If I were to sue “Gossip Girl.”

If you grew up in New York and were a teenager in the early 2000s, you probably know the top-rated show “Gossip Girl.” “Gossip Girl” is the alias for an anonymous blogger who creates chaos by making public the very intimate and personal lives of upper-class high school students. The show is very scandalous due to the nature of these teenagers’ activities, but what stands out is the influence gossip girl had on these young teenagers. And it makes one think, what could I do if Gossip Girl came after me?

 

Anonymity

When bringing a claim for internet defamation against an anonymous blogger, the trickiest part is getting over the anonymity. In Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009), a New York state trial court granted plaintiff, model Liskula Cohen, pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous. The court analyzed the discovery request under New York CPLR § 3102(c), which allows for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing a meritorious cause of action before obtaining the identity of an anonymous defendant. The court acknowledges the First Amendment issues at stake, and citing Dendrite; the court opined that New York law’s requirement of a prima facie showing appears to address the constitutional concerns raised in the context of this case. The court held that Cohen adequately made this prima facie showing defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion.

In Cohen, the court decided that Kiskula Cohen was entitled to the pre-suit discovery under CPLR § 3102(c). To legally obtain “Gossip Girl’s” true identity under this statute, we would have to prove that the statement posted on her blog against us is on its face defamatory and not simply an expression of protected opinion.

 

Defamation

Now that we may have uncovered our anonymous blogger, “Gossip Girl,” aka Dan Humphrey now we may dive into the defamation issue. There are two types of defamation: 1) Libel is the written form of defamation, and 2) Slander is the oral form of defamation. Because Gossip Girl’s choice of media is a written blog, our case would fall under Libel. But does our claim meet the legal elements of defamation?

In New York, there are four elements that the alleged defamation must meet:

  1. A false statement;
  2. Published to a third-party without privilege or authorization;
  3. With fault amounting to at least negligence;
  4. That caused special harm or ‘defamation per se.’

Dillon v. City of New York, 261 AD2d 34, 38, 704 NYS2d1 (1999)

Furthermore, our defamation claim for the plaintiff must “set forth the particular words allegedly constituting defamation and it must also allege time when, place where, and the manner in which the false statement was made, and specific to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept. 2009). The court simply means that we must provide details such as: what specific words were used? What were the terms used? Was the plaintiff labeled a “how” or “skank” like in Cohen, or did they simply call you “ugly”? When? The time said words were spoken, written, or published. Where? The place where they were spoken, written, or published (platform). How? The manner in which they were spoken, written, or published. Lastly Whom? The party or source to whom the statement was made to.

The plaintiff’s status determines the level of burden of proof in defamation lawsuits in N.Y. Is the plaintiff considered a “public” figure or a “private” citizen? To determine this status New York State courts use the “vortex notion.” This term simply means that a person who would generally qualify as a “private” citizen is considered a “public” figure if they draw public attention to themselves, like jumping right into a tornado vortex. Defamation for a “public” figure has a higher preponderance of evidence in defamation lawsuits. The plaintiff must prove that the defendant acted with actual malice (reckless disregard for the truth or falsity of the statement). For defamation of a “private” citizen, the plaintiff the N.Y. court apply a negligence standard of fault for the defendant unless the statements were related to a matter of legitimate public concern.

When the plaintiff is a private figure, and the allegedly defamatory statements relate to a matter of legitimate public concern, they must prove that the defendant acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Chapeau v. Utica Observer-Dispatch, 28 N.Y.S.2d 196, 199 (N.Y. 1975) This standard focuses on the objective evaluation of the defendant’s actions rather than looking at the defendant’s state of mind at the time of publication.

If the statements Gossip Girl published are so inherently apparent, we may explore defamation per se. There are four elements to defamation per se in New York:

  1. Statement charging a plaintiff with a serious crime.
  2. Statements that tend to injure another in his or her trade, business, or profession
  3. Statements imputing a loathsome disease on a plaintiff, &
  4. Statements imputing unchastity on a woman

Liberman v. Gelstein, 80 NY2d 429, 435, 605 NE2d 344, 590 NYS2d 857 (1992). If the statements meet these elements, the court may find that the statements were inherently injurious that the damages to the plaintiff’s person are presumed. Another option to consider is defamation per quod which requires the plaintiff to provide extrinsic and supporting evidence to prove the defamatory nature of the alleged statement(s) in question that is not inherently apparent.

 

Privileges and Defenses

After concluding that Gossip Girl defamed the plaintiff, we must ensure that the defamatory statement is not protected under any privileges. New York courts recognize several privileges and defenses in the context of defamation actions, including the fair report privilege (a defamation lawsuit cannot be sustained against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”) N.Y.Civ.Rights §74, the opinion and fair comment privileges, substantial truth (the maker cannot be held liable for saying things that are actually true), and the wire service defense. There is also Section 230 of the Communications Decency Act, which may protect media platforms or publishers if a third party, not acting under their direction, posts something on their blog or website that is defamatory. Suppose a statement is privileged or defense applies. In that case, the maker of that statement may be immune from any lawsuit arising from those privileged statements.

 

Statute of Limitations

A New York plaintiff must start an action within one (1) year of the date the defamatory material was published or communicated to a third-party CPLR § 15 Sub 3. New York has also adopted a law directed explicitly to internet posts. The “single publication,” a party that causes the mass publication of defamatory content, may only be sued once for its initial publication of that content. For example, suppose a blog publishes a defamatory article that is circulated to thousands of people. In the case above, the blog may only be sued once. The Statute of Limitations begins to run at the time of first publication. “Republication” of the allegedly defamatory content will restart the statute of limitations. A republication occurs when “a separate aggregate publication from the original, on a different occasion, which is not merely a ‘delayed circulation of the original edition.'” Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). Courts examine whether the republication was intended to and actually reached new audiences. Altering the allegedly defamatory content and moving web content to a different web address may trigger republication.

 

Damages

Damages to defamation claims are proportionate to the harm suffered by the plaintiff. If a plaintiff is awarded damages, it may be in the form of compensatory, nominal, or punitive damages. There are two types of compensatory damages 1) special damages and 2) general damages. Special damages are based on economic harm and must have a specific amount identified. General damages are challenging to assess. The jury has the discretion to determine the award amount after weighing all the facts. Nominal damages are small monetary sums awarded to vindicate the plaintiff’s name. Punitive damages are intended to punish the defendant and are meant to deter the defendant from repeating defamatory conduct.

 

When Gossip Girl first aired, the idea of a blog holding cultural relevance was not yet mainstream. Gossip Girl’s unchecked power kept many characters from living their lives freely and without scrutiny. After Gossip Girl aired, an anonymous blog, “Socialite Rank,” emerged. It damaged the reputation of the targeted victim, Olivia Palermo, who eventually dropped the suit she had started against the blog. The blog “Skanks in NYC” painted a false image of who Kiskula Cohen was and caused her to lose potential jobs. In the series finale, after the identity of Gossip Girl is revealed, the characters laugh. Still, one of the characters exclaimed, “why do you all think that this is funny? Gossip Girl ruined our lives!” Defamation can ruin lives. As technology advances, the law should as well. New York has adopted its defamation laws that were in place to ensure that person cannot hide behind anonymity to ruin another person’s life.

 

Do you feel protected against online defamation?

XOXO

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

 

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

 

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site.  The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

 

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

 

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

 

Text of the Act- Subsection (c)(1) 

“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.”

 Section 230 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

 The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

 

The Good

  •  Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
  • Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
  • The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

 

 

The Bad

  •  Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
  • Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
  • Big Tech companies have been left largely unregulated regarding their online marketplaces.

 

 The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Context Doesn’t Matter When Posting Rants

A defendant who posted a series of rants on the website “Ripoff Reports” claimed that the nature and tone of the website, and the posts that appeared on it, were enough to defeat a claim of libel.  Plaintiff, Piping Rock Partners, and its sole shareholder posted a series of rants about David Lerner Associates.  Piping Rock claimed that the rants were just that, and raised an “everyone knows the internet is just for ranting and not to be taken too seriously” defense.

The Court disagreed and with a shoutout to a popular search engine, ruled that anything that is searchable on google is presumed true.

Piping Rock Partners Inc. v. David Learner Associates Inc, (here) represents another case in the shifting tide toward giving more credibility to website postings.  Is it time to shift the presumption of posts from false to true ?  I would argue context matters.  After all, think about all those dating website posts.   Looks like Poppy won this one.

 

Maybe this defamation case will go to trial?

Those who watch “defamation by twitter” cases know that very few go to trial and to date none have made it to the level of appellate review.  A new case, however, has court watchers hoping for some decision, and ultimately guidance on whether defamation via social media requires legal treatment of a nature different than the garden-variety brick and mortar type of tort.  The case, Soul Circus v. People for the Ethical Treatment of Animals (PETA) (filed N.D. Georgia March 6, 2013) concerns a tweet by PETA claiming that “SCI [Soul Circus] does not care about the treatment, health, or wellbeing of its animals.”  The tweet, and a similar posting on the PETA Facebook site, was accompanied by an elephant, purportedly the Elephant Nosey, who appears in Soul Circus, chained to a fenced in area.   The posts received over 100,000 comments.  The same claim originally appeared on the PETA website.

Soul Circus is suing PETA for defamation, tortious interference and false light.  The case seems fairly straight forward.  Assuming Soul Circus can prove damages and that PETA cannot use the defense of truth, the circus should succeed in its claim.

Arguably, it is hard to defame in 140 characters, although here the direct allegation of animal cruelty seems straight forward enough to prove the elements of defamation, without innuendo.  However, even so, it seems to me that the question of damages is a big issue.  The traditional rule where defamation is concerned is that a defendant only commits one count of libel regardless of the number of rebroadcasts of a particular defamatory statement.  Given the proliferation of social media, should the rule change and if so should a damage reward reflect that?

Social Media’s Role in Trump v. Maher

Donald Trump is suing Bill Maher for breach of contract.   Last month Maher made an announcement during the Jay Leno show that he would pay the charity of Trump’s choice $5 million if Trump released his birth certificate.  Maher made the offer in response to Trump’s seemingly illogical calls for President O’Bama’s birth certificate, which he made as head of the so called birther movement.  Trump, who in the court filings identifies himself as “a highly successful businessman, investor, and television personality” claims that Maher’s failure to honor the offer constitutes a breach. So  what does social media have to do with the seemingly easy contracts case?  In his complaint, Trump alleges that Maher “engaged in base insults, stating that Mr. Trump’s postings on the Twitter social networking service are the work of a “syphilitic monkey.”  Not sure what these posts have to do with a contracts claim; the comments might be better suited for libel.  Except there are a host of defenses for Maher on this one; truth, privilege, failure to cause special damages, absence of malice (after all, by his own admission, Trump is a public figure)   Which one’s do you think would stick?

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