Facebook Defamation Judgment May Set Precedent, Indiana lawyers Say

Dave Stafford for www.theindianalawyer.com

Southern Indiana attorneys who won defamation damages over a defamatory Facebook post say the court’s monetary award appears to set a precedent as the first reported judgment of its kind in the nation.

The case marks an extension to social media users of libel and defamation liability standards that apply to traditional media.

Attorney Thomas M. Dattilo of Madison won a $6,000 damages award Friday on a defamation per se judgment for his client, Zerlie Charles, in the Scott Superior Small Claims Court. The damages award is the maximum allowed in the venue.

“There is no other” reported award of court-ordered damages for defamation based on a Facebook post in the U.S., Datillo said in a phone interview.

Charles was defamed in a Facebook post by Vickie D. Vest, who had dated Charles’ son Robert for about three years before he died in 2015. A few days after his death, Vest reported Robert’s truck stolen, and the truck was later found in a church parking lot. Vest then posted on Facebook, in part, “[i]f it was stolen I don’t know but I do know my truck was and yes Zerlie Charles had everything to do with it that’s facts.” Eleven people “liked” the post and eight people posted comments in response.

Vest, who represented herself, could not immediately be reached for comment Wednesday. According to state court records, Vest was present at Friday’s hearing where the damages order was entered by Special Judge Maria Granger of Floyd County.

A different trial court judge initially ruled for Vest, holding that Charles had failed to carry her burden that the evidence met the standard for defamation per se. Dattilo’s law firm partner, James C. Spencer, won a reversal in October at the Indiana Court of Appeals, which found Vest’s post was defamation per se. The COA opinion also noted, among other things, that Vest had admitted at the trial court that she had stolen the truck. The appellate panel remanded the case for a determination of money damages for Charles.

About a month after the ruling, Spencer persuaded the COA to publish its memorandum decision in Zerlie Charles v. Vickie D. Vest, 72A01-1706-SC-01252. His motion to publish the opinion argued there was few defamation per se rulings in case law, and that the proliferation of Facebook “makes these facts and legal conclusions of substantial public importance,” and “publication of this opinion can caution clients against the improper use” of Facebook.

While Spencer said he doesn’t use Facebook, he said he believes “defamations occur on Facebook all the time.” He said he hopes the COA’s ruling and the subsequent award of damages in Charles’ favor sends a message that “you can’t just say anything you want on Facebook and get personal and make statements about other people that aren’t true without running the possibility of getting sued.

“A layperson probably feels they have a First Amendment right to say whatever they want to, but that’s definitely not the case if you’re harming people with what you’re saying,” Spencer said.

Even though the case was tried before a small claims court where pleading standards are less stringent, Dattilo said he believes he had a winning case in any forum. He said the circumstances of this case made small claims the proper venue.

“I still think the facts of this case could have held up anywhere,” he said. “When you get a reversal and a remand for … a damages hearing, you’ve got something on all fours. … You really appreciate having a fact pattern like this that becomes precedent and will probably help the middle class substantially.”

He also speculated that there could be a potential liability for Facebook and other social media users who “like” or share posts that are deemed defamatory, though that isn’t considered in Charles v. Vest.

Dattilo said he’s received numerous calls from other lawyers and prospective clients who learned of the case. He sees the precedent rippling far from the small claims court in Scottsburg. He mused that the case could theoretically apply even to a tweet from President Donald Trump if it defamed a non-public person.

“I think it’s going nationwide,” Dattilo said.