Digilante Justice: Defamation By Camera Phone

swEarlier this month, a man in Melbourne, Australia decided to take his very first selfie next to a Darth Vader poster at a local shopping center. A nearby shopper mistakenly thought that the man was taking pictures of her young children. Convinced she had espied a pedophile, the mother snuck a cellphone shot of the man and uploaded it to Facebook, along with commentary labeling him a “creep” and implying that he might be a “registered sex offender.” When word of the post reached the man, he immediately contacted the police and cleared his name. The “mistaken mum” has since then issued a retraction, and the Melbourne authorities have urged “anyone in a similar situation to contact police and report the matter as opposed to turning to social media.” But none of that has prevented this poor guy from receiving death threats and even being physically assaulted. Perhaps he has a valid suit for defamation, but we may never know because, so far, he appears mainly to be concerned with keeping a low profile.

But this episode did cause us to wonder if there were any published opinions in the U.S. about similar instances of “digilante justice,” our pet name for defamation cases arising from the publication of decontextualized cell phone media that wrongly implies commission of a crime. Our very unscientific poll (searching LexisNexis) initially revealed none, but we didn’t have to wait long for that to change. Just last week, the Middle District of Florida issued its opinion in Duffy v. Fox News Networks.

“Busted!”

crAccording the complaint, plaintiffs Kathleen Duffy and Linda Duffy Kelley took their family to Smyrna Beach during the 2014 July Fourth weekend. Towards the end of the day, as the rest of the family packed up, the plaintiffs went to walk their dogs, and then returned to gather their remaining belongings from the beach, including towels and a beach canopy. However, unbeknownst to them, they returned to the wrong site, and started dismantling somebody else’s canopy.

Along came a man brandishing a cell phone camera.  He began with the question “you need some help?” The plaintiffs looked like they were about to accept the offer when the man announced: “this is our stuff.” The situation escalated from there. As the plaintiffs slowly realized that they had made a mistake, the man behind the camera continued to film and to make comments which – in my humble opinion – were designed not to clarify his ownership of the canopy so much as to taunt the plaintiffs and cause a dramatic reaction for his video. It worked. When the plaintiffs asked him to stop filming them, he refused until one of the plaintiffs smacked the camera out of his hand. End scene. Apparently, the plaintiffs walked away and no charges of any kind were filed. But our digilante got his revenge, and how.

The next day, the man posted the minute-long video on YouTube with the title: “Busted! Two women caught stealing a canopy on the beach, then attack!” It must have been a slow news week because Fox News spotted the video and, allegedly without conducting any sort of investigation, aired it the next day as a “news segment” on Fox & Friends. During, the segment, the show hosts mocked the plaintiffs at length as lying “grandma” thieves who had been “caught stealing.” One host stated: “Let’s get this straight, she’s mad that he’s filming her stealing his stuff?” Fox also published an article online entitled “Shocking Video: Woman Attacks Man After He Catches Her Trying to Steal His Beach Belongings,” which includes a link to the Fox & Friends clip, as well as additional comments about the plaintiffs, including that they were “trying to steal,” that they were engaged in “attempted theft” and that they “pretended” they thought the canopy was theirs.

A “Loose and Humorous” Defense

The plaintiffs brought suit against Fox News for defamation. Fox News moved to dismiss the action on several grounds, but it’s main substantive argument was that its statements were non-actionable opinion. Fox argued that Fox & Friends held “itself out as containing subjective or humorous content (as opposed to dry news reporting)” and that, because it was “known for its loose and humorous approach to current events,” its audience therefore understood that these statements were nothing more than fun hyperbole.  In other words, Fox News argued, no reasonable person would believe that Fox & Friends was presenting facts . . . as opposed to opinion.

That’s a gutsy argument for a news program to make, but nevertheless Judge Roy B. Dalton wasn’t buying it. Judge Dalton held that, because Fox & Friends promoted itself as a “news” provider, its audience may very well infer that its stories contain investigated facts “above and beyond mere opinions on random current events culled from the internet.”  Therefore, dismissal on “opinion” grounds was premature. Moreover, in response to Fox News’ invocation of the First Amendment, the Court was not persuaded that these particular alleged defamatory statements were “of such constitutional value as to be entitled to the protective umbrella of free speech absent development of the record.”

So, where does this leave us?  The parties presumably will proceed to discovery and then circle back on summary judgment, at which time Fox News will no doubt be able to present some formidable defenses on a more developed record. As for the issue of camera phone defamation generally . . . well, Florida has a lot of things that the rest of don’t: DisneyWorld, hanging chads, hybrid man-eating pythons, etc. Is digilante justice just another Sunshine State anomaly, or is it the tip of a very pointy and messy national spear?  My money’s on the latter, so watch out for those cell phones.

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