Writing that a classmate contracted a sexually transmitted disease and morphed into the devil might be a form of "cyberbullying," but does not constitute defamation. That's according to Judge Randy Sue Marber in Mineola, N.Y., who just dismissed a lawsuit against four teens accused of defaming former schoolmate Denise Finkel by taunting her online.
"The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor," Marber wrote. "What they do not contain are statements of fact."
Last year, Finkel sued four of her former classmates and their parents, alleging that the students defamed her in posts to a group they created called "90 Cents Short Of A Dollar" to taunt her. The students allegedly said in posts that Finkel had sex with animals, was an IV drug user, contracted AIDS, "morfed" into the devil, and the like.
But Marber found that readers wouldn't think such posts contained serious assertions of facts. "While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen."
In general, only assertions of facts, and not opinions or rhetoric, can be libelous. But figuring out when statements cross the line from hyperbolic insults into factual allegations sometimes poses a challenge for the courts. In a lawsuit brought by model Liskula Cohen, for instance, Judge Joan Madden in New York ruled that the blogger behind Skanks in NYC had potentially defamed Cohen because the "thrust of the blog is that [she] is a sexually promiscuous woman."
Marber also dismissed Finkel's lawsuit against the teens' parents accusing them of negligent supervision, on the theory that they allowed their children to use a "dangerous instrument" that harmed another. Marber wrote that a computer is not a dangerous instrument.
In addition, she wrote, people can't sue for cyberbullying in New York. "A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action," she ruled.
Finkel's lawyer, Mark Altschul, says that his client and her family are considering whether to appeal.
Finkel initially sued Facebook as well, but that case was dismissed last year because the federal Communications Decency Act provides that Facebook is immune from defamation lawsuits based on posts authored by users.