Note: This is an edited excerpt from an article written by Rodney A Smolla in the December 2020 edition of New Jersey Lawyer focusing on the First Amendment. To read the magazine, click here (login required).
Defamation is a growth industry, fueled by the internet. Libel and slander are ancient torts and have always only taken three to tango. A defamatory statement is deemed “published” when the defendant speaker or writer communicates a defamatory false statement of fact about the plaintiff to at least one third person.
Before the internet, however, the capacity of a defamatory statement to cause harm was constrained by the reality that wide propagation of speech was largely in the hands of traditional media disseminators. Newspapers, magazines, book publishers, radio and television stations, and cable news outlets were mainly in the business of writing about public officials and public figures.
While private figures could also be swept into their reporting, that would typically happen when the private figure was somehow involved in a story that posed broader public interest.
The internet changed all of this. Particularly through social media, anyone and everyone may reach the world. The rich and famous remain prime targets for defamation. But virtually anyone may be accused, at any time, of anything. And once a story goes viral, the damage can be devastating.
As the Supreme Court of New Jersey recognized in 2012, “In today’s world, one’s good name can too easily be harmed through publication of false and defaming statements on the Internet.” A defamatory message posted on social media may produce an echo boom of comments, posts, tweets, retweets, and other repetitions, as the damning falsehood spreads like a virulent virus across digital space.
In minutes or hours, a defamatory story may get millions of hits and generate thousands of comments and repetitions, as the victim watches the destruction and havoc in real time.
Social media platforms such as Facebook, Twitter, or YouTube intersect with defamation and free speech issues in multiple star-crossed patterns.
The defamation tsunami is largely hosted on these platforms. Under traditional common law principles, these platforms would be liable for the content of third parties that they “publish” on their sites. A newspaper that publishes a defamatory “letter to the editor,” for example, is deemed to “adopt the libel as its own,” and may be sued for the defamation of the letter-writer.
This common law doctrine has been pre-empted, however, by a federal statute, §230 of the Communications Decency Act, of 1996, which provides broad immunity for internet service providers from liability arising from the content of third parties posted on their sites.
Consider, however, what we might call “reverse defamation,” a scenario in which the social media platform—Facebook or Twitter or YouTube—blocks or takes down the messages of one its users, because it deems the messages hateful or offensive, essentially branding the allegedly offending poster as a social pariah. This scenario poses an entirely different question, and this is where we enter uncharted territory.