The increased use of social media has raised many issues with regards to defamatory statements. There are two main types of defamation: libel, which is written defamation, and slander, which is verbal defamation. When a potentially defamatory statement is made online or through social media — such as via Facebook or Linkedin — that involves the written (or “posted”) word, and so it is considered libel.
As in most states, Mississippi law recognizes the truth as an absolute defense to libel. For instance, if a Facebook user or blogger posted comments that you were convicted of embezzlement and you actually were, that post would not be considered libel. However, if you were arrested but not convicted then that post could be considered libelous. Such a post could be considered libelous per se because it involves a serious crime. This type of litigation does not require a showing of actual harm to your reputation.
If a defamation lawsuit were brought in the example above the court would look to the crime itself to determine whether the post was libelous per se. In Mississippi, the crime must be serious enough to include “infamous punishment”. In other words, the punishment for the crime must consist of actual or potential incarceration. The Court would also consider whether the crime involved “moral turpitude”. This means that the court would consider whether the crime was dishonest in nature. Not all crimes are viewed as involving “moral turpitude” but embezzlement is. Therefore, a lawsuit against the poster would not require the showing of harm or “special harm” (i.e. emotional distress) to be awarded damages.
Of special concern to many of my clients are slanderous/libelous statements made against them as business owners or professionals. In Mississippi, the courts consider statements which “impute a want of integrity or capacity in the conduct of a profession, trade or business” to be libelous per se. Put differently, false statements that accuse someone of wrongdoing in the course of their business or professional capacity may be actionable. An action against the poster would be for libel per se, which would obviate the requirement to prove damages, only the falsity of the statement.
If someone posts a blog or Facebook statement that a certain physician is a “quack” or a “substandard doctor”, the poster cannot be held liable because such statements are a matter of opinion and not of fact. However, if the post contains a specific statement that the doctor performed a harmful, unnecessary surgery on a patient, such a statement is factual and, if untrue, could be libelous per se. A post of that nature directly imputes that doctor’s capacity to perform his duties as a surgeon.
It is important to remember that lawsuits for slander and libel can be very difficult to litigate. What may appear to be clearly defamatory statements to you may not always be actionable. For instance, name calling and many false statements will not rise to the level of being defamatory. However, some statements and name calling can rise to the level of other causes of action or crimes such as cyber-stalking or cyber-bullying. Those types of actions will be addressed in future blogs.
The bottom line is this: If you are blogging or writing on your Facebook page, or submitting comments on someone else’s blog or Facebook page, make sure that you have all of your facts absolutely straight before posting your statement to the internet.
