Are slander and defamation the same thing? @Dave One of the elements of slander is publication of the falsehood. The fact that people believe the falsehood and take action based upon it is part of the damages element in a slander case. Forming opinions and taking actions based upon false statements that you believe to be true without republishing the false statements is not actionable. – ohwilleke May 24 '21 at 17:01 But what about defamation? Is this a legal synonym for slander? Or is it something different?
Slander is one of two main categories of defamation, the other of which is libel. Historically, slander applied to oral statements, while libel applied to statements in writing. The modern trend is to eliminate all substantive legal distinctions between libel and slander.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
You Have No Recourse You have no recourse, at least to the extent that the people communicating to your employer point out the particular Facebook posts that were made or accurately summarize or paraphrase them (if the content of the Facebook posts was misrepresented to the employer that would be a different story). A factually truthful statement (e.g., "McGovern made a Facebook post at this link which you ought to look at") is absolutely privileged from legal liability under the 1st Amendment to the U.S. Constitution (assuming that you are talking about a U.S. case). The only exceptions would be when (1) the information provided is false and the person providing the tip has the appropriately standard of intent1 in providing the false statement (which can be actionable as defamation or intentional interference with contract as the DJ suing Taylor Swifts alleges in the Mueller v. Taylor Swift trial pending right now), or (2) the person providing the tip was someone who owed you a duty of confidentiality (e.g. your lawyer or psychiatrist), but that duty applies only to confidential communications between you and that person in most cases, and hence not to Facebook posts. Also, whether your own statements on Facebook were true, false or neither (e.g. statements of opinion) is irrelevant to the culpability or liability of the people providing the tip to your employer, so long as their description of your posts made to the employer were substantially accurate or to the extent that they were inaccurate were accompanied by a means by which the employer could determine what you actually said without relying on their second hand account. 1 To the extent that you are not a public figure and this is not a matter of public concern, even a negligent misrepresentation about what you actually wrote on Facebook, that is not a statement of opinion and is not accompanied by a reference allowing someone to confirm the accuracy of the statement at the source, could give rise to legal liability on the part of the person giving the tip. The standard of intent is the higher "actual malice" threshold for statements on matters of public concern, statements by media defendants and statements about public figures. But, there is nothing in the question to suggest that the tip given was in any way inaccurate. This Does Not Legally Constitute Harassment This is not harassment in a legal sense, even if it may have been an unkind thing to do on the part of the person doing it done with a specific and malicious desire on the person providing the tip to harm you. This is a natural consequence of you saying something on the Internet, which is forever. If your employer doesn't like true things that you say whether or not they relate to your job, if you are an employee at will you can be fired for it. It isn't absolutely impossible for factually true statements to constitute harassment, in a legal sense, but in those cases, it is the frequency and character of the communications, rather than their content or intended recipient, that make them harassing. For example, if the person providing the tip sent an email about that tip every five minutes for several days to every email address at your employer, causing your employer to find that it was just too disruptive to the employer's business to keep you on the payroll, that might be harassment, but that would have nothing to do with the content of the message provided in that case. Similarly, if someone screamed and yelled their statement over a loudspeaker every time you tried to tutor someone, that might be harassment, again, without regard to the content of what they were saying. In those cases, the "time, place and manner" exception to laws limiting the freedom of speech would apply. Could An Employer Take Employment Action Based On These Posts? There are a couple of states (Wyoming and Colorado, at least) which prohibit employers for taking employment actions against employees for lawful off the job conduct, despite the fact that otherwise, the default rule of law is that an employer can normally treat an employee at will (which the vast majority of employees are) as the employer deems fit. But, even then, liability is limited to the employer and not the person providing the tip. And, even in those states, off duty conduct can sometimes be considered by employers when it reflects directly on your fitness and ability to do your job when you are on the job, which a post about mathematics made by a math tutor very well might. Some high level employees with written contracts, career government employees with civil service protections, and almost all unionized employees can only be fired or disciplined on the job when the higher standard of "for cause" employment action is met, which posting something true on Facebook would not normally be. But, in the "at will" employment world, anything you say can and will be held against you even if it is entirely true. But, again, even if the employer misuses the information that the employer receives, that doesn't mean that someone who provided truthful information to your employer has any legal responsibility whatsoever to you or that the person providing the tip has done anything legally wrong in any way. For the most part, even if every word of your Facebook post was 100% true and accurate, outside the couple of states mentioned, you can be fired for posting it anyway if you are an employee at will. For example, suppose that your employer thinks that the Kumon method of teaching mathematics is a horrible method of instruction, and you post Kumon method exercises or explanations on your Facebook page (assume to avoid going on tangents that you had express permission from the copyright holder to do so). You could still be fired by your employer for posting that on Facebook in the vast majority of states. A Footnote on Internet Age Defamation Jurisdiction The usual rule is that a U.S. Defendant can be sued for defamation or similar torts where a statement is intentionally published to by the person being sued. In the case of a media defendant, or someone suing over a post made on Facebook, that could be any place in the world in many cases. But, while the geographic location of your Facebook post may be unclear, the geographic location of your employer to whom the statement you are concerned about being communicated was made, is not. Any harm done to you was done by communications to a single "legal" person who is legally located at a particular place in a single state, so the law of the state in which your employer is located (Washington State, U.S.A.) would govern, although there would also be an argument to looking to the law of the place where the person making the statement was located when they made the statement (which, it appears, would also be Washington State in your fact pattern). When someone in the U.S. communicates something to someone outside the U.S. that does not have the same level of protections for free speech that the U.S. does, there are federal statutes that provide that a judgment obtained there is not enforceable in the United States.
tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california
Defamation per se (thus libel per se) pertains to the nature of the statement and the question of whether there was harm done to the person. For some accusatory statements, it must be proven that the statement actually caused damage to the person. If the statement falls into one of 4 categories, it can be defamation per se, meaning that by its nature it causes damage. The categories are accusation of involvement in criminal activity, having a loathsome, contagious or infectious disease, sexual looseness, and professional incompetence: if you falsely accuse a person of being an inept prostitute with chlamydia, it is taken for granted that you have caused damage. (I understand that there has been some contraction of the sphere of per se liability especially for the claim of having a disease). For other kinds of accusations, viz. defamation per quod, it must be shown that there was actual harm done. Falsely reporting that an administrator had said "Nobody wants to send their daughter to the rape school" doesn't fall into one of these 4 categories, thus it would have to be proven that the statement caused some harm.
(Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action.
Here are a few examples (sorry, they are in German) https://www.echo24.de/region/kuenzelsau-24-jaehriger-verurteilt-gefaengnis-beleidigungen-instagram-13181018.html https://www.mainpost.de/regional/main-spessart/beleidigung-bringt-34-jaehrigen-ins-gefaengnis-art-8445139 https://www.maz-online.de/Lokales/Brandenburg-Havel/Gericht-verhaengt-Gefaengnis-wegen-Beleidigung-und-Noetigung https://www.wochenblatt.de/archiv/fuer-beleidigungen-wieder-einmal-ab-in-den-knast-154472 So it does actually happen, but it's fairly rare. It typically involves abusive behavior: frequently repeated insults, defamation, and threats and also ignoring any cease and desist orders or requests to stop the behavior. There is also a pre-existing criminal record: it's not the first time they stand in front of a judge for this type of thing. The guy in the last article had already 12 previous offenses so the judges felt that a fine or probation is just not working. So it's not so much the exact type of insult but more about relentlessly barraging the victim and having an existing pattern of bad behavior and related offenses.
Without a jurisdiction, I'll just say that unless the comments made in the reviews and discussions were false, the individual is unlikely to have any claim, particularly given that you've stated that this occurred over the course of a year. However, the individual may be able to argue that they were not given sufficient notice of their performance, for example through performance evaluations, and given the length of time, it likely that one would have occurred. A company may be able to terminate an employee in spite of their overall contributions if they have breached policy - for instance, an otherwise outstanding employee who attracts negative customer reviews based in fact, and who is given ample opportunity and guidance to improve, may cause brand and reputational damage to the company; in this case, it is a commercial decision to retain or terminate the employee. As for what recourse the employee has, if the comments were factual, then it is likely that they will not have any, unless the employer has not adhered to procedural requirements - for instance, in Australia, you are required to provide an employee the opportunity to have a support person present at any meeting which may result in the employee's termination - or the employer broke some other law - for instance, discrimination, bullying or harassment law. Unfortunately, the contributions an employee makes does not necessarily negate the harm they do, and complaints based on an employee's performance are completely valid if factual.