Online and Social Media Defamation in Today’s Age

February 21, 2017 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability

Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards to defamation and other torts brought in response to tweets, Facebook posts, and content on other social media platforms. Recently, a number of courts have considered the context provided by social media and how online forums impact the reader’s expectation of truth and the distinction between fact and opinion.

The Political Strategist’s Case

In April 2016, Cheryl Jacobus, a frequent commentator on television news channels and other media outlets “from the Republican perspective,” sued Donald J. Trump, his campaign organization, and his then-campaign manager for alleged defamation.

Jacobus’ claims had their genesis in Trump’s responses to her appearance on CNN several months earlier where she had stated that “there had been a Trump Super PAC, the campaign lied about it, and then shut it down,” and that the campaign had approached several Republican billionaires, all of whom had declined to donate to Trump.

Later that night, Trump tweeted that Jacobus had “begged us for a job. We said no and she went hostile. A real dummy!” Trump subsequently tweeted: “Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”

Jacobus contended that Trump’s tweets had defamed her as they had accused her of unprofessional conduct and had been intended to, and did, injure her reputation in her field and caused her to lose professional opportunities.

The defendants moved to dismiss, arguing that the statements constituted vague hyperbolic rhetoric.

The court, in Jacobus v. Trump , 2017 N.Y. Slip Op. 27006 (Sup. Ct. N.Y. Co. Jan. 9, 2017), found that the tweets amounted to “nonactionable opinion” and granted the motion to dismiss.

The court considered the “context” in which the statements were made—a key element in determining whether a statement was opinion (and privileged) or a statement of fact. According to the court, to determine whether a statement was actionable defamation, the statement had to be considered in its entirety and “tested against the understanding of the average reader.” It stated: “Context is key … . [D]efamatory statements advanced during the course of a heated public debate, during which an audience would reasonably anticipate the use of ‘epithets, fiery rhetoric or hyperbole’ are not actionable.” As an example of how context impacted the perception of the reader, the court contrasted an investigative article in The New York Times, which would be expected to contain factual statements, to an editorial or letter to the editor in which statements would be construed as opinion.

Next, the court considered the “culture” of Internet communications, as distinct from print media, which encouraged a “freewheeling, anything-goes writing style.” The court cited to multiple cases in which New York courts had concluded, as a matter of law, that statements made in Internet forums, blogs, and social media were inherently less credible as statements of fact but were, instead, generally understood to be hyperbole and opinion because of the social media context in which they appeared. As one court explained, “so-called social media, such as Facebook and Twitter, is increasingly deemed to attract ‘less credence to allegedly defamatory remarks’ than other contexts” and “bulletin boards and chat rooms are often the repository of a wide range of casual, emotive and imprecise speech.” New York courts, the court said, “have consistently protected statements made in online forums as a statement of opinion rather than fact.”

Relying on the context, the Jacobus court found that statements to the effect that Jacobus “went off,” “was upset,” and “went hostile,” constituted “nonactionable speculation, hyperbolic rhetoric, and pure opinion.” Trump’s tweeted insults, such as calling her a “real dummy,” “really dumb,” and “[m]ajor loser, zero credibility,” also were found to be nothing other than opinion “piled on” to his comments.

The court then decided that Trump’s characterization of Jacobus as having “begged” for a job had to be “reasonably viewed” as a “loose, figurative, and hyperbolic reference” to Jacobus’ state of mind and “not susceptible of objective verification.”

Moreover, the court continued, to the extent that the word “begged” could be proven to be a false representation of Jacobus’ interest in working for the campaign, the “defensive tone of the tweet, having followed [Jacobus’] negative commentary about Trump,” signaled to readers that Jacobus and Trump “were engaged in a petty quarrel.”

The court declared that, considering the statements as a whole—”imprecise and hyperbolic political dispute cum schoolyard squabble”—a reasonable reader would recognize them as opinion even if some of the statements, viewed in isolation, could be found to convey facts. It ruled that it was impossible to conclude that what was said or implied could subject Jacobus “to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work,” or otherwise damage her reputation as a partisan political consultant and commentator.

The Developer’s Case

A similar conclusion was reached by the Westchester County Supreme Court in Stolatis v. Hernandez , 51 Misc. 3d 1203(A) (Sup. Ct. Westchester Co. 2016).

Facebook posts by Miguel Hernandez concerned Peter Stolatis’ alleged acts in connection with the demolition of an old building on abandoned property that his real estate company had acquired in Ossining. Although the company had secured a demolition permit, the building subsequently was landmarked. The company nevertheless began to demolish it.

Hernandez posted photographs of Stolatis in front of the partially demolished building, with captions that stated: “Peter Stolatis at the site of his crime,” “Additional Photos of the Crime Scene,” and “Next is a smirking Peter Stolatis the alleged criminal mastermind.” In the comments section, Hernandez also posted: “This foto disproves the myth that vampires only come out at night,” and “he removed part of the metal roof and punched holes in it and failed to repair it so the elements would get in and slowly but surely destroy the building. This is known as demolition by intentional neglect.”

Stolatis sued Hernandez for defamation per se. The court granted summary judgment, concluding that Hernandez’ Facebook comments did not constitute defamation per se.

The court highlighted the context-sensitive nature of the inquiry as to whether a statement was actionable as fact, including “whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal … readers or listeners that what is being read or heard is likely to be opinion, not fact.”

As in Jacobus, the court found that the statements’ presentation on social media supported the expectation that readers would consider the statements to be opinion and not fact. It stated that, in the context of where the challenged language had been posted “on a popular social media website, during an impassioned reaction to the loss of a landmarked building in the community, it would have been clear to the reasonable reader that the Facebook remarks were merely rhetorical hyperbole, and not statements of fact that [Stolatis] was an actual vampire or criminal.”

The Lawyer’s Action

Despite what one might think after studying the Trump and Stolatis rulings, there seems to be at least some room for defamation claims despite their “context” as online postings. Consider the decision in Morelli v. Wey , 2016 N.Y. Slip Op. 32487(U) (Sup. Ct. N.Y. Co. Dec. 16, 2016).

In that case, Benedict P. Morelli, his wife, and law firm alleged that the defendants had waged a campaign to defame them through the publication of numerous false and defamatory statements in their online magazine, blogs, and social media. The plaintiffs alleged that the defendants’ accusations of criminal or repugnant acts including extortion, bank fraud, falsifying evidence, witness intimidation, conspiracy to commit fraud, sexual harassment, and professional misconduct had been prompted by the firm’s representation of a former employee in a federal action against them.

The defendants moved to dismiss.

The court first agreed that claims relating to certain allegedly defamatory statements had to be dismissed on statute of limitations grounds. The court also found that the alleged statements concerning “extortion” relating to the merits of the firm’s lawsuits and litigation tactics, without more, appeared to be non-actionable opinion.

The court reached a different result, however, with respect to certain other allegedly defamatory statements. It concluded that the defendants’ statements that the plaintiffs had committed “bank fraud” and “massive bank fraud,” that the plaintiffs were “law violators” with a “long history of committing fraud,” that Morelli was a member of the Ku Klux Klan, and that the plaintiffs were members of the Mafia or a “gang” and were guilty of a serious crime “sufficiently stated a cause of action for defamation per se.”

Notably, although acknowledging the importance of the context in which statements were made to determine whether they were expressions of opinions or fact, the court did not address social media’s impact as did the courts in Jacobus and Stolatis. Perhaps the court did not feel the need to do so, as the statements under scrutiny in Morelli offered greater specificity as to alleged criminal acts so as to overcome the assumption that they would be viewed as opinion because of the social media context in which they were made.

Conclusion

Today, where social media’s dominance in the public discourse has grown with increased skepticism as to the credibility and truth of its contents, court decisions seem to accept that, in context, social media posts rarely will be viewed by any “reasonable reader” as anything other than opinion. As the Jacobus court noted in a statement suggesting the difficulty—or, perhaps, the virtual impossibility—of proving defamation from online tweets, to some, “truth itself” had been lost in the “cacophony of online and Twitter verbiage” to such a degree that it seemed to “roll off the national consciousness like water off a duck’s back.”

Reprinted with permission from the February 17, 2017 issue of the New York Law Journal. © ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.

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