Social Media Slander: How to avoid being a viral moment victim

WASHINGTON - Could you be on the hook for social media slander? How do you protect yourself from becoming a viral moment victim? FOX 5's Jeannette Reyes spoke with attorney Deborah Blum for a social media slander Q&A:

What is Social Media Slander? Is that the actual legal term? (Jeannette Reyes)

The law needs to evolve to catch up to social media. Right now people can publish anything, say anything – and there's not enough recourse. Defamation in general is a false statement damaging to someone else's reputation. It has to be false - and getting to false - determining that it's false - that's a whole lawsuit generally. People need to learn how to protect themselves. If somebody makes a defamatory statement against you online you absolutely need to take a picture of it. You need to really preserve the evidence and actually use a forensic preservation tool to do so. (Deborah Blum)

What makes it challenging with social media though? It's already in many ways documented. But what's the tricky part? Where does the law need to catch up? (JR)

With social media, people can delete things. So if somebody posts something about you that's not true or harmful to your representation - then you immediately need to capture it - because they could delete it very easily. You could report it to Facebook, Instagram - but that process takes a long time. You could go the route of hiring an attorney who could send a cease and desist letter to the individual that posted it. It's just we don't have an actual 'in the moment' cure and because we live in a time of cancel culture - something can go viral in the matter of minutes. And then literally – your whole life – everything you've worked toward building could go out the window. (DB)

We've seen so many cases of that. It seems to be a growing problem. Two questions coming out of that - do you have to prove there's been some kind of monetary damage or tangible damage to your reputation? (JR)

The only thing you need to prove is that it's a false statement and that it potentially harms your reputation. You don't need to have actual monetary damages. The problem is, is that - at least in my opinion - there's not enough law on the books that pertains specifically to social media.

I think that there needs to be some more mechanisms in place before everybody is able to just click - and put their opinion or an offensive speech. Those are actually allowed - opinion and offensive speech are things that are protected by the First Amendment.

But we're taking it to a place where we're really encroaching upon somebody's reputation, and we need to maybe have some policies in place that certain posts aren't able to be posted. Or, you need to do some fact checking. We've even seen this with media outlets that things that they've posted on Twitter or other social media channels actually end up being false – because everything is now, now, now - and I think that it's impacting everybody. (DB)

That goes to my next point. Does intention matter? Let's say you gave your opinion - you were talking about a business - turns out it wasn't true. Does your intention matter? (JR)

I imagine that it would be knowingly false. It's an analysis, and then you would apply whatever relevant cases there are - so I'm sure there are cases that say you had an outright belief that that was actually true and later on you learn that it wasn't. There are different ways to analyze a fact pattern, and you could always argue both sides. That's the thing about the law. Generally it's not just one concrete answer. (DB)

This one I think might be the toughest question here. You mentioned taking pictures and things like that. But proactively - before any of this happens – how can you protect yourself and protect yourself from becoming the victim of what is often a trend? (JR)

I don't think we can in this day and age. I think the best example of it was 'Aziz, I'm Sorry.' He had a consensual relationship with a woman and then an article was published about this consensual relationship – and everybody's reaction was to cancel him.

And then all of the people that were involved in his Netflix show -- the producer, the makeup people, the people that set up the set of the show. They all lost their jobs because we cancel people. I think we have to examine as a culture our need to put everything our online - our need to share our opinion about everything - because we just do that without thinking of the repercussions. (DB)

I think two things here: one - really do your homework before you write or say something about someone. Two - document, document, document if you've gotten to the point where you believe you're a victim of all of this before it's all deleted. (JR)

Absolutely! (DB)