A DISCUSSION OF LAW AND JOURNALISM

Sometimes, It’s What You Don’t Say

By Pamela Schwartz and Nicole Rowlands

With social media giving everyone a soapbox to Facebook, tweet, Reddit, and Pinterest, on, more often than not people are saying publically whatever happens to cross their mind. This has led to an increasing number of defamation suits. There are even law firms that specialize in online defamation.

So there’s big business in suing someone for defamation who may havesaid something she shouldn’t have. No news there.

What we didn’t know though, is that you could sue someone for defamation for not saying something about you.

The 2010 Best Picture Oscar-nominated film “The Social Network” was based on the true story of Facebook founder Mark Zuckerberg, who was sued by the Winklevoss twins for allegedly stealing their original idea for the social networking site.

Enter Aaron Greenspan.

Our guess is you have no idea who Mr. Greenspan is and what he has to do with Facebook, Mark Zuckerberg, and “The Social Network.”

And that’s why he’s suing.

According to a May 14 Hollywood Reporter piece, not only does Mr. Greenspan think he has a legal claim to his role in the origins of Facebook, he also claims he was “defamed by omission” (and robbed of his glory) when author Ben Mezrich changed his name in the book “The Accidental Billionaires,” and Columbia Pictures omitted any reference to him in “The Social Network.” Mr. Greenspan alleged a tort called “defamation by omission” – claiming that leaving his name out of the film suggested that he was irrelevant to Facebook’s Genesis story — thus injuring his professional reputation.

The lawsuit was dismissed by U.S. Judge Robert Collins. If you think the idea that not saying something can be defamatory sounds a little farfetched, we agree. Still, this had us wondering, has anyone sued for defamation by omission (with a straight face) and won?

Turns out, this tort is a lesser-known variant of defamation called indirect defamation. Though it varies from state to state, indirect defamation usually comes in two flavors: defamation by implication or innuendo, and defamation by omission. Both involve failing to mention material facts, and, as a result of this omission, a defamatory meaning could be implied. Although courts sometimes use them interchangeably, the primary difference between the two is that with defamation by implication, someone makes a statement that intends or endorses some sort of defamatory allegation. (For instance, reports of a person’s “close relationship” with an organized crime boss may insinuate that person was also involved in organized crime.)

With defamation by omission, someone leaves out a fact that would have changed an opinion for the better if it were included.

The tort, though controversial, is not a new one. At the heart of Memphis Publishing Co. v. Nichols, a 1978 Supreme Court of Tennessee case, was a newspaper account of a woman shooting her husband and another woman, Ruth Ann Nichols, after finding the two together at the Nichols household. Because the article failed to mention that the victims were not in the house by themselves — in fact, other neighbors were present — the published article falsely implied that the two were “caught” in the thralls of a romantic tryst. The court found that although the facts in the publication may have been true, the facts omitted “so distorted the truth as to make the entire article false and defamatory.” Moreover, the court said, “the publication of the complete facts could not conceivably have led the reader to conclude that Mrs. Nichols and Mr. Newton had an adulterous relationship”; the defamation by omission claim could go to trial. (As legal databases contain no record of any subsequent trial, we may assume the parties settled.)

In 2011, the Fourth Court of Appeals Circuit reversed a lower court decision that had dismissed a defamation by omission claim.  Tomblin v. WCHS-TV8 involved a news story reporting sexual abuse at a daycare center. What the television station left out of its coverage was that the abuse incident did not involve an adult and a child, but rather two four-year-old boys – a rather different story.

It was clear in the above instances that the omission of certain (important) could be found to be defamatory. Still, most courts have dismissed these types of claims because judges do not like the idea of invading the sacred realm of editorial decision-making.

For example, the 2005 case of Mohr v. Grant arose when a storeowner sued a reporter for defamation, alleging that the reporter implied that the storeowner had bullied a disabled boy who was arrested at his store. The storeowner claimed the reporter left out key facts about the disabled boy’s criminal record. But 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.” The case was dismissed on the grounds that the storeowner did not meet the requirements that the “communication left a false impression that would be contradicted by the inclusion of omitted facts.”

A current case involves the popular left-leaning MSNBC political talk show host Rachel Maddow and Christian music star Bradlee Dean. Ms. Maddow read a quote by Mr. Dean on air that gave the impression that he approved of violence against the LGBT community; Ms. Maddow also mentioned that Mr. Dean had stated that he did not condone violence against the LGBT community when appearing as a guest on her show, Mr. Dean sued for defamation by omission, arguing that Ms. Maddow had taken his words out of context and left out his anti-violence disclaimer(even though she didn’t).

Just as Judge Joan Zeldon was about to issue a ruling Mr. Dean voluntarily withdrew his suit and filed in federal court to avoid the local anti-SLAPP laws. The judge did not take too kindly to the blatant strategic move and ruled that Mr. Dean’s case could go forward to federal court – if he agreed to pay Ms. Maddow’s legal fees which exceed $20,000. Ouch. Since then, Mr. Bradlee has moved to have Judge Zeldon removed from his case. No winner for defamation by omission here, but this is an example of how the tort can be misused.

As a whole, judges usually dismiss these claims, reluctant to hinder the editorial process or violate the First Amendment.

Back to Aaron Greenspan. A book and a film both portrayed the facts behind the origins of Facebook. Not all the facts, maybe, and certainly not the facts regarding Mr. Greenspan’s role. But Mr. Greenspan was not defamed, humiliated, or portrayed in a negative light. He just wasn’t mentioned at all.

Mr. Greenspan has already filed an appeal to the First Circuit, but his chances of success look slim. With social media being the juggernaut it is (See: Facebook) Mr. Greenspan would probably do better to post his story all over the Internet than to sue for defamation by omission.

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  1. Charles Webb says:

    Fact is, if Zuckerberg — the main guy responsible for Facebook — was left out of the film, he might have a suit. But not this guy. So it’s not just the tort that’s difficult for him, it’s his relative importance to, as you so nicely put it, the “Genesis” story of Facebook And it’s just not important enough to merit liability for leaving him out.

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