Online Comments and Defamation, Are You At Risk?

How safe is it to share your opinions online? Just because you see lots of other folks online stating things that look defamatory, does that mean you cannot be sued?  First we will discuss what defamation is, how best to understand it in our online comment era, and finally, how Nevada law protects the rights of her citizens to express their opinions online.

 

What is Defamation?

Defamation is a false statement of fact that causes damage to another, usually financial or reputational damage.  There are two types of defamation:

Slander: verbal defamation

Libel: written defamation

Written defamation, libel, includes what is written in print and online.  Because we are concerned with online comments, this will be a discussion of libel.

Because libel must be a false statement of fact, if you can prove you were telling the truth, the libel case will not stand.  This is an easy defense to a libel accusation.  There is a second common defense to a libel suit, that the alleged statement was one of opinion, not fact.  This is where things get tricky..

 

The Statement of Opinion Defense to Defamation

On its face, it seems that it would be easy to determine if a statement is one of fact or opinion.

For example, “Steven (not based on any real person!) is not nice to the people around him” is an opinion and therefore, not defamation.

“Steven stole $100 from a little old lady” is a factual statement, and if it were to cause damage to Steven’s life (like if you uttered this statement to Steven’s boss and he lost his job), then the statement could very well be libel.

Ok simple enough, right? But what if the statement is factual, but couched in the form of an opinion? “I think Steven stole $100 from a little old lady.”  The law will not permit you to defame someone just by adding the “I think” qualifier; specific defamatory statements (expressed as an opinion) that caused harm for the subject of the statement could indeed be defamatory.  It all depends on the circumstances (a la, you may need an attorney’s assistance at this juncture).

Now I ask you to consider our current age, where folks use many different internet forums (Facebook, Yelp, Twitter, just to name a few), to express their opinions not only about other people, but about the products and services of corporations.  How do you think very wealthy corporations respond online comments they feel are defamatory?

 

Nevada’s anti-SLAPP Legislation

The Nevada legislature has passed a law to protect its citizens from Strategic Lawsuits to Prevent Public Participation (called SLAPP lawsuits).  Nevada’s anti-SLAPP law is one of the most stringent anti-SLAPP laws in the country. A few highlights from the updated 2013 law:

1. The protected speech has been expanded to include “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum.” It still needs to be truthful, though.
2. The court must now respond to a motion claiming an individual is a victim of a SLAPP within seven business days (reduced from thirty).
3. The court has the discretion to award up to $10,000 (in addition to the cost of hiring an attorney) to a victim of a SLAPP.

 

A Potential Revision to the Anti-SLAPP law?

Before you close out this window and give a corporation a piece of your mind, know that there may be yet another change on the horizon.  In late April of 2015, the Nevada Senate held hearing discussing Senate Bill 444, which would revise the current statute and possibly scale back the protections of the current law.  The bill made it out of the Nevada Senate with an unanimous vote, and is currently being debated in the Assembly.

In the same way you do not evaluate the quality of a sausage until it has a casing, we will have to wait and see what becomes of Senate bill 444 before drawing any conclusions.  Regardless, use prudence as you make your online comments; once submitted, you will not be able to prevent the consequences.