In an era of impulsive posting and idea sharing on the whim, the law of defamation is becoming more prevalent. What more, it is becoming more and more difficult to draw a clear line between actionable defamation and defamation that is proper or at least defensible.
In this post, I would like to discuss the potential dangers of publicly venting out against a business (i.e. a restaurant or mechanic shop) on social media (i.e. Facebook, Twitter).
Putting on my consumer hat, using social media as a medium for criticism is a blessing. Before choosing a service provider, a potential consumer can do a cursory check of what his/hers social media peers have to say about it. It is an ideal and efficient way to keep businesses in check.
That said, when I put on my attorney hat, the first thing that comes to mind when I hear public "venting", "critique" and "criticism" is a potential defamation suit. Under Israeli law, defamation is any public statement that adversely effects the reputation of the victim. So, on the face of it, a public statement that badly reflects upon a business is defamatory.
But the analysis doesn't stop there. Under section 15 of Israel's Anti-Defamation Law, 1965, an otherwise defamatory "opinion" is privileged, i.e. is a defense to a defamatory action, if made in good faith and made under certain specific factual circumstances.
One of the factual circumstances that that the law provides for is when the defamatory opinion concerns persons or public or private enterprises who have voluntarily ejected themselves into the public arena (section 15(6) of the Law). If the defendant is successful in proving that his/her statement falls within the factual circumstances of section 15(6), then the good faith nature of the publication is presumed.
What I would like to zone in on here is the scope of the definition of the "critique" or "opinion" as an initial condition for the invocation of this defense. There is a fine line between a defamatory statement of fact and a protected opinion. Ultimately, a court will determine whether or not a post is an opinion or not using a "reasonable person" standard and assess whether a reasonable person would view the post as an opinion or not. So, even though the the social critic may believe he/she is publishing a legitimate opinion on Facebook, a court may find otherwise.
A classic type of privileged opinion that most people are familiar with is the restaurant critique. Indeed, as vilifying as a critique of this type may be, a defamatory action against the publisher/author will fail by virtue of the critique/opinion defense. Note also that, at least under Israeli defamation jurisprudence, whether the critique is true or false is quite irrelevant. The whole idea behind the "critique defense" is that it is an opinion, not a statement of fact, and therefore true/false criteria are inapplicable. For an example of this type of defense applied, see Capot Temarim Ltd. v. Ephrati, Civ. Act. 15911/95 (26 March 1998). Although an older decision from a lower court, it captures the essence of the "critique defense" as applied in connection with publications against businesses such as restaurants. The court found in that case that although the critique blasted the restaurant and used terms that the court felt were perhaps insulting and perhaps false, because the article was only an "opinion", the author was off the hook for defamation.
Does the "critique defense" extend to posts made on Facebook or other social media outlets? The simple answer is: "yes, why not?". After all an opinion is an opinion and the fact that one critique is published in a New York Times Review and another in a Facebook post shouldn't make any difference. So, there isn't any real substantial difference between the two modes of publication.
That said, as we mentioned above, in the social media context individuals have a tendency to voice their opinion on the whim, impulsively and without any real reflection of the consequences. Although again this characteristic of social media shouldn't effect the scope of the defense, but it does effect the way the publication is written. This, in turn, makes it more likely that a court will find that the publication was NOT an opinion at all but rather an attempt to disparage and hurt the business. Remember, a court uses the "reasonable person" standard to determine whether a publication is an opinion or not. It makes little difference what the social media blogger felt at the time he/she was writing the post.
In a recent case from a lower court in Nazareth, a woman was found liable for defamation for a Facebook post describing her bad experience with a certain restaurant. Although the court did not specifically discuss the "critique defense", this was probably so because the post contained too many facts that happened to be false. Namely, the woman/defendant who probably only intended to voice her personal opinion regarding the restaurant, failed to articulate her post in a way that would have otherwise immunized her from liability. See Hamu v. Pogravnoi, Civ. Act. 33865-03-16 (21 Dec. 2017).
I found that in the United States this impulsiveness can also lead to confusion whether a statement can be classified as defamatory. In one case, the facts of which could form the basis for a soap opera theme, a man discovered that his wife was having an affair with his son's baseball coach. Soon thereafter, in his rage, he posted on the baseball team's Facebook page a warning to stay away from the team: "This coach is a home wrecker and the club stands behind him. I guess that's the kind of lessons they plan on teaching the kids. Very unethical and from talking to the executives they don't plan on changing. Please stay away."
The Court of Appeals of Texas split as to how to classify that post. The majority felt that the statement, "construed as a whole and in light of the surrounding circumstances" was a degrading comment, it challenged baseball team's integrity, it had the potential to inflict financial injury upon the baseball team, and was verifiably false.
The dissenting judge felt differently, concluding that the statement was merely an opinion, and opinions, unpleasant or objectionable they may be, are not actionable.
If you want to read the opinion for yourself, click here.
These cases underscore the uncertainty in this area.
As I said, social media is a great medium for consumer reviews. If done correctly, a post on social media can be construed as an opinion, a critique, and the poster need not fear repercussions. The case law, however, highlights the dangers and the uncertainty in this area of law.
Personal advice for those who enjoy or feel they must publicly post their experiences with various businesses: first, make sure you are calm before writing the post. Don't publish anything in the heat of the anger. Second, make sure the post is written as an opinion. Put in words such as "in my opinion". Third, if the opinion is based on an experience with the business, make sure the facts in the post are accurate (and if you are in doubt, don't include the facts).
Law is always behind technology, and the law if defamation is no exception. Time will tell how courts and legislatures will craft the law of defamation so it meets the unique characteristics of the social media revolution. For now, though, it is what it is.