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Freedom of Speech can Co$t You

defamatory

It’s nice that we enjoy “Freedom of Speech”, but we are still responsible for our speech, and lawsuits are a reality when an individual must protect him/herself from abusive or inflammatory allegations. 

Read a definition of Defamation:

  • Defamation is the issuance of a false statement about another person, which causes that person to suffer harm.
  • Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.
  • Libel involves the making of defamatory statements in a fixed or medium, such as a newspaper or blog post.

So, if you make derogatory statements that result in damage to someone’s reputation or subject them to contempt or ridicule, you could be exposed.

But, what about transparency?

That’s a big buzz word.  That and authenticity.  Yes, we have a right to our opinions and we now can express them to zillions with a couple key strokes.  But, is writing or commenting around one’s character and professional capabilities being transparent & authentic, or is its intent to derail?  

Social media doesn’t eliminate the responsibility we have to mind our words.

Post and comment thoughtfully

If someone suffers real damages as a direct result of your posts or comments, be it pecuniary or actual you may have opened a legal can of worms.

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Subjective vs. fact

Disagreeing with a person and his/her point of view, even calling it short-sighted is subjective, an opinion.  On the flip side, accusations of a deviant act, or abusing drugs or alcohol are points that can be proven untrue (if they are), are damaging and considered defamatory in nature.  Legally, there are shades of gray and it’s a difficult case, but is the backlash worth it?

Yeah, I’m snarky.  I know it.  I need to consider my words.  Particularly when crafting a response to someone who is getting uber personal, ugly or aggressive in their opinion of something I’ve written.  But my intent is never irreparably damage someone’s life.

Not to mention, do you really want clients to find you indexed in that manner? 

Is that the “real” you, or you in a single heated moment that will live on forever? 

photo

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Written By

Brandie is an unapologetically candid marketing professional who was recently mentioned on BusinessWeek as a Top Young Female Entrepreneur. She recently co-founded consulting firm MarketingTBD. She's held senior level positions with GE and Fidelity, as well as with entrepreneurial start-ups. Raised by a real estate Broker, Brandie is passionate about real estate and is an avid investor. Follow her on Twitter.

52 Comments

52 Comments

  1. Kevin Tomlinson

    February 1, 2010 at 8:19 pm

    I know someone who loves their Maker’s Mark!

  2. Melissa Zavala

    February 1, 2010 at 8:33 pm

    Brandie: This is very well said. Pardon the stereotype (and possible defamation of character) but I imagine many of the folks on the Internet who cannot mind their p’s and q’s as the very same stereotype of the guy at the bar who has had one too many to drink and cannot keep quiet. Just because we cannot see our audience, does not mean that we do not have one!

    • Brandie Young

      February 1, 2010 at 8:39 pm

      Thanks, Melissa. Well said. Thanks. Related: What exactly ARE P’s & Q’s .. it’s one of my Dad’s favorite sayings, but I never did figure it out.

  3. Ken Brand

    February 1, 2010 at 8:48 pm

    Bushels and barrels of examples and lessons to be gleaned in reflection. It’s one thing to hear about consequences (intended and unintended) and repercussions and another to see them rip, snort and roar, right in front of your very eyes.

    Your post is a contribution to the collective.

    Thx.

    • Brandie Young

      February 1, 2010 at 8:52 pm

      Thanks, Ken. i’m happy to be first in your line 🙂

  4. Simon Salt

    February 1, 2010 at 9:03 pm

    Good post Brandie.
    While I agree, setting out to be objectionable to others is not a great approach I also don’t agree with the element of “touchy feely” that seems to try and dominate Social Media. Transparency isn’t just about showing customers what’s behind the curtain, its exactly what you state here, its about being honest about who you are.
    I get heated about certain topics. I have strong opinions. I voice them online in exactly the same way I would if I were in a room with you. As for clients finding out, my Twitter stream is posted directly to our company website – whole & unedited. I make no apologies for who I am, for some clients I am most definitely not the person to work with, I am not for the faint of heart or the mild of tongue. As our messaging says, We don’t do Touchy Feely, We do Ouchy Bleedy. I don’t go out of my way to annoy people, but I certainly don’t worry that I might offend some overly sensitive types.
    I agree that it is definitely better to stay away from abusive language, and definitely don’t threaten anyone, but that applies offline as well. (Heck, this is Texas, people carry guns here!!!). As my Mother was so enamored of telling me “To Thine Own Self be true”.

    • Brandie Young

      February 1, 2010 at 9:20 pm

      Simon,
      Good to hear from you – thanks for your thoughtful comments.

      I’m with you. I have no hesitation taking someone to task. If I have a counterpoint, I will make it. During that time feelings may be hurt, egos bruised, etc. That’s ok. I’m with you on the “touchy/feely” point. 100%
      My point is more intent. Are you trying to make a counterpoint because you strongly disagree – or – is the banter malicious in intent. Do you think there’s a difference? I sure do.

  5. Gloria Bell

    February 1, 2010 at 9:03 pm

    Your last phrase really strikes me because I recently found myself in that exact situation. “Is that the “real” you, or you in a single heated moment that will live on forever? ”
    I had let my frustration and anger from an offline experience boil over to comments made online that were out character for me and, in reflection, out of line. I had become that face in the mirror that I did not recognize. Those of us who are so careful to not “drunk tweet” because we don’t want that to be the ongoing perception of our characters, often need to be more careful in how we craft our quick, “witty” messages. Words do hurt. Maybe not in the traditional sense, but they can damage reputations and relationships. In the end we only end up hurting ourselves when we carelessly say things intended to hurt others.

  6. LesleyLambert

    February 1, 2010 at 9:24 pm

    Very timely, very well put and I hope people pay attention. We all have an opinion, which isn’t necessarily wise to share in public, especially when one is a bit hot around the collar.

    • Brandie Young

      February 1, 2010 at 9:28 pm

      Lesley,
      Thanks for commenting. What’s that saying “Opinions are like butts, everyone’s got one” (some of us perhaps a little larger than others). I think we should share – that’s how we learn. But being reckless could bring repercussions.

  7. Brandie Young

    February 1, 2010 at 9:25 pm

    Hi Gloria,
    I’m glad it resonated. I think we’ve all said/written things in the heat of the moment. For me, sometimes it’s a matter of trying to dig a bit deeper into the “other guy’s” mind set … I’ve then found we aren’t so far apart afterall.

  8. Randy Matheson

    February 1, 2010 at 9:37 pm

    While I haven’t attacked anyone personally online or been attacked myself, I am more conscious than ever about making embarrassing statements that could reflect bad upon business development within my company. While few people are crazy enough to start complaining about a current client. Everyone has, at one time or another complained loudly about a product, brand or service. Through social media networks that voice has more volume, has the potential to spread faster and is forever searchable.

    What happens if you start making angry statements about your experience with a brand and then a month later an opportunity appears for your company to work with that brand. Luckily any statements that i make are nothing beyond momentary frustration and were not part of any prolonged attack. Either way the statements could prove to be embarrassing and potentially very costly down the road in regards to obtaining new business. I’ve learned to ‘count to 10’ before tweeting or posting a status update that can haunt me later.

    cheers!

    • Brandie Young

      February 1, 2010 at 9:46 pm

      Randy,
      Thanks for the comment.
      Great point … you just never know what may opportunity may unfold down the road. Your reputation is one very important thing you really own/manage.
      I have a trick to the self-restraint. When I receive an email that really ticks me off, I hit reply, remove the To: address and Go. To. Town. I may save it in my drafts or delete it, but the action eases that momentary need to throw a nutty. **Key here is removing the address from the To: line to avoid an accidental send. Learned that the hard way. Yikes.

  9. Gary Sattelberger

    February 1, 2010 at 9:47 pm

    It has been said a million times, it pays to think before you speak online and off. Thanks, or maybe no thanks, to Google some things can come back to haunt you.

    • Brandie Young

      February 1, 2010 at 9:52 pm

      Gary .. Right!? What happened to the good old days when things could be burried after they died!

  10. Paula Henry

    February 1, 2010 at 9:55 pm

    Brandi – An excellent thoughtful post! The fact that Google forgets “nothing” should be enough to make all of us write with great consideration of the lasting effect on our reputation.

    • Brandie Young

      February 1, 2010 at 10:15 pm

      Hi Paula,
      I know .. no more hiding behind the curtain…

  11. Sheila Scarborough

    February 1, 2010 at 10:23 pm

    I am always very conscious that my words online are searchable and archivable, forever. Many a tweet has been deleted by me before sending because I’ve thought to myself, “Do I want those words forever associated with my name?”

    On the flip side, in the few situations when someone has been what I consider to be abusive to me, I’ve responded quickly (never let bad stuff just hang out there) but tried to not let quickness mean “overheated.” I’ll argue my position all day long, but when attacks get personal, I tell the attacker that I’m no longer interested in their input.

    There was a guy recently who attacked me in a discussion on a BBS. I did a little intel on him and discovered that many credible folks have dealt with him in the past, he’s a troll, and I learned his real name. In the age of Google, it does not pay to be a jerk online, I’ll tell you that. I challenged him publicly on the BBS to call my cell number (gave it out right there) and say what he had to say to me directly. As with every bully, he’s a coward and failed to do so.

    Challenge them to call you. If they do, engage politely. If they don’t, shift tactics and disengage, remembering….we don’t feed the trolls. We don’t feed the trolls….:)

    • Brandie Young

      February 1, 2010 at 10:29 pm

      Sheila,
      Good to hear from you. Smart thinker! It’s absolutely a balancing act – defending your hard earned reputation without crossing a line. No surprise your story about the “troll”. It’s easy to be a bully from behind a screen. Great advice, thanks.

  12. Michelle

    February 1, 2010 at 10:48 pm

    Unfortunately, it’s really easy to get caught in the moment and leave a comment you immediately wish you could delete! When I feel myself getting super-worked-up about something, I try to always wait 30 minutes before leaving a comment or replying, so that I’m much more likely to calmly state my views than just fly off the handle.

    Re: negative comments on your own blog, I think the best policy is just to ignore them. While this is not always true, as a general rule, the way people act on the internet has much more to do with them (and, you know, complete anonymity if they want it!) than with you, so I try to keep that in mind.

    • Brandie Young

      February 1, 2010 at 11:06 pm

      Michelle,
      Sage advice, thanks for weighing in! It is so difficult to keep quiet sometimes!

  13. tony lazzari

    February 1, 2010 at 10:53 pm

    Great post, Brandie, and very timely and many spot on comments. Just my two cents, there is very rarely anything to be gained, and much to be lost, by attacking the person instead of the action. And, as you point out, potential legal consequences. The older I get, the more I realize many of the sayings of my parents still play – Engage your brain before opening your mouth. peace

    • Brandie Young

      February 1, 2010 at 11:08 pm

      Tony,
      Ha! It’s true, we DO become our parents as we get older. Every now and then I say something and shock myself because it’s some old saying my dad would drive me crazy with! And your right, there’s more to lose than gain. Thanks for stopping by.

  14. Rob Hahn

    February 1, 2010 at 11:04 pm

    Good post, Brandie.

    I do want to point something out though, because if people draw the wrong lessons from this (and other) episodes, that would be a loss for online debate.

    There is no liability for expressing an opinion:

    “Rob is an ass who doesn’t know what he’s talking about” is not actionable under any laws of defamation. That’s because it’s a statement of opinion, and most reasonable readers/listeners understand that.

    “Rob is an alcoholic” on the other hand, is a statement of fact. At that point, you’re risking liability unless you can establish a successful defense.

    Truth is always a complete defense; so if you can prove that “Rob is an alcoholic” then you’re in the clear. But you’d better have proof.

    Courts might look at intent, and standard of care, and that depends on whether the person defamed was a “public figure” or not.

    A good resource for all this for the layperson blogger is from the EFF: https://www.eff.org/issues/bloggers/legal/liability/defamation

    Take this opportunity to read up on it if you’re an active blogger/commenter/etc.

    -rsh

    • Brandie Young

      February 1, 2010 at 11:37 pm

      Rob! So good to hear from you. That’s for reiterating.

      You’re the lawyer, so I defer to your wisdom here. Question: you said “Truth is always a complete defense; so if you can prove that ‘Rob is an alcoholic’ then you’re in the clear. But you’d better have proof.”

      Are you really in the clear? Isn’t that still slandering an individual to the point actual damages vis a vis value to reputation, humiliation or mental anguish?

      • Rob Hahn

        February 2, 2010 at 12:03 am

        If the allegation is true, and you can prove it, then it’s a complete defense to defamation.

        So I can go everywhere on the Internet and post, “John Edwards is a cheatin’ sonofabitch who fathered a bastard child on a woman not his wife” and no liability will arise… because the statement is provably true.

        If you suffer damage to your reputation, humiliation, severe mental anguish, and all that jazz from something you in fact did then the law doesn’t care much about your pain and suffering and all that.

        -rsh

  15. Melissa DelGaudio

    February 2, 2010 at 6:22 am

    Excellent points, Brandie!

    Like you, I am prone to being a bit snarky in my posts, tweets and the like. I am also someone who has decidedly strong opinions about issues and who has no trouble stating her position. I try to recognize that there’s a line between a bit of tongue-in-cheek sarcasm and outright slander, however.

    When trying to make a point about an issue, it’s important to remember that making inflammatory statements about people (places or things) does little or nothing to help make your case.

    Those buzz words to which you refer are all well and good, but to be honest, I’m a bit tired of hearing them. Being “transparent” and “authentic” does not give you free rein to say WHATever you want, WHENever you want. Not only do personal attacks dilute any message you might be trying to deliver, they do more to damage YOUR reputation than anything else. I would be extremely hesitant to work with anyone who was unable to maintain a level head when dealing with a peer, whether any underlying issue was valid or not.

    Do we all get upset? Absolutely. Should we make our voices heard? Absolutely. Should mature adults be able to argue without resorting to name-calling or fever-pitched rants? ABSOLUTELY.

    Think not only about what you’re saying, but how you’re saying it.

    • Brandie Young

      February 2, 2010 at 12:12 pm

      Melissa,
      You nailed it with this:
      “I would be extremely hesitant to work with anyone who was unable to maintain a level head when dealing with a peer, whether any underlying issue was valid or not.”
      That’s why I’m a fan.

  16. Mike

    February 2, 2010 at 6:37 am

    I’m with Simon and Brandie. I tell it like it is while being as professional as I can. I’ve had agents can my broker twice in the last year, when they were actually unprofessional and very rude and I called them out on it. They were the aggressors, but they called MY broker! Agents can be very thin skinned.

    • Brandie Young

      February 2, 2010 at 12:14 pm

      Hi Mike,
      Thanks for joining the conversation. Why do you think Agents are thin skinned? Is it something in the service profession? interesting point.

      • Mike

        February 2, 2010 at 6:51 pm

        Hello Brandie. I am a very thick skinned individual, due to a pretty rough back ground and the schools that I attended. I am very conscientious about being nice and professional. I’ve emailed agents to ask simple quaestions about short sales, to clarify their vague showing instruction, or to ask for an FHA addendum, when their contract is FHA. Each time, the response was defensive and rude. These are just a few recent examples. I recently called to see if an REO was actually available, and even said that I could be reached by email, cel or text. He emailed back 3 days later. When I emailed back, “Wow, a response 3 days later! Thanks for your promptness.”
        His response was, “Sorry that I wasn’t there to hold your hand.” Wow. What a tool.
        There are plenty of good agents too, but many are thin skinned, unprofessional and rude, in my opinion. It makes those of us that are professional, look better.

        • Brandie Young

          February 2, 2010 at 7:27 pm

          Mike, ugh. Hate to hear that. And, how sad when you competitive advantage is you are polite! You stay classy!

  17. Justin Boland

    February 2, 2010 at 4:02 pm

    The mantra that always works for me: “Words on a screen, words on a screen…”

    No matter how wrong anyone on the internet is, if I’m getting angry enough to hurl insults and f-bombs at total strangers over mere words on a screen…there’s something seriously wrong with ME at that point in time.

    • Brandie Young

      February 2, 2010 at 6:28 pm

      Justin,
      Great feedback and perspective! I’m going to borrow your philosophy (and will give you credit). Thanks.

  18. Bill Lublin

    February 2, 2010 at 7:15 pm

    Brandie;
    Wonderful post – and to the point! Without question it is important to remember that personal attacks don’t make an argument palatable or make your point – in fact the point of the argument becomes lost in the personality attack. If you can’t make your point without making a personal attack – perhaps you out to rethink your position.

    – Oh and BTW the term Minding you ‘P’s and ‘Q’s comes from English pubs where the inn keeper kept track of the (P)ints and (Q)uarts that patrons drank – If you didn;t mind your ‘P’s and ‘Q’s you were liable to get into trouble by being drunk and in debt …
    😉

    • Brandie Young

      February 2, 2010 at 7:30 pm

      Bill,
      Always a treat to hear from you in any form! Great point. Why dilute your side with snark!

      Thanks for the P’s & Q’s lesson … now, without using Google, do you know what Posh stands for? (it’s the only old saying i do know!)

      • Bill Lublin

        February 2, 2010 at 7:44 pm

        Of course I do 🙂
        Port Out Starboard Home
        The better cabins when making the trip from England to India –
        Bill Lublin
        Master of Trivial Facts
        🙂

        • Brandie Young

          February 3, 2010 at 12:57 am

          @billlublin I think you just threw a gauntlet oh “Master of Trivial Facts” … i WILL stump you. It’s my new mission. xo

  19. Francces Flynn Thorsen

    February 3, 2010 at 11:38 am

    Brandie,

    This is a great thread! Risk management is a serious concern.

    Companies, brokerages, and associations who naively accept a “freedom of speech” posture put their organizations at serious risk. High-profile spokespeople who operate without a set of written guidelines become loose cannons. “Freedom of speech” does not apply in an organization with clearly defined rules about communication and online behavior.

    Deleting digital content that is part of a business communication is highly inadvisable!

    Consider Federal Rules of Civil Procedure (FRCP). Amended rules govern the discovery of electronically stored information (ESI), which refers to e-mail and other data that can be stored electronically. (The rules apply to existing technology as well as future advances in technology.)

    ESI includes e-mail messages and attachments; IM chat, text messages, blog posts, (microblog posts?); history of Web surfing; backup tapes, voice mail, and all other forms of created, acquired, retained, and archived data, is subject to discovery in civil lawsuits.

    This leaves a company or association is liable for discovery of all ESI of their Employees/Independent Contractors as well as their Employees.

    • Brandie Young

      February 3, 2010 at 11:29 pm

      Thanks, Frances! Great thoughts well worth considering!

  20. Nashville Grant

    March 1, 2010 at 7:24 pm

    I suppose this is why I have had some many “anonymous” comments on my blog, people are afraid that I’ll sue them! LOL

    I have had a few developers threaten to sue me, or should I say, a few attorneys who represent developers threaten to sue me, but I have always found that the truth prevails and walking the line is necessary in doing so. Far, balanced and not adverse to risk. No guts, no glory, right?

    • Nashville Grant

      March 1, 2010 at 7:25 pm

      And by “far”, I meant “Fair”. Perhaps my typing skills are what gets my into trouble…

  21. Brix Valian

    July 12, 2010 at 3:22 am

    I agree that freedom of speech can result to a violation when it comes to protecting ourselves from allegations. As an individual we must think first before we create a right statement.

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