Defamation: Personal Injury?

Pop Quiz: Libel is a spoken defamatory statement. (True, False)

You’ve probably got your head cocked to the side, “what did they teach us back in the 5^th grade? Is it slander or libel…?” If you said true, good job, like most of us you have woefully forgotten grade school teachings. While both slander and libel are types of defamatory statements, libel is a written or physical statement, and slander is spoken or oral. Back in the Stone Age, libel merely covered newspapers and maybe a novel (that didn’t work out with Dantes Inferno), but now, in the age of information and memes, libel can cover anything from a Facebook post to pictures and videos. Why is this important? Well, piggy-backing off of last week’s blog on meme’s and cyberbullying, we’ve decided to take the conversation a step farther: defamation on the internet.

Over the past few weeks news coverage has exploded over Erin Andrews, the female sports broadcaster who is pursuing a defamation claim against Michael Barrett, the man who filmed her showering through a jerry-rigged peephole and attempted to sell the video before posting it to the internet. After doing this Andrews’s body was suddenly out there for everyone to see, without her knowledge or permission. Her job was in jeopardy, her relationships with people changed, and she was in the public’s eyes. It’s terrifying, but this happens every day. Memes and social media aside, there are a plethora of sites to find such invasive pictures on from “Revenge Porn” to “Spot your Ex”. All it takes is one angry person with a picture of you.

While defamation does fall under personal injury, it is a difficult claim to make due to the fact that the plaintiff bears the burden of proof. The person who was harmed by the picture or statement must prove that the defendant was insulting, offensive, false, injurious to the victim’s reputation, and caused personal injury to the victim. This can be hard as the First Amendment guarantees freedom of speech, which protects opinion (but not hate speech). Here are two examples to try and explain the intricacies of this slippery claim.

• Example 1: Ally has a pet cat named Louie. Ally posts tons of pictures of Louie to her Instagram and Facebook. Tom sees these, “shares” one, and comments on his Facebook that “Ally must not be a dog person”. A lot of Tom’s friends “react” to the post by commenting nasty things about Ally. Ally gets offended and cites that she has 3 dogs at her parents’ house.

In this example, nothing wrong has happened, save the assumption (i.e. opinion) of Ally’s favoring of feline over canine. The mean comments from people, while hurtful, would not fall under defamation.

• Example 2: Ally has a pet cat named Louie. Ally posts tons of pictures of Louie to her Instagram and Facebook. Tom sees these and posts: “Ally hates dogs so much she purposefully hits them with her car when she’s driving”. This gets shared by many of Tom’s friends and Ally is put on probation at work and ostracized.

This example may seem obvious, and it is, and it may seem like a jump, but stranger things have happened. In this example, Tom fabricated Ally’s actions, and by posting that to the internet, harmed her reputation to the point where her job security came into question. This is defamation, but it may not always be so obvious.

If you feel you have become a victim of libel or slander, document as much evidence as possible. Print off pictures, posts, replies, or anything that pertains to your claim. If someone is making oral defamatory statements, remember you hold the burden of proof so find ways to prove what was being said, for example obtain the information of witnesses willing to testify to the statements uttered. Get together a list of ways these posts or statements have affected your quality of life, did you lose your job, did you lose a loan, did your business suffer, these are damages that may be covered if you are successful in your claim.

Like I said before, a defamation claim is not an easy one to prove, but a skilled personal injury attorney will be able to advise you on the validity of your claim and help you navigate the murky waters.

Curcio Law sends our thoughts and prayers to Erin Andrews and stand with her during this difficult time.

DISCLAIMER: THIS IS NOT LEGAL ADVICE OR INSTRUCTION. MERELY AN INFORMATIVE POST.