December 21, 2021 | By Daniel B. Segura
As the old adage goes, “if you can’t say something nice, then don’t say anything at all.” This simple adage remains helpful in a modern world of social media “firestorms” and instant responses. But the question remains: if I don’t want to say anything unkind, can I “like,” “share,” “retweet,” or otherwise promote something unkind that someone else said?
From the perspective of avoiding potential liability, the answer is not as simple. Whether a statement is libelous is legally complex. However, libel is actionable against one republishing a libelous statement created by another. The issue is whether “liking,” “sharing,” “retweeting,” or other similar social media communication methods could constitute republication.
The Iowa Supreme Court in Bauer v. Brinkman has recently warned social media users that they “must be aware that they could potentially be liable for their online speech” including for libel. 958 N.W.2d 194, 200 (Iowa 2021). However, courts that have analyzed what constitutes republishing libel on the internet have held that internet statements are not republication if not intended to nor actually reaching a new audience and the statement has not been modified in form, medium, or content. See Martin v. Daily News L.P., 990 N.Y.S.2d 473, 483 (2014); Firth v. State, 98 N.Y.2d 365, 371 (2002).
Applying this analysis to social media, putting a “like” on Facebook would likely not constitute republication. It does not modify the initial post nor necessarily reach a new audience. It is called a “reaction” for a reason. However, “sharing” or “retweeting” a libelous statement, now shown on one’s social media account to one’s friends/followers/audience, could arguably constitute republication for intentionally reaching a “new audience.” This would especially be a risk if one modifies the original post to show appropriation or adding additional defamatory content.
As a relatively new and untested area of law, potential lawsuits arising from libelous shares/retweets is best avoided preemptively. The adage could be updated for the risk-averse modern reader in the following way: “if you can’t retweet anything free from the risk of libel, don’t retweet anything at all.”
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