While the social media revolution is in full swing, laws that have existed for years before the revolution began and which punish libel and statements made with the intention of hurting someone's business or reputation still apply. Defamation is still defamation and conspiracy is still conspiracy, and just because someone posts defamatory statements on a social media platform doesn't mean that they can't be sued for damages caused by those statements. In fact, as a defendant in a recent federal case in Virginia has learned, the relative permanency of social media platforms like Facebook may make it easier to prove a defamatory statement, while the ease with which social media postings can be shared with others may make it easier to prove a conspiracy to harm someone by spreading those defamatory statements.
In Ebersole v. Kline-Perry, No. 1:12-cv-00026-JCC-TRJ, United States District Court for the Eastern District of Virginia [enhanced version available to lexis.com subscribers], Russell Ebersole, a Maryland resident and owner/operator of a kennel located in Virginia, claimed he was defamed by Facebook postings and e-mails authored by Bridget Kline-Perry, a Virginia horse breeder who had repeatedly accused Ebersole of abusing dogs, acting as an unlicensed dog trainer, and having been the subject of related complaints by individuals and various government agencies. Several of the Facebook postings encouraged others to "like" the postings and e-mail government officials, media outlets, and animal rights groups regarding Ebersole, who Kline-Perry characterized as a "monster." Because of the public and more or less permanent nature of the postings Ebersole was able to attach copies to his federal court complaint. Kline-Perry admitted that she had authored all of them. She couldn't very well deny it.
Ebersole's complaint sought damages for common law libel and for violation of the Virginia business conspiracy statutes, Va. Code §§ 18.2-499 and 18.2-500, which among other things provide a private cause of action, including treble damages, for anyone injured in his or her business by someone who attempts "to procure the participation, cooperation, agreement or assistance" of one or more persons to willfully and maliciously injure another person in his or her reputation, trade, business or profession. On July 25, 2012 a federal jury in Alexandria, Virginia found that Kline-Perry's Facebook postings had in fact defamed Ebersole and damaged his reputation and business. The jury awarded Ebersole $7,500 in compensatory damages for conspiracy and defamation, plus $60,000 in punitive damages, and the federal court trebled the compensatory damages award on the business conspiracy claim based on Va. Code § 18.2-500.
The Ebersole case provides an important reminder that "new media" like Facebook remains subject to "old law" like defamation and conspiracy. The relative ease with which one can collect evidence that has been published to the public (or at least the Facebook public) certainly makes certain elements of these types of claims (i.e., "publication"), easier to prove in a digital age than they may have been in the past. In addition, and as Ms. Kline-Perry discovered, the very nature of social media means that defamatory statements posted on social media sites are not only relatively easy to discover, they can with relative ease be spread more quickly and to a wider audience, with attendant damage and the risk of liability.
For more information, please contact Richard E. Hagerty or John Hutchins.
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