Today this blog takes a little bit of a detour from discussing topics of trademark and copyright law to enter the wacky world of defamation. Yes, a world where “he stole my toupee” takes on a whole new meaning (no offense to the Donald or anybody with a certain sensitivity about their hair who may or may not have a little help up top). Enough of the puns.

So defamation; it’s not just about scandalous pictures and headlines printed in tabloid newspapers. It is becoming increasingly more about spontaneous statements made online, an environment where people tend to speak their mind more freely and where it is often difficult to retract a statement before it makes the rounds of the internet viral circuit. Straight out of the this could only happen in Florida files comes a story about a woman whose rant against an accusatory beach-goer (who mistakenly thought the woman was stealing the accuser’s beach canopy) was captured on a cellphone and posted to social media. From there it was widely circulated and made the subject of a Fox News segment. During the segment, the hosts made some not-too-flattering statements about the woman, including that she was a thief. The problem is that the woman was not actually stealing anything and the whole cellphone video (conveniently captured much later in the altercation) made things seem slightly different than they actually were. 

Ay Dios Mio. “That poor woman,” fans of The Big Lebowski will no doubt get the reference.

Straight to the courtroom for Fox News; no doubt the misunderstood woman saw nothing but dollar signs (she didn’t sue the person who made the video, despite the fact that he probably made defamatory statements in connection with the video). But dollar signs or no dollar signs, her case survived at least one initial objection by Fox News that the case should be dismissed. Apparently, Fox’s presentation on its Fox & Friends, a show that prides itself on a healthy mix of serious news sprinkled with more than an ounce of opinion and commentary, could be enough to make viewers believe that the statements made about the misunderstood woman were statements of fact. But we’re still early on in the case, and further fact-finding before trial could very well show that, yes, the statements made on Fox & Friends are “figurative language” that a reasonable person would understand are not factual statements.

This raises a very interesting question: given the ubiquity of cellphone cameras and the propensity of people to pull them out at odd points during a conversation, can the sharing of a video on any news-related site make the poster or commentator liable for defamation?

A quick overview of defamation law may help shed light on this topic. In any defamation case, the person suing the defamer for damages must show:

1.     The defamer published statements to some third-party
2.     The statements are false
3.     The defamer acted negligently as to whether the statements were true or false
4.     The statements were defamatory
5.     The third-party suffered damages from the defamatory statements.

Taking the elements one-by-one, you can trace how they applied in this case of the video aired by Fox. A video was played on the air and disparaging comments about the woman in the video were made (1). The statements were false because the woman was not actually stealing the stuff, as Fox implied (2). Fox wasn’t careful in verifying whether the things it was saying about the woman were actually true (3). The statement were harmful to the woman because being branded a thief on national TV would tend to sully the reputation of anybody (4). And, finally, the woman claimed she suffered some actual damage (be it losing her job, being investigated by the police, or death threats) (5).

It would appear that Fox is as guilty as sin. But, as with all things in the law, there are always defenses. In defamation, one of the key defenses is truth of the defaming statement. Here, we know the statements made by the hosts on Fox are not true because the whole video was a misunderstanding over someone being in the wrong place at the wrong time. The other defense is opinion. Opinions cannot be statements that are true or false and are usually simply “rhetorical hyperbole” As you might have guessed, there is a lot of room for opinion in news commentary. And such opinion is usually given a pretty wide swath of protection under the First Amendment, at least when the comments pertain to matters of public interest. If the commentary can be taken by viewer to relay actual facts about an individual, the statement is not imaginative expression or hyperbole (i.e. it is defamatory).

News programs and websites carrying news items come in all shapes and sizes. If a video is posted on a website that purports to relay the day’s news (whether it be weird or bizarre), could still be seen as a bastion of truth. It is easy to imagine a case where a video recorded out-of-context could be picked up by a news organization and put in a more informal news segment for the purposes of entertaining viewers. After all, such videos tend to get chuckles and social media response through Twitter and Facebook posts. If the context of the recording makes it impossible to determine whether the pretext of it is true, does that mean that any news organization that airs it and comments on it is on the hook for defamation?

Maybe airing the video in a segment where viewers normally understand the news to be of the funny or weird variety are less likely to believe it is true, even if the host introducing the video makes some comments about the character of the person described in the video. The problem with airing short video clips is that there is nothing to give the video any context so if it is presented by any news organization, people could believe it was true, even if aired in a news segment that has a little more light-hearted feel to it. Funny, bizarre, or weird, the video is still passed as news, and the type where a reasonable person could believe the news to be real.

Viral videos circulating around the internet inevitably find themselves on some sort of news-related website. If the news website is passed off as entirely satire, the publisher of the video may not be liable for defamation. If a visitor to the site shares the video on a blog and provides harsh commentary on the people in the video, the blogger might be facing claims of defamation, even if the blogger was just “going with the flow” of others commenting on the same video.

The ability to record anything anywhere can be a huge benefit. However in this age of information super-flow, where a video can make its way clear across the U.S. and spark huge attention, it bears exercising some caution about where you post the video, and what you say about it.


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