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What to do if someone posts false information about me?

Much has been made recently regarding the spread of "fake news" on the Internet. Typically, this occurs in the political context. However, that is not the subject of this article. "fake news" can also come on a personal level; that is, when someone posts and disseminates false information about you on their social media platforms. It can be very difficult, but certainly not impossible, to take this false information off the Internet.

The first thing you have to know is that the First Amendment offers broad protections to speakers. For a statement to be actionable it must be defamatory. Defamation occurs when a publication contains a false statement "made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995). More specifically, the elements for a claim for defamation in Ohio are (1) a false statement of fact was made about the plaintiff, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5) the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 389, 390, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77.

Beyond proving the above elements, there are additional pitfalls to any claim for defamation. For instance, in order to avoid liability, an Internet poster will often claim that the post is a legally protected opinion. In determining whether a statement is statement of fact or opinion, courts must review the totality of circumstances, including (1) the specific language used, (2) whether the statement is verifiable, (3) the general context of the statement, and (4) the broader context in which the statement appears. Scott v. News-Herald, 25 Ohio St.3d 243, 250, 496 N.E.2d 699 (1986). The above factors are weighed based upon a reasonable reader's perception of the statement- not the publisher. Otherwise, publishers of "false statements of fact could routinely escape liability for their harmful and false assertions simply by advancing a harmless, subjective interpretation of those statements." McKimm v. Ohio Elections Comm.,89 Ohio St.3d 139, 144, 729 N.E.2d 364 (2000)

Statements which appear to be opinion can also be defamatory if the statement implies that the speaker has private firsthand knowledge of facts which substantiates the opinion. Jacobs v. Frank, 60 Ohio St.3d 111, 119 573 N.E.2d 609 (1991). A common example is when someone posts "In my opinion John Doe is a liar" without providing any background information as to why John Doe is a liar. Courts routinely find that such a statement is just as damaging as an assertion of fact because the publisher is implying that he has additional knowledge which substantiates the statement.

Another potential issue is whether the posts are privileged. There are several forms of privilege, but the most common one you will see regarding social media posts are those commenting on public issues. You have all seen it; the Facebook back and forth regarding a political or otherwise public issue, which slowly delves into ad hominem personal attacks. While it is true a publication that is a fair comment and criticism on a matter of public interest is privileged; "private concerns or disagreements do not become public controversies solely because members of the public find them appealing to their morbid or prurient curiosity." Scaccia v. Dayton Newspapers, Inc., 170 Ohio App.3d 471, 2007-Ohio-869, 867 N.E.2d 874, ¶ 33 (2nd Dist.). Simply put, if the debate goes into personal attacks and is no longer commenting on the public issue, it is likely no longer privileged.

If someone has posted false information about you on social media, it may be a good idea to consult an attorney to protect your reputation. The attorneys at Dinn, Hochman & Potter have significant experience in removing defamatory material from the Internet and in litigating defamation lawsuits. Contact the firm at 440-446-1100 for a free consultation today.

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