintly not a carte blanche Get-out-of-Jail Free Card to post whatever you want on the Internet about whomever. What is usually missed in the whole equation is that the ability to prosecute or defend a defamation suit depends entirely on the status of the plaintiff (Public figure, Public official, Limited-purpose public figure, involuntary public figure, or private individual), type of speech issue (private or public issue), and the type of defamation claimed.
In 2012, we saw a Texas jury award $13 million dollars for hurtful and vile defamatory posts made on an anonymous user forum regarding a Texas couple named Mark and Rhonda Lesher of Clarksville, Texas. The Judge ordered the anonymous forum to turn over the IP addresses for the 178 anonymous users that made posts regarding the Leshers. The Leshers sued one of the business owners who made the posts and who allegedly claimed it was on a Freedom of Speech blog. A hard price to pay for not truly understanding your rights.
It is important for businesses and individuals to be aware that the online social media environment is begging people to make those statements because it makes their forums interesting to have passionate users seeking a forum to release their frustration or anger in volatile statements. Defamation is a legal tool of protection to always remember is in the tool chest if your reputation and business have been damaged by such volatile statements.