Over the past few years, YouTube has seen a surge of commentary channels emerge onto the platform, with hot takes of political opinions, current events, and even drama happening among other YouTube creators. As “cancel culture” becomes a prevalent yet unfortunate norm within society, it’s easy for creators to overlook the serious and potentially consequential outcomes of condemning individuals publicly for the world to see. It’s important to understand the concept of defamation in order to secure both the content you create and your person from legal disputes.

What is Defamation?

According to the Electronic Frontier Foundation, the term “defamation” regards the act of presenting a false or clearly misleading statement to the public with the intention to ruin the reputation of another; all the while knowing that this information isn’t true and likely to cause harm. Also, there are two forms of defamation: slander and libel, which relate to spoken and written forms of defamation respectively. Truth is considered an “absolute defense” to a defamation claim, which is why news channels and YouTube creators can provide the public with facts, even if they’re negative or damaging to someone’s image.

Where things get a little more complicated turns to the world of a creator’s public opinions. In this context, most consider opinions to be limitlessly protected from legal action, but this simply isn’t the case. In terms of defamation, courts will utilize a reasonableness standard to the information that was presented – meaning that a “reasonable” person under the same circumstances would consider this statement to be a matter of pure opinion and not actually a fact. A multitude of factors could weigh in on how your comments could persuade others into constituting an opinion as actual fact, such as your audience reach, the person you’re making comments about (i.e. a creator that’s disliked on the platform), the gravity of the allegation, etc. Although we as citizens have a first amendment right to speak our minds, it doesn’t mean that anything goes, and simply saying “allegedly” will not always get you off the hook.

There are also different standards of proof required based on your status as a public or private figure. The way society perceives you on a regular basis will ultimately determine how the media and content creators disseminate information about you and your personal life. For public figures – i.e. celebrities, public officials, and big-name social media influencers – they must meet the actual malice standard, meaning they must prove that actual harm was intended or occurred due to the falsity of the information. Meanwhile, private figures or “ordinary” people of society only need to meet the negligence standard. If the publisher of the information failed to perform proper due diligence by not verifying the information prior to its release, the standard would be met. It’s critical to keep these differences in mind, as public figures must meet a considerably higher threshold due to their daily lives being considered matters of public interest.

Whats the Line?

Commentary and drama channels may find themselves more often in hot water because they tend to broadcast information based generally on their opinions and views. These creators should take note of the fact that they run the risk of liability when they attempt to steer their audience towards a certain opinion so strongly that it’s passed off as an unverified fact. For example, the YouTube community (like most of society) condemns predatory behavior; both on and off the platform. When creators are discovered engaging in suspicious behavior, channels are quick to “spill the tea” regarding this conduct and airing out the creator’s alleged dirty laundry. A lot of these channels will justify their stances with “receipts” – screenshots and/or text conversations that provide a semblance of proof to their allegations – for context and credibility. Despite the fact that these creators may have the best of intentions, which are nonetheless commendable, a lot of damage can be done to a person’s reputation and identity if someone’s words are interpreted as being the truth. Creators should be forthcoming and transparent about the seriousness of their allegations, the amount of research and resources used to verify this information, and whether or not their statements should be deemed as pure opinion or as truth.

Also, there are various sectors of the YouTube platform that can be deemed traditionally “acceptable” and safe while others may make creators impose more caution as to what they say and broadcast to their audiences. Nevertheless, there is no “get out of a jail free card” if a creator doesn’t do their research on the topics they discuss beforehand. For example, YouTube news channels will typically avoid liability due to the content they’re reporting on being inherently factual and newsworthy. However, with the surge of “fake news” and sensational articles being posted to social media, those channels need to be wary about what kind of “news” they are spreading and the credibility of their sources.

Have You Been Wronged?

YouTube has provided some helpful information on how to better understand and protect yourself against defamation. They provide a link to where individuals can submit defamation complaints to the platform to potentially remove the defamatory content. Requesters will need to provide information on the content in question and demonstrate reasons why they believe the statements made are harmful to their image and/or are verifiably false. However, YouTube strongly advises requesters to preemptively communicate with the alleged defamer prior to making a formal complaint to make things simpler for all parties involved. Also, filing a defamation claim is serious business and not to be taken lightly. Prior to putting out any information on another person to an audience, make sure to do your research diligently and be mindful of how you present opinions.

Defamation can seem scary to those who don’t understand it, but taking the initiative to learn the basics of the law can make sharing content with the public that much easier and less worrisome. When in doubt, consult an attorney regarding your privacy and first amendment rights.

Author, Shelby Shilatz-Lewis, is a second year student at Florida State University College of Law with an interest in intellectual property and entertainment law. She is currently a legal intern with Lee Law, PLLC.