October 18, 2011

New Facebook Privacy Settings-Are You Now A Publisher Or A Public Figure?

Copyright © 2011 Cary J. Calderone

This calls for a quick overview of Libel Law 101.   A publisher has standards for accuracy or else they can be sued for defamation and other things (see Description at Student Press Law Center).  There are things you can do to limit your exposure to legal action, by following certain protocols and guidelines.  For example, you have heard the phrase, "the truth is an absolute defense."  This may save you from a legal action for libel.   But, unfortunately, sometimes publishing the "truth" can expose you to other legal claims, like invasion of privacy.  This is especially so when the items published are, in fact, true, and perhaps, a tad unsavory.  However, there may be a defense for that too, if you happen to publish these unsavory truths about a public figure.   Public figures are pretty much considered fair game, or, at least at a level where even if you publish something about them, even with some non-truths or inaccuracies, you will be held to a more lenient standard.   At this point you may be a bit confused by this area of law and are thinking that you would never consider yourself a publisher anyway?  You don't even have a blog.   So why worry?  No reason, unless you happen to be on Facebook or another Social Media site and have a lot of friends, followers, or the newly created category of "Subscribers."

The latest Facebook feature is the "Subscribe" setting (see Facebook description)  What an oxymoron to refer to it as a "privacy setting!"  Basically, it permits you to allow "Subscribers" who can see your public posts in their Facebook Newsfeed and also, allows you to "Subscribe" to others. Now, even "non-friends," can subscribe to and follow all your posts and comments that you set to "public" on Facebook.   Other sites, like LinkedIn and Google+, are looking for a way to make more of your posted information “public.”  Does that make you feel powerful and influential like the New York Times or Kim Kardashian?  Regardless of your answer, it is time to take a little closer look at the legal rules for publishing and public figures, because these standards may apply to you.

Here is what it takes to be a Publisher according to the Student Press Law Center.


  • A statement is "published" if it is communicated to someone other than the person whom the statement is about.
  • Publication can take many forms and does not simply mean that the statement has been printed in a newspaper or other document. For example, a defamatory statement's presence on a computer screen in the newsroom where it is read by other students could constitute publication.

In the case of celebrity Twitter, it is obvious.   Ashton Kutcher, Kim Kardashian, Lady Gaga, and countless others have tens of millions of followers.  These celebrities have learned to "Self-Publish."   They are now authors and publishers.  On the one hand, they have a simple way to publish and publicize accurate information about themselves.  On the other hand, because they have millions of followers, they have learned that there can be legal repercussions when they are not accurate, or, conversely, are too accurate, when they tweet/publish information concerning others.  Privacy and defamation lawsuits are an ever-present concern.  The danger to you is that you can easily be considered a publisher too.  The definition above shows that even if just one person reads your material, you are a publisher and exposed.  So before you go "public" as a publisher, you should really learn a few of the basics about what you can and cannot safely publish.  And, by learn, I mean do more research than simply reading this thoughtful and entertaining blog post!

Now the flip side.  There is more.  Maybe you are a publisher but you will always publish safely and you do not feel exposed.  Great!  But now lets consider what protections you have for those things others say about you.  Can you stop them from hurting you or you reputation?  Can you sue them for libel?  Or, is it possible you have become a public figure due to your thousands of adoring fans and subscribers?  Even as a cautious attorney, I hesitantly joined LinkedIn first, and then Facebook, a few years ago.  It would be an understatement to say I have always been cautious about who I friend or connect with online.  I urge my friends not become Facebook sluts.  You know the type.  They are the people who will "friend" anybody, anytime, no questions asked.  Even with the added risks of exposure to viruses and spam messages, we all know somebody who has gone from 1 to 5,000 "friends," in a matter of weeks.  It is notably ironic that at a time when we are witnessing a massive contraction in newspapers and other print media, there are people that, in a short time, increase their circulation from 1 to thousands.  Some print newspapers would kill for that kind of a bump in circulation.

This is where it gets interesting.  Do you have enough friends and subscribers to be considered a public figure?  The fact is we can not know for sure because the law does not provide us with an exact number that is the trigger for transformation from private to public figure.  You may be considered private, limited public, general purpose public depending on whether you thrust yourself or, are thrust into the public eye.  Again from the Student Press Law Center:

Who is a Public Figure? There are two categories:
(1) General Purpose Public Figure: a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word."
(2) Limited Purpose Public Figure: someone who has voluntarily assumed a leading role in a particular public controversy.

But even as a public figure you can still use the law to protect yourself right?  Yes, but remember now you would have to prove the libelous behavior to a higher standard to be successful.   Newspapers have published some pretty scandalous things about public figures, and then successfully defended the legal actions.

So you, or, your company, have to assess the situation.  We do not know a specific number it takes to be considered a public figure or, a limited public figure.  We know you may be considered a publisher.   Do you now need to learn all the details and distinctions about General Purpose and Limited Purpose Public Figures, Public Officials, privileges, exceptions, and more, just to have fun or conduct business online with Social Media?   It depends.  What will you and your friends be publishing?

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