Internet Defamation 2018 Basics of Internet Defamation Michael Berry 215.988.9773 berrym@ballardspahr.com Elizabeth Seidlin-Bernstein 215.988.9774 seidline@ballardspahr.com Defamation in the News 2
Defamation in the News 3 What Is Defamation? def a ma tion /defəˈmāsh(ə)n/ noun The action of damaging the good reputation of someone; slander or libel. 4
Defamation Statute 42 Pa. Cons. Stat. 8343, 8344 Elements and Burdens Outmoded in Light of First Amendment Construed by Common Law 5 Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 6
Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 7 Defamatory Harmful to Reputation Grievously Fracture Standing in Community Not Mere Embarrassment Question of Law 8
Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 9 Statement of Fact Factual Statements Are Actionable Opinions Are Protected No Wholesale Defamation Exemption for Anything that Might be Labeled Opinion 10
Fact v. Opinion Fact: - Can Be Proven True or False Opinion: - Cannot Be Proven True or False - Rhetorical Hyperbole - Conclusion Based on Disclosed Facts 11 Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 12
Material Falsity Substantial Truth is Protected - Same Gist or Sting as Truth - Ascertained at Time of Publication Falsehood Must be Material - Different Impact on Mind of Reader 13 Reasonable Meaning Meaning Reasonable Reader Would Understand Publication Intended to Express Natural Meaning of Words In Context Entire Publication Reasonable Implications Question of Law 14
Twitter Example #1 Boulger v. Woods, 2018 WL 527009 (S.D. Ohio Jan. 24, 2018) 15 Twitter Example #2 Woods v. Doe (Cal. Super. 2016) 16
Twitter Example #3 Jacobus v. Trump, 156 A.D.3d 452 (N.Y. App. Div. 2017) 17 Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 18
Of and Concerning Plaintiff Must Be About Plaintiff Does Not Have to Identify Plaintiff by Name Can People Familiar with Plaintiff Identify Her from the Context? Small Group Defamation 19 Of and Concerning Example #1 Cheney v. Daily News, 654 F. App x 578 (3d Cir. 2016) 20
Of and Concerning Example #2 Elias v. Rolling Stone, 872 F.3d 97 (2d Cir. 2017) 21 Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 22
Fault Plaintiff s Burden Fault Standards: - Private Figures: Negligence - Public Officials and Public Figures: Actual Malice 23 Who Is a Public Figure? All-Purpose Public Figures Limited-Purpose Public Figures - Individuals: Thrust Self into a Public Controversy - Companies: Overlap Between Promotional Message and Alleged Defamation 24
Actual Malice Knowing Falsehood Entertained Serious Doubts About Truth Acted with High Degree of Awareness that Statements Were Probably False 25 Actual Malice Example Palin v. New York Times, 264 F. Supp. 3d 527 (S.D.N.Y. 2017) 26
Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 27 Injury Joseph v. Scranton Times L.P., 129 A.3d 404 (Pa. 2015) Falsehood Must Cause Actual Injury Private Figure Must Show Reputational Harm - Emotional Distress/Economic Loss Presumed Damages Only if Actual Malice 28
Elements of Defamation Defamatory Statement of Fact Materially False (Not Substantially True) Of and Concerning Plaintiff Defendant at Fault Causing Injury to Plaintiff Published to Third Parties 29 Publication One-Year Statute of Limitations Single-Publication Rule: Only One Claim Per Publication Republication Rule: Liability for Republishing Defamatory Statement 30
Publication Linking is Not Republication In re Philadelphia Newspapers, LLC, 690 F.3d 161 (3d Cir. 2012) Liking is Not Republication Slozer v. Slattery, 2015 WL 7282971 (Pa. Super. Nov. 18, 2015) 31 Privileges Absolute Qualified Fair Report Privilege Fair and Substantially Accurate Summary of Government Proceedings or Documents 32
Fair Report Privilege Example Adelson v. Harris, 402 P.3d 665 (Nev. 2017), 876 F.3d 413 (2d Cir. 2017) 33 Publishing on the Internet General Rule: Rules of Defamation Apply on the Internet Exception: User-Generated Content (Communications Decency Act 230) 34
Before Section 230 Stratton Oakmont, Inc. v. Prodigy Service Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995) 35 Section 230 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. 36
Section 230 Information Content Provider = any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service 37 Anonymous Speech The First Amendment and The Philadelphia Lawyer 38
Unmasking Anonymous Posters Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. 2011): Notice Sufficient Evidence for Prima Facie Case Affidavit of Good Faith and Necessity Balancing Test 39 Unmasking Anonymous Posters Javens v. Does (1) (6), 2017 WL 3314269 (Beaver Cty. C.C.P.): Four-Part Test Pennsylvania Reporter s Shield Law 40
Post-Judgment Unmasking Signature Management Team v. Doe, 876 F.3d 831 (6th Cir. 2017): Public Interest in Disclosure - Defamation or Copyright? Plaintiff s Need to Identify Defendant Will Disclosure Chill Protected Speech? 41