Do Facebook and Twitter Make You a Public Figure? How to Apply the Gertz Public Figure Doctrine to Social Media

Article excerpt

TABLE OF CONTENTS

INTRODUCTION

I. WHAT IS SOCIAL MEDIA?
  A. Defining Social Media
  B. Distinguishing Social Media from Other Internet Media
  C. The Social Benefits of Social Media
II. THE PUBLIC FIGURE DOCTRINE
  A. Supreme Court Precedent
    1. New York Times and Gertz
    2. Subsequent Supreme Court Cases
  B. Lower Court Application of the Public Figure Doctrine
    1. General Public Figures
    2. Limited-Purpose Public Figures
    3. involuntary Public Figures
III. THE LACK OF AVAILABLE REMEDIES--SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT
IV. APPLYING THE PUBLIC FIGURE DOCTRINE TO SOCIAL MEDIA
  A. Background Principles
  B. The Public Figure Designations
    1. Involuntary Public Figures
    2. General Public Figures
    3. Limited-Purpose Public Figures
  C. Recommended Approach for Public Figure Designations
  D. Approaches to Consider for Voluntary Activity
    1. Inherently Public Approach
    2. inherently Private Approach
  E. The Recommended Approach for Voluntariness
    1. inherently Public Approach v. inherently Private Approach
    2. identifying Voluntary Activity
  F. The Recommended Approaches Applied
    1. The Clear and Convincing Evidentiary Standard Applied to Social
    Media
    2. The Voluntariness Approach Applied to Social Media
CONCLUSION

INTRODUCTION

Mr. Smith, like the majority of American adults, (1) has a social media profile, and he posts daily on his whereabouts, hobbies, and other interests. Mr. Smith becomes involved in promoting animal rights and, over a period of several months, he posts numerous accounts of animal brutality and encourages philanthropic action on his profile, which is accessible to around eight hundred "friends." (2) Ms. Jones, who has access to Mr. Smith's social media site, accuses Mr. Smith of being a fraud and labels him an animal killer. Experiencing reputational damage, Mr. Smith sues Ms. Jones for defamation. Can Ms. Jones claim Mr. Smith is a public figure and therefore avoid liability unless Mr. Smith can prove she acted with actual malice? Mr. Smith arguably thrust himself into a public controversy by posting comments on a controversial subject. However, finding Mr. Smith a public figure could result in defining every social media user as a public figure, which would substantially reduce the potential damages that many users could recover for defamation under the stringent actual malice standard. (3) on the other hand, if courts were to avoid applying the public figure test altogether, it could deter many users who fear defamation liability from using social networks, (4) chilling speech on social media that has proved to be socially beneficial in recent political and social movements, such as the Arab Spring. (5)

This hypothetical underscores the problems that courts will encounter when applying the public figure doctrine announced in Gertz v. Welch (6) to social media. (7) The public figure doctrine extended First Amendment protections to libel law by requiring a public figure plaintiff to establish that the defendant defamed the plaintiff with actual malice, instead of negligence, in order to recover damages for defamation. (8) With more courts applying libel law, instead of slander, to Internet postings (9) the application of the public figure doctrine to social media users has become particularly relevant. Furthermore, courts cannot necessarily look to similar forums when applying the public figure doctrine to social media. The widespread use of social media (10) and its fully customizable privacy settings (11) make judicial application of the public figure doctrine to social media distinguishable from application to publicly available computer bulletin boards, (12) blogs, (13) or the Internet in general. (14)

Particular developments have also signaled a rise in online defamation suits. The recent discovery that most homeowner's insurance policies cover libel liability has contributed to a 216% increase in Internet defamation suits against bloggers and Internet users over the past three years alone. …