“Yo Taylor, I’m really happy for you, I’ma let you finish, but Beyoncé had one of the best videos of all time! One of the best videos of all time!”

And with that, Kanye West taught millions of viewers a very valuable lesson that every business owner can learn from: everyone has an opinion. They’re not always warranted…or pleasant….or have even a touch a class to them. And while classifying a personal opinion as fact, and then sharing it publicly as an opinion can result in immediate damage to your reputation…when do those opinions cross the line into defamation?

To add another interesting layer to our fact pattern, years after that 2009 incident, Kanye and his aspiring lawyer-to-be wife, Kim Kardashian famously released a recorded conversation between Taylor and Kayne, in 2016, leaked by KKW. This act, even more so than the 2009 incident, exposes Kanye to further liability, as every state has different laws regarding recording phone conversations (Feel free to Google this incident if you’re looking for a celebrity feud fueled by public opinion- that doesn’t need to be discussed further here).

These acts of course fueled the platform for Taylor’s 6th album, “Reputation”, but we’ll get into that in a bit. Today, I want to answer an all too common question:

What is defamation, and what is “fair game” (in other words, free speech)?

Sharing an opinion is one thing…sharing an opinion, calling it fact, and then damaging the subject’s reputation is an entirely different matter. Unfortunately, the latter happens all to often in the online business realm.

When can opinions (shared publicly) result in lawsuits?

Free speech vs. Defamation

Our First Amendment freedom of free speech is heavily protected in the U.S…subject to a healthy number of stipulations that the nation’s top constitutional attorneys make careers out of arguing. However, if statements are made publicly (ie, to another person-this does NOT mean on a public forum), are untrue, and cause damages to another person. The balance becomes determining how far a person’s free speech rights extend in comparison to the harm that could result from those statements. This is a delicate balance.

(brownie points if you caught that one).  

Defamation provide protection for citizens against the harm that can come from damaging, untrue statements. Damages may be collected for those who’s finances, careers, health, or reputations  have been damaged by those statements.

Before we get into the the difference between what constitutes free speech, and what constitutes defamation of character, it’s important to note: the First Amendment is a constitutional law question, obviously. Defamation, on the other hand, is a tort. The exact topic that Kim Kardashian recently “aced”, which made this topic all the more fun to dive into.

With the rise of online business inherently comes a rise of online defamation claims; some valid, some not. If you’ve publicly been accused of something untrue, take note of what constitutes defamation before you take action: DEFAMATION, SLANDER, AND LIBEL

Black’s Law Dictionary defines them as:

Defamation: “The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander. Printing Co. v. Moulden, 15 Tex. Civ. App. 574,41 S. W. 381; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St.Rep. 810; Hollenbeck v. Hall, 103 Iowa, 214, 72 N. W. 518, 39 L. R. A. 734, 04 Am. St.Rep. 175; Mouat v. Snyder, 105 Iowa, 500, 75 N. W. 350.”

Libel: Defamatory statement published through any manner or media.

Slander: “In torts. Oral defamation; the speaking of false and malicious words concerning another, whereby injury results to his reputation. See Pollard v. Lyon, 91 U. S. 227, 23 L. Ed. 308; Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 3SS; Ross v. Ward, 14 S. D. 240, 85 N. W. 182, 80 Am. St. Rep. 746; Gambrill v. Schooley, 93 Md. 48, 48 AU. 730, 52 L. R. A. 87, 80 Am. St Rep. 414; Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051; Civ. Code Ga. 1895,”

Here’s an easy way to remember it: slander=spoken, libel=written. Both are forms of defamation.

When many people speak about defamation, they are actually talking about disparagement. They key difference between the two is that defamatory statements are false and result in damages, while disparaging statements are true statements that cause damages- in other words, someone just “talking bad” about another person. The person who publishes the defamatory statement is liable- in other words, if the speaker publishes those opinions on a platform like Instagram, the Instagram user defaming another person would be liable, not Instagram itself.

In the case at hand, Kanye didn’t use another platform- these were words out of his own mouth, spoken on national TV (or in the later case, via a phone call). The question becomes, were the words false, resulting in damages; or true, resulting in damages? Did the words harm Taylor Swift’s reputation, resulting in damages?

However, there’s one more element of defamation that the online realm must stay aware of: Commercial disparagement. Closely related to defamation, this concerns false statements made with the intent to call into question the quality of a competitor’s goods or services and to inflict pecuniary harm. This is a very common occurrence in the online business world.

When does an opinion become protected free speech under the First Amendment?

There are a handful of circumstances, but two that arise most frequently in the online business world that absolve the speaker from potential defamatory claims: most commonly, if the speaker can prove the statement was true, or if the statement is of “public interest”.

1. Truth. If the “speaker” (typically, the defendant) can provide evidence that their statement was true, then the first amendment will protect that speech, regardless of its reception by the public. However, opinion-based statements are much more of a grey area, and the defendant then has to prove either an element of fact, or that the opinion merits protection. The U.S. Supreme Court has said that a statement is an opinion that falls under the latter category when it is (1) about a matter of public concern, (2) expressed in a way that makes it hard to prove whether it is true or false, and (3) can’t be reasonably interpreted to be a factual statement about someone. (The Supreme Court case is  Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).)
   There are many factors to this test that this article will not discuss, however, a defining question will be whether the statement is factual enough that it is able to be proven true or false. If the former, it will most likely be considered an opinion, and not ripe for a defamation claim.
2. Matters of Public Interest
   The First Amendment will protect a “speaker” against “matters of public interest”, generally speaking.For example, you’re allowed to share your opinion on matters of common knowledge, such as your political views, etc. Public policy supports this- after all, we aren’t in middle age England, where it was high treason to speak ill of a king! In our country, free speech; even critical speech, will not just be protected, but encouraged. In the same vein, public figures receive less protection, and have additional barriers to cross when it comes to defamation claims, because they have generally put themselves in the limelight, so to speak. After all, our laws are geared to protect free speech.

The easiest way to win a defamation case (as a victim):

Prove malice.

Some lawyers may argue with this, but the easiest way to win a defamation case, when you believe someone has slandered your name: prove malicious intent. This can be the key to character assassination claims.

From Vanity Fair: According to Karen Fultz, a torts professor at the Western Michigan University Cooley Law School, “Malice is defined as ‘with knowledge of the falsity,’ knowledge of the false statement, or a reckless disregard for the false statement…This means you fabricated it or you had serious doubts as to its truthfulness, and you still published that statement … Taylor would still have to establish that [West and Kardashian] did it maliciously. And that would be a bigger issue that public figures would have to overcome in order to prevail in defamations claims.And in the world of celebrity, proof of malice can be tricky territory; even the slightest scandal might not do any real damage to a public figure’s relationship with fans, but rather increase her visibility, So, Swift would need to get very specific as to the type of damage she’s suffered emotionally. Even public figures suffer harm, just like laypeople suffer harm when someone tries to defame them … I can only imagine, and that would be an element of damage that she would allege,” Fultz says. “She would have to give information as to what type of emotional stress she is enduring or what type of defamatory statements have been made against her.”

And now it’s time for a little tough love: if you believe you’ve been copied,, slandered, or bullied online, the absolute last thing you should be doing is talking about it online. Not just because it’s in poor taste, but from a legal perspective, because its the quickest way to undermine your own case. It’s a lot harder to win an infringement suit than it is to win a defamation suit.

The essential key to understand is damages. Generally speaking, even proving that the defamatory language caused potential clients to not work with you isn’t enough; you need to be able to show that you lost clients because of the defamation. Clearly, this is a difficult standard to meet.

WHAT TO DO WHEN YOU’VE BEEN DEFAMED ONLINE

Because the standard of damages is so difficult to meet, I don’t want to sugarcoat it: many of the times that a person has actually been defamed, there is not much that can realistically be done about it. It’s a frustrating reality of the law: sometimes what is actually just and the law itself don’t perfectly align.

Many times, it will take the discerning eye of an attorney to tell you if you actually have a case for damages. However, there are a series of steps that any attorney will tell you to take:

1. When you first hear/ see the defamatory or disparaging material,start building a record. Take a screenshot with a time stamp, if you can.
2. Keep track of any messages or communications you get regarding the statement. In my introductory story, that would include the messages from other business owners.
3. Take note of any contradictory material you might have. For example, do you have proof that you published your “offending material” first?
4. Record anything you can that would bolster your claims of damages. For example, did a client fire you, and say this was why?

If you feel like it could be beneficial, you may reach out to the person. I say this very hesitantly, because in the vast majority of cases, it won’t do any good. However, if you know this is a simple miscommunication for some reason, it might be good to nip it in the bud.

No matter what, under no circumstances should YOU begin discussing it publicly. Not only will nothing be gained by this, but you could land yourself in hot water from their own defamation claims.

Finally, if the defamatory statement has been left on a public forum or platform, such as a Weddingwire review or a Facebook review, etc, many of these platforms have their own dispute resolution processes that you can find in their terms and conditions. Before you panic about this bad review marring your good reputation, investigate those alternate methods (more on this to come in a later post).

If you’ve been accused of copying or have fallen victim to some other kind of defamatory claim, know that while it may feel like the end of the world for a little while, it won’t always. Many times, these situations will blow over. However, if they don’t or if you can prove your case according to the standards I set out above, it’s time to speak to an attorney.

Back to Taylor and Kanye: What Can This Scenario Teach Us?

Of course I couldn’t wrap up this discussion without coming back to our original question: what about Kim, Kanye, and Taylor Swift?

While many “Swifties” wish that the scenario could be construed as a slam-dunk case for Swift, it’s simply not. However, it can serve to teach many of us important lessons. First, defamation cases required certain “prima facie” elements to win (these will vary state by state), so if you believe you have been defamed, you must start collecting data and building your case. If you’re a public figure- you have a slightly steeper hill to climb. Second, defamation is horrible. It’s gut-wrenching; it can damage your reputation and/or your business, and so much more. However, a look at Taylor’s career since 2016 exemplifies the reminder that can be so hard to remember: sometimes, even though it doesn’t feel like it at the time, it doesn’t have to be the end of the world.

As she shared in her recent speech at the TIME 100 Gala, “One of my favorite quotes is how Nora Ephron used to say, ‘Everything is copy.’ Everything that happened to her she used as inspiration. If you write,” she continues, “you can turn your lessons into your legacy.”

With a little creativity, a slight change in perspective, defamatory statements hurled your way won’t be able to hamstring you; they may even serve as a turning point in your career. Outsiders will always have opinions, but people will always recognize, and remember integrity above all else.

More on this (extensive) topic to come soon!