The brave new frontier for the law of defamation today is definitely social media, such as Facebook, Twitter and – yes – blogs too. The last couple of years have seen claims for defamation (libel) move from the traditional print and broadcast media to the Web 2.0, starting with Facebook. By way of background – in case you’re not one of its 500 million users – Facebook is a social networking site that allows members to create personal profiles which are accessible to other Facebook members who they have accepted as “friends” and to create groups that others can join.
Finkle v. Facebook (County of New York, docket 107578-09, discussed by the Citizen Media Law Project is not the first Facebook defamation claim – that honour appears to go to the English decision in Applause Store Productions Ltd. and Firsht v. Raphael, [2008] EWHC 1781 (QB), but Finkle seems to be the first in which Facebook itself was named as a defendant. The case arose after several of Finkle’s high school classmates set up a Facebook group called “90 cents short of a dollar” that, according to the complaint, portrayed her as “a woman of dubious morals, dubious sexual character, having engaged in bestiality, an 'IV drug user' as well as having contracted the H.I.V. virus and AIDS.”
Finkle’s lawyer decided to add Facebook as a defendant because Facebook, in its terms of use, asserts an ownership interest in the content placed on Facebook pages. That interest, he argued, deprived Facebook of the protection granted by section 230 of the Communications Decency Act, which exempts internet service providers in the US from liability for posts made by third parties. The New York Supreme Court disagreed and struck out the claim against Facebook.
While Canada does not have legislation equivalent to the US Communications Decency Act, one might expect a social media website to assert the defence of innocent dissemination if it is named as a defendant here.
- Partner
Marko has a broad commercial litigation and arbitration practice with a particular focus on class actions, defamation, cross-border disputes and shareholder disputes. He has appeared as lead counsel before the Supreme Court of ...
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