Q: I am the admin and creator of a Facebook group. Recently I was threatened to be named in a defamation suit for the posts of a member. We are a public group that posts news and opinions on our University, teams, team play, team coaching. We allow posts by members who voice approval or disapproval about the team, the coaches, administration, or the university. We are a sounding board for positive and negative talk. We are completely open and members are free to post whatever opinions they have. We do not limit or approve member’s posts. As you might imagine people get pretty heated as they are passionate about the topic.
A: You might want to review the protections afforded to “internet service providers” by the federal Communications Decency Act (“CDA”), which protects “provider[s] and user[s] of an interactive computer service” from liability for causes of action such as defamation for content that was posted by a third-party. The statute protects not only websites like Yelp and Angie’s List from liability over reviews posted by users of those services, but also internet forums (and their moderators) such as the one you describe. As the admin of this group, this defense would serve as reasonably strong grounds for an early dismissal of a lawsuit against you over content posted by third parties.
Further, the CDA protects “interactive computer services” from being compelled to moderate or remove content, even where a court finds the content defamatory.
Even if the would-be plaintiff here could overcome this hurdle, convincing a court that the content of these posts is defamatory could also prove a serious barrier to recovery for him or her. Defamation, which is also sometimes referred to as libel or slander, is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact.
In general, statements of fact, as well as statements that are opinion, cannot support a libel or defamation claim. The crux of a defamation claim is falsity. Therefore, truth is one of the primary defenses to a libel claim because truthful statements that harm another’s reputation will not create liability for libel. There are additional defenses as well, including statements that are purely opinion and statements protected by some qualified or absolute privilege. Finally, where the plaintiff is considered a public figure – which covers most athletes and coaches, as well as public officials and employees at universities – he or she would have to prove that the defendant published the allegedly defamatory material with “actual malice,” which is a difficult barrier for most famous people. Under this standard, the plaintiff must basically show that the defendant knew the material was false, but published it anyway.
Fortunately, your state recently enacted an anti-SLAPP statute to protect individuals from lawsuits in these particular situations. If a lawsuit was filed against you and/or your web page, you could file an anti-SLAPP motion to strike to hopefully dispose of the lawsuit early on. A “SLAPP” is a Strategic Lawsuit Against Public Participation, and under the anti-SLAPP statute, if the defendant can show that the statements at issue arise from the right of free speech under the U.S. or state laws and are in connection with a public issue (which is broadly defined), and the plaintiff cannot show that, despite this, he or she can establish a probability of prevailing on his or her claims, then the lawsuit will be dismissed. Successful defendants are entitled to recoup their attorneys’ fees, as the statute contains a mandatory fee-shifting statute if the defendant prevails on the motion.
For what it’s worth, in addition to the strong protection afforded by the CDA, it is very difficult for plaintiffs to prevail on defamation claims, so if you feel that the comments were based in fact and/or the poster’s opinion, it would seem that the plaintiff here would face an uphill battle in bringing
a lawsuit. Of course, you could always have an attorney perform a review of the content if you are at all concerned.
You might want to write back to the individual complaining about the content here and explain why he or she would face multiple obstacles, as well as potential attorneys’ fees, if a lawsuit for defamation is brought against you and/or the web page that you moderate. If you feel this individual may take legal action, you might want to consult with an attorney who specializes in First Amendment and media law to further explore your options.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response