Can you be sued for sending an email?

When Sandals Resorts International discovered an anonymous gmail user criticizing the company via email, it asked the courts to release the person's private information to build a case of libel against the emailer.

This case pushed to the forefront the issue of how online communications and First Amendment rights co-exist in the ever-changing Internet age. According to a New York court's decision, email users should continue to enjoy their First Amendment rights without fear of being “outed” by the courts so long as they express opinions in communications.

The sandals resorts v. Google case

In the Sandals case, the user had sent an email to several people accusing the resort in Jamaica of accepting state subsidies financed by Jamaicans, but then hiring Jamaicans for only the lowest-paying jobs and hiring foreigners for higher-paying positions. Sandals asked Google to release a dizzying array of private information about the Gmail user, from their emails and text messages to contact lists and billing information.

However, the New York Appellate Division, First Department upheld Google's right to refuse the request, finding that the email's contents were opinion and thus protected by the First Amendment. The court's decision quoted a law review article, which noted that emails “are often the repository of a wide range of casual, emotive, and imprecise speech and that the online recipients of [offensive] statements do not necessarily attribute the same level of credence to the statements [that] they would accord to statements made in other contexts.”

Freedom of speech in emails

So is email a safe place for an online user to vent and rant about whatever they like? It can be, although just as with any exercises in free speech, there are limits. Remember that the freedom of speech, or freedom of expression, is one of the basic constitutional rights guaranteed to Americans in the First Amendment. Still, it can be restricted in certain circumstances, such as when obscenity, fighting words, and panic-causing speech are involved.

Defamation, a statement that may harm someone's reputation, is another conditional area. But remember that a crucial feature of defamation law is that its goal is to balance the freedom of speech and open exchange of ideas without allowing someone to spread blatant lies about another that may harm his or her reputation.

For a plaintiff to prove defamation, he must show injury or damage from a false assertion of fact. Therefore, opinion is not actionable as defamation.

That is, so long as an emailer's statements aren't presented as facts in the communication, the composer of the message is most likely within his or her freedom of speech rights, as the court ruled in the Sandals case. Indeed, the judge in that action specifically warned against businesses trying to use the power of the law “via court orders to silence their online critics [which] threatens to stifle the free exchange of ideas,” showing just how much our system values freedom of speech, particularly within personal communications such as emails.

Making sure emails aren't defamatory

The First Amendment provides that you can express your private complaints and opinions—given that they're not presented as facts—in emails. Accordingly, the most important rule to remember is that opinions cannot be defamation, so the wording is important.

Stay away from false assertions of fact within emails, and there won't be defamation. Also, before hitting “send,” it doesn't hurt to proofread carefully and think twice about who you're sending a potentially controversial email to and whether a recipient might be offended.

Remember, too, that emails can be forwarded, so your communication may not end with the intended recipient (even though one who has forwarded a defamatory message will not likely be held responsible for the content under the Communications Decency Act safe harbor provision, according to a 2010 federal case in New Jersey. While the Sandals Resorts v. Google case was a win for First Amendment rights, it was also a wake-up call for anyone who has sent an accusatory email. As the age-old saying goes, “think before you speak”—or in today's lingo, think before you send.