Is text message defamation a real thing? Well, it depends.

First Things First, What Is Defamation, Legally Speaking?

Before we tackle the specifics of text message libel, let’s review U.S. defamation law.

Elements of Defamation

State laws vary slightly, but they all adhere to the federal standard:

1. Publication – The material must have been made public.
2. Harm – The material must have caused the plaintiff harm.
3. Fault – The material must have been published, at the very least, negligently; meaning the defendant didn’t do enough fact checking before sending the text.
4. Falsity – The plaintiff must identify a false statement of fact made by the defendant; not just a negative opinion.

The Difference Between Slander and Libel

Slander and libel are two types of defamation. Spoken defamation is slander; written defamation is libel.

Opinion v. Defamation

Under United States law, opinion is not defamation. Anybody can talk trash about anybody; what you can’t do is spread lies about people or businesses.

Substantial Truth

Can someone successfully sue you over a minor inaccuracy (i.e., reporting a business embezzled $1.5 million when in reality it only swindled $1 million)? Typically, no. Why not? Because of a legal standard called “substantial truth.” If a statement is mostly correct – and the inaccuracy doesn’t have a significant impact on a reader’s or listener’s overall understanding of a story — then substantial truth applies, and the defendant usually wins.

Privilege

Defamation is when one party makes an unprivileged false statement of fact about another party. Unprivileged means that the person doing the dishing didn’t have a legitimate right to “pass on” the information. For example, conversations between clients and lawyers are protected. So, except in the rarest of circumstances, defamation lawsuits can’t be crafted around private conversations between an attorney and client talking about cases.

Generally Speaking, When Is A Text Message NOT Considered Defamatory?

• If a message is the nasty opinion of one person, it probably won’t qualify as text message defamation. Negative opinions are perfectly legal.
• If only one person received the message, and didn’t cause the plaintiff material harm, it may be defamatory, but the would-be plaintiff still might not win a case.
• If the statement is true, nine-and-a-half times out of ten the courts won’t consider it defamatory. That said, you may have a valid “publication of private facts” claim.

Generally Speaking, When Can A Text Message Be Deemed Defamatory?

• If someone sends a false statement of fact to a) a text message group or b) an individual, who then tells others about the text, the message could be defamatory.
• If the false statement of fact causes material harm, a judge could deem it libelous.

NOTE: For a statement to be libelous it must satisfy all the elements of defamation (see above). For example, it’s possible to send a false statement of fact via text, but if it didn’t cause harm, a plaintiff may have a hard time winning a lawsuit.

Defamation law is full of caveats – like privilege, substantial truth, etc. – which can ultimately determine the outcome of a case. It’s best to consult a defamation attorney about the particulars of your situation to determine if your claim is viable.

Speak With An SMS / Text Message Defamation Lawyer

Are you dealing with a defamation headache? Kelly / Warner helps individuals and businesses overcome “digital defamation” challenges. Whether you need help with text message defamation or other types of online libel – we can help.