On comments within Facebook groups comprising possibly defamatory social media statements

From Cory Batza, 44 Pepp. L. Rev. 429 (2017)



In another case dealing with an allegedly defamatory tweet, Feld v. [page 456] Conway, n182 the court considered whether a tweet was defamatory in the context of the entire conversation. n183 Feld, the plaintiff, arranged to have a horse breeder ship her horse to a farm to become a companion horse, but the horse was instead shipped to Canada and potentially slaughtered. n184 The mishap became the topic of an ongoing online debate. n185 Conway, the defendant, entered into the debate and posted the allegedly defamatory tweet. n186 Feld's professional success was dependent upon "public review and endorsement of her publications," and interested parties often searched her name on the Internet. n187 The allegedly defamatory tweet appeared in the search results on Internet search engines when users entered Feld's name, causing extensive harm to Feld's reputation. n188 In her defense, the defendant asserted that the statement was a constitutionally protected opinion. n189 The court ultimately found that the statement was protected because the tweet was a part of a heated Internet debate about the plaintiff's responsibility for the disappearance of her horse. n190

Similarly, in Finkel v. Dauber, n191 a court again analyzed allegedly defamatory social media statements by looking at the conversation's context. n192 In Finkel, a social media user sued a group of adolescents when they posted comments about her on a secret Facebook page that stated she "was seen having sexual relations with a horse, contracted HIV from sharing needles with heroin addicts, contracted AIDS from a male prostitute, and [page 457] transformed into the devil." n193 The adolescents were officers of a secret Facebook group n194 called "Ninety Cents Short of a Dollar" that did not have public content or appear on any Facebook member's profile. n195 In considering whether the plaintiff was defamed, the court took special note of the fact that the plaintiff never alleged that the secret group's posts were "accessible to anyone outside the group" and that her name was never actually used in the posts. n196 Taken together, the court stated that: "The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact." n197

Courts should follow the Finkel court's approach to ensure that tweets that are no more than "rhetorical hyperbole" are not held to be [page 458] defamatory. n198 Conversely, courts should not be too quick to decide that any hastily constructed and posted tweet is necessarily an opinion and not a false statement of fact. n199 For social media backlash, the context is typically the same: an individual with an average social media presence posts some type of statement or photo onto his or her social media page, and the social media community responds by condemning the user and flooding the Internet with a false perspective of that individual's identity. n200 As was the case in Feld v. Conway, n201 these defamatory tweets or Facebook posts are typically searchable and available to the public through search engines. n202 Therefore, social media backlash implicates more reputational issues because the wider online community thinks less of the plaintiff rather than simply a small group of people. n203 It is easy to say that these types of statements are not "vulgar attempt[s] at humor" n204 because they are real responses to some distinct post. n205 The issue would be whether, in the context of strangers commenting about a social media user they have never met, the allegedly defamatory statements could be construed by a reasonable observer as conveying facts. n206
The court's view of Twitter or Facebook will likely determine if the court will hold that a reasonable factfinder could conclude that the tweet or Facebook comment is a provable false statement of fact. n207 If the court believes social media sites are simply platforms for users to instantaneously vent and the reasonable viewer does not actually take these comments seriously, then it will likely rule that the allegedly defamatory tweet or Facebook comment is not based in fact. n208 However, if the court sees social [*459] media sites as valuable mediums for discourse, n209 it will be more likely to conclude that a defamatory comment would be taken seriously and therefore not be protected by the First Amendment. n210




See also Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009)

See also Parker v. Google, Inc., 422 F. Supp. 2d 492, 500 (E.D. Pa. 2006). Roy Parker was an author who claimed that Google should be held liable for defamation and invasion of privacy because it archived false statements about him posted by Google group users, provided a search function that returned a list of websites containing his name, and continued to cache such websites after being notified that they were defamatory. Id. [ from 44 Val. U.L. Rev. 329 ]

See also 15 N.C. J.L. & Tech. 463: Google describes some specific requests related to YouTube and Google Groups.