Initially Section 230 of the Communications Decency Act 47 U.S.C. § 230, a Provision of the Communication Decency Act of 1996, was intended to protect platforms, reviewing apps and other publishers from being legally responsible to monitor each and every post of their users. Section 230 has also been determined to provide some protection to those who use social media and merely re-tweet, like or forward someone else’s published comments https://www.law.cornell.edu/uscode/text/47/230.
As clearly set forth at https://www.eff.org/issues/cda230 “[Section 230] is one of the most valuable tools for protecting freedom of expression and innovation on the Internet….”
1. WHAT DOES SECTION 230 ACTUALLY DO?
The Communications Decency Act protects social media platforms, and other website hosts from defamation claims emanating from other’s content. Under the CDA, an ISP is not treated as a “publisher” for purposes of state defamation claims. A case which at this writing has continued against some but not all defendants, is affectionately referenced as “The Twitter Cow Case.” Plaintiff, then-GOP congressional representative, Devin Nunes, sued both Twitter as well as two parody accounts, which he alleges posted defamatory comments about Rep. Nunes. The court in that case has dismissed the claims against Twitter, pursuant to a Section 230 defense, and has thus far refused to compel Twitter to produce the identity(ies) of either @DevinCow or the other named parody account.
Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). Beware, Section 230 is not a limitless legal shield.
2. DOES THIS MEAN I CAN POST WHATEVER I WANT ON SOCIAL MEDIA?
No. For now, Section 230 protects individuals from (as opposed to a website publisher/platform) state action (defamation) for something they merely “liked” or re-posted. http://47 US.C. § 230(c)(1) (1996).
However, if you re-post a comment by another, and then add your own (potentially) defamatory statements, that may still be actionable.
On a smaller and local scale, this is how a defamation claim for information published on social media may look:
- Two or more people have a falling out. Each, or either, begin discussing their personal accusations, issues with the other, on one or more social media platforms. Accusations may be exaggerated, based on reputable accounts, part of a police investigation, made-up, or totally accurate and verifiable. At this point, it doesn’t really matter. A party who feels they were maligned, defamed or otherwise injured personally or professionally because of the statements published on the social media platforms, then seeks the advice of an attorney and a lawsuit may be initiated. Sometimes, only the initiating party is named in the suit; other times, the complaint may name anyone who commented, “liked” or re-published the original statement. Remember, at the beginning stages of litigation, there is no one standing on the courthouse steps who “evaluates” the case on its merits.
- You get into a heated political argument with someone on Facebook, who operates a local business. You decide the real way to “get him” is to begin posting negative, anonymous reviews of their business. Some review sites require name and identity verification to leave a review; some do not. You start by posting your “opinion” but quickly devolve into making unsupported assertions of “fact.” Local business owner attempts to resolve this issue through non-judicial means, to no avail. Now, the business owner believes your false reviews have cost him a significant loss of income.
- You are a local business owner and employer. You recently have suffered losses at your business which you feel is from internal/employee theft. Feeling frustrated and after terminating three employees you suspected of the theft, you take to social media in a “proactive” stance, reiterating your suspicions of theft by the three employees, by name, in search of hopefully finding new employees who “don’t steal like the last three.”
Even small sites have a tremendous reach on the internet. Information can gain exponential speed and a vast audience in a short time. Rule of thumb is: if you leave an accurate review of a business from your personal experience, even if negative, it is not actionable. If you find yourself setting up an “anonymous” account so you can leave an “untraceable” review, then it probably is not from your personal experience and may be false. Under these circumstances, you may still be held liable under Section 230, but the platform owner would probably be protected.
Bottom line – if you recently broke up with a partner, or had a terrible falling out with Uncle Jim last weekend at the family BBQ, it’s best to not vent your unrestrained anger or resentment on social media. Talk to a friend, your therapist, but remember the old legal adage, “Don’t put it into writing!”
3. WHETHER YOU ARE AN EMPLOYEE OR AN EMPLOYER, YOU NEED TO BE DISCRIMINATING ON SOCIAL MEDIA
Employers should never post about employee issues on social media. EVER. Likewise, if you have recently been terminated, or even left on your own accord, the best way to insure your ability to be hired at a new job is to refrain from trashing your last employer. Many employers these days request access to your social media accounts. Right or wrong, this trend illustrates how important some employers find representation of their company in the public forum.
Many people enjoy the global reach of information and exchange of ideas that social media provides. The key for everyone is to moderate themselves in order to limit potential liability, restrict employment opportunities or discourage potential new customers or contacts. https://opensourcedworkplace.com/news/25-problems-with-social-media-in-the-workplace-employee-and-employer-adverse-effects
As an employee you could easily make derogatory remarks on social media. If your employer monitors social media, or someone contacts your employer saying that an employee was rude, defamatory or insulting, this could affect your job environment.
Prior to social media, most employees would not stand on a street corner and yell into a bullhorn about their boss or employer or ex-boyfriend. Our words now have enormous reach with social media, and with that, comes potential liability for what we say. There are areas, of course, within which we are free to voice our opinions. When opinion begins to morph into assertions of fact about another, which may not be true, it’s time to step away from the keyboard.
4. HERE ARE SOME IMPORTANT THINGS TO REMEMBER
Statements of Fact
A plaintiff cannot succeed in their online defamation claim if the defendant’s defamatory statement was true. “Cannot succeed” is misleading here. Like most civil lawsuits, eventual lack of success does little to stop someone from bringing a lawsuit to begin with. Here is a brief summary of other privileges to a claim of defamation:
- Statements made in the proper discharge of an official duty. For this protection to be triggered, the statement must be made by a public official (in other words, only government officials) and must be made in the official’s official capacity.
- Statements made in any legislative proceeding. For example, statements made by legislators during legislative debates or during political broadcasts and speeches are covered by this defense.
- Statements made in any judicial proceeding. Also known as the litigation privilege https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=47.&lawCode=CIV, this defense protects all publications made in a judicial proceeding. For example, all statements made in court as part of an attorney’s representation of his client and all documents filed by an attorney with the court as part of that representation would be protected under the litigation privilege. This privilege surprises many people.
- Statements made in any other official proceeding. An official proceeding is a proceeding which resembles a legislative or judicial proceeding. This defense includes protection for statements made before an administrative board.
The defendant may try to argue that the statement they made was merely the defendant’s “opinion.” Opinions are generally privileged under the law. There are other privileges too as listed above. However, the courts may interpret, “I think my last three employees were thieves,” as a statement of fact. “IMO” may not be enough.
The law of defamation in California and the protections afforded by Section 230, are evolving.