The Internet and social media sites such as Facebook and Twitter can present conundrums when juxtaposing them with the law as it is written, and certain individual posts. For example, in 2012, a libel lawsuit manifested after the American Career College terminated an employee. After termination, the ex-employee allegedly posted libelous information about the College on Wikipedia. As is noted in that case, in determining whether written statements are libelous, courts must weigh any real harm to the plaintiff against a defendant’s First Amendment right to free speech. Another concern in this case involved the potential for such alleged libelous statements to be copied, pasted, and disseminated to thousands or more individuals with a couple of clicks. Of course, all of which could be done by utilizing various social media platforms.
These types of cases where an individual’s right to free speech and an entity’s (for-profit or not-for-profit) right to not be defiled in writing are becoming more prevalent. For example, in 2009 a student at Butler University posted statements to a personal blog that the University administration perceived as defamatory (libelous). The University administration initially sued the student, not knowing this student attended Butler University. Upon learning this student attended their own University, this lawsuit was apparently settled. It is noted that such a lawsuit and other similar cases challenge the standard of academic freedom of students, faculty, staff, and all members of academies established by Chief Justice Earl Warren in his comments conveyed in Sweezy v. New Hampshire decided in 1957. Sweezy v. New Hampshire, 354 U.S. 234 (1957).
Two other apropos lawsuits filed a few weeks ago further illustrate the free speech/libel dilemma. These two cases are pending in Texas and involve family arguments, employment disputes, and alleged libelous actions. One case involves an owner of a funeral home who is asking the Texas Supreme Court to issue a permanent injunction to prevent a family member from repeating (resending on Twitter, Facebook, Wikipedia…, or posting to a website) ten specific statements deemed false by a Bastrop County jury. In a second case before the Texas Supreme Court, a business owner is asking the court to mandate a former employer to remove statements from two websites that are allegedly libelous.
Why should we care about such libel lawsuits? Only one of the above-mentioned cases involves a non-profit university, however, such accusations of libelous conduct may become more common as instructors implement more Web 2.0 and Web 3.0 in their pedagogy. Also, students freely post about university related matters on their personal blogs, Facebook, and other social media sites, similar to the student at Butler. Further, the costs of these lawsuits can be astronomical. For example, in the funeral home case mentioned above, the jury awarded $4.5 million to the funeral home, due to the defendant’s alleged libelous statements. Even if a defendant is found not liable of defamation, attorney’s fees alone can be stellar. For example, in 2012, during a separate employment related libel case in Tarrant County, Texas, a court awarded the plaintiffs $14 million as damages. This award was overturned on appeal, yet the defendant’s legal fees totaled just over $1 million.
The pertinent point is with the ease of disseminating information (disinformation), statements distributed electronically could be interpreted as defamatory by an audience. Thus, it is important to provide training to staff, faculty, students, and the greater university community regarding what is defamation (libel, slander), what is private information, and how to prevent a breach of either kind. Further, it is wise to provide training regarding what is and is not acceptable in regard to posting to blogs, Facebook, Twitter, and other Web 2.0 sites. Additionally, pass along this training to students; closely monitor student posts in online courses; if a student makes a mistake, use the blunder as a teachable moment; create an internal retraining and/or judicial process to deal with alleged misconduct; create a centralized site that the university community may consult to educate themselves; and on this site offer a comment box on which individuals may post questions and receive answers to their queries.
In sum, it is important to be cognizant of the different types of defamation in general: slander (spoken); libel (written). It is also wise to be careful what one puts in writing, but also defend your right to academic freedom in putting what you want in writing. Further, it is astute to educate students on such matters, and use any student missteps as educational opportunities for said students. It will additionally be interesting to discover how the Texas Supreme Court holds in the two above-mentioned cases, so that we may envisage how a similar scenario occurring in the academic library setting might result.
