(Disclaimer that this article is based on the defamation laws of the United States.)
As Social Media, Social Networking Services (SNS), and online customer review services rapidly increase, the risk of inappropriate content, such as false reviews, abusive language, or insulting comments is increasing. Except for blocking obvious inappropriate content such as pornography, it is virtually impossible for most Internet service providers (ISPs) and social media platforms to verify, self-censor, and regulate the vast amount of content posted by millions or tens of millions of users a day. They only regulate and delete the reported content ex post facto. Even for the reported content, it is difficult to make a clear judgment on whether the content is insulting or defamatory, and ISPs based in foreign countries often fail to actively respond to requests to delete posts.
So, if someone posts false information about me and my family, or my business, what remedy should I seek?
Victims sometimes want to hold ISPs or Social Media Platforms such as Facebook, Instagram, or Twitter accountable for the damage, in addition to the perpetrators who actually created and uploaded the defamatory contents. Victims argue that despite several requests for the content to be deleted, ignoring or delaying requests cause more damage by allowing the widespread of the contents for a long time. Another reason for holding ISPs or Social Media Platforms accountable is because they can recover the damages faster, especially in cases where the perpetrator is, anonymous or under fake names making it difficult to identify the perpetrator, or located in a foreign county or insolvent even when being identified. Sometimes complaining against ISPs or Social Media Platforms with sufficient financial resources may be a lot faster way to recover the damages.
However, in the United States, under Article 230 of the Communications Decency Act (CDA) passed by the U.S. Congress in 1996, businesses such as ISPs and Social Media Platforms are virtually immune from libel lawsuits. In other words, according to the Article 230, providers or users of interactive computer services are not treated as publishers or speaker of information provided by the uploader, and therefore most federal and state courts in the United States generally find the website or service provider of the platform free from liability, as long as the source of the content is a third party. As a result, only filing a lawsuit against the uploader or corporation that actually uploaded the content online can be seen as a realistic civil remedy.
How is defamation defined in the United States’ law then? In general, it is defined as the oral or written communication of a false statement about another that unjustly harms their reputation. Posting articles or photos online can be seen by at least one person, meeting the publication requirement. However, it is necessary to consider the statements by dividing them into statements of fact, opinions, and modifications of photos or videos. (If the statement is an objectively obvious falsehood, it is self-evident that it will be recognized as defamation and therefore do not mention it separately.)
First, if online statements indicate objective facts(=true), then it is hard to prevail. On the other hand, in South Korea, there is still controversy over the pros and cons of the abolition of “defamation by publicly alleging facts (사실적시 명예훼손죄).” For instance, we can assume a case that an American user (defendant) leaves a hypercriticism of foods provided by a restaurant (plaintiff) on Google, Yelp, or Social Media such as Facebook or Instagram. If the review is about a harmful substance has been found in the food, to prevail, the plaintiff must prove that no harmful substance has been found and the review has been falsely written. Therefore, the question of whether statements are true or false is the battle of who can present more convincing evidence in court.
Second, if online statements indicate the publisher's personal opinion, then it is also hard to prevail. In particular, the United States heavily values freedom of speech, and individual opinions are protected and privileged by law. However, this is not absolute, and an opinion that may be viewed as a statement of fact by a reasonable person will be deemed a statement of fact. If so, it must be judged, as previously explained, whether the statement is true or false. Therefore, even if the defendants counterargue that they only stated their opinion that they think a harmful substance is often found in the plaintiff's food, the court may interpret it as a statement of fact and may admit it as defamation, if it is not based on facts.
Finally, if online statements are posted by modifying photos or videos to insult or ridicule individuals or businesses, they are likely to be recognized as defamation. In particular, as part of viral marketing or witch-hunting, there are cases where photos or videos are modified to synthesize insulting or defamatory information and posted on social media. In such a case, if the revised content has no factual basis or is exaggerated than the facts, it is more likely that those posts will be recognized as defamation.
It should be remembered that online defamation is a serious tort and can entail great liability. Before posting online, we recommend that you reconsider the following:
1. Never write in anger. The writing, written in anger, is highly likely to include libelous statements about someone. No matter how upset you are, think over it and wait to write and post until at least the next day.
2. Be sure to check the facts before posting. Double-checking facts cannot be overemphasized enough. Everything you experience may not be all true. Consider if you misunderstood or misread.
3. Double check, triple check hashtags. You may want to put hashtags such as #Fraud or #Crook as a joke, but someone may not take it as a joke.
4. Do not modify or revise photos or videos of others. Even if the revised content is true or based on opinions, it is more likely to be considered as defamation.
On the other hand, it is important for victims of defamation to report damages immediately to ISPs and Social Media Platforms Help Centers, and to preserve evidence, including screenshots of the contents. And we recommend you consult a lawyer on how to respond as soon as possible.
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