Internet Defamation: Goodbye Right of Privacy, Hello Free Speech

Internet Defamation: Goodbye Right of Privacy, Hello Free Speech

Social media apps and services have undoubtedly forced businesses to restructure their marketing policies, but how does this social media sensation affect the individual user? Is it possible for one of us to get caught up in a defamation suit from a 140-character tweet? What if we just ‘like’ or retweet a statement made by somebody else?

I began thinking about this issue a few weeks ago while watching my favorite show, Survivor. Like all good reality shows, Survivor has its fair share of villains, and last year, the villain was a Mormon mother of six, Dawn Meehan. During the reunion show, host Jeff Probst asked Dawn how she was handling all of the Internet criticism. She responded (while holding back tears), “I deleted my Twitter account.” Survivor (CBS television broadcast May 12, 2013).

[On May 10, 2013, Dawn tweeted, “Taking my twitter account down. Life’s too short for this much negativity. Much love to everyone who’s shared #Survivor with me.”]

Now, before you start tweeting, “Dawn deserves the hate! #Survivor #LoveJeffProbst,” let’s break this down. Under the law, defamation is a publicized, false communication, either written or spoken, that adversely affects one’s reputation. A mere expression of opinion is not actionable. Here in the United States, because of First Amendment considerations, both the degree of fault required (negligence v. actual malice) and the measure of damages needed are highly dependent on the status of the plaintiff, e.g., whether the plaintiff is a public figure, limited public figure, or private person, and whether the matter is one of public or private concern.

As the star of a reality show, Dawn is unlikely to win a lawsuit on defamation grounds because opinions are not actionable. Even if a false allegation exists, Dawn would still have to prove that the statement was made with actual malice (reality show stars are considered limited public figures and therefore must prove a higher degree of fault). Is this fair? At what point does her right of privacy outweigh freedom of speech? Dawn may have signed her rights away to CBS, but she did not relinquish her rights to the world of Twitter, Facebook, and social bloggers. Moreover, she doesn’t have access to a celebrity PR team, so the damage to her reputation will stay with her (and Google) for life. Where do we draw the line?

In February 2013, Illinois Senator Ira Silverstein introduced the Internet Posting Removal Act as a way to decrease the ability of anonymous posters from maligning and harassing other people. The Act would have required web administrators, upon request, to remove posted comments by anonymous users who were unwilling to attach their names to the post. Ironically, social media backlash prevented that bill from moving forward.

As for ‘liking’ and retweeting, Internet defamation follows the single publication rule. No matter how many copies of the original defamatory statement are downloaded, ‘liked’, or retweeted, it is still considered one libelous statement (so long as the original statement is not modified). This is laid out in Section 230 of the Communications Decency Act which states in pertinent part that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. §230. So … retweet away!

Despite the increasing trend of social media as a forum to criticize and abuse people in the news, I would argue that the law is, and will continue to be, in favor of free speech. Those who voluntarily thrust themselves into the public eye via blog, reality show, YouTube video, or other public forum, assume the risk that some of the commentary made towards them will be negative. On the other hand, one season of Survivor should not open contestants up to a lifetime of bad publicity, and at some point, the laws of defamation will need to address this issue.

Katherine (Kate) Imp is an entertainment attorney at Ramo Law PC and Chicago native. She specializes in film finance, production and distribution for clients in Illinois and across the country. Contact Kate at @KatherineImp or kate@ramolaw.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.