Email has become a part of our everyday life. Things you might never say face to face, or even over the telephone, are easily communicated to others through email. Often times an email received by one person is forwarded to a host of other parties in a sender's email address book without regards to how the receiver may feel about the message being sent.
Emails can be Defamatory
Can you be liable for a defamatory statement you made in an email? Yes you can.
Defamation is defined as communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person. Defamation can take one of two forms: slander or libel. Slander covers oral defamatory statements while libel addresses the written version. Defamation is an abusive attack on a person's character or good name. If a person is harmed in any way by your statement(s), you can be held accountable in a court of law for your actions.
Defamation requires "publication." When you send a defamatory statement about another person to others than the one you are defaming, that constitutes publication. Any every time an email is sent, it is considered a new publication. Every one who has a role in the publication of that email may be liable.
You should treat email as any other form of communication. If you do not want others to see what you have written, do not put it in an email. Also keep in mind that the person you send the email to may forward it on to others, who may do likewise. What you may think is a joke may very well be offensive to another person.
Deleting an email does not protect you. Remember that the message is stored somewhere else on your computer and those computer whiz kids have a way of retrieving it no matter how old.
Email has made the world smaller. But this creates another new problem in defamation litigation. A lawsuit can be filed wherever the email was sent, received, or published.
Emails may not be Private
The right to privacy is recognized in most states by law or court decisions. However, emails sent through employer provided email can be monitored as long as the employee was given notice that the employer intended to monitor all email transmissions. The Electronics Communications Privacy Act of 1986 (ECPA), the federal wiretap statute, does not specifically provide privacy protection for email systems. However a state court may consider email within the scope of its anti-wire tapping and eavesdropping statutes. It is always best to check with an attorney in your state regarding this issue.
Free Speech Lies in Stating Opinion not False Fact
The First Amendment protects your right to free speech. But that means what you say about another must be an opinion and not some false fact. If what you write embarrasses someone or hurts them, if the facts are the truth, you will not be liable. In order to prove defamation, it must be shown that the information was not privileged (that is made to a doctor, lawyer, or clergy); the statement must be a false assertion of fact; and some injury must have resulted.
Some things to remember the next time you hit the "send" button on your computer:
- Check that the person you are sending it to is correct. Don't just hit "reply" or "reply all"
- Check and recheck what you have written
- Emails can be forwarded and reproduced
Finally since the laws in each state vary, be sure to check with an attorney in your state.