Social Media Posts And The Law Of Defamation

It used to be that comments about people and events were mostly limited to the opinion and “letters to the editor” pages of print newspapers, with occasional statements appearing on television news broadcasts. And the media kept a tight control on what came out of its news organizations. Widespread public statements by general members of the public were consequently rare and difficult to achieve.

But with the rise of social media, especially Facebook and Twitter, in the last fifteen years, it’s now easy and common for anyone to broadcast statements about people, events, or issues in a way that could only previously be accomplished by major media outlets. That includes statements that the media would never have printed in its pages or disseminated on its newscasts. The media’s no longer a gatekeeper to such statements because they can be made by anyone, often anonymously, with a computer or smartphone and internet access.

A major concern about the freewheeling social media commentary is whether people and businesses are still protected from defamatory statements, even if those statements are merely made in a social media post or comment to a post. Defamation concerns false statements of fact that tend to injure the reputation of a person or business. Do the traditional principles of defamation still apply in the wild west of social media commentary? A recent Iowa Court of Appeals decision says that they do, although the court cautioned that people and business need to have a thicker skin regarding social media commentary given the prevalence of social media criticism that occurs nowadays.

In Bauer v. Brinkman, the court considered whether a comment to a Facebook post critical of a property owner constituted defamation. The comment at issue, made by the defendant Brinkman, stated: “It is because of shit like this that I need to run for mayor! Mr. Bauer, you sir are a PIECE OF SHIT!!! Let’s not sugar coat things here people, [K.L.] runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love for you to walk across the street to the east of your ooh so precious property and discuss this with me!” Bauer sued Brinkman for defamation because of that statement, particularly the reference to him as being a “slumlord.”

The Iowa Court of Appeals rejected Bauer’s defamation claim. It determined that Brinkman was making a statement of opinion, not fact, when he called Bauer a slumlord. Statements of opinion are protected by the First Amendment. A statement of opinion cannot be the basis for a defamation claim.

Two factors in determining whether a statement is one of opinion rather than fact are the context in which the statement occurs and the broader social context into which the statement fits. It was at this point in its discussion that the court observed that social media presents a different arena for public commentary than traditional sources of such statements. It referenced other court decisions that had noted the “modern town hall” nature of social media commentary, the freewheeling nature of social media communications, the number of people, including politicians, who use social media for commentary, and the fact that people are less likely to give credence to social media posts, as opposed to statements made in the traditional media.

The court then analyzed Brinkman’s “slumlord” comment. The comment was made as part of a series of comments to the original Facebook post. The original post was not related to a news account or anything that purported to be fact-based. The original post, and all comments to it, were statements of opinion about Bauer. Brinkman’s comment merely added to the string of opinions. Brinkman was thus not liable for defamation because of his “slumlord” statement about Bauer. The court concluded its opinion by cautioning that it was not granting immunity from defamation for all social media statements. Rather, it was acknowledging that, when alleged defamatory statements are made on a social media platform, the forum in which the statements were made is a contextual factor to consider in determining whether the statements are an expression of opinion or fact.