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Monday, May 30, 2011

Has Rep. Weiner defamed Twitter & Facebook?

Prof. Althouse has an interesting post about the alleged (*cough-cough*) simultaneous hacking of the Twitter and Facebook accounts of U.S. Rep. Anthony Weiner. I, for one, believe that Rep. Weiner is lying through his teeth about the "hacking." But I either fail to follow Prof. Althouse's thinking, however, or else I respectfully disagree with her about an observation she's made in updates to her post (link & ellipsis hers):

AND: If Weiner is lying about his accounts getting hacked, he could be sued by Twitter (and the other companies) for defamation.

ALSO: NBC News reports "Lewd Photo Sent Over Rep. Weiner's Hacked Twitter Account... his Twitter account was hacked." Not that Weiner makes that claim, but an outright assertion that his account was hacked. Twitter is getting slimed here. Does it deserve it?

My disagreement with her is almost certainly not over the relevant law. The specific definitions vary somewhat from state to state, and the common law of libel and slander have been tweaked some by state legislatures and even federal constitutional interpretations. Nevertheless, as a general rule, in order to be defamatory, a statement must not only be false, but must also be harmful in a particular way to particular interests. For example, section 73.001 of the Texas Civil Practice & Remedies Code defines a libel as —

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Similarly, section 559 of the Restatement (Second) of Torts provides:

A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

I simply don't see how what Rep. Weiner's reported to have said — even if false — would harm Twitter's or Facebook's reputation.

Twitter and Facebook should bear no responsibility — legal or even causal — if Rep. Weiner simply chose a low-security password that someone guessed. Nor should they be responsible if, for example, Rep. Weiner used the same high-security password for several accounts and his password was stolen through some wrongdoer's hacking of one of those other services (either with or without the contributing negligence of that other service).

Simply put, unless one takes the view that every unauthorized use of an account must always and necessarily be the fault of the service which hosts that account, a statement that someone's account was hacked does not necessarily imply something harmful to the service's reputation. And I respectfully submit that such would be a patently unrealistic view — even though some people might jump to that conclusion if they have not thought through the alternatives.

The law treats this as a threshold issue to be decided by the judge "as a matter of law," even though it's necessarily based on an appreciation of what does or doesn't affect one's reputation in the community. So I'm curious:

Assume that you are the judge faced with Rep. Weiner's pretrial motion to dismiss Facebook and Twitter's (hypothetical) lawsuit on grounds that, as a matter of law, his statements did not expose Facebook or Twitter to the required sort of reputational harm. What's your ruling?

Posted by Beldar at 07:59 PM in Congress, Current Affairs, Ethics, Law (2011), Web/Tech | Permalink


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(1) Milhouse made the following comment | May 30, 2011 8:35:28 PM | Permalink

the Texas Civil Practice & Remedies Code defines a libel as — "a defamation expressed in written or other graphic form that tends to blacken the memory of the dead..."

Really? Good. I thought it was a basic rule of the common law that one can't defame the dead. And I've always thought it was a stupid and wrong rule, so if Texas has ditched it I'm glad.

(2) Beldar made the following comment | May 30, 2011 9:20:04 PM | Permalink

Once again, Milhouse, you prove yourself to be a close and careful reader!

Your comment sent me to Westlaw for the annotations to section 73.001, where I found Renfro Drug Co. v. Lawson, 160 S.W.2d 246, 439-40 (Tex. Comm. App. 1942, no writ), which held (about section 73.001's statutory predecessor before re-codification) that it doesn't mean what it obviously says because, well, it just doesn't:

In American Jurisprudence (Vol. 33, p. 42, Sec. 7) the text announcing the rule that defamation of the dead cannot be made the basis of recovery in a civil action is followed by this statement: "And this is the rule notwithstanding the fact that certain well known definitions of libel include, as one form thereof, publications tending to blacken the memory of the dead." In our opinion, an intention on the part of the legislature to create a cause of action in favor of one not injured in his own reputation is not reasonably implied from the enactment of a definition containing the phrase "tending to blacken the memory of the dead," when all of the decisions that had passed on the question had denied the existence of such cause of action, although the same phrase was included in the common law, and generally approved, definition of libel.

... We think, therefore, that if the [original version of section 73.001] gives by implication the right to sue for damages for defamation of the dead, the right is given to one whose reputation has suffered injury from the defamation.

The court held that despite this statutory language, a father could not recover for the defamation of his daughter (whose death had preceded the defamatory statement).

However, this must be read in combination with section 71.021 of the Texas Civil Practice & Remedies Code, which provides (emphasis mine) that "[a] cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury," but instead "survives to and in favor of the heirs, legal representatives, and estate of the injured person."

Thus, in Texas at least, "[w]hile one cannot bring a cause of action for the defamation of a person already dead, one who is alive while he is defamed and later dies, has a cause of action for defamation which survives his death." Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 940 n.1 (Tex. 1988).

(3) DRJ made the following comment | May 30, 2011 9:47:34 PM | Permalink

Curiously enough (at least to me), John Dean has opined on defaming the dead.

(4) Beldar made the following comment | May 30, 2011 9:50:29 PM | Permalink

Regular reader and commenter Mike Myers emails to say he wanted to post the following comment, but for some reason TypePad's being uncooperative:


Based on the subject matter--the photo which allegedly displayed a semi flaccid membrum virile of Representative Weiner, I'd be tempted to dismiss the whole matter with a snarky one line opinion. "It's no big deal."

I might also add that one could take judicial notice of the fact that some Internet and social media accounts do get hacked. I recently received an e-mail, purportedly from the former General Counsel of a Fortune 50 corporation where I'd worked, offering low cost Viagra. His e-mail had been hacked, and he had a devil of a time explaining why some 250 of his acquaintances had received those messages.

So because people accept the idea that accounts do and will get hacked from time to time, Representative Weiner's putative and specious defense that such hacking had occurred in his case can not be libelous. It might be erroneous--it might be and probably is--false--but it can't be libelous.

(5) DRJ made the following comment | May 30, 2011 9:52:53 PM | Permalink

As for the subject of the post, it seems like Twitter and Facebook might have some room to complain. False Light doesn't quite fit but could this constitute an economically injurious falsehood, especially if these were "verified" accounts? That suggests a higher level of security and reliability.

(6) Beldar made the following comment | May 30, 2011 10:08:28 PM | Permalink

DRJ (#5), if Rep. Weiner had also said something like, "I trusted Twitter and Facebook because these were supposedly 'verified' accounts that were impervious to hacking, and despite every reasonable precaution on my part and the actions of this as-yet-unidentified hacker, Facebook and Twitter are to blame for my accounts having been hacked because their security is so bad," then I might go along.

But I don't think that fairly read, Rep. Weiner was blaming Facebook or Twitter, nor otherwise attributing any causation (even by failure to act) to them in the hacking. I don't think what he's said carries any necessary implication of blame or even causal responsibility. To get to that, one has to project further assumptions onto what he actually said. I don't think his statement necessarily implies any objective, verifiable facts about Facebook or Twitter one way or the other, no more than you would necessarily be implying anything ugly about me if you said, "Beldar's wallet was stolen."

And even then, he'd probably have a decent defense that even the express statement I've hypothesized is non-actionable because it's one of judgment and opinion (as to what's impervious or what's reasonable). Perhaps if he'd said, "Facebook and Twitter have no security measures at all," I'd agree that such a statement would be factual, harmful, and false. (The damages, if any, would still be trivial, though, because virtually no one would believe such a statement.)

Of course, I'm old-school: I'm against the loosening of traditional defamation standards, and I tend to regard new-fangled doctrines like "false light" as dangerous and unwise.

(7) DRJ made the following comment | May 30, 2011 11:03:04 PM | Permalink

I agree Weiner likely would be the first to say he doesn't blame Facebook or Twitter, especially since he probably just wants this whole story to go away. But if there has been a false claim that his accounts were hacked, I can also see how a cyber provider could be harmed by that.

However, I also agree with your inclination not to expand defamation ... or other tort claims, either, for that matter. This strikes me as a much better law school question than a real life claim.

(8) Dr. Weevil made the following comment | May 31, 2011 8:30:07 PM | Permalink

"It's no big deal" (# 4)? Surely the proper legal terminology is "de minimis non curat lex".

(9) Personal Home Inspector made the following comment | May 31, 2011 10:46:13 PM | Permalink

He called a lawyer. CNN asked him if it was his dong, and he wouldn't answer. He tweeted earlier that day about going on TV and what time that would be in Seattle. He was also following a 21 year old co-ed in Seattle. He doesn't want an investigation but just wants to "move on". Does this sound like an innocent man to you?

(10) Home Inspector Training made the following comment | Jun 1, 2011 9:48:58 PM | Permalink

My guess is Wiener will do nothing but let this cool off. It matters not whether he did it.Its heat and he wants it gone. Law suits go nowhere unless you get a guy solid on the hack. Maybe not.

(11) Save My Marriage made the following comment | Jun 2, 2011 8:27:52 AM | Permalink

Suddenly the schmuck who is responsible for the profligate waste, mismanagement & misappropriation of the people’s tax dollars wants to focus on the spending limits? This “distraction” should continue until the feckless liar tells the truth about his perversion. It is good that not all journalists are intimidated by a putz like Weiner. This embarrassing episode could not happen to a more deviant, hateful red diaper, anti-American neo-Marxist slime. I wonder if his schvantz is as ugly as he is.

(12) DRJ made the following comment | Jun 5, 2011 12:34:34 PM | Permalink

Another thought on why this might harm (or at least concern) Facebook and Twitter: Social media sites work to gain users' confidence about using their services. One way they do this is security settings. Another is to "create the illusion that you're with a small group of close friends." IMO a false hacking claim jeopardizes users' confidence and theoretically damages the social media website. Apparently yFrog (aka imageshack?) agrees because it investigated whether its services had been compromised and released the result: No.

(13) Tom J made the following comment | Jun 8, 2011 1:24:50 PM | Permalink

Actually, I was wondering if Breitbart has a defamation case against Weiner for the various accusations he threw out about Breitbart being a part of the hacking.

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