Defamation occurs when a false statement of fact is made to another which injures a person's reputation.
The First Amendment of the United States' Constitution holds that "Congress shall make no law... abridging the freedom of speech or of the press. " Many people interpret this as the right to say anything you want to anyone, about anyone, at any time and in any place, including the public domain of the internet.
Is Speech “Free”?
However, not all speech is “free” in our social networking world. A person can be held liable for statements they make to others if the statements of fact are false and injure the reputation of another. This is known as “defamation.”
Defamation is literally de-faming (harming, destroying, or disparaging) another’s reputation to the extent that it causes someone legal injury. Slander is defamation by speaking or gestures, while libel is defamation by means of writing or other permanent form. Note, however, that defamation occurs only if there is a false statement of fact; it does not occur when a person merely states their opinion (for example, chocolate tastes "good").
Defamation on the Internet
Many people mistakenly believe they cannot be held liable for what they post on Social Networking Sites because they are simply stating their opinion. Under Section 230 of the Communications Decency Act of 1996, Social Networking Web Sites are immune from defamation claims based on postings by their users. 47 U.S.C. § 230.
In 2009, a New York state court found that Facebook was not liable for defamation, under the “Good Samaritan Immunity” provision of the Communications Decency Act. See Finkel v. Facebook, Inc., 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Ct. 2009). The court found that Facebook was protected by the statutory provision which holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In addition, online social networking sites are considered common carriers and not as publishers, which makes them immune from liability for information posted by their users. However, the distinction between what is considered an opinion or a statement of fact is one of the most challenging questions faced by our courts.
Before posting on a Social Networking Site, consider if what you are saying can be supported by documentation or witnesses. If not, consider how others will interpret your post.
Are you merely stating your opinion, or are you providing information as a statement of fact? If it’s the latter, you better make sure you can back it up. While the old saying “truth is an absolute defense” is true, the key is being able to prove it!!