Debate Forum, 4/16

Debate Forum, 4/16

D ebate Forum Center: Facebook posting can make you liable for libel

By Alex Culpepper

For the most part, Facebook is a place where users promote themselves, share what they’re doing at the present moment or maybe what they did the previous night and generally write about anything from the mundane to the sublime. It is also a place where one can find some trouble through critical posts about other people, organizations and businesses. Susan Dunham of Madison County, just west of Columbus, has found herself in a court battle centering on her allegedly libelous Facebook posts about the Madison County Commissioner, Paul Gross.

Normally, cases of libel involve material published in formal media such as online or print newspaper and magazine articles, blog posts and the like, but the rise of social media has brought it into the mix as well. In the case of Susan Dunham, she and some of her 71 Facebook friends posted claims about the manner in which Gross conducted his public and private business. Gross believes these posts have negatively affected his reputation and his work in the insurance industry, and the very existence of this case sends a message that Facebook posts carry the same credibility and intent as claims published in more traditional venues.

Gross’ supporters claim it should not matter what source is used to make potentially false and damaging statements for it to be considered libel. For Gross, he claims the statements spread by Dunham and her friends are lies and have caused him trouble. His supporters argue that people cannot issue destructive statements in any published way without repercussions and a person’s credibility should have protections.

Opponents wonder whether an author of a Facebook post should be subject to the same legal regulations that a journalist must abide by, especially when stating something that he or she believes to be accurate. So, from Dunham’s perspective, she was having a private debate among friends about local politics and she claims her statements are true to her knowledge. It should be protected under free speech as long as it is not harassment.

Laws try to strike a balance between the right of freedom of speech and the right to maintain reputation and credibility. The latter is the important issue for Gross and his supporters because they believe anyone should be held accountable for what he or she says, no matter the medium. People on the other side believe they should be able to speak through a personal Facebook page and express statements they believe represent their understanding.

Debate Forum Question of the Week:

A court case is underway in Madison County in which a woman is charged with posting false and damaging claims about a local public official on her personal Facebook page. Should a person’s private Facebook posts be considered legitimate journalism and subject to the same standards of libel as other credible media outlets such a magazine or newspaper article? 

Debate Forum Left: The ‘truth’ about Facebook
By Ben Tomkins
It’s. Frickin’. Facebook. FACEBOOK. If this woman gets convicted of libel for her Facebook posts then every single one of us is going to get sued and it’s going to be 1984 in 2013.

And don’t worry, it won’t unless the judge is a donkey. Rather, a donkey that has been creatively shaved and had its tail docked so that all of the bits poking out of its black robe appear to be human enough to win an election.

The reason it won’t stick is because libel is one of the most difficult things to prove short of sodomy in Texas, and the criteria are much the same: it has to be so blatantly obvious that someone screwed you and did so with so little evidence that you were maybe, possibly, kind of in to it, that it may as well be a rape charge.

In fact, when it comes to the ordinary citizen, rather than a newspaper where the standard of research is considerably higher, you are essentially required to prove the single most difficult thing to establish in a court of law:

What is in a person’s mind.

This is exactly why tort law is so lucrative for a lawyer. If you can consistently convince a court of law what someone else was thinking, you go swimming in Uncle Scrooge’s money bin.

Let’s examine this lady’s Facebook posts carefully. In order to do this, and because I have 900 words with which to work, I’ll do so in a way that gives a little insight to libel in general for your education and entertainment.

Libel is defined as any written word or publication that contains false statements about another person or entity that causes tangible harm. Unfortunately it’s not quite that simple. In order to gain a judgment in court, you must prove the following three things:

1.  The statement is false.  

Susan Dunham posted that Commissioner Gross falsely benefitted from construction contracts, lied about another politician’s endorsement, fled Wisconsin to avoid his federal tax liens, diverted business to his auto glass company and was … holy crap this is small town nonsense … a “flim flam” man. I apologize if I misprinted the term “flim flam.” Editorial opinion appears to be violently polarized as to whether it is spelled “flimflam” or “flim flam.”  Possibly “flim-flam.”

2.  You must prove the statement caused harm.  

It’s. Frickin’. Facebook. FACEBOOK. If this woman gets convicted of libel for her Facebook posts then every single one of us is going to get sued, and it’s going to be 1984 in 2013

3.   The person must prove that the statement wasn’t adequately researched as to its truthfulness.

Wikipedia! Go!

“Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report.”

I would like to take this opportunity to point out the word “ordinary” in regard to people. Let that digest. Get on CNN’s website  and read through the comments on any given political article. For your consideration, the work of Jorgen Leth as adapted from his short film, “The Perfect Human.”

Yes, there he is. What can he think? What does he want? Why does he think like that? How does he think like that? Look at him. Look at him now. And now. Look at him all the time. Now the thinking is gone. No thinking any more. The perfect idiot in an imagination with no boundaries, and with nothing. And a voice saying a few words. This voice in his head, saying a few words. Look at him now. Look at him all the time. 

(If you’ve never seen “The Perfect Human,” you’ve got a homework assignment. It’s about five minutes and it’s awesome. He treats the human being as if it were an animal being observed in a lab. Now you have to agree that the “ordinary person” isn’t that far off.)

Think of how big the newspaper that is the Internet is. My god, in this day and age virtually every single website can be construed as an article of some kind or another. You tell me what answer you want and I’ll find you an article.

Susan Durham (read, ordinary person) says that she had heard things and has sources. I’m sure they’re pathetically weak, but whatever. We live in a culture of “truthers,” “birthers,” and all kinds of wild crap. “Fact” doesn’t mean much any more.

Besides, if Commissioner Gross’ campaign was resting on the 71 votes of her friends, he probably doesn’t deserve it anyway. Remember Al Gore and Jr. in 2000? Be honest now – neither one of them really deserved to be president. One of them just happened to have an extra praline in their ice cream scoop that day.

Facebook is nothing more than a flurry of thoughts and opinions rocketing around in cyberspace amongst friends. It’s meaningless except for those who care. If you want to find an answer, someone’s selling it. You, me, all of us. And besides…

It’s. Frickin’. Facebook. FACEBOOK. If this woman gets convicted of libel for her Facebook posts then every single one of us is going to get sued and it’s going to be 1984 in 2013.

Benjamin Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tompkins at BenTomkins@DaytonCityPaper.com.

Debate Forum Right: Watch those status updates, you could be libel-able

By Rob Scott

We all have done it, seen it or read it-negative statements about someone, especially politicians, about their performance or personal lives.

Libel is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual a negative or inferior image. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, depending on state law.

In the past, it was in the more traditional written form in examples such as a simple leaflet, newsletter article, newspaper or other format. Nowadays, with the Internet, blogs and social media, more information is posted and disseminated faster to more people. An obvious example is when someone posts a comment on Facebook during election time or some event about a specific person.

Facebook has become the topic of many issues in our nation today, including – but not limited to – bullying, dissemination of underage sexual content, extramarital affairs and more instances of libel cases across the U.S.

Libel law predates the American Revolution with the first libel case in 1734 involving statements in a newspaper, a somewhat new form of communication in the American colonies. Later, though the First Amendment of the U.S. Constitution was designed to protect the freedom of the press, the U.S. Supreme Court has failed to use it to rule on libel cases. Libel laws are based upon the traditional common law of defamation inherited from the English legal system, mixed across the 50 states.

Ultimately, the argument is always a constitutional balance between First Amendment rights versus personal privacy rights. The landmark 1964 case New York Times Co. v. Sullivan radically changed the nature of libel law establishing that public officials could win a suit for libel only when they could prove beyond a reasonable doubt that the “publisher” in question knew the information was wholly and patently false or that it was published “with reckless disregard of whether it was false or not.” The New York Times case established the “actual malice” standard regarding libel committed on public officials.

In 1991, the U.S. Supreme Court left “what is defamatory” for the states to determine in Masson v. New Yorker Magazine. The only major difference in Ohio law is with regard to the protected status of opinions. The gist is that publication and distribution of opinions is protected by the Ohio constitution and the courts have set out their own test to prove defamation. In Scott v. News-Herald, the Ohio Supreme Court stated, “Expressions of opinion are generally accorded absolute immunity from liability under the First Amendment.” The court held that this was also true under Section 11, Article I of the Ohio Constitution. The court then went on to adopt a totality-of-the-circumstances test to distinguish statements of fact from opinion. Four years later, the U.S. Supreme Court rejected the notion that “opinion” is afforded additional protection under the First Amendment.

However, opinion remains protected in Ohio. In Vail v. Plain Dealer Publishing Co., the Court reiterated “once a determination is made that specific speech is ‘opinion,’ the inquiry is at an end. It is constitutionally protected.”

All of these legal principles are colliding over an incident in Madison County when a resident posted on Facebook some allegedly libelous statement about a county commissioner. Due to the commissioner being a public figure, the actual malice standard must apply, but a deeper issue of whether Facebook posts on someone’s page are subject to libel suits is at hand.

Facebook has more than one billion users utilizing their social networking site. The company sells advertising for their pages, all news organizations use Facebook to push their stories to their “friends” and anyone can post their thoughts on their own or someone else’s page.

Anyone who signs up for the social network attempts to get as many friends as possible to view their pictures, status updates and their thoughts on topics ranging from how their workday is going to what they are having for dinner.

Analyzing the Madison County case, the resident did publish her statements on a pubic forum that was readily available to her 71 friends on Facebook. To compare, 71 people could be the number of subscribers to the Dayton Daily News on a Monday. The resident does argue the post could only be viewed by her Facebook friends and should be deemed private.

In fairness to her Facebook page and not Dayton’s daily paper, more than her 71 Facebook friends could have viewed her posts, the 71 may have shared the post, tweeted it and put it in their Facebook news feeds for their own friends to see. Thus, her posting on Facebook was not a private posting, but rather put in the public forum in a written form for hundreds if not thousands to see or hear about. For those actions, her post is subject to Ohio libel law.

The operative question to see whether the resident is liable for libel is if she knew the statements she posted on Facebook were false and not her own opinion and done with actual malice.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is Chairman of the Montgomery County Republican Party and the founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or www.gemcitylaw.com.

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