CINE Articles

Defamation 101 and New Media

Chubb

By Ken Goldstein
Worldwide Media Liability Manager
Chubb Specialty Insurance

The opinions expressed in this article are not necessarily those of CINE and do not constitute legal advice.

You may believe that it's harmless to informally Tweet about your production experiences or share content on YouTube or some other social media platform. But, what if you're wrong?

Casual commentary over electronic media can lead to formal trouble if the subject of your message considers it to be personally offensive. Defamation is considered "tortious injury" to another's reputation and is the basis of many lawsuits stemming from content appearing on social media.

As video and film producers strive to think about more creative ways to advertise and disseminate their work, special care should be given to the use and oversight of new media vehicles. While defamation liability is analyzed on a case-by-case basis, consider the following hypothetical examples:

  • A director blogs about an actor engaging in inappropriate sexual conduct during filming.
  • A documentary filmmaker posts an investigative piece regarding a "slumlord" on the internet.
  • A production's Facebook page incorporates portions of a script suggesting the subject of a production engaged in criminal activity.
  • Cast members of a reality television production use a corporate Twitter account to reveal intimate secrets about other cast members.

What do these examples have in common? They demonstrate how new media can be unwittingly utilized to give rise to a potential defamation lawsuit.

Elements of Defamation

In order to succeed in a defamation lawsuit, a plaintiff needs to demonstrate the following key elements:

  • Falsity - a false statement of fact;
  • Publication - the information has to be communicated to a third party, someone other than the plaintiff;
  • Identification - the content must be "of and concerning" the plaintiff;
  • Defamatory Meaning - the content has to have a reasonable potential for injury to the plaintiff's reputation and the defamatory content must cause injury;
  • Fault - for a private figure, a plaintiff must demonstrate negligence (the failure to exercise reasonable care under the same or similar circumstances); for a public figure or official, the plaintiff must show actual malice (knowledge of falsity or reckless disregard of truth).

Your Commentary Contains Defamatory Statements . . . Now What?

Publication of defamatory statements, even via casual social media, may expose the defendant to compensatory and even punitive damages. Compensatory damages are intended to compensate the plaintiff for injury caused by the dissemination of the false and defamatory content. In the above examples, a court may consider awarding compensatory damages for emotional distress suffered by the actor falsely accused of engaging in sexual conduct during filming, or the lost earnings suffered by the landlord resulting from declining rental income following the investigative documentary.

Beyond compensatory damages, a plaintiff may also recover punitive damages as a result of injuries stemming from defamation. Punitive damages are designed to "punish" the defendant for having injured the plaintiff's reputation.

Some Things to Consider to Help Protect Yourself from a Defamation Lawsuit

There are steps you can take when using new media to help diminish the risk of a defamation lawsuit:

  • Care should be given to the nature of content incorporated into a production or shared via new media vehicles. If the content would not have been cleared for production, then it should not be considered for purposes of blogging, Tweeting, etc.
  • Corporate new media accounts should be managed by individuals with experience and the ability to articulate content in an appropriately responsible manner.
  • Overall, having an experienced clearance attorney review your work prior to dissemination is key. The clearance attorney can review the production, making its content as "defamatory-proof" as possible.

Even after taking these steps, it may still be unclear whether the content disseminated could potentially give rise to claims of defamation. As a result, it is vital to protect yourself financially in the event of a lawsuit by purchasing producers liability (errors and omissions) insurance. Errors and omissions liability insurance will help cover defense and loss payments resulting from defamation claims associated with your production's content, including related new media usage.

Defamation laws can be complicated and vary by state. The best way to protect yourself, your production and your reputation is to play it safe and get expert legal advice.

Ken Goldstein is assistant vice president, Chubb & Son, and worldwide media liability manager for Chubb Specialty Insurance. He can be contacted at GoldsteK@chubb.com.

For more information on Chubb and its insurance products, please go to www.chubb.com/cine

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