United States: Digital Defamation Update: Recent Decisions Highlight Issues With Tweets, Hyperlinks

Last Updated: November 24 2015
Article by Brian Willett and Justin H. Werner

The rapid spread of social media sites has opened up unparalleled opportunities for voices that might have once gone unheard to resound across the world. While these channels can be undeniably advantageous in many contexts, the rapid spread of speech has caused new problems for courts dealing with defamation claims. On the same day earlier in November, two courts on opposite sides of the nation weighed in on issues of digital defamation.

Franklin v. The Daily Holdings, Inc.: Partially Quoted Tweet Can Give Rise to Defamation Claim

In New York, the Supreme Court, Appellate Division held that quoting out of context part of a message posted on Twitter could give rise to liability for defamatory speech, and that the "own words" defense to defamation claims would not insulate the defendant under the circumstances. As the opinion in Franklin v. The Daily Holdings, Inc., No. 155454/13 (N.Y. App. Div. Nov. 12, 2015) indicates, while pulling quotes from Twitter may be commonplace, it can lead to problems – particularly if the proper context is not established.

In Franklin, the plaintiff was a popular DJ who worked at a number of well-known and exclusive venues, including the club WIP, where a highly publicized fight between the entourages of Drake and Chris Brown broke out. The plaintiff was not working that night, but following the incident tweeted: "I was gonna start shooting in the air but I decided against it. Too much violence in the hip hop community."

The WIP incident received much media attention, inspiring, inter alia, an article by defendant, The Daily Holdings. The article provided a detailed, ostensibly eye-witness account of the Drake-Brown incident, and a section containing plaintiff's description of the fight ended with only the first sentence of his tweet ("I was gonna start shooting in the air but I decided against it.").

Plaintiff took umbrage and brought libel and libel per se claims against defendant, noting that the publication had taken an anti-violence tweet and twisted it to falsely suggest that he (1) was armed on the job; and (2) spoke to the press about what he saw at exclusive venues and events. According to plaintiff, this defamation "devastated" his career. In his words, "by failing to publish his full tweet, [defendant] changed it from one eschewing violence, to one that made it look as if plaintiff were a 'gun-toting psychopath with an itchy trigger finger.'"

The Appellate Division characterized the issue as "whether plaintiff can adequately allege that the statement is 'false' when it is an accurate quote from his public Twitter account and was initially published by him." The court noted that the quoted portion could have "produced a worse effect on the mind of a reader than the truth as alleged by plaintiff," and could be defamatory. Further, the court reasoned that although the "own words" defense, which precludes liability for accurately quoting another's statement, has not been adopted in New York, it would not apply "where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader."

Life Designs Ranch, Inc. v. Sommer: Hyperlinks Are Not Republications, Don't Give Rise to Defamation Claims

Meanwhile, on the West Coast, the Washington Court of Appeals found the owner of a website could not be liable for linking to potentially defamatory content posted on a different website, as the link did not constitute a republication for defamation purposes.

In Life Designs Ranch, Inc. v. Sommer, No. 32922-4-III (Wash. App. Nov. 12, 2015), the defendant created a website raising his concerns with the Life Designs Ranch, Inc. substance abuse program. Defendant intended the website to "protect people from the financial and emotional distress that comes with attending Life Designs Ranch," and wrote that "[h]ealing is not done" at the program. Defendant's website also linked to the Human Earth Animal Liberation (HEAL) website, which claims the program, among other things, is "run like a cult" and "illegally exploits student labor."

The trial court found that plaintiff's claim for defamation per se failed as a matter of law, and the Washington Court of Appeals agreed. First, the court found that the statements on defendant's website did not rise to the "extreme" level of speech required to constitute defamation per se.

Next, the Court of Appeals turned to whether the website content authored by defendant constituted defamation. Finding that defendant "did not attempt to pass his website off as Life Designs' official website," used words such as "seems," and clearly linked to the official website for Life Designs Ranch, the context indicated defendant's website fell more on the opinion side of the fact-opinion distinction. The court also observed that the "internet is a medium where statements expressing opinions in the context of reviewing businesses and services are often found," and that as a matter of policy, "allowing businesses to sue any unhappy consumer for what they posted online for defamation would stifle freedom of speech."

Finally, the Court of Appeals addressed an issue of first impression: whether "publishing the hyperlink to an allegedly defamatory website alone constitutes republication of that defamatory content to third persons reading [defendant's] website." The court noted Washington's adoption of the single publication rule and reasoned that "[b]ecause a hyperlink is more like a reference than a separate publication," the link should not be treated differently than a mere reference, which is not considered republication. Conversely, to find a republication, defendant would have had to communicate the contents of the HEAL website, rather than just reference it. In other words, drawing an audience's attention to the existence of previously published content is distinct from actually presenting that content in the defamation context.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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