Ask an Attorney: Could My Social Media Posts be Considered Defamation?

Ask an Attorney: Could My Social Media Posts be Considered Defamation?

“You better delete this tweet. Someone will sue you for defamation!” “This Facebook post is defamatory!” “You can’t say that! It’s illegal!” You’ve probably ran across these quotes or something similar on social media — maybe even in response to your own posts. Most of the time, they’re easy to laugh off as typical craziness on social media.

But, sometimes, you can’t help but ask: Can someone really sue me for defamation based on what I post on social media? Whether you’re a celebrity like Elon Musk or a start-up entrepreneur worried about taking risks, it’s important that you’re at least somewhat familiar with the basics of defamation.

Defamation Claims based on social media posts
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The Legal Background on Defamation

If someone sues you for defamation, they generally have to prove that they suffered an injury because you made a false statement about them to another person.

North Carolina law breaks defamation down into two categories: libel, which is written, and slander, which is oral. In general, social media posts fall into the first category, so that’s what we’ll focus on here.

Libel Per Se

Libel generally splits into three categories. The first, “libel per se,” includes publications that are obviously defamatory on their face. Specifically, North Carolina’s courts define it as a publication that claims someone committed an infamous crime, accuses someone of having an infectious disease, attacks a person in their professional field, or subjects someone to ridicule, contempt or disgrace.

Libel per se is relatively easy to spot. If you falsely accuse someone of child abuse, for example, libel per se might be at play. Another example might be where an attorney publicly claims that a competing firm has a reputation for stealing clients’ money. In both of these situations, it wouldn’t be surprising for a claim for libel per se to be on the table.

Libel Per Quod

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The second category, “libel per quod,” includes statements that aren’t defamatory on their face but, when considered with innuendo, colloquium and explanatory circumstances, are defamatory. The key here is that you need context to prove why a statement harmed your reputation.

An example of libel per quod might be if I post on social media that my friend Tyler has a romantic relationship with my friend Jamie. On its face, that statement doesn’t hurt anyone’s reputation. But things change when you learn that Tyler and Jamie married other people. And they get even worse when you also realize they’re brother and sister. It is this necessary context that moves the statements from the “per se” category and into the “per quod” category.

The Middle Ground

The third and final category includes statements that are susceptible to more than one interpretation, one of which is defamatory even though the other is not. This category requires that you prove that the speaker intended and readers understood a defamatory meaning even if another meaning is possible.

Common Defenses to Defamation Claims

But the simple fact that you say something that hurts someone’s reputation doesn’t make a statement defamatory. Instead, North Carolina law includes several different defenses to defamation claims. And we’ll address a couple of the more common ones here.

The first, and perhaps most common, defense applies if the statement is an opinion. This one is straightforward. You can, for example, criticize a politician you don’t like because, in your opinion, their views are wrong. But those statements are significantly different than accusing them of committing a crime.

Defamation claims for social media posts
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Another common defense focuses on the truth of the statement. Under North Carolina law, truth is an absolute defense to a defamation claim. So, using local political news, it’s not defamatory to comment that Thom Tillis contracted COVID-19 or that Cal Cunningham admitted to having an affair. This is because those accusations have a basis in fact.

A third common defense is commonly known as the “fair reporting privilege.” This defense protects journalists when they report on or republish defamatory statements made during government affairs. A common example of this defense might include a journalist reporting on a defamatory comment made by a government official during a city council meeting.

The Takeaway: Can someone really sue me?

So, can someone really sue you for what you post on social media? Absolutely. But defamation laws are complicated, including those here in North Carolina. And if the statement is your opinion or actually true, you don’t have to worry.

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