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Tweeting that somebody is xenophobic just isn’t a defamatory opinion

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From Ganske v. Human, decided today by Judge Ronnie Abrams (S.D.N.Y.):

If the internet is like the Wild West, as many have suggested, perhaps Twitter is the shooting gallery where verbal gunslingers are embroiled in a prolonged hyperbolic crossfire. In this context of the fight by Tweet, the behavior at issue in this defamation case was born.

Plaintiff Charles Ganske, a journalist, alleges that Defendant Louise Daphne Mensch, a blogger and former Member of the UK Parliament, defamed him and disrupted his employment following a tweet she posted at 12:32 a.m. on July 27, 2018 (the "Tweet"). The plaintiff alleges that the only tweet by the defendant that "interfered" in an ongoing conversation between the plaintiff and a third party calling himself @ Conspirator0 contained numerous defamatory statements. Since the court comes to the conclusion that the allegedly defamatory statements in the defendant's tweet are unworkable expressions of opinion, (application by human for dismissal) is granted.

The plaintiff is a 37-year-old journalist. From 2005 to 2007, "he (a) edited a website, www.russiablog.org, wrote press releases, wrote comments, and helped prepare donation letters and grant applications." After a break in journalism, the plaintiff returned in March 2011 to "work as the Central Region Broadcasting News Editor for the Associated Press (& # 39; AP & # 39;) in Chicago, Illinois". From 2016 to 2018 the plaintiff was still working for the AP as a "National Sports Broadcast Editor" and as a "Social Media / UGC Specialist in Chicago". …

The accused is a former Member of Parliament and editor of Heat Street, a "news site". The defendant is now "a full-time blogger" and "maintains and operates multiple Twitter accounts, including @LouiseBagshawe (suspended), @LouiseMensch, and @patribotics." The plaintiff alleges that "Mensch was one of the propagandists who for over two years heavily promoted the now fully exposed Russia collusion fraud" and that she is "trolling Twitter, claiming to expose" Russian "influence on and off the platform". …

On July 27, 2018, "Mensch came across the conversation (thread) between Ganske and @ Conspirator0 and threw himself in." This litigation comes from the defendant's tweet at 12:32 p.m. that day, sent from their @patribotics account:

Plaintiff alleges that this tweet contains "false and defamatory statements about (him)" because neither he nor his tweets were "xenophobic"; he "never posted Russian bots on any website"; "Russiablog.org was never (his) & # 39; own & # 39; website"; and he "had no" vengeance "or" obsession "with anyone." The plaintiff further alleges that the defendant "deliberately marked the plaintiff's employer with" @AP "and posted the tweet to" @APCentral "in order to disrupt and impair the plaintiff's employment and dismiss the plaintiff".

Prior to posting this tweet, the defendant tweeted twice before that morning in connection with the same exchange. Initially, the defendant tweeted at 12:17 p.m .:

After seeing the defendant's tweet, "Ganske informed the AP that he had been deliberately harassed by humans." In response, AP Social Media Director Eric Carvin did not suggest that Ganske do anything about AP's social media guidelines on Twitter. Nevertheless, Ganske's employment was terminated on August 10, 2018, allegedly "because of human tweets". …

To make it easier to distinguish between fact and opinion, the New York courts consider three factors:

(1) whether the language in question has a precise meaning that is easy to understand; (2) whether the statements can be proven true or false; (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances signal to the readers or listeners that what is read or heard is likely to be an opinion, not a fact.

The Court's analysis therefore focuses on whether the tweet contained "a verifiable statement of fact" that – other than an "expression of opinion" or a "(loosely) figurative or hyperbolic statement ()" – may be "actionable" as defamation . "

(A.) First statement: The plaintiff's tweet was "xenophobic"

Although the plaintiff does not specifically address this issue, the court first examines whether the statement that the plaintiff's tweet was "xenophobic" is a fact or an opinion.

In this case it is important to first consider the context in which this allegedly defamatory statement was made, as this "may signal to the reader () that what is being conveyed is likely to be an opinion rather than a fact". Here is the context of Twitter, an internet forum. "New York courts have consistently protected statements in online forums as expressions of opinion rather than statements of fact."

In analyzing the unique context of statements on internet forums, the courts highlighted the generally informal and unprocessed nature of these communications. This context, as some courts have found, means that "readers are less likely to believe defamatory remarks made on the Internet than similar remarks made in other contexts". Like the other internet forums discussed in the above cases, so is the Twitter forum – if not more

– informal and "free running". The fact that the defendant's allegedly defamatory statement that the plaintiff's tweet was "xenophobic" appeared on Twitter sends a strong signal to a reasonable reader that this was the defendant's opinion.

In addition to the context, the court must also consider the other factors: Whether the defendant's comment that the plaintiff's tweet is "xenophobic", "lacks an accurate meaning that is easy to understand", or "can be proven true or false" . While the term "xenophobic" has a fairly clear meaning in the context of the tweet, it cannot be proven true or false. Rather, it is a classic opinion that equates to a "nickname (), a fiery rhetoric (and) an exaggeration" that signals "support (s)" and a party-political standpoint. Incidentally, the defendant's comment was a direct response to the plaintiff's earlier tweet, who referred to @Consiprator0 as "Senor Norteno" and insisted that "all the work (for the Russia blog) is done by Americans in the United States of America was financed ". Plaintiff's use of the word "senor" and the heavy emphasis on America and Americans also support the conclusion that the defendant's statement that the plaintiff's tweet was "xenophobic" was a reaction to plaintiff's own words and a personal one Opinion was.

Furthermore, the term "xenophobic" is at least analogous to – if not even "more fiery rhetoric" than – other words that the courts in this district have viewed as "rhetorical exaggeration" and "imaginative expression", which is typically understood as an opinion. "See Small Bus. Bodyguard Inc. v House of Moxie, Inc., 230 F. Supp. 3d 290, 312 (SDNY 2017) (concluding that the finding that the plaintiff committed" extortion, manipulation, fraud and deceit " , a "vague statement … of the" loose, figurative, or hyperbolic "kind, which it is not defamable"); Biro, 883 F. Supp. 2d at 463 (noting that "the use of the terms "Shyster", "cheater" and finding a "simple sign" is the kind of rhetorical exaggeration and "imaginative expression" typically understood as an expression of opinion ") ;; Egiazaryan, 880 F. Supp. 2d at 507 (finding, that the reference to the plaintiff as "anti-Semitic and anti-American" in an "opinion article laden with exaggeration" cannot be implemented); Old Dominion Branch No. 496 v. Austin, 418, US 264, 284 (1974) ("The … Use of words like "traitor" cannot be construed as representing facts n. "); Chau, 771 F.3d, 129 ("(T) the nicknames …" idiot "," fool "," front man "," industrial waste "… and" crooks or idiots "… are exaggerations and therefore not actionable opinion. "). A reasonable reader would likely view the defendant's reference to the plaintiff's tweet as "xenophobic" in order to express their opinion and not convey objective facts about the plaintiff.

(B.) Second statement: Plaintiff "Spread Russian Bots"

… Contrary to claiming that a statement is racist or xenophobic, a statement about whether someone personally distributes Russian bots can be proven true or false. However, an opinion "may still be challengeable if it is implied that the speaker's opinion is based on the speaker's knowledge of facts that are not communicated to the reader." "If a statement … reveals the facts on which it is based … the statement cannot be challenged."

The defendant's tweet provided the factual basis for the finding that the plaintiff had "clearly distributed Russian bots personally on (his) own website" by referring directly to "@ Conspirator0 (s) work", the alleged bot activity documented on the Russia Blog – the website for which The plaintiff used to work. In fact, only about twenty minutes before the tweet was posted, the defendant tweeted about the work of @ Conspirator0, stating that "@ (C) onspirator0 has offered his work for peer review" and "(d) ata scholars who do it consider accepting it as their opinion. "With her tweet she shared the tweet from @ Conspirator0, which described his findings that, while the Russia blog" is now gone, … 206 Twitter accounts with links to it are still alive. By these appear to be 45 (23%) automated based on 24/7 activity or posting 90 +% of their tweets about automation services. "Ten minutes later, at 12:27 pm, the defendant published its next tweet, again referring to the Obtained data from @ Conspirator0. The defendant even included a hyperlink to @ Conspirator0's data on alleged bot activity on the Russian blog. When the defendant alleged that the plaintiff had "clearly distributed Russian bots personally on the Russia blog", she provided the reader with the factual basis – here @ Conspirator0's data on bot activity on the Russia blog – on which her opinion was based .

The inclusion of the hyperlink is particularly important. Several courts have found that the inclusion of a hyperlink to a report or article in a message shared on an internet forum is a sufficient means of disclosing a factual basis on which to base an opinion. As Judge Oetken stated in Adelson v. Harris, "the hyperlink connects you to the source of the (personal) claims." The hyperlink, according to Richter Oetken, has "become the equivalent of the footnote of the 21st century for the purposes of attribution in the Defamation Act, because it has become a recognized means for an author or the Internet to assign a source". …

Defendant referred both to the data on which it was based its opinion that the plaintiff "clearly" personally distributed Russian bots (on) its own website, "and accordingly this statement is not applicable.

(C.) Third statement: "@ Conspirator0 (& # 39; s) Work … has put (plaintiff) into a frenzy"

The court similarly rejects the plaintiff's libel suit regarding the third part of the defendant's tweet – the work of "@ Conspirator0" (the topic of bot activity on the Russia blog) got (the plaintiff) in a frenzy tweeting and trying to discredit him. "For the reasons mentioned above, this statement is a clear statement that was published on Twitter and" thrown in "in particular in" the conversation (thread) between Ganske and @ Conspirator0 ".

It is difficult to conjure up an "exact meaning" for the statement that the plaintiff was "sent into a frenzy of tweeting". In fact, Twitter limits a user's tweet to 140 characters, encouraging users to post multiple times in a short amount of time. It is therefore common for a user to post many times in a row. Even if this statement could be interpreted as a fact with a precise meaning, the plaintiff has not alleged that this statement is defamatory in nature.

Since all three allegedly defamatory statements in the defendant's tweet are unworkable expressions of opinion, the defamation suit of the plaintiff is dismissed for legal reasons.

Seems right to me.

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