Can You Defame Someone By Ignoring Them?
Thursday, July 12, 2012 - 01:23 PM
It’s not news that a number of people claim to have been sidelined, short shrifted, or outright robbed by Mark Zuckerberg. “The Social Network” actually made the plight of Facebook’s discontents an inseparable part of Facebook’s creation myth. Aaron Greenspan is not part of the Facebook origin story, but, he insists he should be. In 2011, Greenspan sued Columbia Pictures, the studio behind “The Social Network,” Benjamin Mezrich, whose book The Accidental Billionaires was the basis for the film, and Random House, which published the book.
The most interesting of Greenspan’s slew of grievances was the claim that he was defamed because he was not in the movie and only fleetingly in the book. The Massachusetts District Court did not think much of his arguments; Magistrate Judge Robert Collings dismissed the case in May.
Greenspan’s claim of indirect defamation seems like a legal justification for sour grapes. But more to the point, it’s pretty hard to make a successful defamation case even under the classic circumstances.
The Supreme Court has a long record of protecting the speaker rather than those supposedly harmed by the speech. (See Snyder v. Phelps or Brandenburg v. Ohio to cite the most obvious) The burden of proof in a defamation case falls upon the victim. You have to show actual malice: that the information known to be false and was published with “reckless disregard of whether it was false or not.”
Indirect defamation - the sort that Greenspan is claiming - is more complicated because in that case, what’s in the record is all true.
There are two types of this sort of defamation. Defamation by implication is when all the information is factual, but taken together casts a false impression. And defamation by omission, which happens when a publication creates a defamatory impression by leaving out certain facts.
In an article for the Citizen Media Law Project, Tabitha Messick brings up a few cases in the former category where the media was found to be at fault. In Memphis Publishing Co. v. Nichols, the Supreme Court of Tennessee found that an article that ran in the Memphis Press-Scimitar “so distorted the truth as to make the entire article false and defamatory.” The piece reported on a suburban shooting, but misleadingly implied that it had involved an angry wife catching her husband in infidelity with a neighbor. It failed to mention that the shooting had occurred at three in the afternoon when the husband and purported “other woman” were chatting in the living room with two neighbors. This failure led the court to side against the paper, and with the “other woman,” who had filed the defamation suit.
Messick says these decisions are unusual. Deference to journalists and editors is the rule, not the exception. In Miami Herald v. Tornillo the Supreme Court held that “the choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment.”