South Carolina Intellectual Property Litigation

Intellectual Property & Litigation SC

FaceBook Defamation – WARNING: you may not “like” this

Posted in Copyright, Defamation, General, Libel, Mediation, Policy, Slander, Trademarks

If this title, FaceBook Defamation caught your attention, chances are you already use FaceBook, Twitter, LinkedIn, Instagram, SnapChat or other social media platforms. Consider this, FaceBook alone claims as many as 968 million average daily users, and over a billion users on busy days. Yes, that is average daily FaceBook use equal to three times the 2014 U.S population of 318.9 million. How do you “like” that?

According to EbizMA, Twitter is second in users with over 300 million users, followed by LinkedIn, Pinterest, Google+, Tumblr and fast growing Instagram. You (or your business) could be defamed today by someone in a remote Asian village, or by an domestic online avatar. More likely, one of your so-called FaceBook friends will defame you. Online defamation also occurs in obituaries, comments to news / sports articles, Yelp reviews of your business, the RipOff Report, or anywhere on the Internet.

Let’s look at how defamation on FaceBook happens and on other social media platforms.

What can you do about Twitter / Internet / FaceBook Defamation?

Good question! In the U.S., the constitutional right to free speech effectively equates to the right-to-defame-and-be-sued. The comments may be malicious, stupid, reckless, rash, passionate, mistaken, negligent, etc., but they can give rise to an action for general, special, and punitive damages. There is a possibility of obtaining a permanent injunction with a final judgment of defamation, however, even then, the speaker could say the same thing in a slightly different way.

You may also ask the search engines (e.g., Google, Yahoo, and Bing) to De-Index the URL.

Assuming a court finds that follow up comments are defamatory and violate that court’s order, you could presumably have the speaker / writer placed in jail for contempt of court. However, ask yourself, when was the last time you read a story where this occurred in the U.S.? Likely “never!” The Seventh Circuit recently addressed the libel injunction issue to provide some clarity. As noted in the article by Professor Volokh in the preceding sentence, as was noted here before, the context of a defamation, particularly if per quod instead of per se, is difficult to address in a forward-looking rule that is necessarily “narrowly tailored.”

The Biggest Problem with most social media defamers

They have no accessible assets. Damnit you say. What about that big house in the gated neighborhood? mortgaged. Lakehouse? also mortgaged. Mercedez-Benz S-Class? leased. 401(k)? untouchable! Damnit you say again! Judgment proof? Practically, Yes, the average Joe or Jane has little to nothing to lose. When was the last time you “negotiated” with a 3-year old over a popsicle on hot summer day? As Churchill stated, “never engage in a battle of wits with an unarmed man.”

For this reason, the typical ‘Merican notion: “we’ll sue them into the next century, take every dime, then go after Grandma,” is ill-fated. No sensible attorney will take a defamation case on a contingency if the defendant is insolvent. So those with financial resources have an advantage, because they can afford competent counsel and pay hourly to pursue a case to judgment, or otherwise into oblivion.

If sued, an asset-free defendant may be wise to take a default judgment, confess to judgment on better terms, or even worse, they may answer and defend pro se. When was the last time you prepared for and travelled to a deposition only to discover the defendant / witness does not show up? At least you got to know the court reporter a little better.

Can I get some concrete options, please? Sure, Here are Seven (7) …

1. Do Nothing: Yes, that is right. We tend to think first about how everything affects us. Often what seems a mountain today is a mole-hill next week. Engaging in a dispute over these matters is will require a tremendous amount of emotional energy, time, money and more. Ask yourself:

(i) Does your son, daughter, or elderly parents need you?

(ii) Is there any fruit on the tree, or mostly just more despair and distractions?

(iii) How else can I come to terms with this?

2. Call and Speak to the Person: Many people cringe at this, however, if the defamation to an individual, much useful information can be obtained from a telephone call. This is information you might not ever from a an impersonal or threatening email or a letter. The whole affair could be a misunderstanding, which is likely if the statements are from a friend / former friend. The call may resolve the dispute and you have your friendship back, even better than before.

3. “Mediate” the Matter with a Mutual Friend / Respected Colleague / Minister / Counselor / Trained Neutral, etc.: This option is similar to #2 above, except you will be using the power of a mutually respected “mediator” to help you both resolve the dispute, misunderstanding, etc. The mediator must be able to help, not hurt the situation, and a professionally licensed and trained mediator, with clear ground rules is recommended. Face-to-face contact is not required, but reconciliation and apologies probably should be mediation goals.

4. Send a Cease-and-Desist Letter: As discussed above, this may just serve to kick the sleeping tiger who was growing tired of defaming you and cause them to go on yet another passionate tirade against you. This can be a very good option for a business defamation, or if the potential defendants have assets or possibly insurance to cover the defense of actions in question. many defamation actions will involve intentional conduct of the defendant and, therefore, will not (in theory) be subject to defense or indemnity by insurance.

5. File a Lawsuit: This may get the attention of the defamer, however, again, if they have no assets, they have nothing to lose and could simply take a default judgment, or worse, answer and defend the case pro se. Any injunction you may obtain will likely be too late and too narrow. If the defamation is to your business, the identity of the defendant (Jane Doe) may take months to discover, and could require legal action / subpoenas in multiple states.

6. Utilize Platform Policies to Request a Take Down of Offensive Comments: Sounds promising, however, platforms are only “required” to act on infringement of registered trademarks or copyrights. Defamatory comments, on the other hand, will only be taken down according to platform policy. Policing for defamation generates no $ and no liability (see CDA below), so it is not done. To get offensive comments taken down by FaceBook, Twitter, LinkedIn, Pinterest, etc., you need to show a defamation per se, false statements and respectfully ask for take down per their terms of service.

7. “Ask” the Search Engines to “DeIndex” the Offensive URL: This option was formerly the subject of published Google procedures, but now is left to their discretion, much like social media policies referenced above and discussed further below. The search engine may remove very specific URL’s adjudged by a court to be violations of law. Once a judgment is obtained (perhaps by default, confession, etc.), providing it and ask in as narrow a fashion as possible for DeIndexing the URL’s.

The URL’s may still be there on the “www” but if not reported in the search engine results, good luck finding them.

Social Media Terms of Service / User Agreements

The social media User Agreements / Terms of Service will limit liability contractually for content posted by third-parties, and will also reserve rights to take down material in violation of the User Agreements and / or Professional Community Guidelines (LinkedIn). As the cases show, even though the Communications Decency Act of 1996 (“CDA”) grant of “immunity from suit” is broad and almost bullet-proof, lawsuits continue attempting to expand upon / create further exceptions.

Twitter, LinkedIn and Pinterest terms of usage all specifically mention “defamation” or “defamatory” comments, however FaceBook does not. Instead, FaceBook’s Terms of Service provides more generally as follows:

  1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
  2. We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies.

As you can see, FaceBook maintains discretion to remove content that violates their policies, so you may get a remedy by convincing them that the statements about you violate the law or the rights of others and should be removed.

The Communications Decency Act – Immunity (from Suit) for Service Providers

It is almost impossible to sue the social media platform for damages relating to any defamatory or otherwise false information posted by a third-party. This is due to immunity from suit (not just damages) provided to the online service providers by the CDA. While this may seem frustrating and create unjust results in certain circumstances, arguably, this immunity was necessary to create the free exchange of information on the Internet and its growth since 1996.

It should be noted that there is an exception in the CDA for intellectual property rights, which some courts have interpreted to exempt only federally protected IP rights. Criminal acts, such as online obscenity and child pronography violations are not immune. Also, the ISP’s are not immune for defamatory content they post or republish, only content of third-parties. For this reason, what you get from social media is a platform / forum to communicate with other “third-parties.”

You don’t have to “like” it

The above list of options is not exclusive, and we would always suggest you consider any reasonable way to resolve your disputes without the need for utilizing options 4-7 above. Thinking creatively to resolve difficult disputes is what lawyers do, and you can too, even though you may not “like” it.

If the matter is still troubling you after careful consideration and consultation with trusted friends and relatives, causing loss of business or reputation, you may want to speak to a lawyer to explore the above options, or others. When the defamation is to your business online and can be viewed by potential clients or customers, your special damages could be accumulating so fast that you can’t afford not to take action.

If you believe you have been the victim of a defamation on FaceBook or otherwise, call our firm for a free initial consultation at 803-223-6942.

 

 

Defamation of Character Damages – Can You Recover Without Evidence of Actual Damages?

Posted in Common Law, Damages, Defamation, Libel, Presumptions, Slander

This post addresses a unique aspect of defamation law, specifically how a plaintiff whose character or reputation has been defamed can recover damages without proof of actual damage to his or her reputation.

2012-hyundai-sonata-WHY-large-9

As a father of three sons, I always got tickled by the Hyundai Sonata commercial depicted above, although I’d bet my former next door neighbors appreciate it even more than me. You may recall the very patient neighbor finally suggests to the inquisitive little boy, “Why don’t you go ask YOUR Dad? (click link for commercial). Humans have an instinctual need to understand things, particularly things that seem counter-intuitive or are exceptions to general rules. As lawyers, this instinct is heightened to say the least.

As noted by Aaron Hall in this blog post, Minnesota’s defamation law provides, “Defamation affecting the plaintiff in his business, trade, profession, office or calling are defamatory per se and thus actionable without any proof of actual damages.” Most other state’s common law of defamation provides similar presumed damages recoveries for a defamation per se, as opposed to a defamation per quod. However, as noted in this blog post by Dancing with Lawyers, not all state laws provide for a presumption of damages when the statement is a defamation per se.

Defamation, Two Types: Libel or Slander:

As stated by the Court of Appeals in Parrish v. Allison, the difference between libel and slander can be described as follows:

Defamatory communications take two forms: libel and slander. Libel is the publication of defamatory material by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed word. Slander is a spoken defamation. (Parrish v Allison from 2007 is reported here).

It should also be noted that the various state laws or rules may be applied differently for slander (spoken words that damage) and libel (written words that cause damage to reputation). Generally speaking, because the written words are with us longer, the law provides greater protection for victims of libel.

Defamation Per Se /or/ Per Quod – What is the Difference?

The distinction is that the defamation per se is defamatory standing alone. For example, the newspaper falsely reports, “Dr. Jim Jones got sued over a dozen times and lost his medical license in Missouri before coming here to practice.” Whereas, a defamation per quod requires the reader or hearer to associate other evidence to the statement to make it defamatory. For example, a news article or a FaceBook / social media posts suggests that an orthopaedic doctor in Town X was reportedly intoxicated when he was called off the golf course last Saturday to perform an emergency surgery, but does not name the doctor. As it turns out, there are only two orthopaedists in small Town X, the other is a female in a wheelchair (who does not play golf), and the only golf course in town is a male only club.

Because the reader must associate other evidence, namely knowing that there are only two orthopaedists in Town X, etc., the reader then associates the male orthopaedic doctor with performing a medical operation while intoxicated, does not immediately discuss it with anyone, but in the future refuses for anyone in her family to see anyone in the local orthopaedic practice, instead leaving town for such services, and in the future repeats the story she heard numerous times in private when the subject of a broken arm or leg comes up in the community. Because the court may classify the story about the male intoxicated golfing orthopaedic doctor as a defamation per quod, to recover for defamation, he would have to, for example, find a witness to testify about how his reputation or character was diminished in the community because of that publication / FaceBook post.

Case Law Explaining the Difference Between Defamation Per Se and Per Quod:

In South Carolina, the law regarding a defamation per se and presumed damages is stated as follows:

Under the common law, “[l]ibel is actionable per se if it involves written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous. (Erickson v Jones Street from 2006 is reported here).

In contrast, South Carolina courts have described a defamation per quod as follows:

If the defamatory meaning is not clear unless the hearer knows the facts or circumstances not contained in the statement itself, then the statement is defamatory per quod. In cases involving defamation per quod, the plaintiff must introduce facts extrinsic to the statement itself in order to prove a defamatory meaning. (Parrish v Allison from 2007 is reported here).

Another way to describe it is like this, in a defamation per se, the plaintiff need only introduce the news article itself, in the defamation per quod, the plaintiff needs the witness / reader of the statement to explain why she knew the article was referring to that particular orthopaedic male doctor. This same witness could then testify that reading the statement damaged the character or reputation of the plaintiff male golfing orthopaedic doctor.

So What to Make of All this Latin Per Se / Per Quod Jargon?:

The role of the lawyer / advocate is to convince the jury and the court that the offending statement is defamation per se (if you represent the plaintiff), or defamation per quod (if you represent the defendant). If the defendant’s counsel fails to convince the jury that the statement is a defamation per quod, their next step is to attack the rebuttable presumption of damages, defend on grounds that the statement is truthful, or that an absolute or qualified privilege applies.

However, some of us must still ask, “why allow a plaintiff to recover without proof of actual damages?”

It is the embodiment of policy developed over years and years of refinement of the common law. The premise behind that policy is that “one’s reputation is invaluable.” It is also very likely a by-product of the U.S. Constitutional prohibition against a prior restraint of speech. Unlike folks in the United Kingdom who can get what this author considers to be somewhat ridiculous and impractical SuperInjunctions where the court order the press (yes, all of the press) not to report on certain private affairs (i.e., mostly soccer player’s illicit affairs), in the U.S., the constitutional right to free speech necessarily allows you to defame another person, but not without consequences!

The Right to Make the Statement, the Right to Bring the Lawsuit:

If you live in the U.S., you have a right to defame another person, however, the law provides that they can bring an action against you for the defamatory statements and recover. The victim of the defamatory statements does not have to wait around until their reputation is completely ruined, and their business lost, to bring an action. This is in part because, as a general rule, they cannot seek an injunction to stop you from saying or writing things about you, and also supported by the fact that a plaintiff cannot always know, and may never know, who shunned him or her because of what they heard or said from another source.

Defamation Per Se Damages:

The damages recoverable may vary from state to state, or at least the way in which they are described may vary. Some states use the three categories: (i) nominal damages: (ii) actual damages; and (iii) punitive damages. If you are defamed, depending on the character of the comments and the ill will or motivation attributed to the speaker or writer, you may be able to recover nominal damages and punitive damages without evidence of actual harm to your reputation.

In South Carolina, the defamation damages categories are often described by the following three categories: (i) general damages, (ii) special damages and (iii) punitive damages. These general damages in South Carolina represent the presumed category of damages described above and include such things as “injury to reputation, mental suffering, hurt feelings, and other similar types of injuries which are incapable of definite monetary valuation.” Special damages under South Carolina law include “tangible losses or injury to the plaintiff’s property, business, occupation or profession, which are capable of being assessed and which result from injury to the plaintiff’s reputation.” Punitive damages are also recoverable in South Carolina if the plaintiff can show by clear-and-convincing evidence that the nature of the statement is necessary to warn others from committing similar offenses in the future.

Wrap Up:

This brief review of some of the principles in play when there is concern that a statement may be damaging to someone’s reputation, and therefore be actionable, illustrate the complexities that can be involved in a defamation lawsuit. Also, the statute of limitations in defamation cases can be as short as two years, not three years as in most other claims.

If you are involved in a dispute regarding allegations of defamation, either as a potential plaintiff whose character or reputation has been damaged or as a defendant, you should seek counsel that is experienced in handling these types of cases in the state in which the action will be brought, understands these distinctions, why they exist, and how to use them in your case.

 

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