How to avoid defamation claims on social media

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Physicians are more active in social media than ever before, promoting themselves, their practices, side hustles and a variety of social causes. The online ecosystem has its own laws and risks, including various defamation related liabilities. Here are some legal basics all #SoMeDocs need to know before you post, share, like or retweet.

The risk is common to all social media including Twitter, Facebook, LinkedIn, Instagram, as well as your blogs, podcasts, video clips and anything else you can think of that can be distributed to third parties as well verbal statements you make to third parties.

Defamation defined

The term defamation is thrown around loosely in the media and used to describe any negative statement one person makes about another, but it actually has a very specific legal definition.

There are two primary forms of defamation including libel, which is written or posted, and slander, which is communicated verbally. Both can have very serious liability in the form of an actual lawsuit award and the damages suffered by the defamed party as well as in terms of the associated cost of legal defense, which can easily be six figures.

Knowing the specific elements of a defamation claim will help you avoid making such statements and the legal liability associated with them, including statements made by your employees. It can also help you understand whether you have been defamed and if you need to take legal action to protect your or your practice’s reputation. Remember that a business, incorporated not, or another form of association, including trade associations and unions, may also have standing to sue.

For a negative statement to actually rise to the level of the tort of defamation, the courts will be looking for the following fact pattern:

• A non-privileged, false statement of provable fact

• Made to a third party (not just to you or about you)

• That causes actual damage or injury to the subject of the comment.

Note that opinions - including aggressively negative ones the subject may find offensive, harmful or untrue - are not based on a question of provable fact and often don’t rise to the level of actual defamation. There is also some additional leeway for statements about public figures such as celebrities, influencers, spokespeople, politicians and business leaders. 

The following examples help illustrate when a statement is defamatory and when it isn’t.

Probably not defamation:

• I think Dr. Jones is a rude idiot who cares more about money than curing patients.

• Senator Smith is a bigot and makes promises to every voter he has no intention of keeping.

• That company’s vitamins are crappy. The jerk in their Instagram feed doesn’t look like that from taking their pills. He probably also works out for three hours a day.

You may need to call your lawyer:

• Dr. Jones is a fraud. She’s not a specialist like her website says she is, and she’s not trained to perform these procedures.

• Senator Smith takes money from the KKK for his campaign and voted against healthcare for seniors after taking millions from AARP.

• This company’s supplements are made in China and are just contaminated sugar pills.

Defenses and safe harbors

The Media Law Resource Center (MLRC) is a national organization that provides guidance on legal issues to media content providers and their defense attorneys, insurers and other associated professionals. This is their succinct summary of both affirmative defenses and some of the safe harbors where you may be able to speak freely:

“While on many of these issues the burden of proof is on the plaintiff, the primary defenses to a defamation claim are that the statements are true, are not statements of fact or are privileged. Some defamatory statements may be protected by privilege, meaning that in certain circumstances the interest in communicating a statement outweighs the interest in protecting reputation. For example, most, if not all, jurisdictions recognize a privilege for fair reports of what is said, done or published out of government and judicial proceedings, and for reports of misconduct to the proper authorities or to those who share a common interest (such as within a family or an association).”

In part of two of our look at social media liability, we will examine your vicarious liability for your employees, what damages for defamation look like and insurance coverage that can protect physicians from defamation claims.

Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.