The rise of Social Media and the Internet allows people to voice their opinion with a click of a finger. Though freedom of speech is a First Amendment right, it can easily fall within the bounds of defamation. 

A person or a business is entitled to redress in a civil suit for true defamation claims. To legally state a claim for defamation, you must prove that the statement or “publication is false, defamatory, unprivileged, and has a natural tendency to injure or cause special damage.” Weinberg v. Feisal, (2003) 110 Cal.App.4th 1122, 1131. 

There are two types of defamation: libelous and slanderous statements. Libel is defamation in writing, or anything represented to the eye, while slander is defamation by oral statements. Due to the specific harms they may cause, defamatory statements are not protected under the First Amendment’s Freedom of Speech. 

How To Determine Defamatory Statements

  1. Opinion vs. Statement of Facts

To a certain extent, opinions are generally protected. Courts will look at the totality of circumstances to discern if a statement is merely an opinion or an opinion that “implies a false assertion of fact” which is considered unprivileged or unprotected. Jackson v. Mayweather, (2017) 10 Cal.App.5th 1240. Defamatory statements must contain a provably false assertion of fact. 

You can find questionable opinion pieces in editorials, newspapers, blogs, social media posts, etc. If a reasonable person could believe the statements of fact and is injurious to a person’s reputation, it could be defamatory. The totality of the circumstances must be analyzed.

  1. Exaggeration and Superlatives

“Rhetorical hyperboles” usually indicate generic opinion that most people would not accept as true. For example, Yelp Reviews usually contain superlative statements like “the best” or “the most incompetent person ever.” Through a series of reviews can be damaging to a business, they are opinion pieces that are constitutionally protected unless the post is specific and creates financial harm.

  1. Fame Has Its Drawbacks

If you are a public figure, you must prove with clear and convincing evidence that the defamer had “actual malice” – meaning “knowledge that it was false or with reckless disregard of whether it was false or not.” Jackson v. Mayweather, (2017) 10 Cal.App.5th 1240.

Public figures consist of politicians, celebrities, public servants, and those who insert themselves in the public arena. Today, it would include “YouTube Celebrities” and Social Media influencers. Whether actual malice is required depends on your position, occupation, and/or popularity. For example, a mayor’s assistant would not qualify as a public figure even though they are a public servant. As a result, actual malice is not required in this case.

  1. Criminal Allegations

General rule-of-thumb: stay away from false criminal allegations. These types of statements are serious matters that can acutely injure a party. Not only can they show actual malice based on the statements alone, but the proof of injury could be as obvious as losing employment, business deals, and/or any other economic interest.

Business Disparagement is Defamation

A business must show that the defamatory statements caused financial injury. It may be presumed that a statement is injurious, and proof of financial loss is not required. Criminal allegations or statements specific to the business profession could constitute defamation. If a Yelp review is malicious enough and results in injury, there may be a cause of action. 

Unfortunately, the rise of social media also encourages reckless comments among employees. For example, a fast-food chain’s social media coordinator can post false information against another competitor. Not long ago, an employee from a renowned cosmetic retailer posted a video regarding its policy of throwing out products that were returned or opened. This caused some outrage and negative backlash as it was viewed as wasteful and environmentally unfriendly.

What Does It Mean For Your Business?

Companies need to be vigilant and limit authorized users of their brand and other intellectual property. Clear and strict social media policy must be established to prevent any confusion among your consumers and avoid significant damage the brand and value of your company in the growing online community.

Unsure If You Can Sue?

Defamation in social media is unique in each case. Uplift Law can help evaluate your circumstances and identify any applicable legal claims for you/your business. Contact us today!