“Liking” a Facebook Post Isn’t Defamatory–Gallagher v. MaternityWise

November 24, 2022 · by · in Content Regulation, Derivative Liability

[WISHING YOU AND YOUR FAMILY A HAPPY THANKSGIVING]

In 2018, Young posted a Facebook review accusing plaintiff Gallagher of being a sexual predator. Defendant Croudace allegedly “liked” Young’s post. The court says the  “threshold issue is whether, as a matter of law, Croudace’s act of ‘liking’ the Young Review is ‘reasonably susceptible of a defamatory meaning.'” The court says that “clicking ‘Like’ on a Facebook post that contains a defamatory statement does not constitute adoption or republication of the post.” (A cite to Flynn v. CNN might have been appropriate). Summary judgment for the defense.

I like how this court efficiently concludes that the plaintiff failed the prima facie elements of defamation. One of those elements is “publication,” and “liking” a Facebook post does not “republish” the post to the user’s followers or anyone else. A simple and easy way to dismiss the case.

However, the court doesn’t address the amplification consequences of “liking” a post. Even if a Facebook “like” doesn’t republish the post, it may expand the post’s audience. The Supreme Court will likely opine on these amplification implications in the Gonzalez case.

Furthermore, cases like Bland v. Roberts hold that “liking” Facebook content can constitute protected speech. I agree with those conclusions, but they raise a thorny epistemological question of how a “like” can simultaneously constitute protected speech yet not constitute a “publication” of the speech.

The court could have also held that Section 230 protects “likes” of Facebook content. Young originated the content, not Croudace, so I see this as an easy Section 230 case. Indeed, courts have held that retweets are protected by 230 (e.g.,Banaian v. Bascom; Holmok v. Burke). I’m not sure if the defense raised 230, or perhaps the judge thought that would be more complicated or appeals-proof to rely on 230 than the prima facie elements.

Finally, note that Twitter “likes” work differently. They cause all liked tweets to appear on a new page of “Likes” content. That still may not constitute republication under the prima facie elements of defamation, but either way Section 230 should protect it just like it protects retweets.

Case citation: Gallagher v. Maternitywise International, LLC, 2022 WL 16574202 (D. Haw. Nov. 1, 2022). The GovInfo page shows that this case has a lot going on.

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