Many of us have been tempted to post that snarky comment or call attention to a bad business practice on social media. Perhaps your own business or reputation is being maligned, and your natural instinct is to fight back. But posting comments that are critical of another person or business generates potential legal concerns. Adding facts, images, or private information to the post can increase those risks. Consider the following issues when posting on social media in the heat of the moment.
Defamation: Perhaps the most significant legal concern involves defamation. To be liable for defamation, the claimant must prove that you published a false statement of fact that caused injury to another person. State law varies regarding the level of intent you must have when posting the comment. If you are posting about a public figure, you must act with “malice” which means knowledge or reckless disregard of the truth or falsity of the statement. Celebrities and politicians are generally considered public figures, but private individuals can be drawn into the limelight on certain issues and be deemed involuntary public figures. Similarly, individuals can gain prominence in a particular field and be found to be “limited purpose public figures” for certain issues. This is important because it is difficult to prove defamation of a public figure given the malice requirement imposed by the U.S. Supreme Court.
Defamation only applies to statements of fact which can be proven true or false. Truth is an absolute defense to a defamation claim. Opinions, on the other hand, are protected by the First Amendment even if publishing an opinion causes harm to an individual. Therefore, you can safely post a comment claiming that a person or business “sucks” since that statement is not capable of objective proof. However, stating that a business is “bankrupt” or “illegal” is a statement of fact that must be true to avoid potential exposure for defamation. Some statements are deemed so harmful that the claimant does not need to prove any monetary losses, and damages will be presumed (defamation per se). Common examples include false allegations of criminal conduct or disease.
The law recognizes various privilege defenses to defamation claims such as absolute privilege (i.e., a witness statement made in court), litigation privilege (i.e., statements made in law suit filings), or qualified privilege (i.e., statements on matters of public concern made in good faith for some recognized societal need or duty). Other defenses include substantial truth (where the gist of the statement is true even if it contained some inaccuracies), and rhetorical hyperbole (comments so expansive that nobody would understand them as statements of fact).
While these defenses are useful in court, defamation claims are expensive to defend. Under the “American Rule”, each party typically pays their own attorneys fees regardless of who wins a lawsuit. When faced with the daunting attorneys fee expenses of defending a defamation case, many defendants settle and retract their statement to avoid this financial exposure. This problem has caused some states to pass Anti-SLAPP laws which allow defendants to quickly end frivolous defamation claims and recover attorneys fees if the lawsuit was brought to silence protected speech. But not all states have Anti-SLAPP laws, and Congress has not yet passed such a statute at the federal level. Therefore, defamation can pose a significant risk when posting comments on social media about factual matters.
Invasion of Privacy: Some matters are deemed to be extremely private and the law allows claimants to sue for invasion of privacy rights if such private information is exposed publicly. Invasion of privacy claims can arise if you expose facts about someone’s private life which are highly offensive to a reasonable person, and the exposure was for no legitimate purpose. For example, disclosing details about a person’s sex life that are not publicly known can constitute invasion of privacy.
False Light: This is another type of privacy claim where an individual exposes potentially misleading or damaging information about another person. This claim may result, for example, if an individual was identified in a social media post as a participant in a violent protest when they were only an observer. Some states do not recognize false light claims, however making misleading posts in states that do can trigger significant legal risks.
Intrusion on Seclusion: Another variant of invasion of privacy; a seclusion claim is based on invading someone’s private space. For example, hacking into someone’s webcam or peering into a bedroom window and taking pictures without consent could trigger a seclusion claim. The violation occurs when the private area is breached, so this type of claim does not require publication of the information. However, publication can increase the damages.
Publicity: Violation of the right of publicity can be asserted as a common law privacy claim, but it is also governed by specific statutes in many states. This occurs when a poster uses someone’s name, image, or likeness without their consent. Many states require that use to be for some commercial benefit. Publicity rights extend to a person’s face or even their voice in some circumstances. Posting an image of a performer without their consent in an effort to bolster the popularity of a social media profile could generate a publicity claim.
Copyright: Posting any copyrighted image or video can result in an infringement claim. If the material was registered with the U.S. Copyright Office before the publication, the poster could be responsible for attorneys fees and statutory damages of up to $30,000, or up to $150,000 in cases of willful infringement. Even if the image was not registered beforehand, the copyright holder can pursue claims for actual damages.
Trademark: If the post included a business name, logo, or slogan that is used to identify a brand, the poster can be sued for trademark infringement. The primary concern here involves potential consumer confusion regarding your affiliation with the trademark holder if you include their mark. Trademark claims are subject to numerous variables such as whether the mark was registered, whether it has acquired distinctiveness in the marketplace, and whether the mark is enforceable.
Trade Secrets: Although not as well-known as copyrights and trademarks, trade secrets are another form of intellectual property. A trade secret is any confidential information that confers a competitive advantage to the owner of the secret information, if the owner uses reasonable efforts to maintain the secrecy of that information. Often, trade secret misappropriation claims are brought when a disgruntled or former employee shares confidential business information on social media without permission. If a court finds that a person has misappropriated a trade secret, it may issue injunctive relief, actual damages, and, if the person acted willfully or maliciously, punitive damages and attorneys fees.
First Amendment Issues: Not all posts which include someone’s likeness, content, or trademarks, are actionable as a legal claim. The First Amendment imposes certain limitations where the post is newsworthy, educational, or otherwise qualifies as “fair use.” All fair use defenses are dependent on the specific facts of the case, and no bright lines exist. Therefore, it is appropriate to learn about the relevant fair use factors before relying on this concept as legal protection for a social media post.
Conclusion: Social media posting is a part of everyday life for most of us. Sometimes heated debates develop on emotional topics. This can often lead to responses that cause damage to someone’s business, intellectual property rights, or personal reputation. Defamation claims and other lawsuits based on social media posts are on the rise. Before clicking the post button, consider the potential legal risks. Discretion is often the better part of valor when an online conversation turns into a flame war.
Lawrence Walters heads up Walters Law Group. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.