Year in Review Part III

February 14, 2019

As 2018 lies firmly behind us, CDEP Program Director Bastiaan Vanacker takes a look at some of the major digital ethics and policy issues of the past year that will shape the debate in 2019. The first two installment of this overview can be found here and here.

July: #Planebae and the Limits of Privacy

It was the feel-good internet story of the summer that quickly turned dark. Two attractive young people end up on plane next to each other and seem to hit it off, talk about their mutual love of fitness, share family pictures, and chat about their moms. And at the end of the friendly plane ride they leave the airport together. How do we know? Because co-passenger Rosey Blair, whose request to swap seats had brought the two together in the first place, live-tweeted the whole encounter. She snapped pictures (though she made their faces unrecognizable) and provided updates to a rapidly growing number of followers (“Breaking. They both left for the bathroom at the same TIME.”)

Once the nation had regained its collective breath, and after the woman involved in the encounter expressed her displeasure at the exploitative and privacy-invading nature of this narrative, questions about ethics emerged. When is it ok to take pictures in semi-public spaces? Can you live-tweet without permission of subjects? Earlier this year, I discussed the ethical components of this episode, but what about the legal issues? Sandy Davidson from the University of Missouri discussed some of the legal angles of this story for TWiT network.

There are no indications that the woman in this story actually sued, and if she had, she would probably have faced an uphill battle. Ultimately, Blair’s behavior would probably not be considered outrageous enough to meet the standards for intentional infliction of emotional distress. She also couldn’t be held responsible for the fact that the woman on the plane had been doxed and harassed online by third parties.

Had Blair recorded the conversation, this might have constituted a violation of the Federal Wiretap Act, which requires that all parties to a conversation consent before it can be recorded. Since this happened in federal air space, federal law might have applied (most states have less stringent requirements, requiring that only one party to the conversation is aware of the recording).

However, the law only applies to conversations in which one has a reasonably expectation of privacy, and it could be argued that this standard is not met for a conversation in an airplane that can be overheard by people in the surrounding rows. For the same reason, an intrusion upon seclusion privacy law suit might not succeed, Blair did not intrude into a private space.

Another generally recognized privacy tort, publication of private facts, also would not have been applicable as the information that was being divulged was not private enough for its disclosure to meet the standard that it is “offensive to a reasonable person.” Had Blair tweeted intimate revelations she overheard about their personal lives instead of fitness tips, this analysis might be different.

A libel suit also would have little chance of success since a plaintiff would have to show that the information was false and defamatory. Assuming for a minute that the info was false, implying that someone is flirting with someone is unlikely to be considered defamatory (i.e. lowering someone’s standing in a community). Had Blair falsely implied that the pair had sex in the bathroom, for example, then a libel suit could have been successful. (But in that case our hypothetical plaintiff would have to show that people in her community still recognized her despite the fact that Blair had made efforts to make her unrecognizable in the pictures.)

In all likelihood, a law suit would not have provided the woman with much redress, and that might not necessarily be a bad thing. It could have a chilling effect on speech if someone who slips up on social media is hauled into court. But this does not change the fact that our laws, especially common law, have been developed in a pre-digital era, when it could be assumed that most areas were free of recording devices.

As the ubiquity of recording devices is reaching its saturation point, it can be argued that we no longer have an expectation of privacy in semi-public places. At this point in time, should we not expect that wherever we go, someone will be recording on their phone, tablet or any other personal digital device? While this reality seems to necessitate stronger privacy protections, it also seems to raise the bar for privacy plaintiffs to establish that they had a reasonable expectation of privacy in the first place. The less privacy we have, the less it can be invaded.

August: Libel Suit Against Alex Jones Goes Forward

August marked an important victory for parents and family of several Sandy Hook shooting victims when a judge in Texas allowed their libel suit against Alex Jones law to go forward. The parents sued Jones for peddling the conspiracy theory that the shooting never took place and that all the people involved were actors working for some behind-the-scenes dark force.

As a result, numerous parents received death threats, causing some of them to have to move residences several times. Law suits were filed in Connecticut (where the shooting took place) and Texas (home of Inforwars). The Texas law suit survived a motion to dismiss last August, the parents suing in Connecticut have not yet cleared that hurdle but were allowed access to Inforwars’ internal marketing documents this January.

Jones’ lawyers have argued that his statements were rhetorical hyperbole rather than statements of facts. Indeed, believability is usually an important factor in libel cases and plaintiffs are required to establish that a reasonable person would take these statements as true. Ironically, an important defense of Jones would be that his audience does not fit that description.

It is far too early to predict how these suits will play out in court, assuming they advance and no settlement would be reached. The parents of Sandy Hook victims would make for sympathetic plaintiffs in front of a jury, so lawyers for Jones might very well advise their client to settle. Regardless of the outcome of this case though, it is clear that libel suits have emerged as powerful tools to combat certain types of extreme speech online.

September:  Libel Suits Target Presidential Tweets

In September, lawyers for the president were busy yet again, fending off libel suits from women whose veracity he had questioned following accusations and revelations they made pertaining to him. Adult film star Stormy Daniels and her colorful lawyer Michael Avenatti dominated the headlines in their effort to procure a favorable judgement, however their case was dismissed in October by a federal judge in California.

The suit stemmed from a claim by Daniels that she had been threatened back in 2011 when she was about to come forward concerning her alleged affair with the current president. In a tweet, Donald Trump called the claims, as well as the drawing she had made of the man who had allegedly threatened her, a “con job.” In dismissing the law suit, the court ruled that the tweet was “a hyperbolic statement against a person who has sought to publicly present herself as a political adversary to him.” Even if Daniels could have the verdict overturned, she would –as a public figure- then still have to prove that Trump knew that his statement was false, which would require her to establish that Trump knew the intimidation had in fact happened. A steep hill to climb.

In the shadow of the Stormy Daniels case, Summer Zervos has had more success in moving forward with her case against the president. The former “The Apprentice” candidate has accused Trump of groping and kissing her on two different occasions, upon which the president called her claims and those of others similar to hers “total lies” and “made up nonsense to steal the election.” Zervos has argued that these denials portray her as a liar and are therefore libelous. The case is currently unwinding in New York state court with lawyers for the president arguing that a sitting president cannot be sued in state court. As the Tweeter in charge continues to use his twitter account to disparage opponents and critics, it would undoubtedly a relief for his legal team if a court followed that argument.

Bastiaan Vanacker's work focuses on media ethics and law and international communication. He has been published in the Journal of Mass Media Ethics. He is the author of Global Medium, Local Laws: Regulating Cross-border Cyberhate and the editor of Ethics for a Digital Age.