Let’s forget what’s happening on the field with the Buffalo Bills for a minute; there’s a strange story playing out off field for one of the team’s defensive stars. Jordan Poyer’s wife, Instagram Model Rachel Bush (@RachelBush), engaged in a headline grabbing war of words with a woman who, allegedly, had an affair with Poyer.
The woman, identified by her Instagram name as Summer Rae, fired the first shot last week when she took to the social media site claiming to have hit her breaking point after “4 months of being harassed/lied to” and posted a series of text messages she allegedly exchanged with Bush. According to the posted messages, Bush allegedly told Rae that she would “never be a wife or mother anyone respects” and that she’d be “dragging her [redacted] to court will [sic] every screenshot she has on her.” Bush allegedly went on to tell Rae her life was over. When Rae replied that she believed Bush and Poyer were divorcing (presumably when she hooked up with Poyer) and that she “don’t want [Bush’s] husband” and didn’t want to “hurt or ruin [Bush’s] family[,]” Bush replied “Prayers for you and your whole family” but then also, allegedly, sent a message saying, “If I ever see you your [sic] dead literally.” You can see screen grabs of the quoted text exchanges here.
The feud did not end there. Over the next couple days, Bush clapped back with her own receipts. On October 9, Bush tweeted “I can’t entertain a crazy person. I don’t have the time…. Life goes on.” (emoji omitted). Bush continued to call Rae crazy in several subsequent tweets and accused Rae of texting her and Poyer from multiple numbers and posting her phone number on a porn group. She also began retweeting and tweeting out pictures of DMs from followers who wanted to add their own opinions on Rae (here and here).
Some of the actions alleged and words exchanged in the texts and messages—from both sides—could raise some legal issues, but what this post is concerned with is a bigger question facing our generation: when does a social media beef become a claim for defamation?
Unsurprisingly, the number of social media defamation claims are rising. According to Black’s Law Dictionary, defamation is the “malicious or groundless harm to the reputation or good name of another by making a false statement to a third person[.]” A person can be defamed through libel and/or slander. Libel is written defamation; slander is verbal defamation. Since the social media posts here contain written information, they would fall under the libel category.
Under New York State law, a plaintiff can only recover for libel if they establish four elements:
(1) a false statement of fact concerning the plaintiff;
(2) publication to a third party;
(3) fault, either negligence or actual malice, depending on the status of the libeled party;
(4) the statement causes special damages or constitutes defamation per se.[1]
What does this actually mean? We can break them down one by one:
(1) A false statement of fact concerning the plaintiff
This seems pretty clear—but hold the phone—the most important part of this element is that the alleged defamatory statement has to be a fact that can be proven false. It cannot be “mere rhetorical hyperbole” or an opinion—no matter how vile or offensive it is.[2] Any statement that is “indefinite, ambiguous, and incapable of being objectively characterized as true or false falls” is an opinion; so is a statement that “is merely expressive of a subjective moral evaluation of a person.”[3]
Differentiating fact from opinion is not as easy as it may seem. Take the recent example involving James Woods. The actor was accused of libel after a case of mistaken identity on Twitter. Woods played off another tweet that misidentified a Bernie Sanders organizer as a person seen giving a Nazi salute at a 2016 Donald Trump Rally. Woods tweeted: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” The wrongly accused woman sued Woods in federal court for defamation and invasion of privacy. Eventually the suit was dismissed—why? Because Woods included a question mark at the end of his tweet. In his decision, District Court Judge George C. Smith wrote: “The vast majority of courts to consider questions as potential defamatory statements have found them not to be assertions of fact. Rather, a question indicates a defendant’s lack of definitive knowledge about the issue and invites the reader to consider various possibilities.”
(2) Publication to a third party
This one is actually pretty clear cut. The defamatory content needs to be heard or seen by people other than the person being defamed. A public tweet on a social media site, like Twitter or Instagram, would likely satisfy this requirement.
Rachel Bush has more than 700,000 followers on Instagram and more than 50,000 followers on Twitter, where her response to Summer Rae’s post appeared. Summer Rae has nearly 12,000 followers on Instagram. Neither woman has a private profile and there should be a reasonable expectation that whatever they post will circulate to a wide number of people. But it turns out having a large audience may not even matter. In 2009, a Chicago real estate group sued one of its tenants after she sent out a tweet saying the realty group did not care about mold in their building. That tenant had 20 followers on the social media site; however, her tweets were public and the post took off, eventually getting picked up by media outlets. (NB: the case was later dismissed when a judge deemed the tweet too vague and too lacking in context to meet the Illinois standard of defamation.)
(3) Fault, either negligence or actual malice, depending on the status of the libeled party
Libel laws draw a distinction between private citizens and public figures. In New York, a public figure trying to win a defamation suit must show that the false statement was made with actual malice and a knowing or reckless disregard for the truth. That’s a much higher bar than it is for a private citizen who just needs to show the statement was made negligently.
New York courts have long held that a public figure is someone who “has taken an affirmative step to attract public attention.”[4] Does this mean anyone who posts on social media with a public profile takes an “affirmative step to attract public attention”? How about someone with 700,000 followers who interacts with fans? How about a student with several thousand followers? What if you tweet or Instagram under a fake name? Given the new and changing uses of social media, there are few answers to these questions.
(4) The statement causes special damages or constitutes defamation per se.
Proving damages is an important element in all tort actions; it’s how the plaintiff shows the court they’ve suffered some harm and deserve compensation. In New York defamation cases, a plaintiff can show that they’ve suffered an actual economic impact from the defamatory claims (i.e. loss of a job), but they can also show that the defamatory statements were so awful they can immediately be considered damaging to a person. In New York, these are limited to four categories: (1) statements that claim the plaintiff committed a serious crime; (2) statements that injure a plaintiff in their business or profession; (3) statements that claim plaintiff has some “loathsome disease”; and (4) statements that impute unchastity.[5]
That last one—also codified in Section 77 of the New York Civil Rights Law—could cause a lot of trouble on social media. Would calling someone a “whore” or a “slut” in a post trigger a cause of action? How about saying another woman was repeatedly going after a married man?
The laws relating to social media use are unsettled. While there are still many questions, the takeaway should be that it’s important for people to watch what they say on social media—this seems especially true when you’re beefing with someone. Something that would be water under the bridge off-line can “blow-up” on the internet—and that could even have legal consequences.
[1] 43A N.Y. Jur. 2d Defamation and Privacy § 6
[2] 43A N.Y. Jur. 2d Defamation and Privacy § 16
[3] 43A N.Y. Jur. 2d Defamation and Privacy § 17
[4] James v. Gannett Co., 40 N.Y.2d 415, 422 (1976).
[5] Floyd Harbor Animal Hosp. v Doran, No. 06-18109, 2009 WL 5072272 (Sup. Ct. Dec. 03, 2009)
Image Courtesy: Scotslawblog.com
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