Defamation in the age of social media

With the advent of electronic records has come heightened concerns about breach of privacy (see “Has our obsession with privacy gone too far?”).

One step beyond breach of privacy – particularly in the age of social media – is the potential for defamation.

Defamation is the false or unjustified injury to the good reputation of another, and includes libel (written or published words, pictures, broadcasts) and slander (the spoken word).

And the legal standard of proof in defamation cases is relatively straightforward:

• was the defamatory statement made?
• is its impact potentially negative to the reputation of the victim?

Then the onus shifts to the defendant.

And here’s where it gets tough to defend: the intention behind the statement is almost irrelevant, as legal liability can still be proven even if the defendant did not intend to defame.

So you might trust what you post online.  But do you have the same confidence for what is posted by your kids?  your employees?

Will insurance respond?

This is another situation where the coverage offered by the insurance industry may not have kept pace with the current reality.

Personal liability policies (such as those attached to a Homeowners, Condo owners or Tenants Package policies) provide coverage for liability involving an accidental bodily injury to another.

Two problems: is the publication of potentially defamatory material on the web accidental?  and if so, is the subsequent injury bodily in nature?

Commercial General Liability forms may provide broader coverage where the insured has purchased the Personal Injury and Advertising Liability extension.

Again, conversation with one’s broker is prudent.

Source: Ties that Bind, Tweets that Defame Authors: Brian Rosenbaum, Michael C. Smith

Canadian Underwriter – August 2011

Tags: claims, coverage, damages, defamation, facebook, libel, reputation, slander, social media, twitter