Gabriella Cory
The line between entertainment and news dissemination has blurred over the past several decades. Late night shows like The Daily Show and John Oliver’s Last Week Tonight mix satire and news dissemination. This medium does not constitute disinformation because there is a presumed healthy balance of responsible creation and consumption. The showrunners tend to use some fact-checking standard, combined with tipping their hand a bit when they are engaging in satire to ensure that they do not veer into outright misrepresentation of reality. The audience commits to understanding that they are watching a combination of news and hyperbole. This form of entertainment and news dissemination can be a positive phenomenon, so long as this mutual understanding is in place. However, younger people increasingly turn to online platforms for both entertainment and news, and these platforms do not have the same context clues that late night talk shows have.[1] Without any sort of producer-audience expectations set in place, disinformation thrives in this digital entertainment landscape. Assessing how defamation suits might fit into this landscape is a good example of the social ramifications of some of the newest entertainment industries.
Defamation is a common-law private cause of action that individuals can pursue if they can prove that the defendant has 1) presented a false statement as a fact; 2) communicated said statement to a third person; 3) a fault amount of at least negligence; and 4) harmed the subject of the statement.[2] Hyperbole or imaginative expression are protected from defamation suits, so long as the statements in question are matters of public concern that are not provable as false, or cannot be reasonably interpreted as stating actual facts.[3] Before getting into how this applies to social media, it is worth looking at how this reasonableness standard applies to traditional media. In 2020, Karen McDougal filed suit against Fox News after political commentator Tucker Carlson claimed that McDougal had engaged in an act that “sound[ed] like a classic case of extortion.”[4] Carlson’s prelude to this statement was: “Remember the facts of the story. These are undisputed.”[5] Despite Carlson’s own label of his statement as an undisputed fact, the district court granted Fox News its motion to dismiss in part because his “general tenor” of the show indicates that a reasonable viewer should take this rhetorical to be hyperbolic expression.[6] According to the court, Carlson’s track-record of combativeness toward his political adversaries creates a context for how the audience should view his statements. However, the judge’s prima-facie analysis was based on a premise that is not empirically backed. Studies we have on American news consumption suggest that the majority of news-watchers tend to have trouble distinguishing factual analysis from opinion at least some of the time.[7] Furthermore, one study suggests that some viewers are more likely to categorize a program with a combative pundit (such as Tucker Carlson) as “news” than a similar program with a comedic host.[8] If courts are not considering the real world context when defining a reasonable news watcher, what hope is there for them to accurately define a reasonable social media news watcher?
Social media entertainment—particularly influencer-produced content on platforms such as YouTube, Twitch, and TikTok—is not likely to be compatible with a common-law perspective of a “reasonable” interpretation of a factual statement. This is especially true when a content-creator has cultivated an audience comprised predominantly of those experiencing a parasocial relationship with the content creator. A parasocial relationship is a feeling of familiarity or connection that an individual has toward someone they do not know, such as a celebrity or fictional character.[9] Although this phenomenon existed long before social media, online-influencers often enflame these feelings further by responding to comments and likes, and generally spending time managing their audience as a community.[10] Should (or even could) a court apply a reasonable person standard to an audience that is curated to have a certain level of affection or trust toward a person? For example, some political influencers have made videos recounting previous instances in which they have gotten facts wrong, and vowed that they would take those videos down and do better next time.[11] These videos are often met with top comments praising their integrity and evolution. If the same influencer were to go on to spread slander against someone, would these interactions cut for or against the audience’s reasonable expectation of presentation of fact? Is this a news agency correcting previous errors, or a friend sharing their mistakes and showing you how they are growing as a person?
As the centuries-old adage goes, “a lie can travel halfway around the world while the truth is still putting on its shoes.” Social media platforms increase that mileage exponentially. In addition to the negative consequences misinformation has on democracy, online harassment has created new and compounded forms of direct and reputational harm that victims of online defamation should be able to remedy through tort law. In order to adequately protect people, it may be advisable for courts to reassess reasonableness standards in defamation cases in light of the average citizen’s level of media literacy, or lack thereof.
[1] See e.g., Katerina Eva Matsa, More Americans Are Getting News on TikTok, Bucking the Trend Seen on Most Other Social Media Sites, Pew Rsch. Ctr. (Nov. 15, 2023), https://www.pewresearch.org/short-reads/2023/11/15/more-americans-are-getting-news-on-tiktok-bucking-the-trend-seen-on-most-other-social-media-sites/ [https://perma.cc/S3RZ-N8YX] [https://web.archive.org/web/20240213184027/https://www.pewresearch.org/short-reads/2023/11/15/more-americans-are-getting-news-on-tiktok-bucking-the-trend-seen-on-most-other-social-media-sites/].
[2] Legal Information Institute, Defamation, Cornell L. Sch., https://www.law.cornell.edu/wex/defamation [https://perma.cc/ZL8E-72UU] [https://web.archive.org/web/20240213184444/https://www.law.cornell.edu/wex/defamation] (last visited Feb. 12, 2024).
[3] Lyrissa Barnett Lidsky & RonNell Andersen Jones, Of Reasonable Readers and Unreasonable Speakers: Libel Law in A Networked World, 23 Va. J. Soc. Pol'y & L. 155 (2016).
[4] McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174, 179 (S.D.N.Y. 2020).
[5] Id.
[6] Id. at 183–84.
[7] Amy Mitchell et al., Distinguishing Between Factual and Opinion Statements in the News, Pew Rsch. Ctr. (June 18, 2018), https://www.pewresearch.org/journalism/2018/06/18/distinguishing-between-factual-and-opinion-statements-in-the-news/ [https://perma.cc/45H5-U9T8] [https://web.archive.org/web/20240213184919/https://www.pewresearch.org/journalism/2018/06/18/distinguishing-between-factual-and-opinion-statements-in-the-news/].
[8] Stephanie Edgerly, News, Entertainment, or Both?, Nw. Inst. Pol’y Rsch. (Oct. 30, 2019), https://www.ipr.northwestern.edu/news/2019/edgerly-news-entertainment-both.html [https://perma.cc/KW9K-XTKK] [https://web.archive.org/web/20240213185208/https://www.ipr.northwestern.edu/news/2019/edgerly-news-entertainment-both.html].
[9] Parasocial Relationship, Dictionary.com, https://www.dictionary.com/e/tech-science/parasocial-relationship/ [.
[10] Tanya Chen, Don’t Meet Your Heroes. It Won’t Make Your Parasocial Relationship More Genuine—It’s Already Real!, BuzzFeed News (May 14, 2021), https://www.buzzfeednews.com/article/tanyachen/fan-influencer-relationships-are-very-real [https://perma.cc/4JBF-XRKG] [https://web.archive.org/web/20240213185444/https://www.dictionary.com/e/tech-science/parasocial-relationship/].
[11] See. e.g., Blaire White, “I WAS WRONG..” YouTube (Feb 27, 2018), https://youtu.be/l_bGNMaAn1o?si=f908cF3fVy1tyrk0 [https://perma.cc/R3CR-963E] [No Wayback Archive].