Can a Facebook “Like” be Considered Defamatory?

FLB Law      Dec. 14, 2015

Each year, around election time, groups create websites and ads designed to shed a disapproving light on their opponents. In the a recent municipal election, a local political organization created a website opposing the election of several candidates, which include negative commentary in opposition to those candidates. The candidates later sued the web site and its owner, as well as Defendant Holtzhafer, who posted a link to the web site and “Liked” it on her Facebook page.

The Court of Common Pleas of Lehigh County granted the defendants’ motions for summary judgment. The Court found some claims barred by the applicable statute of limitations and also found that for the purposes of the litigation the plaintiffs were pubic figures due to their involvement in pubic elections. As public figures, the plaintiffs were obligated to prove, among other things, that the statements were published with Constitutional malice and were capable of a defamatory meaning. In this case, the evidence of malice was lacking and, moreover, the statements on the web site, while not flattering, would be viewed in context by a reader as statements of opinion in connection with a political campaign and, thus, not capable of the defamatory meaning ascribed to them by the plaintiffs.

With regard to Ms. Holtzhafer, who had posted a link to the website on her Facebook page and “liked” it, the Court found that posting a link to the allegedly defamatory website with a “like” designation on her Facebook page, is not a republication of the content of the website sufficient to support a separate cause of action for defamation against her. Thus, the dismissal of all clams on summary judgment was affirmed by the Court.

The concept of “liking” a web site or post is relatively new in terms of the law of defamation. While the “single publication” rule limits an action for defamation to one cause of action for a single publication, regardless of the extent and timing of that publication, Pennsylvania Courts had not addressed the single publication rule in the context of the internet and linking to an already published web ite. However, the federal courts in Pennsylvania had addressed the issue in In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir.2012):

“[C]ourts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication).”
The Superior Court agreed with the reasoning of the Third Circuit and concluded that it accurately reflected Pennsylvania law regarding the doctrines of single publication and republication in defamation actions as they apply to internet communications.
Given the broad platform for speech and public discourse that the internet represents, and the frequency with which links are shared, the Court’s decision is an important one that represents a protection of free speech, while maintaining respect for the common law principles of defamation law.

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