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Defamation: Does the Written Word get Minimized by the Facebook Generation?

In January of 2005, I sat in Professor Mark Dotson’s Torts II Class at The Thomas M. Cooley School of Law and listened as he explained the difference between “New York Times v. Sullivan” and the “Gertz Court” and literally started to wonder if I should ever speak or write about an enemy again? While I was never one to intentionally defame another, the lessons that great professor taught me provided an understanding that even the slip of the tongue could equate to a destruction of one’s bank account. After practicing law in 3 different states and the federal court system, it’s difficult to find uniformity anywhere. Today, we are going to discuss the issue of defamation and how the law has transpired.

When we look at defamation we see a term that means a word of falsity that injures another. Broadly speaking, defamation comes in two aspects: Libel which is the written word and Slander that is the spoken word. The study of defamation displays that we have to look at the subject from a common law perspective and then transition into a constitutional aspect. Let’s look at the subject from the top with commentary from leaders in the field of law.

Matthew McManus is the Managing Partner of Ann Arbor Legal in Ann Arbor, Michigan and his firm does many defamation cases. McManus stated, “We have to start with a 6-part process to break apart the Common Law aspect. We learn that the written word that presents harm carries much more weight in the state of Michigan but one has to file their claim in a rapid fashion or else it will be barred. The concept of defamation cannot be filed if one waits too long to file in our state.”

Jeremy Tatum is a successful attorney in Saginaw. Michigan and added to the conversation when he stated, “In our state, there is only a one-year statute of limitation. This can be tolled with the discovery rule but that is always a difficult hurdle in any Midwestern state. Perhaps the most difficult aspect of defamation is the fact that you truly have to disclaim your fame. As we learn in the “New York Times v. Sullivan” and the “Gertz Court”, the more notoriety that one has the more difficult it is to prevail on such a claim. The reality is that Tiger Smith, the average guy in Michigan has a much better chance to prevail than Tiger Woods when someone attacks their reputation.”

The Facebook Generation

When asked about the Facebook generation, McManus chuckled when he stated, “Every day, in fact, every minute of every day there can be a defamation claim on Facebook. People feel that social media provides a scenario where they have free range to say or do anything they desire but they do not realize that the simple lie about a person on a Facebook post equates to publication and potentially damages.”

Scott Grabel is the founder of Grabel and Associates which is the top criminal defense firm in the state of Michigan. Grabel added to the conversation when he was quoted as saying, “Client reviews via social media can lead to a lot of litigation. I have seen firms trying to generate a great deal of business when they bash others online and it seems that Facebook gives a lot of people a platform to attack others.”

Where Do We Stand in 2018?

The reality is that a defamation claim is not an easy one to bring but if someone harms your business, you do have the option to attack but you need to display damages in the process. Generally speaking, hurt feelings will not be enough to win your claim, hurt income will.

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