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Jul 26, 2010

Teenage Taunts Are Not Defamation, Court Rules

A New York judge has dismissed a teenage girl's defamation claims against five fellow members of a private Facebook group, accessible only to members of the group.  Finkel v. Dauber, No. 012414/09, 2010 NY Slip Op 20292 (N.Y. Sup. Ct., Nassau County  order July 22, 2010).

The lawsuit stemmed from a series of posts on the "90 Cents Short of a Dollar" group, which began with a post claiming that the plaintiff, identified on the site as "the 11th cent," had contracted AIDS from another (unnamed) member of the group. In an apparent game of one-upmanship, subsequent posts added new allegations about how the plaintiff purportedly contracted the disease, including sex with animals; sharing a needle with heroin addicts; and hiring a male prostitute.  A later post claimed that she had been transformed into the devil, and included a doctored photo of the girl with a third ear in the middle of her forehead.

The girl and her parents sued the members of the group and Facebook in federal court.  After the claims against Facebook were dismissed under section 230 of the Communications Decency Act, which immunizes online service provider from liability for third party posts on their sites, the case was removed to state court.

On July 22, New York State Supreme Court Justice Randy Sue Marber dismissed the remaining claims, saying that the statements did not purport to be statements of fact.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

Finkel v. Dauber, slip op. at 6-7.

Justice Marber also dismissed plaintiffs' claims that the comments constituted online bullying, since New York, unlike several states, does not recognize that claim.

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