Law school doesn’t prepare attorneys for Facebook-style defamation
By Ellen Snortland 08/19/2010
Ugly gossip reared its nasty head on my Facebook page last month. In order to protect privacy, I’m changing the names but the story remains essentially the same. The lesson I hope to impart is that Facebook is here to stay and it may have new legal consequences that will be a natural extension of the English Common Law notion of torts. (A tort is a wrongdoing that is not a crime, per se.) Watch what you say and read, but mostly what you believe. I assert that the ugliness of right-wing radio and TV’s nonstop verbal assault is now alive and well in people’s personal interactions with social media.
Last month I received a frantic message from a dear friend in Minneapolis whom I’ve known since high school. Let’s call him “Slammed.” He and his life-partner, “Mr. Touchy,” were attacked on Facebook by a mutual friend of ours whom I’ve also known since the ’70s. Sure enough, I went to the offending FB page and there they were — scores of comments where Slammed and Touchy were eviscerated by “Victim” and his friends. Was there anything that Slammed could do to legally stop a so-called — and now former — friend from cruel accusations of sexual impropriety? “Wait, wait, wait,” I said. “Slow down. What happened?”
Basically, Victim accused Slammed and his partner of taking advantage of Victim. Mr. Touchy and Slammed are active in their Lutheran congregation’s outreach programs. Victim has been ill with an aggressive cancer for a few years. Mr. Touchy is an ebullient fellow with a hug for everyone, a perfect pastor’s husband. Victim had been embraced on a couple of occasions by Touchy, and let Touchy know that it was unwelcome. Victim also talked to Slammed to tell him that Touchy had been “too” affectionate and might have been hitting on him. Slammed and Touchy discussed Victim’s feelings and agreed that Touchy should “watch” it around him since Touchy wasn’t even remotely attracted to Victim and didn’t want to give the wrong impression. Since Victim generally didn’t like being touched by anyone, Touchy should try not to be so “feely.”
Fast forward: Victim was very sick and in need of assistance around his home. Touchy and Slammed brought groceries during occasional visits. After a particularly nasty surgery, the couple visited Victim, and Victim himself — despite not liking Mr. Touchy touching him — requested a massage. A bit surprised by that, Slammed and Touchy both rubbed Victim — platonically, they say — in an attempt to get Victim’s mind off of his intense pain.
This is where “according” takes on a very important meaning. “According” is a word that assumes there is more than one point of view. According to Victim, Touchy and Slammed not only rubbed him, but “rubbed him the wrong way,” as in a sexually inappropriate way. Victim also said that Slammed was complicit if not active in the abuse since he just watched and didn’t intervene when Touchy was supposedly being nasty.
And here’s where Facebook comes in. Victim presented his assertion to his Facebook friends — some of whom are complete strangers in real life — as the solid truth and nothing but, and then waited and watched as the comments rolled in. “Stab him!” “Get a restraining order!” “He must have a small penis!” the commenters brayed. Victim did nothing to temper the violent verbal mob scene that ensued. What hurt my friend Slammed so much is that he’s preparing to be a mid-life Lutheran pastor. Victim’s assertions were not only false but also accusations that could damage Slammed in his professional life.
“Law school did not prepare me for defamation Facebook style,” I told Slammed. Victim was very careful to not name names on his page. And even though Slammed and Mr. Touchy had many friends in common, none of the “mutual friends” weighed in … only people Slammed and Mr. Touchy did not know. So, is there really defamation? It’s reminiscent of the age-old quandary, “If a tree falls in the forest and there is nobody around to hear it, does it make a sound?”
I told Slammed that all I could do is let Victim know that if someone could identify Slammed and Touchy, Victim might be subject to a defamation lawsuit. Before I could send that message, the Facebook attack was removed. Who knows, maybe one of our high school buddies told Victim his attack was possibly lawsuit-worthy.
What concerns me most — if you’re not Facebook literate, you may not understand some of this — is the continued extension of incivility that lurks in our media and gets magnified in social media. Do real Facebook “friends” really let friends “bash” others unabashedly? Not one of Victim’s friends said, “Really? Could there be another side to this?”
The lesson we all must learn, and re-learn, is that a big dose of “really?” goes a long way, whether you are participating in mainstream media or social media. And thus endeth the lesson.
P.S. I’m performing my show, “Now That She’s Gone,” as a Leukemia and Lymphoma Society Benefit at 6 p.m. Sunday at The Luna Playhouse, 3706 San Fernando Road, Glendale. Tickets are $25 and can be purchased online at http://tinyurl.com/23lp2ys. For information, call (818) 500-7200.
Ellen teaches a writing class in Altadena. Contact her at snortland.com.