Hey! You Defamed Me (By Not Saying Anything About Me)!

Another day. Another "I created Facebook first" case.  

Last month, a federal magistrate judge in Massachusetts dismissed the lawsuit of Aaron Greenspan, a former classmate of Facebook founder Mark Zuckerberg, against Random House Publishing and Columbia Pictures (and others), the respective distributors of the 2009 book about Facebook's creation, "The Accidental Billionaires," and the film adaption, "The Social Network," in 2010.

Amid various copyright claims (which were also dismissed) was an interesting, "Is this really a legal thing?" claim of "defamation by omission." Greenspan basically argues that he was defamed when he was left out of the movie based on the book about Facebook because he claims that he was "indirectly" involved in the founding of the company. In his complaint, Greenspan alleges he was referred to as "Grossman" in the book, and completely left out of the film. And by being left out, he alleges that he was excluded from any recognition of his contributions, and that all these (complicated and diluted) matters have affected his "career prospects." Sounds like a slam-dunk for the "subject ridicule, shunning and abuse" element for a defamation claim, right?

Not hardly.

Magistrate Judge Robert Collings of the United State District Court for the District of Massachusetts said, "[e]ssentially, Greenspan contends that the harm resulting from omissions was that he was robbed of his proper recognition for his role in the origins of Facebook; that is not a claim of defamation." Greenspan has since appealed his case to the First Circuit.

While Greenspan's indirect defamation claim was not strong, and may be even laughable, it is interesting to explore this issue of defamation by omission and what would be considered an actionable claim.

Defamation by omission is closely related to defamation by implication, both types of "indirect defamation." If you say something and it defames me, that's direct defamation. If you imply something that defames me, that's indirect defamation. If you create that implication by leaving something out, that's defamation by omission. 

And while this makes some sense in theory, when you look deeper at the elements of defamation, things start to get squishy.

Now for your superquick defamation lesson for the day. Defamation is the general term for a legal claim involving injury to one's reputation.

The basic elements, which vary slightly from state to state, are that a defendant (1) published (2) a false statement of fact (3) about the plaintiff (4) that harmed the reputation of the plaintiff (not just insults, but that "exposes a person to hatred, ridicule or contempt"). The kicker is that it has to be published with (5) some level of fault (negligence if a private figure; or actual malice, that the reporter knew it was false and didn't care, for a public official).

Most defamation by omission cases involve statements that name the plaintiff but allegedly omit certain information that could defuse a defamatory meaning.  Thus, several cases that have found an actionable defamation by omission claim have hinged on the elements of falsity and defamatory meaning.

  • In a 1978 case, Memphis Publishing Co. v. Nichols, the Supreme Court of Tennessee  held a defamation by omissions claim could go forward to trial after a published article falsely implied that a woman shot her husband at another woman's home because they were "caught" having an affair. In fact, there was no affair and other neighbors were present at the encounter. The court found that even though the facts in the publication were true, the omission of other facts "so distorted the truth as to make the entire article false and defamatory." The court further said, "[t]he publication of the complete facts could not conceivably have led the reader to conclude that Mrs. Nichols and Mr. Newton had an adulterous relationship."
  • In 2011, the Fourth Circuit reversed a lower court decision that dismissed a defamation by omission claim because the statements in the broadcast were "literally true" and taken together did not create a "false implication." Tomblin v. WCHS-TV8 involved a news story reporting that a daycare center was alleged to have abused a child. The Fourth Cirucit said there was a question of fact as to whether the television station published a false statement by inuendo since it knew and left out the fact that the abuse incident involved two four-year-old boys, not an adult and a child. "A reasonable jury could find that this statement was defamatory, inasmuch as there is material difference between a daycare worker actually abusing a child in his or her care, and a daycare worker negligently supervising a child such that he or she is ultimately responsible for one child's assault of another child," the court held. 

In the above cases, there was a clear implication of defamatory meaning, and the implication was provably false. The reporters, by leaving out certain information that the court found to be important, created an implication that was capable of a defamatory meaning. Though there was literal truth to the statements published, the inclusion of certain other facts would have contradicted the implied defamatory meanings.

Overwhelmingly though, most courts have dismissed these types of claims because judges have not wanted to invade editorial decision-making. In the cases below, reporters also left out certain facts from their publications, but editorial discretion was given more weight than the possible inferences of defamatory meaning:

  •  In a 2008 California case, Paterno v. Superior Court, a newspaper sued a journalist who wrote a magazine article about the newspaper, which claimed the newspaper "killed" a story about one of its editors drunk-driving sentences, as well as reporting about "turmoil" in the workplace environment. In its lawsuit, the newspaper did not claim that the statements were false, but that the magazine article omitted certain facts and didn't tell the whole story, thereby implying a "false and defamatory impression" that the newspaper was an "arbitrary and abusive employer" and that it was "directing news content to protect favored employees." The court found for the reporter, holding that the plaintiff did not have to include the newspaper's explanation of the story, as "media defendants are liable for calculated falsehoods, not their failure to achieve some undefined level of objectivity."
  • The 1985 case of Janklow v. Newsweek arose out of a magazine article of a rape allegation against the Governor of South Dakota. Governor Janklow claimed that Newsweek's story defamed him when it did not include facts that he passed a lie detector test and that a medical examination of the accuser did not show signs of rape. He further alleged that these omissions implied he was guilty of the rape (thus making the story capable of defamatory meaning). The 8th Circuit disagreed, and held that "libel, by definition, consists of the publication of a false and unprivileged fact. Thus, liability may be imposed in a libel case only for an assertion or implication of fact that is false and unprivileged, and not for mere omission of a relevant fact."
  • In the 2005 Washington Supreme Court case Mohr v. Grant, a storeowner sued a reporter for defamation, alleging that the reporter implied he bullied a disabled boy who was arrested at his store. The plaintiff claimed the defendant omitted key facts about the disabled boy's criminal record and past history. The storeowner said after the broadcast he received many angry phone calls from viewers announcing they would never shop at his store again. The Washington Supreme Court held that "merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability." Further, the court said that including the omitted information "would not have negated the asserted defamatory implication in its entirety," and that the proper test is to examine what is necessary to have "a provably false impression which is contradicted by inclusion of omitted facts." 

Although most plaintiffs would prefer that the press publish their version of events, interference in editorial discretion raises constitutional questions. In the 1974 case of 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," and are protected by the First Amendment.

So what does this tell us about Greenspan's claim against the publishers? Greenspan's claim is  different because he was completely left out the movie.  In a 1974 case somewhat similiar to Greenspan's, a Massachusetts architect prevailed on his libel claim after a story reported another firm as responsible for the design of a certain housing project (even though they knew otherwise). In Sharatt v. Housing Innovations, Inc., the plaintiff argued that by not referencing him as the architect, it injured his professional reputation because he had represented himself to be the contracted architect among the business community. The Massachusetts Supreme Judicial Court found that even though the published statement was "innocent to the general public," the "attendant circumstances may be shown as proof of the defamatory nature of the words."

Even though the plaintiffs were not mentioned in these cases, the courts did not find the "of or concerning plaintiff" element of defamation to be dispositive, focusing instead on defamatory meaning and whether extrinsic facts would change readers' understanding.

On a final note, though it was only a small claim of his entire case, a claim like Greenspan's is still troubling. Defamation law should not create windfalls for people with de minimis involvement in a certain event, and for one reason or another are not mentioned in a news story or publication. There is not enough time or space in reporting and storytelling to give all the details and introduce entire casts of characters. Reporters, authors, and editors are tasked with synthesizing complex and complicated information in an understandable, compelling and truthful manner. They should not be sued for their editorial decisions. 

Tabitha Messick is an intern at the Digital Media Law Project and a rising third-year at the University of North Carolina School of Law. She doesn't really care who directly or indirectly created Facebook.

(Image courtesy of Flickr user mikecogh, licensed under CC BY-NC-SA 2.0 license)


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