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When Do Social Media Comments Become Defamation on the Internet?

It was reported that a 14-year-old Georgia middle school student is suing two of her classmates for libel after they created a phony Facebook page for her. The page had her name and information, with her profile picture doctored to make her face appear bloated. The page suggested she smoked marijuana and spoke a made-up language called “Retardish.” It was also set up to appear that she had left obscene comments on other friends’ pages, made frequent sexual references and posted a racist video. The creators also are accused of posting derogatory messages.

Libel and slander involve defamation through communication of false information about a person, group or entity. Libel is where the information was communicated by a writing, printing, effigy, movie or statue. Slander is any defamation that is spoken and heard.

To recover in a libel or slander suit, the plaintiff must usually show evidence of four elements:

  1. The defendant conveyed a defamatory message
  2. The material was published, meaning that it was conveyed to someone other than the plaintiff
  3. The plaintiff could be identified as the person referred to in the defamatory material
  4. The plaintiff suffered some injury to his or her reputation as a result of the communication. The plaintiff may sometimes claim damages for libel per se.

The truth of the information communicated is a defense to a libel or slander action. Further, a public figure must show evidence of malicious intent to recover in a defamation case.

With the advent of Twitter, Facebook and Photoshop there is such immediate and widespread access to personal information. There is no doubt a greater potential for both increased libelous communications and greater damages that can arise therefrom.

However, the elements of a libel action must still be met. We represented radio talk show host Don Imus’ sidekick Bernard McGuirk in a defamation action brought by Rutgers University women’s basketball player Kia Vaughn regarding on air comments. The case was dropped less than a month after filing. As I said to the New York Post at the time, Vaughn was never mentioned by name, “They said ‘some nappy’ . . . ‘Some ‘does not include all . . . It was clearly parody. There was not malicious intent; there was no intent to defame. No one listening that day that was sober said, ‘Oh, my God, they may be prostitutes!’ “

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