Facebook, the largest social media network in the world, published about thirty-one million messages and posts per minute in 2015. Instagram, Twitter, and Linkedin boast smaller numbers, but not by much. As social networks have expanded, so have the cases in which plaintiffs have successfully recovered damages for defamatory statements made on social media sites. Cases like Courtney Love’s have even created new terms of art in defamation, like ‘Twibel,’ which means a libelous statement made on the Twitter platform.
The important thing to remember about social media defamation is that there are no special legal rules for social media postings. However, there are often special considerations for measuring damages caused by defamatory social media posts.
The Law of Social Media Defamation
The standard for whether a statement is defamatory in Virginia is the same for social media posts as by any other method of publication. To support a defamation action, Virginia requires the plaintiff to show that the defendant issued:
- a publication about the plaintiff
- containing an actionable statement
- with the requisite intent.
Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981). (Note: This is a simplified version of the law of defamation in Virginia). Whether the statement was made on an e-mail listserv, by handwritten letter, or by P.A. system, the basic requirements for defamation are the same. Contrary to what some defendants might believe, statements made on social media are no less “serious” than defamatory statements that are published by media outlets.
Measuring Damages in Social Media Cases
The normal rules of defamation law apply to social media posts, but there are special considerations for measuring damages in social media defamation cases. Although it has always been possible to write and distribute a letter containing a defamatory statement, the rise of social media has empowered the average user to reach a much wider audience than ever before. When a defamatory statement is published on a social media network, it has the potential to be re-shared by readers immediately, meaning that the readership can quickly expand far beyond its intended audience. Most readers will understand the enormous potential of re-sharing if they think back on “viral” content from the past few years. Of course, the number of people who read a defamatory statement is important to assessing its damages.
Another special consideration in social media cases is that social media networks often capture the audience’s “reaction” to a defamatory statement; almost all the networks record how many times the defamatory post was reacted to, commented on, or re-shared. These numbers are invaluable to plaintiffs who must show that a defendant’s defamatory statement damaged the plaintiff’s reputation. The substance of the comments or reaction is also useful to demonstrate how a defamatory statement was received by its audience. In contrast, conventional forms of media like newspapers or magazines rarely produced hard evidence of a reader’s reaction to a particular statement.
The number of defamation cases involving social media posts is on the rise, and potential defamation plaintiffs should consider whether any defamatory statement about them was distributed over social media platforms. Although there are no legal requirements specific to social media defamation, there are practical differences between social media defamation and defamation by other methods of publication. Social media defamation plaintiffs in Virginia should remain aware of these differences in gathering information about their potential defamation case. The statute of limitations for defamation suits in Virginia is one year, so plaintiffs who believe they have been defamed should contact an attorney as soon as possible to evaluate their case.