THE MIDDLE EAST CONFLICT’S RIPPLE EFFECTS WILL RESULT IN A SPIKE OF DEFAMATION AND RELATED CLAIMS LOCALLY
Dark memories of the heinous atrocities of the holocaust are flared by the monstrous events of October 7th in Israel. Worldwide demonstrations against the carnage deliberately inflicted by Hamas against civilian Jews are met with counter-protests against “Zionism” and have been drawing hundreds of thousands to the streets, from London, to New York, to Oslo, to DC.
Reminiscent of the toxic antagonism fueled by the last two elections between modern day social-liberals and conservatives nationwide, the undercurrents of the Middle East conflict also divide, disrupt and demolish friendships, relationships, work-place associations, job interactions, student bodies, faculty groups and social media contacts.
In short, we have on our hands highly flammable conditions. The events in the Middle East are taking the world by storm and are rapidly spewing into our own communities here. Emotions run high on both sides, and physical demonstrations, often resulting in altercations and assaults, mirror the onslaught of social media exchanges, often venomous, false and injurious.
I predict a significant rise in defamation, trade libel, and interference with business relations suits and intentional infliction of emotional distress, among other causes of actions, as a direct effect of the high-tension, emotion-laden climate.
DEFAMATION – LIBEL AND SLANDER
Businesses and individuals are being attacked in social media and other venues for allegedly “supporting Hamas”, “condoning terrorism”, “promoting Israeli genocide of Palestinians”, being antisemitic and the like. Posters globally openly boycott businesses whose owners take one side or another. A Long Island diner recently suffered the effects of boycotts by alleged Hamas and Palestinian supporters, and numerous other businesses in the tri-state area are similarly boycotted by Israel supporters for allegedly aligning with Hamas. Beyond simply withholding patronage, many chose to publicly denigrate individuals and business alike, the views of which they do not agree with. Such publications call into question the applicability of the law of defamation and other related causes of action.
Simply stated, the tort of defamation requires proof of five distinct elements: (i) the making of a verbal (slander) or written (libel) statement of actual fact (as opposed to non-actionable opinion); (ii) which is communicated to a third person (not only to the victim), (iii) which is false, (iv) which subjects the victim to ridicule and harms the victim’s reputation in the community, and finally, (v) which causes monetary damages to the victim, either actual or presumed. True statements, statements that are not readily capable of being proven false, and statements of pure opinion are protected speech and therefore immune from defamation liability. “Phil is a terrorist”; “Gregory supports, promotes and funds genocide”, “Damian funds terrorism”, “George is a rabid and violent antisemite who refuses to serve Jews in his business”, “Company XYZ, Inc. does not serve Jews”, – are all examples of potentially defamatory statements. These become actionable in a court of law if they are false, communicated to a third party and result in damages.
However, the line is often blurred between actionable claims and those that ultimately hold no merit. For example, as a recent case made clear, “a statement characterizing someone as racist, like a non-actionable opinion, is a “subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation” under New Jersey law. Thus, “to call a person a bigot or other appropriate name descriptive of his political, racial, religious, economic, or sociological philosophies gives no rise to an action for libel.” Moreover, “[t]he use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are discouraged, but such comments are not actionable.”
Nevertheless, to shed some light on the complexity of this specialized area in the legal field, even “such ‘opinions can be defamatory, if they could reasonably be understood to imply undisclosed defamatory facts.” For example, in MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050 (1996), a district attorney sued a newspaper for falsely reporting that a lawyer called him “the David Duke of Chester County.” The Court held that this statement was defamatory because “a reasonable person could conclude that this was an accusation that appellant was abusing his power as the district attorney, an elected office, to further racism and his own political aspirations. Such an accusation amounts to a charge of misconduct in office.” Because these statements were “more than a simple accusation of racism” that could be “construed to mean that appellant was acting in a racist manner in his official capacity as district attorney,” the newspaper article was more than mere opinion and was defamatory.
Clearly, it is often challenging to determine whether such statements are non-actionable opinions or are in fact defamatory and therefore prosecutable. Much will depend on the nuances of the laws of the particular state that has jurisdiction over the matter.
REPUBLICATION
But what if one who heard Valentin state that “Gregory is a terrorist” then repeats the statement to another person?
For hundreds of years it has been the law in the United States that one who republishes a defamatory statement originally made by another, is equally responsible to the denigrated victim and must answer in damages. That same false republication could trigger other actionable wrongs, interference with business relations and infliction of emotional distress. The law with respect to republication remains the same in all matters, EXCEPT for content posted on the Internet.
Recognizing the ease with which communications are now spread through the web, including via social media sites such as Facebook, Twitter, My Space and the like, the United States Congress enacted The Communications Decency Act, 47 U.S.C.A. §230. Its purpose was to ease the free-flow of communications by removing the fear of tort liability for hosting or republishing content posted by others.
The Act provides immunity to “Interactive Computer Services Providers.” These include the hosting platforms themselves, such as Facebook, Twitter, My Space and the like. Courts have found that the Decency Act also immunizes providers even when such providers have been informed of defamatory material and they refuse to remove it.
In addition to protecting Providers of services, the Act also immunizes “Users of Interactive Computer Services.” These include all individuals or entities who blog, re-post or republish content authored by another. Section 230 of the Act specifically dictates that “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.”
Importantly, this section of the Act preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
Republishing another’s content is protected, but adding to those comments may not be. Intermediaries who republish statements may well be liable to the victims for new information they originate.
The ability to edit comments is protected, but within reason and limits. It is prudent not to test those limits. Therefore, for example, if one publishes a link to a previously published article, the republication is protected. However, if the intermediary also adds a defamatory comment along with the link, immunity may well be lost.
In sum, original publishers of defamatory content on the internet only, referred to as Internet Content Providers, remain of course liable to their victims. Intermediaries and those who republish the libel are generally immune from liability, unless they add original defamatory content of their own. It merits emphasis that the immunity afforded to re-publishers only applies to on-line formats. All other verbal and written defamatory republished content remains actionable and punishable.
OTHER CAUSES OF ACTION
As to other causes of action, a claim for tortious interference, for example, requires a showing that: “(1) a contractual or prospective contractual relationship existed between plaintiff and a third party; (2) defendant took purposeful action, intended to harm that relationship; (3) that no privilege or justification applies to the harmful action; and (4) damages resulted from the defendant’s conduct.” Because Defendants have a First Amendment privilege under element three, tortious interference claim are definitively defensible on this basis and subject to dismissal.
My close to thirty years of experience litigating defamation and related causes of action in state and federal courts for and against newspapers, public figures, reality show stars, doctors, lawyers, publishers and many others, teach that those who can afford will stand up to protect their reputation and integrity, no matter what the cost.
A principal lesson to be learned is to be careful before making any false and derogatory statements about others on the internet. Resist spreading gossip, rumors and hurtful comments. Even if you are convinced of the truth of what you publish and that you can prove it, which is a complete defense to a defamation action, you may nevertheless be in for a protracted, stressful and very costly ride. The defense of a defamation case can easily cost tens of thousands of dollars. Even if you “win”, you do not recover your litigation costs in most cases. Therefore, before hitting that “send” key, you may want to ask yourself if it is all worth it to you.
Equally important, if you find yourself on the wrong end of a lawsuit, you have ample opportunity to vigorously contest the claims. Truth, the First Amendment, and the doctrine of “opinion” are powerful deterrents against frivolous lawsuits.
Robert S. Popescu, Esq.