Everyone is a reporter these days. We all carry a recording studio with high-quality video and sound and a printing press in our pocket. We all have the capability to publish current “news” and go live on Facebook at a moment’s notice and many do. And once that news hits the airwaves, comments, shares and retweets soon follow, including personal opinions and conjecture. We’ve all heard the term “fake news” being used in reference to information published by established news sources, but what responsibility and potential liability does the average citizen or business have in exercising their free speech rights by publishing or commenting on social media?
The landmark Supreme Court case New York Times Co. v. Sullivan 376 U.S. 254 (1964) established “actual malice” (very close to actual intent to cause harm) as the standard to pursue a libel or slander case against a publisher for press reports about public officials. The Court’s objective was to promote free speech by assuring public persons could not use their power, influence and money to keep papers from publishing information that may be damaging. The problem in today’s world is determining who is “the press” and who are the “public” figures. Is everyone with an active social media presence a public figure? As indicated above, is everyone a reporter? Section 230 of the Communications Decency Act of 1996 has insulated internet service from civil defamation suits provided they are not the one producing the disputed content themselves. For the most part, providers of the publishing platforms (Facebook, Twitter, Instagram, etc.) have taken the position they are not liable for information shared by others using their site because they are not creating the content. Companies like Facebook are re-evaluating this stance after recent events involving live streams of shootings and assaults on social media.
In our business practice, we have seen an increase in individuals and businesses being party to controversies associated with information published via social media. Aggrieved people and businesses often take to social media to air their grievances and report the “facts” without regard to potential liability for those statements. The perceived anonymity created by the internet and services that allow nameless posts and communications often embolden action in this arena. On the flip side, valuable information is easily available at your fingertips. It is our belief that in the coming years we are going to see a significant increase in court cases based on social media posts and additional legislation attempting to address responsibility and liability. In the meantime, it is our advice to be careful when commenting or posting online, as well as publishing social media content if the information cannot be verified. It is a wonderful and scary new world, and we are here to help.
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