The Dark Side of “Going Viral”: Can You Still Sue for Defamation
Blog Post | 108 KY. L. J. ONLINE | Jan. 16, 2020
The Dark Side of “Going Viral”: Can You Still Sue for Defamation?
Hannah Oates
The digital age, with the rise of the 15 minutes of fame concept, has complicated defamation law by making it more difficult to ascertain who qualifies as a public figure.[1] Consider Nick Sandmann. The junior at a Kentucky Catholic high school joined the long list of viral fame victims in January of 2019 after multiple large media outlets misconstrued a set of events that occurred in Washington D.C. painting the student as the instigator.[2] Following the incident, Sandmann filed a defamation suit against CNN, NBC, and the Washington Post.[3] One commentator questions whether Sandmann could be considered a public figure.[4] What would this mean for the lawsuit? It would make it more difficult for Sandmann to succeed against the defendants.
In a defamation suit, the plaintiff is typically required to prove fault of some sort, normally negligence. However, when the plaintiff is a public figure, the plaintiff must prove that the defendant acted with actual malice, a more difficult standard for the plaintiff to meet.[5] The court has identified two types of public figures: all-purpose[6] and limited-purpose.[7] Are persons who experience their 15 minutes of fame – persons like Sandmann, subjects of popular memes, and social media “stars” – limited-purpose public figures, therefore, making it harder for them to prove their case in court?
Part of the confusion in classifying public figures lies in the court split regarding whether one must voluntarily thrust oneself into the controversy. An Idaho court said that “public figure status does not hinge upon an individual’s preference in the matter . . . the Times privilege is not precluded because an individual does not voluntarily pursue public action.”[8]However, the Supreme Court a year prior held that voluntariness plays an important role in deciding whether one is a public figure. In that case, the Court held that a woman who married into a rich, high-profile family was not a public figure during the divorce proceedings.[9] Social media adds an interesting twist because while a person might voluntarily upload a video to Instagram or YouTube, most of the time they are not voluntarily seeking millions of views or likes. Consider a high school student who creates a silly TikTok clip with her friends after school. Chance makes the clip go viral, racking up millions of views. If the clip receives negative comments, should this high schooler be effectively insulated from receiving reprieve because she is deemed a public figure?
The rationale behind the different standard for public figures further muddles the confusion in the digital age. Part of the reason for the different standard is that public figures have “greater access to the channels of effective communication” so they have “a more realistic opportunity to counteract false statements.”[10] Today, due to social media and the internet, private figures can have similar access to “channels of effective communication” in order to refute defamatory statements. The shift begs the question of whether the different treatment of public and private figures is necessary or effective anymore.
One scholar, noting the complications of voluntariness and the inapplicability of the rationale for the different standards, is advocating for a change in defamation public figure law that would elevate the obstacles faced in the digital age.[11]She suggests that the court should first ask “whether the disputed speech relates to an issue of general or public interest before compelling the disclosure of the identity of an alleged defamer.”[12] While this approach would help protect the innocent party of a viral video who had no intention of receiving such acclaim, like the example of the high school TikTok “star,” it likely would not protect Sandmann due to the political nature of the issue that occurred during the protests in the nation’s capital.
Some defamation plaintiffs might find relief if their newfound fame is due to the media. While there are many ways that one can become a limited-purpose public figure, especially in the digital age where it seems the most unique behavior receives the most likes, one cannot become a public figure because of the media’s behavior. “When a sensational story by one news organization is picked up by many, the snowballing of media attention may transform an unknown individual into a virtual celebrity almost overnight. The possibility therefore exists that by relying on this snowballing of attention a media defendant might be able to bootstrap itself into first amendment protection. Such a sequence of events might concededly defeat public figure status in an appropriate case.” [13] If this exception was not in place, media outlets could take advantage of the public figure rule by continuing to post defamatory stories transforming the plaintiff into a public figure and, therefore, diminishing the plaintiff’s chances of success because actual malice must now be proven. Thus, even if plaintiffs, like Sandmann, are found to be limited-purpose public figures, their status as such might be declared null if the reason for their new fame is actually the entity defaming them.
Like most areas of the law concerning the digital age, confusion exists. Even the clear defamation rules seem to make little practical sense due to the changing environment. As more cases like Sandmann’s cycle through the court system, perhaps the rules will become more clarified and applicable to the modern age.
[1] L.V. Anderson, Can You Libel Someone on Twitter?, Slate (Nov. 26, 2012), https://slate.com/technology/2012/11/libel-on-twitter-you-can-be-sued-for-libel-for-what-you-write-on-facebook-and-other-social-media.html (“With the advent of Twitter celebrities and people with thousands of Facebook friends, the line between public and private figures—and therefore whether “actual malice” or negligence applies to a case—becomes increasingly blurry.”).
[2] Bill Chappell, Covington Catholic Teen Nick Sandmann Sues 'Washington Post' For $250 Million, National Public Radio (Feb. 20, 2019), https://www.npr.org/2019/02/20/696245435/covington-catholic-teen-nick-sandmann-sues-washington-post-for-250-million.
[3] Cameron Knight, CNN confirms a settlement has been reached with Covington Catholic student Nick Sandmann, USA Today (Jan. 7, 2020), https://www.usatoday.com/story/news/nation/2020/01/07/nick-sandmann-cnn-confirms-settlement-covington-catholic-student/2837478001/ (In February of 2020, Sandmann and CNN settled the defamation case for an undisclosed amount. It appears the suit remains ongoing against the other defendants).
[4] Max Londberg, Nick Sandmann of CovCath may face challenges in proving defamation, experts say, Cincinnati Enquirer (Feb. 11, 2019), https://www.cincinnati.com/story/news/2019/02/11/nick-sandmann-covcath-lacks-obvious-defamation-claim-experts-say/2757343002/.
[5] Gertz v. Robert Welch, 418 U.S. 323, 352 (1974).
[6] Id. (“Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life”).
[7] Id. at 351 (“More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.”).
[8] Bandelin v. Pietsch, 563 P.2d 395, 398 (1977).
[9] Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976) (“Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony.”).
[10] Gertz, supra note 5, at 344.
[11] Katherine D. Gotelaere, Defamation or Discourse: Rethinking the Public Figure Doctrine on the Internet, 2 Case W. Res. J.L. Tech. & Internet 1, 3 (2011) (“The traditional public figure doctrine, as formulated through Supreme Court jurisprudence, is unable to meet the needs of the Internet.”).
[12] Id. at 4.
[13] Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1086 (3d Cir. 1985).