I am so pleased to have a guest post by Helen Sedwick. Her new book — Self-Publishser’s Legal Handbook — covers a multitude of issues that Indie publishers face every day from how to start a business to retaining freelancers (designers/web design professions, etc.) to protecting your nest egg. I hope you enjoy today’s post by her.
Guest post by Helen Sedwick
Suppose you hear something wonderfully scandalous about a local politician and blast it out to your 10,000 Twitter followers and 4,000 Facebook fans.
You are the first drop out of the Internet hose, and your post goes viral. Two days later, you learn the information is wrong, painfully wrong. Could you be liable for defamation or twibel, a newly-coined word for libel on Twitter and other social media sites?
Rock singer Courtney Love has been sued twice; once for tweeting that a fashion designer was “a drug-pushing prostitute” and another time for saying her attorney had been “bought off.” Kim Kardashian was sued for tweets calling the cookie-diet doctor a liar.
In the race to be first to post on the social mediasphere, who stops to fact-check? In a culture that confuses rudeness with humor, how easy is it to cross the line? With more than 400 million tweets per day are defamation lawyers enjoying a bonanza?
The good news is defamation claims based on social media postings are rare, even for deep-pocketed celebrities. But the law lags behind technology.
The potential for litigation is high because careless or malicious postings can ruin reputations. At the extreme, cyber-bullying has lead to tragedy.
To reduce the risk of ending up in the courtroom, social media users should keep some common sense rules in mind.
What Is Defamation?
A False Statement of Fact
An Identifiable Living Person or Company
Published or Disseminated to at least one other person
And if involving a Public Figures,
Was Made with Malice
(knowledge that the statement was false or a reckless disregard for the truth)
In the United States, the plaintiff (the one filing the lawsuit) must prove all these elements. In the United Kingdom, France and other counties, plaintiffs have an easier time proving defamation and recovering damages.
Ten years ago, defamation claims were almost exclusively brought against publishers, journalists and celebrities; they were the only ones with enough reach to cause reputational harm.
Today, every blogger, tweeter, poster, and other social media user has the power to reach millions. As far as the law is concerned, Indie authors are publishers and have assumed all the risks and responsibilities that come with that role.
Since few of us have fact-checkers, editors and lawyers watching our backs, take the time to verify sources before posting potentially damaging information. Otherwise you risk harming someone’s reputation and wallet, including your own.
Context Is Helpful But Not Bulletproof
Here’s a recent headline from the internet:
ExxonMobil, Chevron Locked In Bidding War To Acquire Lucrative Pennsylvania Senator
If you read this headline in the Wall Street Journal, you would assume this is fast-breaking news about the real crime. However, since this headline appears at The Onion, readers understand it’s satire and not a true fact. Therefore, it is not defamatory.
Similarly, political big mouths Sean Hannity and Rush Limbaugh routinely broadcast shocking accusations and viscous slurs. They get away with these remarks by arguing everyone knows it’s hyperbole, entertainment, and opinion, not statements of fact. Same with shock jockeys such as Howard Stern.
In defamation cases, context is important because it determines whether readers will assume statements contain facts. If a statement is not seen as fact, then it is not defamatory no matter how offensive. Opinions are protected speech in the U.S.
The good news is tweets and online comments are usually not considered statements of fact, but off-the-cuff remarks, opinions, hyperbole, and (too often) sales pitches. Readers follow twitter feuds and comment rants for voyeuristic entertainment, not real-life information.
Similarly, online reviews on Yelp, TripAdvisor and Amazon are considered opinions because of context. One hotel lost its case when it sued TripAdvisor for listing it as the “dirtiest hotel in America.” The court found no defamation because readers understood this was eye-catching exaggeration, not fact.
There have been exceptions. TripAdvisor reviewers have been sued for saying they were bitten by bedbugs. A British reviewer has been sued for defamation and blackmail for posting a negative review after a restaurant refused to give him a free meal in exchange for a positive one. Since bad reviews can ruin a small business, I expect more lawsuits will happen.
Before you make potential damaging statements, rephrase them as opinions. Instead of saying “the restaurant served horsemeat” (fact) say “I suspect horsemeat would have tasted better” (opinion). Instead of “Bob is a crook” (fact) say “Bob reminds me of a rattlesnake who neglects to shake his tale” (opinion).
Bloggers face a higher risk because blog posts are more considered and researched. The more your elaborate on the subject and the greater your credibility or clout, the more careful you need to be.
Hyperlink to Your Sources
Hyperlinks are the Internet’s equivalent to footnotes. If you are posting negative information, include links to your sources. Defendants have successfully fought off defamation claims by convincing courts that they relied on credible sources. (Hence, no malice.)
When Using Humor, Don’t Be Subtle
If you have a strong opinion to express, consider using satire and hyperbole. The more ridiculous, the better. In one famous pre-Internet case, Miss Wyoming sued Penthouse Magazine and writer Philip Cioffari over a satirical piece portraying a beauty queen with such strong sexual powers, she could make men levitate off the ground. A local jury awarded Miss Wyoming $26.5 Million, but the judgment was reversed. The Appeals Court recognized the satire; levitation, while fascinating, was not factual.
We Are All Public Figures Now
Now let’s put the shoe on the other foot. Suppose you get into a tweeting feud and are called derogatory and insulting names. Do you have a claim of defamation? Don’t count on it.
By tweeting, posting, and commenting in the social mediasphere, you are putting yourself into the public spotlight voluntarily and will be considered a public figure at least with respect to your social media statements. Public figures have a tougher time winning defamation cases because they have to prove malice on top of everything else. It’s an uphill battle.
Watch the M.E Factor
As an attorney, I am often asked, “Can someone sue me?” Anyone can sue you. My rule of thumb about litigation risk is the M.E. Factor; money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little anger or emotion. But if someone is angry, offended, or feels threatened, then they are likely to sue regardless of a small financial stake. Don’t assume no one will go after you because you have no money. If you get someone peeved enough, you may awake one morning to a process server banging on your door.
Consider Other Consequences
Even if you are not sued, careless tweets may come back to haunt you. Employers review social media profiles of current and prospective employees. Professional, social and family gatherings may take on a noticeable chill. You could lose followers and potential customers.
The internet would be boring if no one took the risk of generating provocative and controversial content, but pause to think before you hit enter. Don’t post something you would not say in a crowded room. Think thrice before sending anything between midnight and 4 AM. Social media is not a private conversation. Your words will be heard around the world.
For more information on the intersection of legal issues and social media — or for additional information about legal issues that Indie publishers can encounter — visit Helen Sedwick’s blog and check out her book, Self-Publisher’s Legal Handbook. You can also find Helen on Google+ and Twitter.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.
Frances Caballo is a social media manager for writers and author of Avoid Social Media Time Suck: A Blueprint for Writers to Create Online Buzz for Their Books and Still Have Time to Write, Social Media Just for Writers: The Best Online Marketing Tips for Selling Your Books and Blogging Just for Writers. Presently, she is the Social Media Manager for the Women’s National Book Association-SF Chapter and the San Francisco Writers Conference. You can find her on Facebook, Twitter, LinkedIn, Pinterest, and Google+.
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