Julie Hilden

Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns

By JULIE HILDEN
Tuesday, August 17, 2010

On July 22, a New York state-court judge dismissed a defamation case based on comments that were posted by a group of teenagers to their private Facebook group. (The Citizen Media Law Project has collected together the documents relating to the case.)

The Facebook group appears to have had only at most ten (and possibly, at times, fewer) members. It was private in the sense that new members could not join unless one of the group's two member-administrators invited them to do so, and no one outside the group could see the postings.

Prior to July's defamation-law decision, another decision had dismissed Facebook as a co-defendant, leaving only the individual group-member defendants in the case. That earlier ruling was based on Section 230 of the Communications Decency Act (CDA) -- which relieves websites from liability in suits based on user-posted content. (Section 230 was enacted in order to allow websites to edit such content without fear of incurring liability by doing so -- and, in particular, to allow editing by websites to ensure that user-posted content is family-friendly.)

In this column, I'll focus not on the CDA holding dismissing Facebook as a defendant, but instead on the subsequent decision dismissing the defamation claim against the teenagers who posted to the Facebook group, and thus ending the case.

I'll argue that the judge did the right thing in dismissing the defamation claim, but I'll also contend that future Facebook defamation cases are likely to be much more difficult to resolve than this one proved to be.

The Statements at Issue, and the General Tenor of the Group's Comments

The gist of the statements that were posted to the private Facebook group was that the plaintiff had supposedly contracted AIDS. But the statements were each paired with ridiculous, obscene, and mutually-contradictory claims about how the plaintiff had supposedly gotten AIDS. These statements were apparently intended to be humorous. (Readers interested in perusing the statements can consult pages 3 and 4 of the court's opinion, but should be forewarned that the content will be offensive to many.)

The court noted that, prior to this incident, similarly raucous, offensive, and implausible statements had often been posted in the private group by its members; and the court provided some examples in the opinion. Moreover, the court pointed out that the group's stated purposes on Facebook were "just for fun" and "inside jokes."

The Basis for the Court's Dismissal of the Case

The group's prior, jokey practice and the way it labeled itself are both relevant here, because past comments can influence the way in which group members interpret later comments, and thus can affect whether later comments are taken seriously. And a comment that is not taken seriously by anyone who reads it cannot inflict reputational damage, and thus cannot support a defamation claim.

To put the point another way, defamation precedent insists that statements be read in context, and here, the group's practice of posting comments that were meant to be jokes seems to have been part of the context in which everything that was posted was read.

Thus, invoking the First-Amendment-driven defamation exceptions for "rhetorical hyperbole" and "vigorous epithets," the court dismissed the case -- essentially on the ground that no one in the group could have believed that the statements at issue were true statements of fact.

The court also dismissed a purported cyber-bullying claim (for lack of a legal basis) and a claim that the defendants' parents had been negligent in supervising them (on the ground that a computer is hardly the kind of "dangerous instrument" the negligent-supervision doctrine requires). Still, it would be nice to see the parents here take some private action -- such as requiring their teens to volunteer with real AIDS patients for a time.

Could a Reader Have Believed the AIDS Diagnosis, But Not the Rest of the Postings?

The court was surely right that no group member could have possibly believed that, in fact, the plaintiff had contracted AIDS in the offensive and fanciful ways that group members' posts suggested (such as via sex with a horse, a baboon, and so on).

However, it was at least possible that the comments could, alternatively, have been interpreted as (1) stating the fact that the plaintiff had gotten AIDS, and then (2) cruelly mocking her diagnosis by suggesting fanciful ways in which she could have gotten the disease.

I think the reason that the court did not go down this alternative analytical path was the apparent closeness of the members of this small group -- each of whom had had to be individually admitted to the group by a member-administrator. That closeness, the judge may have thought, was a reasonably good guarantee that everyone knew the plaintiff did not really have AIDS, and that the claim that she did was only part of the (sick) jokes that were being made.

By comparison, if someone with, say, a thousand Facebook "friends" had posted a message on his "News Feed" on Facebook saying something like, "I know how Bob got AIDS. It was from sex with a horse!," then the court might have responded very differently -- taking seriously the possibility that at least a few of the thousand readers of the message may have believed that the AIDS diagnosis was real, while still obviously understanding that the horse part was a (sick) joke.

That contrast between how defamation law may be applied to private Facebook groups and to more quasi-public Facebook communications, in turn, brings us to the question of what kind of Facebook defamation suits we may see in the future -- a question that I will address in Part Two in this series, appearing on Friday, August 27, on this site.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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