Legal Risk Blog

Question: What are the legal ramifications for a blog that is intended as a satire of real people, not necessarily of politicians but of people who have some public exposure, is obvious as satire or a parody, but includes made-up quotes by these people? Could a blogger potentially be at legal risk for defamation or misrepresentation even though the purpose and context of the site is as satire and parodies?

Thanks.

Reply: Thank you for this parody question, and thank you to George Freeman, vice president and assistant general counsel at The New York Times and an adjunct professor at CUNY’s Graduate School of Journalism, for your input on this Question of the Week.

There is a parody defense to a defamation claim.  See the Rule 1 Defamation Link.  The parody defense also can be effective against a claim of intentional infliction of emotional distress.  The United States Supreme Court upheld the parody defense in the landmark 1988 opinion, → Hustler Magazine v.  Falwell.

However, depending upon the circumstances, a person who posts information, even in an attempt at satire or parody, could be at risk in a libel lawsuit.  The question isn’t the intent of the author to create parody or satire.  Instead, what’s at issue is whether a reasonable reader would believe that the made-up information is true.  If so, the information could be damaging to the reputation of the subject and defamatory. 

But clues, context, and unbelievable representations of fact can all contribute to a successful parody defense, as was the case in → an interesting decision by the Supreme Court of Texas.

Clear labels indicating the material is parody or satire can help reduce legal risk.

But the more believable the false information, the greater the legal risk. 

When it comes to parody as a libel defense, according to George Freeman, vice president and assistant general counsel at the New York Times, “The most important thing is a blog is no different than a newspaper or television report . . .  Parody is protected if it clearly is a parody.  The question is really whether a reasonable reader” could understand the false content at issue to be describing actual facts. 

Important tip for bloggers, social network users, and hyper-local community Web site participants: 

Freeman points out that if the person being parodied is a private person and not well known to the audience, then it could be especially difficult for an author to use a parody defense to counter a libel claim.  That’s because the less a reasonable reader knows about a person being parodied, the more difficult it can be for that reader to distinguish between fiction and fact.

— Geanne

Geanne,

Thank you very much for taking the time with that VERY informative reply. I am very grateful.

b. j. edwards

Question: What are the legal ramifications, if any, of a neighborhood yahoo.com group posting online the photo, name, and other information about individuals who are suspected of (but not arrested or convicted of) crimes in that neighborhood? Is it ok to post any or all of this information? The yahoo group is open to neighborhood members only.

The latest posting of such information included commentary stating that although the suspect had not been arrested, he was “guilty as hell” and “destroying the neighborhood.” His photo was snapped by a neighbor, apparently as he walked through the neighborhood, and then posted on the website in a “Wanted"- type posting that included his full name, photo, and a description of the crime he allegedly committed. The posting said that he had been released without arrest because there was insufficient evidence for an arrest, but neighbors were advised to call 911 if he was seen.

Thanks for your thoughts and advice about this.

Reply: Thank you for this interesting question.  For educational purposes only:

In terms of legal implications, and ethical and fairness considerations aside, the behavior you describe seems quite risky.  Posting even in a narrow neighborhood environment still means publication to one or more third parties, which can be sufficient to support a defamation claim. According to your facts, the identified individuals are merely suspected and that’s a big concern. The information being posted could turn out to include unsubstantiated rumors and falsehoods.  If some of the information being posted is damaging and can be proven false, that’s in the red zone in terms of libel risk.

False light, a privacy tort, might possibly be another legal concern, depending upon the facts and jurisdiction, especially regarding the posting of the photos linking identifiable individuals with allegations of criminal behavior. 

In either case, truth would be a complete defense.

(See the Rule 1“defamation” link for more information about defamation law.)

Eric Robinson, staff attorney at the Media Law Resource Center, adds that, in addition to the above:

“1. If the picture was really taken when the man was on a public street, he probably cannot sustain an intrusion claim.  But if he was someplace where he had a reasonable expectation of privacy—his yard, perhaps—he may be able to make such a claim.

“2. Depending on the context, the statement that the man is ‘destroying the neighborhood’ may be considered opinion, which is not actionable for defamation.  A similar argument could be made about the statement that he is ‘guilty as hell,’ but that would be a much tougher argument to make.

“3. The Communication Decency Act’s ‘safe harbor’ provision for ‘interactive computer services’ (47 U.S.C. Sec. 230) may make the Web site (and the administrator of the Yahoo group) immune from suit, depending perhaps on how actively posts are edited.

“4. The statement advising neighbors ‘to call 911 if he was seen’ may constitute some sort of harassment under state or local law (or perhaps incitement).  There’s also a new, semi-obscure federal law prohibiting anonymous harassment on the Web (47 U.S.C. Sec. 223), which may be applicable.”

Geanne