Bill Cosby’s defamation case, McKee v. Cosby, presented the Supreme Court with an interesting question: whether a purported victim of sexual misconduct’s allegation of her victimhood thrusts her to the forefront of a public debate, thus transforming her into a limited-purpose public figure and requiring that she show “actual malice” to prevail in any defamation claim.1
On Friday, YouTube announced changes to its video recommendation algorithm in an effort to “reduc[e] recommendations of borderline content and content that could misinform users in harmful ways—such as videos promoting a phony miracle cure for a serious illness.” YouTube committed to “tak[e] a closer look at how we can reduce the spread of content that comes close to—but doesn’t quite cross the line of—violating our Community Guidelines.”
Epic Games, creator of the popular online video game Fortnite, faces a whirl of legal challenges from the celebrities who popularized the dance moves used by its character emotes. Fortnite is free-to-play, but offers players accessories and character emotes through in-game purchases, which contributed to Epic Games achieving more than $1 billion in sales last year.
The latest development in one of the three pending defamation cases brought by families of Sandy Hook shooting victims against Alex Jones is an accusation against Jones (and his associate company, Infowars LLC) of intentional destruction of evidence relevant to the case after written notice of the preservation obligations.
Malaysia recently prosecuted the first case under its new anti-fake news law, sending a Danish citizen, Salah Salem Saleh Sulaiman, to jail over a video posted on a popular website. In the video, Salah claimed he was there when another individual was shot, that he called the police repeatedly, and that the police arrived 50 minutes later and an ambulance arrived an hour later.
Parties weighing their legal options in protecting their reputations rightly should think beyond the routine defamation/libel/slander claims and look more broadly to state statutes or torts that may fit more neatly with their claims. A potentially obvious route to recovery may be making a claim under a state business conspiracy statute, but plaintiffs need to think beyond the plain language of the statute to ensure it is appropriate for their case—and, even if so, properly pled.
Sometimes it seems like defamation is just an effort to keep someone from saying something unflattering—but the right to protect one’s reputation pre-dates the Constitution as a right on par with that of freedom of the press. Indeed, Professor Thomas G. West observes that “some founding documents add the right to reputation (or the ‘right to character’)” as a full-fledged natural right. Thomas G. West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom 34 (2017). He lists the right to “acquiring and protecting reputation” along with other natural rights that are famously enshrined in the Bill of Rights—like the rights to free speech and a free press.
After filing suit last year against several researchers and an academic journal for publishing a paper (the “C17 paper”) that disagreed with his own, engineering professor Mark Z. Jacobson has dropped his suit. In an FAQ document posted on his website, Jacobson defended his original claim, saying that he did not file the suit simply because he disagreed with the scientific conclusions in the C17 paper, but because the paper contained false factual statements upon which its conclusion relied.