Want to Win a Social Media Defamation Case? Don't Start One
Defamation cases have rarely been an easy win for clients but claims that spring from social media have to contend with a whole new dimension of problems that equate to a lot of effort for little reward.
December 18, 2019 at 11:00 AM
3 minute read
You can throw a stick in any direction on the internet and probably hit a comment, statement or remark designed to trigger the kind of animosity that typically builds to legal action—but don't expect an explosion of defamation lawsuits to be clogging up court dockets anytime soon.
Defamation cases in general can be a difficult course of action for lawyers and their clients to pursue. Just ask Vernon Unsworth, a British cave explorer who recently lost a defamation case he brought against tech guru Elon Musk after being referred to as "pedo guy" on Twitter.
While the elements necessary to successfully argue a defamation claim typically remain consistent in the face of social media, the ephemeral and altogether crowded nature of the internet can nevertheless make for an even more arduous road ahead.
"Clients generally make the decision that it's just not worth their time, that the harm that they are incurring is less than the resources that they would expend in order to pursue it," said Desiree Moore, a partner at K&L Gates.
For example, a client in a would-be social media defamation case might not even be sure who they are taking action against at first. Anonymity is the stock and trade of the internet and tracking down the real identity behind an offending comment is likely to consume a great deal of time and resources.
Even worse than not finding the person responsible, however, is finding them. Given the wide variety of ages and walks of life represented on social media, Moore pointed out that even after all of that effort, the poster may turn out to be someone who has no money or assets for which to sue.
Beyond the financial component, she also considers how much traction a defamatory statement has already gained in media or public discourse before advising clients on whether or not they should take legal action.
"If a high profile individual or a corporation sues somebody over a defamatory post suddenly you are directing people to the defamatory statement and creating sort of awareness of it that wouldn't have been there otherwise," Moore said.
If and when a client decides to take an issue to court, there are a whole new set of challenges to surmount. Proving harm has typically been one of the most important but difficult aspects of a defamation case—and social media doesn't exactly do it any favors either.
Since discourse online can generally trend in the direction of harsh, exactly what a jury may view as a defamatory statement may be something of a wild card.
"I would think that sort of the general rough and tumble attitude of sort of dialogue on social media has to some extent led to a sort of a more sort tolerant view on potential liable claims, potential defamation claims on the internet. But that very much varies from case to case," said Evan Gourvitz, counsel at Ropes & Gray.
There's also the ephemeral nature of a post or statement made online. Whereas a defamatory remark in the pages of a newspaper could live on for some time, an inflammatory tweet could be gone and deleted within an hour. In that case, a plaintiff would still have cause for action, but proving harm becomes a dicier proposition.
"If an internet post is essentially ephemeral—seen today, gone tomorrow—that theoretically reduces the harm," Gourvitz said.
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