Thursday, September 21st, 2023
Can you be held personally liable for reposting something defamatory on social media? A Richmond federal judge recently held you can be.
The judge made this ruling in a case with jaw-dropping allegations. The case hasn’t yet gone to trial, and nothing has been proven, so I’ll refrain from giving the litigants’ real names.
The Battle of Petersburg
It concerns an allegation by a woman, whom I’ll call Jane Doe, that her employer, a Petersburg attorney, beat her up during a limo ride and later defamed her on Facebook. Riding in the same limo was the attorney’s wife, whose potential legal liability for defamation is the focus here.
Jane Doe worked for the attorney by driving him in a limo to court appearances and other things. Here’s what she claims happened:
She was riding home from a social event in the limo with the attorney and his wife (someone else was driving). All had been drinking.
The attorney’s wife complained about her appearance in photos Doe took that evening. Things turned ugly. The attorney pushed Doe off her limo seat and beat her in the face.
The attorney and his wife then dropped Doe off at her house in Petersburg. She tried to call 911, but he got into the house and stopped the call. He assaulted her again in her bedroom with enough violence to break a TV and table. He later washed her up while she was in shock, apologized, and put her to bed.
Amazingly, the attorney and his wife somehow got Doe to travel with them the next day to Lexington, Virginia, for a court appearance. She was held in Lexington against her will for a few days while the attorney attended to business there because Doe had no other way home.
Records show that, later, Doe and the attorney each attempted to press criminal charges against the other. The authorities ultimately declined to prosecute any charges.
The Battle Goes Online
Then things got rolling on social media. The attorney went on a Facebook campaign against Doe. He didn’t use her full name but used enough that some might identify her.
He kept comparing her to a real-life convicted murderer with a similar name who is serving a life sentence in Missouri and is portrayed in a Netflix show.
He accused Doe of lying and seeking to “cast blame on innocent victims after perpetrating unthinkable crimes against them.” He said she was “motivated by greed and a desire for control over others.” He said she was “completely self-centered, manipulative, and [a] dangerous parasite.” He later wrote that she “schemed to get money by fixed verdicts and shady claims.” He posted a lot more like that.
The attorney’s wife joined in with her own posts attacking Doe. But, relevant here, the wife also reposted on Facebook some of her husband’s Facebook posts attacking Doe.
The Battle Goes to Court
Doe sued the attorney and his wife for defamation, among other things. Counsel representing the attorney and his wife moved to dismiss parts of the case as not stating valid legal claims. Counsel argued that the wife can’t be liable for the stuff her husband wrote on Facebook and she only reposted. The court recently rejected that argument.
The Court’s Rulings (So Far) on Defamation Liability
Defamation is the publication of a defamatory statement with the requisite intent. A defamatory statement is one that is false and harms the targeted person’s reputation in the estimation of others.
Here is the court’s key ruling: “Repetition of another’s words does not release one of the [sic] responsibility if the repeater knows that the words are false or inherently improbable or there are obvious reasons to doubt the veracity of the person quoted.”
The wife also tried to defend her Facebook activity by arguing she was just expressing her opinion about Doe. Statements couched as opinions are not defamation unless a reasonable person hearing the statement would interpret it as a factual claim.
The wife argued she was just opining that Doe is a liar. The court held that whether calling someone a liar is defamation depends upon how you do it. If the best interpretation is that you are just disapproving of what the person said, that’s not defamation. But if your statement is best interpreted as saying that the person is intentionally stating falsehoods, that can be defamation.
What Lessons Can We Learn From This Mess?
Most importantly, don’t repost or retweet something you see on social media that might defame someone else. You are not insulated from liability just because you aren’t the original author.
This applies even to material you repost in a private social media group. Defaming someone to a closed group of people can still be actionable.
This also applies to parts of social media that disappear after a while, such as Instagram stories. Remember, anything on a screen can be screenshotted.
It’s unclear whether liking something defamatory might also expose you to defamation liability, but the safe thing is not to do that either.
Finally, while expressing opinions isn’t defamatory, don’t cut it close and try to couch a nasty allegation against someone as your “opinion.”
You have more leeway when the subject of the allegedly defamatory statement is a public figure, such as a politician. In that case, not only does the statement have to be false, but it must be shown that the speaker acted with actual malice or operated with reckless disregard as to what the truth is.
That’s a high bar, and it’s intended to protect the ability of the media and public to pursue matters of public interest. Still, that higher burden of proof is not a blank check to post or repost anything false against a public figure such as a politician, so it’s still best to be circumspect and to source information carefully.
Written on September 20, 2023
by John B. Farmer
© 2023 Leading-Edge Law Group, PLC. All rights reserved.