Private Facebook Group’s Conversations Aren’t Defamatory–Finkel v. Dauber

By Eric Goldman

Finkel v. Dauber, 2010 WL 2872874 (NY Sup. Ct. July 22, 2010)

I previously blogged about this case last year. The case involves a private Facebook group comprised of 6 high school students apparently mocking and criticizing one of their classmates. Even if I acknowledge that the conversation was never meant for public consumption, to me the group’s discussion is embarrassingly puerile and hearkens back to John Hughes’ bleak depictions of high school life.

For reasons not explained in this opinion, the contents of the private group’s discussion leaked out and got back to the target, who sued Facebook, most of the posters and the posters’ parents. The suit against Facebook got some press when initially filed, but it was a farcically doomed legal endeavor, and I would have slapped it with a Rule 11 sanction if I had been the judge. The judge was more merciful than I would have been on the sanctions front but nevertheless dismissed the claim per 47 USC 230.

In last week’s ruling, the court dismisses the plaintiff’s defamation claims against the posters because, in context, the puerile discussion clearly did not constitute assertions of fact. The court says:

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

The court later reiterates the point:

The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

What baffles me is that this assessment was unmistakable from reading the complaint. Yet, despite the lawsuit’s seemingly obvious futility, the plaintiff still thought this case was worth bringing. Why? Was it the hope of punching an ex post lottery ticket? Or was it an attempt to use the court system to redress the putative harms? If it was the latter, I wonder if some type of remedial action other than a judicial adjudication might have nevertheless satisfied the plaintiff, because the courts sure aren’t providing a satisfying resolution to cyberbullying-style cases.

The court made two other rulings of interest. First, it rejected the plaintiff’s efforts to impose negligence liability on the posters’ parents for tortiously entrusting the kids with a dangerous instrument. The court says: “To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability.”

Second, the court rejects any standalone claim of “cyberbullying” as a tort. The court says: “the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action.”

This case reminds me a little of the DC v. RR “cyberbullying” case, which I have been meaning to blog for months and will get to eventually. The DC v. RR case is more serious because the taunts were publicly posted and much more violent, but in context, the postings were still obviously hyperbolic to me. Both cases present themselves as a combination of anti-social conversations by teens who don’t realize the power of their words mixed with a plaintiff who perhaps felt more sensitive about such taunts than the average person. Either way, what’s clear to me is that the court system is not doing a good job resolving cyberbullying claims to anyone’s satisfaction. In my future post, I’ll propose an alternative that might provide a better resolution for the plaintiff than bringing low-merit lawsuits.