DEFAMATION AND ABUSE
Sept. 2, 2021
You’re operating a profitable business, and a consumer comes in and asks if you’ve seen the latest Facebook post about your business. The customer then informs you that the post claims your products are a ripoff from someone else’s patent, and wants to know if that is true.
Soon after, customers start drifting away, and your business suffers. What can you do? Can you get the Facebook entry removed? Can you sue for defamation?
The answer to those questions is somewhat unclear. If the allegation is patently false, then yes, there may be a case for libel—but if it’s partly or wholly true, you may have no legal basis.
If you find yourself in a situation where comments, visual depictions, or even defamatory emojis are hurting your business in or around the greater San Francisco area, contact the Law Offices of David H. Schwartz, INC. We also serve clients in Santa Clara, San Mateo, San Jose, Oakland and Alameda County.
Online Defamation and Abuse
Defamation comes in two forms: oral and written. Oral defamation is known legally as slander, while written defamation is known as libel. With the advent of the Internet and social media, libel – written defamation – now also extends to graphic depictions, videos, and even emojis.
In addition to the Facebook example used above, your business can be libeled in a number of online ways:
In letters to the editor of publications
In the comments section accompanying online articles
On social media like Facebook, Twitter, LinkedIn, or Instagram
In chat rooms or listservs
In reviews on Yelp and other platforms
Remember that a statement is not libelous if it is true. Truth is the absolute rebuttal to a charge of libel. But what of opinions offered on Yelp or elsewhere?
Opinion voiced online is protected by law, but sometimes opinion can cross over into libel, especially if it contains a defamatory claim such as, “I think ABC stole XYZ’s patent and is selling illegal ripoffs.” Is the statement protected just by the addition of “I think” when it is actually false?
What if your company’s own website allows comments? Can you remove those comments that you deem negative, even if not outright defamatory?
Consumer Review Fairness Act
The federal Consumer Review Fairness Act protects the rights of consumers to offer their opinions on products and services. When searching for a restaurant, a Yelp review will often pop up, offering opinions that cover the spectrum from good to bad. If it’s your own site where these opinions are accumulating, you mostly have to let them be, according to the Consumer Review Fairness Act.
The act does, however, allow you to remove comments if
They contain confidential or private information
They are libelous, harassing, abusive, obscene, vulgar, sexually explicit or are insensitive to issues of race, gender, sexuality, ethnicity, or other intrinsic characteristic
They are unrelated to the company’s products or services
They are clearly false and misleading
Don’t just pull the trigger on a comment you dislike by labeling it “false and misleading.” Remember, opinions are protected by both federal and California law. False is false, and you’ll know whether a comment crosses over into defamation—i.e., when it is “false.” Then you’re on solid ground.
How about comments about you or your business you find online elsewhere? Can you get them deleted? Unfortunately, the answer is mostly no. Section 230 of the Communications Decency Act protects social media and review sites from defamation lawsuits. You can contact the sites to make your case for removal, but they are under no obligation to do so.
California Internet Libel Laws
The Golden State not only protects against outright defamation, but it also protects against portraying someone in a “false light.” California’s “false light” privacy law creates the right to sue when someone knowingly or recklessly creates publicity about another person in a way that places the other person in a false light. As opposed to defamation, which concerns statements that are false, false light is about false implications.
The false light law arose from a court case known as Gill v. Curtis Publishing Company. In an article about “love at first sight” in “Ladies Home Journal,” a photo showed a couple with the caption, “…love at first sight is a bad risk.” The couple, who didn’t know the photo had even been taken, sued for implying that their love was “wrong.” They won, and the false light law was born.
Basis for Defamation Lawsuits
To sue for defamation, you must show that the allegation or statement in question was false. The defendant, in turn, must show that it was true. The four elements of a defamation lawsuit are:
That another person made a false statement of “fact” about you
That the statement was made or published to a third party
That the person acted negligently, recklessly, or intentionally
That, as a result, your reputation was damaged
In addition to the online site that posted the comment, image, or other defamatory item being protected against defamation lawsuits, Section 230 also shields the Internet Service Provider (ISP) that is hosting the site. That leaves only the individual who made what you consider to be a defamatory statement as subject to legal action.
Let the Law Offices of David H. Schwartz, INC Help
If you or your business – or both – are being harmed, reputationally or otherwise, by something posted online, you may well have cause for a defamation lawsuit.
Sometimes, however, a social media comment can hurt you personally but not cross the line into libel. You need to bring the details and the evidence (the statement or web location in question) to our office for an evaluation so we can advise you of your rights and options. You may well have cause to sue, or you may just have to swallow a bitter pill and go on the offensive with a better marketing and public relations campaign.
If you have questions about possible Internet libel against you, contact the Law Offices of David H. Schwartz, INC, immediately if you’re anywhere in the greater San Francisco Bay area.