Libel and Slander on Social Media: When Posting Becomes Defamatory

With social media taking an increasingly larger role in our lives, individuals and companies may have multiple social media platforms where they share their messages with lightning speed to millions of people. Unfortunately, those same social media channels also provide opportunities for people to make defamatory statements that can significantly damage a person’s or company’s reputation.

In this article, we discuss how to identify online defamation — which can take the form of either slander or libel — the essential elements of a defamation claim, and some common defenses to a defamation case.

Definitions: Defamation, Libel, Slander, and Online Defamation

• Defamation: A legal term that refers to false statements of fact that damage someone’s reputation

• Libel: Defamation caused by written words, images, or any other type of content that leaves a permanent record

  • Historically, libel cases involved print newspaper or magazine articles.

• Slander: Defamation caused by spoken words

• Online defamation: This involves damaging and untrue statements published on any social media platform, and it can include statements, comments, videos, altered photos, and more.

  • Online defamation poses unique legal challenges. For example, is a TikTok video post written (libel) or spoken (slander)?

• Tort: A civil wrongdoing for which a person can sue another for monetary damages

  • Defamation is considered a tort. In this way, online defamation differs from online harassment, cyberbullying (which refers to online harassment directed at children and teens), and cyberstalking, which are criminal acts in some states, including California, Indiana, and Connecticut.

Proving Online Defamation

Most states have their own defamation laws, so the exact elements to be proven in an online defamation case will depend on where the case is brought. To prove online defamation, a plaintiff must show that the defendant:

1. Made a false and defamatory statement of fact about the plaintiff

2. Was at least negligent in deciding whether the statement was true or false

3. Published the statement on an online platform for others to see

4. Caused damage to the plaintiff

Proving a Statement Is Defamatory — Defamation Per Se vs. Defamation Per Quod

Some false statements are deemed so harmful that they are considered defamation per se, in which case, this element of the plaintiff’s claim is deemed satisfied. For example, a statement that someone committed a serious crime could be deemed defamation per se. This is different from defamation per quod, which involves a statement whose defamatory nature is not immediately apparent; in such cases, the plaintiff must prove both that the statement was actually defamatory and that the plaintiff suffered actual damages because of it. In California, the concept of defamation per se has been codified.

Statements of Fact vs. Opinion

To be defamatory, a statement must be one of fact, not merely an opinion. This can raise a tricky question in online defamation cases since so much of social media content is opinion, not fact. However, if an opinion implies fact, it could be considered defamation. For example, a post saying, “It’s my opinion that Dr. Andrews closed his practice because of the sexual harassment that went on there” may seem to imply the fact that sexual harassment occurred. If this fact is false, the poster could be liable for defamation. Simply using “I think” or “It’s my opinion” in an online post may not protect a person from a defamation claim; if facts can be inferred, defamation may be found.

What Does “At Least Negligent” Mean?

Under the law, negligence refers to an act taken out of carelessness as opposed to one that’s intentional. In defamation law, whether a plaintiff must show negligence or something more depends on whether the plaintiff is a private or public figure.

• Private figure: Only negligence is required (i.e., the plaintiff need only show that the defendant was careless in deciding whether the statement was true or false).

• Public figure: Actual malice is required (i.e., the plaintiff must show that the defendant made the statement with the knowledge it was false or with reckless disregard for whether it was true or false). The U.S. Supreme Court set out the increased burden of proof for public figures in its 1964 decision in New York Times Co. v. Sullivan. Although the Sullivan case dealt with public officials (i.e., those in government), courts have applied the malice requirement to defamation cases involving public figures (i.e., those who put themselves in the public eye, such as celebrities).

What Constitutes Publication?

Because defamation deals with harm to a person’s reputation, it makes sense that there must be an audience for the defamatory statement to be actionable. State defamation laws describe this element of defamation as publication. If the defendant has made a false statement in a text message sent only to the plaintiff, defamation likely won’t be found. Also, the publication of the statement must be unprivileged, meaning (as discussed further below) no circumstances made it permissible for the defendant to make the statement.

Defamation Damages

Damages is the legal term for money paid to a plaintiff by a defendant. In any civil case, the plaintiff must prove actual damages to recover them. The type of damages a defamation plaintiff might show include:

• Significant harm to personal or business reputation

• Loss of job or inability to be hired due to reputational harm

• Loss or denial of professional licenses

• Ruination of personal or business relationships

• Public embarrassment or humiliation

• Anxiety, mental anguish, depression, etc.

Attaching a monetary sum to these types of damages is not easy. For example, what is the dollars-and-cents value of a person’s reputation? This might be a relatively simple calculation for some  (e.g., in a defamation case brought by a movie star plaintiff, the movie star might show the loss of endorsements and acting roles, each of which has a provable monetary value), but for most individuals, the calculation is more challenging.

Examples of Social Media Defamation

Online defamation can take many forms, including text, images, videos, or any other medium. For example, the following could be deemed online defamation:

• A YouTube video stating a local contractor bribed the city to obtain building permits

• A LinkedIn post asserting a former professor committed plagiarism in a scholarly article

• A Facebook post implying someone caused their own child’s death (an actual case)

• A blog comment accusing someone of unlawful or immoral conduct

• A fake news story on Reddit, Substack, Medium, or the like

Defamation Laws and Social Media

There is no federal defamation law. Instead, states have created their own laws for dealing with libel and slander. However, two federal laws significantly impact defamation claims:

• The First Amendment guarantees people the right to free speech. Defamation is considered an exception to free speech protections under the First Amendment (i.e., there is no constitutional protection for defamation). Defamation laws attempt to balance one person’s free speech rights with another person’s right not to have their reputation harmed. The First Amendment protects opinions, which is why an essential element of a defamation claim is that the statement at issue is one of fact.

• Section 230(c)(1) of the Communications Decency Act provides immunity to social media hosting platforms such as X and Facebook for the statements made by their users. There is a narrow exception to Section 230 when the plaintiff can show the online hosting platform participated in the defamation itself, such as by editing a post made by a user.

Defenses to an Online Defamation Claim

There are several defenses against any defamation claim, including one involving social media libel or slander. Some of the most well-known defenses include:

• Truth

  • Truth is an absolute defense to a defamation claim — if a defendant proves the statement they made was true, that ends the case.

• Opinion

  • As stated above, opinions (sometimes referred to in the defamation context as fair comment) are protected by the First Amendment.

• Privilege

  • Absolute privilege applies to a limited group of persons who have the right to make statements, such as lawyers and witnesses in court proceedings and government officials acting in their official capacity. This privilege makes the speaker immune from a defamation claim, meaning they can’t be sued for their statement.

  • Qualified privilege protects people who make statements for some positive purpose (such as making a statement at a public hearing) but only if the speaker acts in good faith. Speakers who act in bad faith can be sued for defamation.

• Retraction

  • Retracting the offending statement, either by correcting or removing it from an online platform, may serve as a defense or as a way to limit damages.

A Fluid Social Media Landscape

As social media becomes ever more prevalent in our lives, we can expect further development in the laws around online defamation, including new case law interpreting those laws.

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