Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.
I am quite confident the rise of lawsuits involving Facebook will grow exponentially in number as more and more individuals communicate through that forum. It is hard not to predict that a wave of litigation will involve Facebook in some way or another. Every day about 500 million people log on to their account and communicate and connect with others.
One area that leaves the door wide open to Facebook-related litigation is the area of defamation. Most recently, a lawsuit was filed in Cook County Circuit Court involving allegations of defamation between two Chicago police officers. CPD officer Juan Morado filed suit against fellow CPD Lance Handzel for defamation based on the latter’s Facebook posts. Officer Handzel is alleged to have posted comments on the Facebook pages of Mayor Emmanuel and a WGN reporter.
Handzel allegedly claimed that Morado’s family were “known gang members” and they were “in the business of selling narcotics,” and additionally, that Morado had used his position – that of a 27-year veteran on the force – to meddle in drug and homicide investigations that Handzel was conducting, in which Morado’s son was allegedly implicated.
This is quite an extreme case but it is easy to imagine many people exploiting the medium to try to portray their opponents, rivals or friends with whom they’ve fallen out, in a bad light. It is, as yet, a nascent area of law but litigation is likely to increase in the coming years. This post will look at some of the legal issues in internet defamation cases.
First, it is worth noting that Facebook itself will never be liable for the content of its users. Section 230 of the Communications Decency Act, introduced by the Internet Freedom and Family Empowerment Act. This makes sense as it can’t be expected to be held responsible for every potentially defamatory comment made by one of its users. So when will users be held liable?
To amount to defamation, a statement must be one that is expressly stated or implied to be factually accurate. According to Officer Morado’s claims as alleged, Officer Handzl posted plain statements to a news reporter and the Mayor of Chicago. It seems that the alleged statements were intended to be factual.
But identifying when a post is intended to be a factual statement is not always straightforward. Given the informal context in which many posts on Facebook are made, it is very possible for the ‘target’ of a post to consider it as a factual claim and be deeply hurt by it, and for other readers of the post to view it as a joke and not take it seriously. If the post takes the form of a regular ‘status update’, then other users’ comments on the status may shed some light on how the post was actually interpreted.
Further, it is also possible that a potentially defamatory post will be phrased or composed in such a way that only a select few will ‘get it’ and it might mean nothing to the vast majority of those who encounter it.
So the landscape of defamation law arising out of Facebook activity remains uncertain. As ever though, the lesson to learn from what has gone on so far is to err on the side of caution.