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Defamation and Social Media & Misc. Free Speech Issues Spring 2013 Resources: Harvard’s Berkman Center

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1 Defamation and Social Media & Misc. Free Speech Issues Spring 2013 Resources: Harvard’s Berkman Center http://www.citmedialaw.org/legal-guide/defamation EFF http://www.eff.org/issues/bloggers/legal/liability/defamation

2 Defamation Defamation required elements to prove: 1.False statement of fact about plaintiff by defendant 2.Publication - communicated to a third party 3.Damages the reputation of the plaintiff Defamation forms – Oral: slander – Written: libel

3 Defamation per se: False statements involving these items are always actionable, proving harm to reputation is not required: – disease; – criminal actions; – misconduct related to profession or business; – sexual misconduct.

4 Defenses, exceptions Is it a statement of fact? – Facts: capable of being objectively verified. Is it an opinion? – Generally, opinions are protected speech. – Stating false information ≠ opinion Other exceptions: – “merely” offensive statements The “Dumb Ass” example in Vogel v. Felice – “… if the meaning conveyed cannot by its nature be proved false” – Hyperbole Hustler v. Falwell – Libel proof plaintiff

5 Defamation and public figures Public figure: celebrity, politician, public official – Examples: http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures In addition to the three requirements, public figure plaintiff must prove that the defendant acted with actual malice (NY Times v. Sullivan) – Knowing that it was false or with active disregard to statements truth. Regular defamation tests merely for negligence – Reasonably prudent person, reasonable care – Ex. David Beckham’s $25 M suit against In Touch http://www.guardian.co.uk/football/2011/feb/15/david- beckham-magazine-libel-judge http://www.guardian.co.uk/football/2011/feb/15/david- beckham-magazine-libel-judge

6 Can you sue Twitter & Facebook over a member’s defamatory comments? See § 230 of the Federal Communications Decency Act http://www.eff.org/issues/bloggers/legal/liability/230

7 Finkel v. Dauber 2010, NY case Secret Facebook group – Victim of the bullying sues for defamation

8 Celebrity/News Online Defamation examples Kim Kardashian & the cookie diet – http://tinyurl.com/yjssrey http://tinyurl.com/yjssrey – Follow-up analysis: http://writ.news.findlaw.com/hilden/20100104.htmlhttp://writ.news.findlaw.com/hilden/20100104.html Courtney Love – http://tinyurl.com/cgqerq http://tinyurl.com/cgqerq – Update: http://artsbeat.blogs.nytimes.com/2011/03/04/courtney-love-settles-twitter-defamation-case/?emc=eta1 http://artsbeat.blogs.nytimes.com/2011/03/04/courtney-love-settles-twitter-defamation-case/?emc=eta1 Gossip sites: – Cincinnati Bengal cheerleader case http://tinyurl.com/2uk3a2b Update: http://www.usatoday.com/story/ondeadline/2012/10/08/cincinnati-bengal-cheerleader- teacher-student-sex-teen/1619991/http://www.usatoday.com/story/ondeadline/2012/10/08/cincinnati-bengal-cheerleader- teacher-student-sex-teen/1619991/ Update 2: http://www.insurancejournal.com/news/midwest/2013/01/25/278781.htmhttp://www.insurancejournal.com/news/midwest/2013/01/25/278781.htm Corey Clark: http://www.pressconnects.com/article/20130130/ENT/301300065/Former-Idol- contestant-sues-120-million-defamation-claim http://www.pressconnects.com/article/20130130/ENT/301300065/Former-Idol- contestant-sues-120-million-defamation-claim Mike McQueary: http://sportsillustrated.cnn.com/college- football/news/20130115/penn-state-mike-mcqueary/http://sportsillustrated.cnn.com/college- football/news/20130115/penn-state-mike-mcqueary/

9 Business Interests & Online Defamation Apartment Mold: – http://consumerist.com/2010/01/twitter- defamation-lawsuit-dismissed.html http://consumerist.com/2010/01/twitter- defamation-lawsuit-dismissed.html Unfavorable tweets against businesses: – Restaurant Yelps: http://nyti.ms/fII6iPhttp://nyti.ms/fII6iP – T & J Towing v. Kurtz, Facebook group: Kalamazoo Residents against T&J Towing http://www.citmedialaw.org/blog/2010/tj- towing-v-kurtz-weve-got-court-documents http://www.citmedialaw.org/blog/2010/tj- towing-v-kurtz-weve-got-court-documents Update & what is S.L.A.P.P.? http://nyti.ms/d7C2so http://nyti.ms/d7C2so – “Worst car dealership in the world” http://www.citmedialaw.org/sites/citmedia law.org/files/2009-12-04- Route%206%20Hyundai%20Demand.pdf http://www.citmedialaw.org/sites/citmedia law.org/files/2009-12-04- Route%206%20Hyundai%20Demand.pdf http://www.citmedialaw.org/sites/citmedia law.org/files/2009-12-19- Alascio%20Response.pdf http://www.citmedialaw.org/sites/citmedia law.org/files/2009-12-19- Alascio%20Response.pdf Doctors and online reviews: – http://www.washingtonpost.co m/business/economy/some- doctors-try-to-squelch-online- reviews/2011/11/29/gIQA2KQh YQ_story.html http://www.washingtonpost.co m/business/economy/some- doctors-try-to-squelch-online- reviews/2011/11/29/gIQA2KQh YQ_story.html Pink slime suit: – http://www.foxnews.com/us/2 012/09/13/bpi-sues-abc-news- for-pink-slime- defamation/%20?test=latestne ws http://www.foxnews.com/us/2 012/09/13/bpi-sues-abc-news- for-pink-slime- defamation/%20?test=latestne ws

10 Reputation Management Services

11 Misc. False Statements Fib on Facebook? Law calls it criminal. – http://www.foxnews.com/politics/2011/11/17/fib -on-facebook-us-law-calls-it-criminal-critics-warn/ http://www.foxnews.com/politics/2011/11/17/fib -on-facebook-us-law-calls-it-criminal-critics-warn/ Bill would criminalize posing as someone else: – http://www.usatoday.com/story/news/2013/01/0 2/bill-would-outlaw-posing-as-others- online/1805771/ http://www.usatoday.com/story/news/2013/01/0 2/bill-would-outlaw-posing-as-others- online/1805771/

12 Misc. Free Speech Issue: Students’ right to free speech “Faked” profiles – Mix of rulings Fake MySpace profile for a Texas principal Draker v. Schreibner Facebook parody profile of principal Trosch by high school student Layshock v. Hermitage School District 14 y o middle school student created fake MySpace J.S. v. Blue Mountain School http://blog.ericgoldman.org/archives/2012/03/suspension_for_1.htm – Application of Tinker v. Des Moines (1969 US S. Ct. case). Black armbands & school ban Opinion piece: – Sophomoric free speech, http://usat.me?39347532http://usat.me?39347532

13 Misc. Free Speech Issue: Employee’s right to free speech Workplace rants on social media are headache for companies The Teacher Cases: PA teacher suspended (with pay??!!) for calling her students “lazy whiners” http://usat.me?43808478 http://usat.me?43808478 NJ 1 st grade teacher says she “felt like a warden overseeing future criminals” http://tinyurl.com/3bngqhb http://tinyurl.com/3bngqhb – Update: http://blog.ericgoldman.org/archives/2013/01/tenured_school_1.htm http://blog.ericgoldman.org/archives/2013/01/tenured_school_1.htm Employee examples: Policies barring Eee from depicting companies “in any way” on social media sites – EMT fired b/c crit. she posted on fb, “a 17”: http://nyti.ms/djca6U http://nyti.ms/djca6U Federal right to form/discuss unions & working conditions

14 Misc. Free Speech Issue: Anonymous Speech Anonymous publishing as a First Amendment right – McIntyre v. Ohio Elections Commission US S. Ct 1995 – http://gilc.org/speech/anonymous/ http://gilc.org/speech/anonymous/ Online speech, accomplished using remailers – A series of servers that strip our identifying info & sub in anonymous code or random numbers. (chained remailing)

15 Does the First Amendment give you the right to speak anonymously online? Yes, but you do not have the right to speak falsely & injuriously. Melvin v. Doe Defamation example below:

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