With the rise of social media, there is no longer a traditional “reasonable expectation of privacy” in publicly available information. The average social media user must always assume that what they say is “on the record.” The risk of defamatory content reaching millions has increased immensely, and the only way to protect yourself is to understand which personal remarks are acceptable and which cross the line into defamation.
The term “defamation” covers any untrue statement that damages another’s reputation. A defamatory statement that is made in writing and published is referred to as “libel.” On the other hand, if the statement is only made orally, it is considered “slander.”
Defamation is categorized as a civil wrong, a tort. Therefore, any individual who suffers damage caused by a defamatory statement may sue the person who made the statement. For as long as defamation law has existed in the United States, both freedom of speech and the right of an individual to avoid defamation have been of great concern. Defamation law attempts to ensure the right of individuals to speak the truth about others while also offering recourse to those who suffer damage as the result of false statements made about them.
Although defamation laws vary among states, there are accepted standards common to all defamation laws. Generally speaking, in order to prove defamation, an individual must show the following elements:
Our government places high priority on the public being allowed to speak freely about elected officials and other public figures. Therefore, people in the public eye receive less protection from defamatory statements and face a higher burden of proof when attempting to prove their defamation case. In addition to the elements listed above, a public figure who pursues a defamation claim must also prove that the statement was made with “actual malice.”
“Actual malice” was defined by the Supreme Court in Hustler v. Falwell. In Falwell, the Court held that certain statements that would otherwise be defamatory were protected by the First Amendment of the United States Constitution. The Court reasoned that “the sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are intimately involved in the resolution of important public questions….” The Court’s decision effectively means that public figures can win a defamation suit only when the statement made against them is not an honest mistake and is in fact published with the actual intent to harm the public figure.
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