#MeToo encourages people to publicly voice their stories of harassment and abuse, but social media can lure victims into a false sense of security as a safe and protected space. It’s important the legal rules be plainly explained to avoid costly consequences that may push victims back into the shadows again, or worse, victimize them with a double-edged sword – a defamation lawsuit.
Leigh Evans, Accountability and Integrity Business Consultant
WHAT IS DEFAMATION?
The Merriam-Webster Dictionary defines it as follows:
Cornell Law further clarifies that definition in context here:
To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.
What does this mean in non-legalese? If you are sued for defamation then you are the Defendant and the person suing you is the Plaintiff. According to the law – the Plaintiff must meet all 4 elements above (plus show that the statement was unprivileged, e.g. not a statement made in a court case, etc.). If they can do this – they have established what is called a prima facie case. The court determines that the Plaintiff has established a prima facia case by using a “preponderance of the evidence” standard (this is the “burden of proof”). In a defamation case, this means that the Plaintiff must show that these elements have a greater than 50% chance of being true to move forward with the case. This is not a high burden to meet.
How does this work in the real world? When you share your experiences in a Facebook group or any social media space (or anywhere for that matter) and make a statement (written or verbal) to a third party, that a specific person is your abuser, that can be considered grounds for a defamation lawsuit. Although the truth is an absolute defense to defamation charges, it does not guarantee that you will not be sued for the statement regardless.
CAN I REALLY GET SUED?
Yes. I recently attended a Sexual Violence Law Conference (disclosure – I am NOT an attorney) and there was a session focused on defamation. The attorney shared a case study that illustrated how things can go wrong. Here’s my paraphrase of that case.
A minor was being sexually abused by her uncle for some time. When she finally told her mom, the mom went to the authorities to report it. The uncle was arrested and charged (all good so far). Mom, being upset, shared with her circle of friends the fact that the uncle had abused her daughter (here’s where things go wrong).
Being that sexual cases are extremely stressful under any circumstance, the minor child became overwhelmed and decided not to move forward with the prosecution and the case was dropped.
Meanwhile, because the uncle was determined to fight the charges, and learned through the “grapevine” that mom was telling others of his improprieties, he decided to press charges for defamation. The sexual assault case being dropped had no bearing on the defamation suit, so the family endured multiple years of court battles and was forced to hire attorneys to defend their case. Ultimately, because the daughter did not proceed with the case and it was never proven true and factual in a court of law, the uncle won his case and the daughter’s family was forced to pay over $250,000 in restitution, legal fees, and court costs.
WHAT CAN I SAY?
You are free to talk about your feelings. You can talk about feeling unsafe, lonely, shameful – all the things we as victims feel on a regular basis. But you have to keep it to how YOU feel, not making accusatory, unproven statements as fact, even if they did occur.
WHO CAN I TELL WITHOUT GETTING SUED?
There are certain channels that are safe to tell, but you need to understand their legal obligations as well. Some people are what are known as “mandatory reporters” meaning if you share what’s happening with them, they are required by law to report it to authorities. Here’s where it gets tricky, as state laws vary and federal law also applies, we advise you to review this information with a reliable legal source (lawyer, state legislative page, etc.). For a reference only (not legal advice!), FindLaw has a pretty clear description of the variances of mandatory reporting – CLICK HERE.
WHAT IF IT DID HAPPEN?
The key here is the burden of proof is on the plaintiff. This is to protect those falsely accused. While it only happens on occasion, it does happen and the law has to give the benefit of the doubt to the accused. Let’s imagine for a second that your abuser accuses YOU of abuse – you’d want the burden of proof to lie with them and you to have the benefit of the doubt, right?
TIME TO GET BUSY
All this can be overwhelming, but don’t get discouraged. Hunker down and prepare. Build your provable case. Document everything, even if you think you’ll never need to use it. When you document, you’ll need to do so in a manner that is safe and secure. Writing it down does document it in your handwriting, but written diaries can be found and destroyed. Electronic diaries are okay if you can prove it was you adding the entries. To be solidly admissible in court as evidence, your stored information will need to show (in tech terms) “chain of ownership,” meaning you can prove that the information has not been tampered with.
Whether you use the VictimsVoice app to securely store your story or some other means, be sure you are capturing all the information needed to corroborate your incident, make sure the system you are using can prove a chain of ownership (always in one’s possession with “no access” for tampering), and make sure it is secured in such a way that it cannot be altered or destroyed (pages cannot be added or ripped out, phone cannot be destroyed, etc.).
There are so many requirements to ensure your voice can be heard without fear of legal retribution, but if done right, can and will empower you and inspire others to do the same.
VictimsVoice is a tool that aims to fix the legal documentation burdens victims face when recalling details for reporting acts of abuse, harassment, and discrimination. It is built to meet HIPAA and VAWA compliance, as well as the strict legal standards (Daubert Standard) of court admissibility and gives complete ownership and control to the victim – no one else.
If you need to document your experiences, visit our home page for licensing options. If you need assistance with the annual fee, visit our Partner Page to find a resource that offers activation cards at no charge. If you’d like to recommend an organization for our Partner Program, please LET US KNOW.