The Truth About Untrue Statements
Defamation is a legal concept that most people are at least somewhat familiar with these days. In the current digital age defamation (or at least perceived defamation) has become more prevalent as an issue in the public view. Most people have the opportunity to voice an opinion to the public at large via their own Facebook pages, Twitter accounts, Snapchats, or blogs that can be amplified and shared around the world in a matter of minutes or hours.
‘The internet is forever’ is a maxim that is all too often forgotten (or ignored). The permanence of internet content, combined with the ease with which a person can be searched on the internet, means that a negative statement about a person can have lasting effects on professional and/or social opportunities and bring widespread public shame or ridicule. This in turn often leads people to seek legal recourse against the publisher of the content.
Our office receives many calls from people looking to pursue legal action against others for defaming them. Frequently, there is a misunderstanding as to what is legally actionable. Simply put, many times someone has written something about the caller that the caller just doesn’t like or is hurt or embarrassed by. In and of itself, such statement is not defamatory based solely on the person’s dislike of what was published, especially if the statement is true. So, what makes a statement defamatory?
- A statement must be made about a person, either in writing (libel) or spoken (slander);
- The statement must be false – too often people seek to pursue a defamation action based on the publishing of a statement that is, although negative or harmful to the person’s reputation, entirely true and truth is the ultimate defense to defamation claims;
- The false statement must be published or communicated to others;
- The false statement must have been made with knowledge the statement is false or with either negligence as to its truth if the allegedly defamed person is a private citizen, or with reckless disregard for the truth if the statement is about a public figure, on the part of the statement maker. In either case, the intent of the statement maker regarding the truth of the statement matters; and
- The potentially defamed person, in most cases, must be be able to show damages resulting from the false statement and its publication, such as lost wages if fired over the statements made about him or her, damage to that person’s reputation, etc. Sometimes defamation can be ‘defamation per se’ which makes certain statements defamatory regardless whether or not the potentially defamed person is able to show he or she was harmed or suffered damages. Examples of defamation per se are a false statement to the effect that a person has committed a serious crime, is unfit or incompetent at his or her job, or that a person has some attribute repugnant to society (i.e. an infectious disease or some objectively highly offensive predilection).
Ultimately, defamation is an ever-present concern in this day and age where unfounded accusations can spread far and wide quickly, and then linger on the internet for years to come attached to a person’s name. As such, people must be vigilant in guarding their reputations as much as possible. As evidenced above, defamation is not a simple concept that requires only showing up for a court hearing to prove and get damages. Similarly, each case is heavily fact specific with regard to the above elements of defamation.
If you or someone you know may have been defamed, you should consult with one of our attorneys who can review the facts of what happened and help you navigate what can be a complicated legal issue. Likewise, if you or someone you know has been accused of defaming another person, an appointment should be made with a professional to discuss defending such a claim, as ignoring or not properly addressing the issue could leave you potentially liable for damages for which you may not be legally responsible. Our attorneys are standing by to assist and we look forward to your call.
I am sure that line got your attention! Good! At ATR, we have been advising clients for years that what you communicate can have consequences. To get that point across succinctly, I tell clients not to text, e mail, or post anything they would not be comfortable reading out loud in open court, to a judge. I have heard other attorneys tell their clients that they should be comfortable reading any of their communications to their children. The point is, our private thoughts and opinions can and often do have negative consequences. We all have strong emotions about our personal lives and those we have relationships with and that is natural. A recent Maine Law Court opinion (State v. Heffron) however made it clear that some communication, even a post on your own Facebook page, can be legally interpreted as “contact” and in the context of a Protection From Abuse Order, “contact” can result in arrest, detention, and perhaps conviction.
Social media is as much a part of our everyday lives as our emotions are but mixing the two without being aware of the consequences can literally land you in jail. There are appropriate outlets for the natural, strong emotions that arise out of the relationship dynamics we all face. Now more than ever, people need to think before they “speak” or their freedom may be in jeopardy. Our criminal team can help you navigate the social media landscape after the Heffron decision, and by all means, edit what you post, e mail, or text in the midst of difficult times.