Tort/Negligence – Defamation Per Se – Online Posts’ Alleged Accusations of Arson

Alleged arson accusations posted on social media are not defamatory per se.

The Court denied the motion in full.

This action arose out of the discontinuance of Plaintiff rFactr, Inc.’s operations, and the related degradation of the relationship between Counterclaim on the one hand, and Counterclaim Defendants on the other. Counterclaim Plaintiffs alleged that Counterclaim Defendants made defamatory statements about them on various online platforms.

Counterclaim Plaintiffs sought affirmative summary judgment on their defamation per se claims against Counterclaim Defendants. Counterclaim Plaintiffs contended that Counterclaim Defendants’ statements are defamatory in nature and that Counterclaim Defendants have not, through discovery, produced sufficient evidence to convince a reasonable person that these statements are substantially true or not about Counterclaim Plaintiffs.

Among other things, Counterclaim Plaintiffs argued Counterclaim Defendants’ online posts are defamatory per se because they contain implicit accusations of arson, which Counterclaim Plaintiffs contended is a crime of moral turpitude and an infamous crime. Specifically, they argued that the following online posts contain allegations of arson regarding the 2016 fire at Counterclaim Defendants’ home: (i) the Fundraiser, “We are also in need of funding to reopen the investigation of our fire as we think the timing was precisely too perfect with bankruptcy motives and even their own words that our fire was intentional.”; (ii) Counterclaim Defendant’s comment on her 2023 Facebook post, “Don’t . . . let your babies be set on fire and let their dad go to jail for the real criminals’ crimes.”; (iii) a Counterclaim Defendant video, stating that donations would go toward reopening the fire investigation to see if the Counterclaim Defendant family was “purposely put on fire”; (iv) one of Counterclaim Defendant’s comments on her 2024 Facebook post, “Jurors would have known where all the smoke was coming from figuratively if not literally.”; and (v) another 2024 Facebook post, “Who knew a prosecutor would take a case from the very people who know more about our fire than we do [and] the very people trying to steal my husband[‘]s company?”

Counterclaim Defendants responded that the statements in the Fundraiser do not accuse anyone of arson, and that concluding otherwise would require the use of insinuations impermissible in evaluating a defamation per se claim. Counterclaim Defendants instead construed the statements in the Fundraiser as expressing a desire to determine whether an arson occurred. As to the 2023 Facebook post, Counterclaim Defendants argued that statement is too ambiguous to interpret it as an accusation of arson.

The Court concluded that the alleged arson accusations are not defamatory per se. To be defamatory per se, a statement must be slanderous or libelous “on its face” and when “stripped of all insinuations.” Counterclaim Plaintiffs conceded that the alleged accusations of arson are only implicit. Accordingly, the Court denied the motion to the extent it relies on Counterclaim Defendants’ alleged accusations of arson.

Denied in full.

rFactr Inc. v. McDowell (Lawyers’ Weekly No. 020-064-25, 43 pp.) (Michael L. Robinson, J.) 2025 NCBC 64. James, McElroy & Diehl, P.A., by John R. Buric and John R. Brickley, for Plaintiff rFactr, Inc. Lincoln Derr PLLC, by Phoebe Norton Coddington and Sara R. Lincoln, for Plaintiff Greg Gentner. Lincoln Derr PLLC, by Phoebe Norton Coddington and Sara R. Lincoln, and Clawson and Staubes, LLC, by Jeremy S. Foster, for Plaintiff/Counterclaim Defendant Richard Brasser. Rosenwood, Rose & Litwak, PLLC, by Erik M. Rosenwood, for Defendants/Counterclaim Plaintiffs Chris McDowell and Caroline McDowell. Clawson and Staubes, LLC, by Jeremy S. Foster, for Counterclaim Defendant Megan Brasser. North Carolina Business Court