The Modern American

Volume 11 Issue 1 Article 3

2018

Insta-Famous: Challenges and Obstacles Facing Bloggers and Social Media Personalities in Defamation Cases

Maureen T. DeSimone Suffolk University Law School

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Recommended Citation DeSimone, Maureen T. (2018) "Insta-Famous: Challenges and Obstacles Facing Bloggers and Social Media Personalities in Defamation Cases," The Modern American: Vol. 11 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/tma/vol11/iss1/3

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This article is available in The Modern American: https://digitalcommons.wcl.american.edu/tma/vol11/iss1/3 Insta-Famous: Challenges and Obstacles

Facing Bloggers and Social Media

Personalities in Defamation Cases

Maureen T. DeSimone*

70 I. Abstract defamation law, an opinion is a defense to

The Supreme Court has established a defamation. The third obstacle they face is test for determining which label applies to that they cannot sue the Internet service

each individual plaintiff, but this test was provider, which is provided immunity under

developed in 1974, in the context of Section 230 of the Communications

newspapers and physical print. A new test Decency Act (CDA). Since the CDA was

is needed in the context of the Internet. first enacted in 1996, the need to encourage

Libel is of interest in the age of the Internet growth and development of Internet service

since blog posts, Instagram posts, Facebook providers no longer exists in the same way

posts, etc. are, for the most part, written that it did at that time. As a result,

statements (videos posted on such providers defamation law needs to be updated to

can also be oral, so slander could also be of provide recourse and protection for those

issue). There is a different standard for whose reputation is damaged on the Internet.

proving defamation cases if the plaintiff is a This note will discuss the challenges facing

private individual versus a public figure, a Internet personas under current defamation

limited public figure, or a public official. law by way of example. To illustrate the

Today, Internet personas face challenges challenges Internet personas face in a legal when faced with cyberbullying by Internet action, this note will explore obstacles that trolls. The first obstacle for social media two fashion bloggers, Chiara Ferragni of

providers is determining whether they "The Blonde Salad" and Leandra Medine of

qualify as a public figure, a limited public "The Man Repeller," could face in an

figure, or a private figure. The second imagined defamation suit.

obstacle they face is that under classic II. Does the Average User of Social Media Open Themselves to

71 Liability for Defamatory form of cyberbullying; in fact, in 2015, it Statements Made on the Internet? was reported that approximately 52% of In recent years, an increasing number adolescents have experienced cyberbullying of people are using social media platforms.1 according to the Department of Health and Today, there are over 2.3 billion active Human Services, Bureau of Justice Statistics social media users worldwide. 2 The number and Research Center. 7 of worldwide users is expected to increase to Traditionally, publishers such as 2.95 billion by 2020. 3 In the United States, magazines and newspapers were defendants 60% of the population has a social media in defamation cases, not the average account; in fact, the United States has the citizen. 8 Today, with the Internet, the fastest growing use of social media potential reach of one post is infinite, and to worldwide. 4 Further, in the United States, make matters worse, it can be further shared even if someone does not have a social by anyone who views the original media account such as Twitter, Instagram, publication. 9 As a result, a defamation case Snapchat, or Facebook, more often than not, could be very damaging to a person's they at least have a social media reputation due to the potential reach; professional networking account, such as however, the amount a person can recover is Linkedin. 5 In 2014, there was a 333% drastically limited by Section 230 of the increase in social media defamation cases in Communications Decency Act ("CDA").10 the U.K. alone; however, this rise was only Also problematic, the Internet provides from 6 to 26, showing that defamation laymen, who are not well-versed in the law, lawsuits may be difficult to bring for the a platform to open themselves to lawsuits- average individual. 6 In the United States, most social media cases seem to take the

72 and they are likely ill-equipped to defend world, there is a different standard for themselves. 11 proving defamation cases if the plaintiff is a

The Internet provides a platform for private individual, public figure, limited

anyone to publish his/her own speech, public figure, or public official. The thoughts, talents, and ideas. One no longer Supreme Court has established a test for needs a formal publisher's assistance to put determining which label applies to each forth their work; one can simply self-publish individual plaintiff, but this test was using a social media or blog platform. developed in 1974 in the context of

Today, a new commerce of attention exists newspapers and physical print. This test is in these social media platforms. Social no longer appropriate in the virtual world. media personas now have the opportunity to An Internet blogger or Instagram persona make money with their posts if their social files (collectively referred to as "Internet media feeds garner enough attention. personas") a defamation lawsuit against one

Cooking bloggers now have hard copy, of these trolls, what are the legal

published cookbooks, all as a result of their implications? Are Internet personas, who

Internet attention. Fashion bloggers have are well known in certain fields, considered transitioned themselves into mainstream limited public figures? In order to answer fashion. these questions, which are addressed below,

While the Internet fosters a lot of it will be important to look at methods in ingenuity and creativity, it can also produce which Internet personas attempt to achieve negativity. Many Instagram personas and notoriety.

Internet bloggers have been attacked by III. Historical Background of Defamation Cases Internet trolls. 12 In the brick and mortar A. Defamation Defined

73 Different Categories of Defamation is a false statement that Plaintiffs in Defamation Law

causes damage to a person's reputation. 13 In 1964, in New York Times v.

While different jurisdictions have varying Sullivan, 19 the Supreme Court looked at the

elements necessary to prove defamation, in interplay between constitutional protections general, a plaintiff must prove: for speech and press, and a state's ability to

(a) a false and defamatory award damages to a public official in a libel statement concerning another; action. 20 The action arose out of statements (b) an unprivileged publication to a third party; allegedly made about L.B. Sullivan, the ( c) fault amounting at least to negligence on the part of the Commissioner of Public Affairs in publisher; and ( d) either actionability of the Montgomery Alabama who oversaw the statement irrespective of special harm or the police, in a full-page advertisement in the existence of special harm caused by the publication. 14 New York Times on March 29, 1960. 21 The

Defenses against defamation include alleged libelous statements, which Sullivan

statements that are true, 15 express one's claimed referred to him, actually referenced

opinion, 16 or are made with consent, the police, and not him by name. 22 invitation, or request. 17 When analyzing a However, Sullivan, as Police Commissioner,

defamation claim, it is essential to believed that the advertisement contained

categorize the plaintiff as a public figure, false statements about the police, and by

limited public figure, public official, or extension, the Commissioner himself. 23

private person, as there is a different Sullivan alleges that even though neither

standard of proof for each. 18 statement referred to him by name, it

B. Establishing Different referred to the police who were accused of Standards ofProof for "ringing" the campus police and padlocking

74 the dining hall in response to the protest of public duty if he could prove that the

Dr. Martin Luther King, Jr.' s arrests. 24 The statement was made "with 'actual malice'­

Supreme Court admitted that some of the that is, with knowledge that it was false or statements made with respect to the events, with reckless disregard of whether it was which occurred in Montgomery, were false or not." 30 The reason for a higher inaccurate. 25 Further, three of Dr. King's standard for public officials is that there is a four arrests took place before the legitimate governmental interest in

Commissioner was even in office. 26 Neither protecting the public's freedom to criticize the individuals who paid for advertisement public officials, and this outweighs the space, nor the New York Times checked the officials' interests when the statements deal accuracy of the statements made. 27 with their public duties. 31

While Sullivan involves a civil The Supreme Court first discussed action where the defendant is a publisher whether Sullivan applied to public figures and not a state actor, it still implicates First (in addition to public officials) in the 1967

Amendment protections and thus provides a decisions of Curtis Publishing Co. v. Butts

Constitutional defense to defamation and its companion case Associated Press v. actions. 28 Further, Sullivan is a public Walker. 32 In Curtis, Curtis Publishing Co. official and the Supreme Court recognized ("Curtis") published an article entitled "the the importance of establishing a wide-open Story of a College Football Fix" stating that space for critique and debate on public Butts, an athletic director of the University issues. 29 The Court held that Sullivan, as a of Georgia, gave his playbook to the public official, was only able to recover University of Alabama head coach before from a defamatory statement involving his the big game, which Curtis claimed was

75 inadvertent! y overheard by a third party. 33 Inc., the Court expanded on the distinctions

In Associated Press, a news dispatch outlined in Sullivan, Curtis, and Associated gave an eyewitness account of a massive riot Press by further establishing a higher

as a result of an effort to enforce a recent standard of proof for not only public

order to enroll a black student, James officials and public figures, but also for

Meredith, claiming that Walker, a private limited public figures, along with a lower

citizen at the time of the riot/publication, standard for private individuals. 38 Elmer had incited the riot. 34 The Supreme Court Gertz was an attorney who represented the

concluded that both Walker and Butts Nelson family in a civil suit against a police

enjoyed a substantial amount of attention at officer, Officer Nuccio, who murdered their the time of the publications and the subject son. 39 Robert Welch, Inc., publisher of

of the publications served the public American Opinion, which outlines views of interest. 35 The Court held that Walker, the John Birch Society, published an article under this standard, was not entitled to about the officer's criminal murder trial

compensation due to the necessity to entitled "FRAME-UP: Richard Nuccio and immediately disseminate the information. 36 the War on Police," which "portrayed

However, the Court concluded that Butts [Gertz] as an architect of the 'frame-up."'40 was entitled to compensation because there The article further stated that Gertz was no need to rush the publication of the was an official of the Marxist League for

defamatory statements about Butts and no Industrial Democracy, a Leninist, a

attempt was made to see if the information Communist-fronter, a criminal, and an was accurate. 37 officer of the National Lawyers Guild. 41

In 1974, in Gertz v. Robert Welch, The evidence proved quite the opposite: not

76 only was Gertz not affiliated with Marxist Supreme Court further discussed that while

League for Industrial Democracy, but he did there is no societal value in false statements,

not have a criminal record, there was no it is inevitable in free debate. 47 The Court

evidence he was planning an attack, and, defined a public person as someone "by

further, he never even spoke to the press reason of notoriety of their achievements or

about the matter. 42 Gertz sued for libel, the vigor and success with which they seek

stating that the article included false the public's attention." 48 The purpose for

statements that "injured his reputation as a this distinction between public figures, lawyer and a citizen." 43 But the court found public officials, and private citizens was no evidence that the managing editor of because public figures and public officials

American Opinion knew of the falsity of the have greater resources to improve their

statements. 44 On review, the Supreme Court reputations, and thus the state interest in

affirmed and stated that the lower court protecting public figures' and public

correctly determined that mere proof of officials' reputations is lower. 49 This

failure to investigate cannot alone establish triggered the emergence of the requirement

reckless disregard for the truth. 45 to prove actual malice by clear and

In Gertz, the Supreme Court convincing evidence. 5o reiterated the holding in Sullivan that there Private individuals, unlike public is no constitutional value in false statements officials and public figures, do not

of fact, since"[n ]either the intentional lie purposefully thrust themselves into the nor the careless error materially advances public sphere, which comes with a certain

society's interest in 'uninhibited, robust, and acceptance of the possibility of scrutiny. 51 wide-open' debate on public issues."46 The The Court stressed that private individuals

77 should enjoy a lower standard of proof for criminal proceedings of Officer Nuccio, and

defamation than the standard outlined in he never discussed either the criminal or

Sullivan; a private individual-plaintiff need civil proceedings with the press. 56

only prove that the statements were made Therefore, he only had to prove that Robert with either a knowledge of falsity or a Welch, Inc. either published the article with

reckless disregard for the truth. 52 Here, knowing it was false, or with reckless

Gertz was not a public figure for all disregard for the truth. 57

purposes and contexts, rather he voluntarily c. The Importance of Opinion

only inserted himself in the public sphere and Public Concern in Defamation Cases merely in the context of being an active In Dun & Bradstreet, Inc. v. member of the community and in his Greenmoss Builders, Inc., the Supreme

professional affairs, such as being an officer Court clarified that a private figure needed

of local groups and professional to only show negligence to recover in

organizations, and published articles and defamation cases as long as the matter did books on legal topics. 53 Additionally, while not involve public concern. 58 Dun &

he was well known in some aspects of the Bradstreet, a credit reporting agency, issued

community, he was not a generally known a false report, which misrepresented assets

individual. 54 The Court was unwilling to and liabilities held by Greenmoss Builders,

characterize Gertz as a general public figure, Inc. 59 Greenmoss Builders, Inc. called and

and at best he could qualify as a limited requested a correction when it learned of the

public figure. 55 But even in this context, the error, but Dun & Bradstreet refused. 60 The

Court concluded that he did not qualify case went up to the Supreme Court, which

because he did not actively participate in the reasoned that there is a reduced value placed

78 on speech that is purely private in nature, school wrestling coach, testified during a

resulting in less constitutional protection and suit, which ultimately overturned a ruling by

a greater state interest in protecting the Ohio High School Athletic Association,

individuals in their private affairs. 61 causing his entire team to be on probation

The Dun Court further explained that following an altercation. 66 Lorain Journal the purpose of the protection under the First Company ("Lorain") published an article in

Amendment was to protect the exchange of Theodore Diadiun' s column "TD says"

ideas in order to encourage social and implying that Milkovich perjured himself at

political change. 62 When there is no threat the court proceeding. 67 Milkovich brought to free public debate, challenges to the suit and alleged that by implying that he government, or censorship of the press, the committed the crime of perjury, Lorain

protection over the speech is less strict. 63 If damaged his professional reputation as a the alleged defamatory statements are made teacher and coach. 68 Lorain argued, and the

about a private figure involving a matter of Ohio Supreme Court agreed, that the column

public concern, then actual malice could be was constitutionally protected opinion, and

required; however, if the statements about a that this was clear by the caption, which

private figure are solely about private read "TD Says," which clearly indicated that

matters there is less constitutional it was merely Diadiun' s opinion. 69

protection. 64 Additionally it was on a sports page, which

In Milkovich v. Lorain Journal Co., they argued was traditionally an outlet for the Supreme Court clarified the opinion hyperbolic speech. 70

defense to allegedly defamatory Overruling the Ohio Supreme Court,

statements. 65 Michael Milkovich, a high Milkovich held that an opinion can imply a

79 statement of fact and thus is not always protected by First Amendment privilege. 71 IV. Exploring Challenges Facing Internet Personas Specifically, there was an implication in A. First Challenge: Classifj;ing Diadiun' s statement that could be proved Internet Personas 1. Attention Economy and either true or false pertaining to whether or Internet Personas not Milkovich perjured himself, thus the Today, social media has become a statement could not be protected under the platform for individuals to self-publish and

Constitution. 72 The Court refused to to become entrepreneurs in a way that no establish a requirement in every defamation other generation has been capable of doing. case to first determine a threshold issue as to Further, one of the most important whether a statement is that of an opinion or commodities today is other people's that of a fact. 73 But in clarifying the attention; the Internet, especially social

Supreme Court's discussion in Philadelphia media, has provided users the opportunity to

Newspapers, Inc. v. Hepps, 74 the Milkovich grab attention and to mold their ability to

Court explained that a statement on matters gamer attention, and then transform that of public concern in a defamation suit must attention into a career. 77 Attention Economy be provable as false before you establish is the commodity of seeking out attention. 78 liability in situations where the defendant is While a lot oflntemet use is on an inter- a media provider. 75 This means that a personal level, many Internet users gain statement relating to opinion regarding notoriety, and many even seek notoriety, matters that are of public concern, that do through the use of these platforms. 79 Internet not contain a provable false fact, is protected personas gain an audience through various under the Constitution. 76 methods, including push and pull methods. 80

80 In the pull method, the audience seeks out of its development. 86 In 2013, eMarketer87 media and ultimately finds the content estimated that companies would spend more providing user. The audience forms when than $9 million dollars that year in social their search results in their signing up for media advertising and marketing. 88 Further, blog updates or "follow" or "friend" the eMarketer estimated that a 10.5% annual content providing Internet user. 81 The pull growth could continue through 2017. 89 method may be successful for those who RBC Capital Markets and Advertising Age already have a somewhat established found in September 2016, that 30% of following, but it is not likely the best businesses that responded to their poll, method for new users to obtain an advertised on Instagram, an increase from audience. 82 For instance, a blogger may use the 27% recorded from a survey conducted search term optimization, which uses key in February 2016. 90 It was also reported that words to drive traffic to their blogs. 83 More the amount spent by Nanigans's91 customers effective, however, is the push method, increased by 29% from February to April of where the Internet persona actively seeks the 2016. 92 Internet personas, sometimes called audience through advertisement or by "life style bloggers," have started soliciting views, 'follow,' or 'friend' capitalizing on businesses' desires to requests. 84 Ordinarily, an Internet persona advertise on blogs and social media, and will implement both push and pull methods some have created very successful careers as in an effort to establish an audience. 85 a result. 93

Online advertisement and marketing has been an important function of social media, even as early as the beginning stages 2. Blogging as a Business: Employing Methods of Attention Economy

81 to Transform Internet channeling their blogs into a career. 100 This Blogging into a Money Machine inspired F erragni and Pozzoli to create the Harvard Business School recently Blonde Salad "organized around the explored the business model of Chiara different ingredients of the golden-haired Ferragni,94 a fashion blogger of the world Ferragni's salad of interests: fashion, famous blog "The Blonde Salad," as a case photography, travel and lifestyle."101 study for the Harvard Business School MBA Pozzoli, who was a finance student at program. 95 Ferragni, while still in school, Bocconi and moved to Chicago to intern, began posting pictures of her 'outfit of the advised Ferragni to post a daily entry at day'. 96 Riccardo Pozzoli, her boyfriend and 9AM to establish loyalty amongst her co-founder, recalled that her posts always followers. 102 By posting at 9AM every seemed to garner reactions, and each day morning, F erragni was becoming part of gained popularity. 97 Further, Pozzoli notes people's daily breakfast routine, and after a that although Flickr was a professional month she had 30,000 visitors daily.103 photography site, Ferragni was receiving ten Three months after starting her blog, times the comments that a professional Ferragni was invited to Milan Fashion photographer would receive. 98 Pozzoli and Week, a rare opportunity, and possibly one Ferragni realized that by merely posting her of the first such opportunities extended to a 'outfit of the day', she was engaging fashion blogger. 104 In fact, once journalists people. 99 realized that a fashion blogger was present F erragni started to realize that at the show, they started interviewing her. 10s bloggers in the United States, such as Tevi While F erragni was offered a few Gevinson (StyleRookie.com) and Michele jobs on Italian television shortly after Phan (makeup tutorial blogger) were

82 attending her first fashion week, she turned engagement would be even more them down because she and Pozzoli "knew lucrative. 11° F erragni would post stories that if [they] wanted to work in fashion, about her day and/or her travels and would

[they] could not sell Chiara as a show show a photograph of the outfit she was

girl."106 They decided to concentrate their wearing and provide a link to the brand's

efforts on building international awareness, website. 111 These methods successfully in

and even sought invitations from fashion provided The Blonde Salad with weeks in New York, Paris, London, and partnerships with Burberry, Dior, and Louis

Stockholm so that Ferragni could post about Vuitton, just to name a few. 112 Ferragni the new trends in each of these cities. 107 In started to become a celebrity herself, and

2011, Ferragni and Pozzoli decided to tum was invited to attend events for which she the Blonde Salad into their full-time jobs, requested fees between $30,000 and $50,000

and in order to increase their daily visits for her appearance. 113 F erragni now has her

even further, they decided to hire an Italian own line of shoes, which she advertises

digital strategy agency to update the nearly exclusively on the blog. 114 In mid-

appearance of the website and create a 2013, the duo noticed that the blog's daily mobile version. 108 Additionally, they signed views of 140,000 were starting to slowly

a contract with an advertising company, decline due to the increased popularity of which specialized in marketing in Italy. 109 Instagram, and they decided to sync her

In the beginning, most of their personal Instagram account with the blog' s business came from selling advertisement contents. 115 Soon after, she reached 2 banners on the blog, but then they realized million followers in 2013, and 3 million in that product placement and content 2014-numbers she had never reached

83 previously .116 Manrepeller has banner advertisements; like

Similar to Ferragni's experience, F erragni, however, Medine notes that these

Leandra Medine of "The Manrepeller" are not as lucrative as content transformed her personal passion project collaborations. 122 While Manrepeller posts

into a successful business. 117 In 2011, when are often paid, they are only brands that

Medine was in college, she started writing a Medine and her company are truly excited

blog about women like herself, who dressed about; Medine and her co-writer Amelia

for themselves and not for men. She titled Diamond, are very clear that they do not

one of her blog posts as "stuff that men write paid reviews, but will post stories

don't like." 118 Five years later, her blog is a about brands they truly care about.123

successful business that employs a Medine, like Ferragni, has also been invited marketing and sales team to help her find to fashion week and posts blogs reporting on

sponsors for posts. 119 Medine establishes the upcoming trends. 124 Both F erragni and loyalty with her followers by focusing on Medine, were able to use the theories of transparency; she believes that people value attention economy to establish successful

authenticity, so she is honest when a post is businesses through the use of blogs and

sponsored, and does not aim to "trick" her Instagram. followers. 120 While Medine allows brands B. Second Obstacle: Opinion Defense to view her content collaboration posts prior Due to their notoriety, Internet to them being posted, she maintains her personas such as Medine and F erragni are creative freedom, and frequently says "no" susceptible to being defamed, harassed, and to companies that do not fit her brand. 121 In publically ridiculed by individuals known as addition to content collaborations, Internet "trolls."125 Internet trolls take

84 advantage of the anonymity and lack of opinion."132

face-to-face interaction provided by the C. Third Obstacle: Section 230

Internet in order to post cruel comments Immunity to Internet Service

about bloggers and social media Providers

personalities. 126 Bloggers are harassed and In order to file a defamation case,

defamed online, and in particular, many Medine and Ferragni would be faced with have are body-shamed or criticized for their many challenges, including incurring

appearance. 127 These Internet trolls feel significant costs, without the ability to

empowered by the veil of the Internet and recover significant monetary damages, since brazenly criticize by offering their unwanted they are unable to sue the Internet service

and unsolicited "opinions."128 As discussed provider and only the poster of the

above, opinions are considered a defense in defamatory statement. 133 Internet service

defamation cases. 129 Under current law, an providers (websites and social media

Internet troll's opinion would be protected providers) are immune from defamation

as long as it did not include or imply a false suits under Section 230 of the fact. 130 This protection was initially Communications Decency Act ("CDA").134

provided for matters that were considered Unlike in the physical print media world, in

public concern such as opinions made about Internet defamation cases, plaintiffs cannot

our government or governmental leaders.131 seek damages from the publisher. 135 In fact,

Internet trolls are being protected when their Section 230 specifically immunizes Internet

comments are not a matter of public concern service providers from civil liability:

simply because comments about someone's (c) Protection for "Good Samaritan" blocking and screening of looks are not false facts and are "merely offensive material (1) Treatment of publisher or

85 speaker to defamation law. 138 Kenneth Zeran No provider or user of an interactive computer service shall be treated as the brought an action against America Online, publisher or speaker of any information provided by another information content Inc. ("AOL") arguing that it unreasonably provider. (2) Civil liability delayed removing defamatory messages No provider or user of an interactive computer service shall be held liable on posted by an anonymous third party, account of-- (A) any action voluntarily taken in neglected to screen for additional posts, and good faith to restrict access to or availability of material that the provider or user refused to post retractions. 139 Zeran not only considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or received a high volume of phone calls, but otherwise objectionable, whether or not such material is constitutionally protected; also death threats as a result of this posting. or (B) any action taken to enable or 140 Affirming the lower court, the Seventh make available to information content providers or others the technical means to Circuit held that Section 230 of the CDA restrict access to material described in paragraph (I )136 provides Internet service providers

Section 230's protection oflnternet service protection from liability. They cannot be providers from civil liability regarding posts treated as publishers of the content in the made by third parties severely limits the same way that a newspaper is considered a monetary damages available to a blogger or publisher in print media. 141 The court social media user in the United States, and, explained that the purpose of the CDA' s as a result, the United States offers little protection for Internet service providers is to protection to those defamed on the encourage and maintain online discourse

Internet. 137 and competition in the free market, free

In Zeran v. America Online, Inc., the from federal and state regulation. 142 The

U.S. Court of Appeals for the Seventh court further held that Section 230

Circuit first examined the CDA as a defense eliminates both publisher and distributer

86 liability, since distributers are also ethics, which, while not legally enforceable,

considered publishers according to is a standard followed by thousands of

defamation law. 143 Publishing the statement j oumali sts. 148 This code encourages is a necessary element in defamation law, so journalists to avoid stereotyping individuals

only one who publishes such statements are based on race, age, gender, religion, liable for defamation.144 ethnicity, sexual orientation, physical

Without the protections provided by appearance, and so forth. 149 Further, the

Section 230, Internet service providers code states that "[e]thical journalists treat would potentially be subject to liability for sources, subjects, and colleagues as human

every defamatory statement made on their beings deserving of respect," thus,

sites. 145 Each post would subject the recognizing a person's right to their privacy

provider to an investigation if the posting and stating that journalists should use good

party made a defamatory remark; this, in taste and "[a]void pandering to lurid tum, could cause a "chilling effect," and curiosity."150 While most journalists follow

discourage new Internet service providers a code of ethics, posters on social media do

from entering the marketplace. 146 The court not follow any standards of ethics, moral, or recognized that Zeran had only sued AOL otherwise. because the individual poster was V. Analysis of the Obstacles Facing Internet Personas and Why anonymous, and only AOL had the ability to Revision to Defamation Law is Necessary in the Current Climate locate this individual.147 of the Internet

While on the Internet anyone can Bloggers and social media become a "publisher" of content, the Society personalities face many obstacles if they try

of Professional Journalists has a code of to sue posters of harassing and cruel

comments made about them on the Internet.

87 The first obstacle for social media providers for a limited purpose, usually in some

is determining whether they qualify as a business capacity .156 While it is not

public figure, a limited public figure, or a necessary for Internet personas to make a

private figure. 151 The second obstacle they profit to become a limited public figure, the

face is that, under classic defamation law, an efforts made by F erragni and Medine to

opinion is a defense to defamation. 152 The promote their businesses show that they are third obstacle they face is that they cannot voluntarily entering into the public sphere,

sue the Internet service provider, which is at the very least, for the purpose of

provided immunity under Section 230 of the promoting their businesses. 157 It seems that

CDA, limiting potential recovery. 153 individuals like Gertz, Medine, and Ferragni

are not public figures for all purposes and

A. Identifj;ing Internet Personas contexts because they voluntarily entered as Limited Public Figures for the Purpose ofDefamation the public sphere for professional reasons Law and are not widely known. 158 While it Internet personas should only be seems that most bloggers would not be considered limited public figures under generally known public figures (since they defamation law if they employ theories of are known in a limited capacity for the attention economy .154 By doing so, Internet subject matter of their blogs or social media personas such as F erragni and Medine set profiles to a selective demographic of the themselves apart from recreational Internet Internet users), it seems that some could users and make it clear that their intended become so famous that they become use is to make money .155 In the physical, generally known. 159 Further complicating non-virtual world, limited public figures their role as limited public figures is that only thrust themselves into the public sphere

88 Medine, Ferragni, and others not only who are defamed can instantly refute any

discuss fashion, but also their day-to-day attacks on their reputations with a click of a

activities and personal lives. 160 However, button, which further complicates the use of by utilizing advertising and marketing traditional defamation law in those cases. 164 techniques, they make it clear that even the In traditional defamation law, both

aspects of their personal lives that they share public figures and limited public figures

are part of their overall business plan-they need to prove that defamatory statements

are creating an image and using their were made with actual malice. 165 Therefore, interests and likeability in order to create a if traditional defamation law is applied to

sense of friendship with their followers. 161 Internet personas, Medine and F erragni

Lifestyle bloggers are creating a would have to prove that the defamatory business by marketing themselves, and for statements were made with actual that reason, the mere sharing of personal knowledge that they were false or with information about their day-to-day lives reckless disregard for the truth. 166 While the

does not transform them from limited public distinction between limited public figure and figures into general public figures. 162 public figure has little significance when

However, this is argued with one caveat: m defamatory statements pertain to areas into the physical, non virtual world, the which the individuals voluntary thrust

distinction between limited public figures themselves, it is significant when the

and public figures lies in distinguishing each defamatory statements are made about group's access to media to rebuild their aspects of their personal lives. 167 In the reputations following defamatory physical, non-virtual world, Medine and

statements. 163 With the Internet, bloggers Ferragni would enjoy the lower standard of

89 proof, that of negligence, with respect to the based on physical appearance, race, gender, truth if the statements were made about their weight, etc. 171 Traditionally, professional

personal and private life, and not, for journalists and publishers have also had the

instance, about their careers in fashion or pressure from society to publish articles with

otherwise related to one of their posts. 168 integrity. 172 By contrast, anyone online can

B. Opinion Should Nat be a publish free of such pressures. 173 Further,

Defense in Internet while journalists are known by name, the

Defamations Cases same is not true for defamers, trolls, and

One of the greatest obstacles for cyberbullies who can post anything without

Internet personas such as Medine and any repercussions due to anonymity. 174

Ferragni is overcoming the opinion defense When suing for defamation, the most

when making a defamation claim. 169 Under damaging and cruel things that are written

traditional defamation law, the alleged about Internet personas can be characterized

defamer was usually a professional as mere opinion, and they frequently come

publisher such as a newspaper, journal, or from the trolls and cyberbullies who are

magazine, and professional journalists difficult to identify. 175 Not only that, but

usually wrote the defamatory statements. 170 calling someone "fat," "ugly," "stupid," and

Professional publishers are less likely to be so forth is not something that can be proved

careless with the truth, and while not in fact, and thus is typically a protected

required, many follow ethical rules which opinion under the rules of traditional

encourage journalists to not "pander to lurid defamation law. 176 The Internet allows the

curiosity," to respect people as human average user to become a publisher without

beings, and to not characterize individuals being hired by a publishing company, or

90 even undergoing any sort of vetting and private concern, such statements should not

editing process-they become a publisher be entitled to protection under the First

instantaneously, the moment they make a Amendment. 180

post, which can be made with rage, hate, The purpose of defamation law is to jealously, and/or ignorance, without any allow individuals to not only revive their

perceived repercussions.177 reputation, but to also remedy the harm, as

There should be no First Amendment well as deter others from making similar

protection for speech on the Internet that statements. 181 Further, the purpose behind lacks value-that is, speech with the main the First Amendment protection for speech

purpose of hurting others-such as was to protect the exchange of ideas in order

criticizing someone's physical appearance, to encourage social and political change.182 nationality, race, or gender. 178 In Derogatory statements about a person's

determining whether statements are entitled physical characteristics should not be to First Amendment protection in the non- protected. 183 Because the Internet allows virtual world, courts weigh the interest in anyone to publish harmful speech, there

protecting the speech by determining if it is needs to be some government regulation and

a statement of false facts, since there is no protection in order to discourage reckless,

societal value in false statements made in harmful speech. 184 reckless disregard for their veracity and/or C. The Communications Decency Act Immunizes Internet Service false statements made with actual malice. 179 Providers from Liability Resulting from Third-Party Likewise, because there is no value in Posts

derogatory statements about a person's The CDA immunizes Internet service

physical characteristics, which are matters of providers (including websites and social

91 media sites and applications) from liability, use social media. 188 Today, the government

as they are not considered "publishers" of interest in promoting Internet growth should third-party posts, a requirement of no longer outweigh the need for recovery

defamation law. 185 Thus, if F erragni and from defamation and harassment on the

Medine were to sue a third-party for Internet. Internet trolling has become a

defamatory or harassing statements, not only troubling and dangerous problem, which would they face the difficulty of having to requires some exceptions to the blanket locate an anonymous source, but the protections given to Internet service

potential recovery is severely limited if the providers from liability from third-party

Internet service provider is given posts. 189 immunity. 186 The CDA was enacted in VI. Conclusion

1996 with the purpose of protecting Internet Traditional defamation law needs to

service providers from potential liability so be reformed in order to provide protection to that new Internet service providers would social media personalities or bloggers on the not be discouraged from entering the Internet. If traditional defamation law is marketplace in the great new world of the applied to Internet cases, a social media

Internet. 187 While promoting Internet personality or blogger such as Ferragni or growth was an important economic and Medine would face many challenges, so

social concern in 1996, there is no longer the many so that it would discourage them from

same need to protect Internet service protecting their reputations in court.

providers today when there are currently 2.3 Further, if a social media personality or billion social media users worldwide, and blogger utilizes methods of attention

approximately 60% of United States citizens economy in order to self-promote, then they

92 could be considered limited public figures submitting comments on the Internet, and no

for the purposes of defamation law. If a semblance of any integrity required prior to

social media personality actively pursues posting comments. Internet personas are

notoriety, they should still be considered a further crippled in their attempts to protect

limited public figure under a revised themselves from Internet trolls, because

defamation law, since they have only Section 230 of the CDA protects Internet willingly entered the public sphere for a service providers from liability from third-

limited purpose. However, this does not party posts. Since the CDA was first

mean that they should be subjected to enacted in 1996, the need to encourage

endless criticism and derogatory comments growth and development of Internet service

made by Internet trolls hiding behind the providers no longer exists in the same way

defense of opinion. There is no social utility that it did at that time. As a result, there is a

in derogatory and cruel statements. need to reform defamation law as applied to

It is inappropriate to apply an individuals on the Internet as there is no

opinion defense, which was traditionally recourse against Internet trolls as the law

given to journalists and professional currently stands.

publishers, as there is no vetting process in

* J.D. Candidate, Suffolk University Law School, f1i.:!.ii'llQl'."!S§!_, archived at https://perma.cc/59YC-ZRVF 2018. ["Statistics"] (outlining number of social media users 1 See Dave Chaffey, Global Social Media Research globally). 3 Summary 2016, SMART INSIGHTS (Aug. 8, 2016), See id. (estimating increase in global use of social available at https://www .smartinsights.com/social­ media in 2016). media-marketing/social-media-strategy /new-global­ 4 See id. (identifying statistics of the prevalent social social-media-research/, archived at media use in the United States). https://perma.cc/CS22-FJ8H (listing statistics of 5 See id. (noting 78% of the United States population growing global social media use). uses at least a social networking website). 2 See Statistics and facts about Social Networks, 6 See Ian Burrell, Libel Cases Prompted by Social STATISTA, available at Media Posts Rise 300% in a Year, INDEPENDENT

93 (Oct. 14, 2014), available at lS See 50 Am. Jur. 2d Libel and Slander§ 252 (2nd https://www.independent.co.uk/news/uk/home­ ed. 2016) (explaining that truth is an absolute defense news/libel-cases-prompted-by-social-media-posts­ to defamation claims). rise-300-in-a-year-9805004.html, archived at 16 See 50 Am. Jur. 2d Libel and Slander § 105 (2nd https://perma.cc/8LRL-HQ4Z (describing the ed. 2016) (commenting that while an opinion is a increase in libel suits based on users' defense to defamation, it still cannot imply a false misunderstanding of legal ramifications for statement fact). made on social media sites). See also Harry 17 Guinness, Think Before You Post: Can You Be Sued See 50 Am. Jur. 2d Libel and Slander§ 256 (2nd for Libelous Tweets and Facebook Posts?, MAKE ed. 2016) (illustrating how a statement is privileged if USE OF (June 11, 2015), available at the plaintiff is proved to have consented, requested, https://www.makeuseof.com/tag/think-tweet-can­ or invited the statement for the purpose to which the sued-libelous-tweets/, archived at consent was obtained). https://perma.cc/N9Z5-85PW (stating that 18 See 50 Am. Jur. 2d Libel and Slander § 31 (2nd ed. defamation lawsuits may be too expensive for 2016) (explaining different standards for proof average Internet users). depending on status of plaintiff). 7 See Bullying Definitions, Bullying Facts, Bullying 19 376 U.S. 254 (1964). Laws, Bullying Statistics: The Status of Cyb er 20 See id. at 256 (1964) (examining whether a state bullying in America Today, No BULLYING (May 21, providing damages to a public official violates the 2015), available at constitution). http://www.bullyingstatistics.org/contenUcyber­ 21 See id. at 256-57 (establishing background for the bullying-statistics.html, archived at first libel suit). https://perma.cc/8HE4-WT7N ["Bullying 22 See id. at 257-58 (outlining the alleged defamatory Definitions"] (discussing the number of times statements). The alleged defamatory statements are students have been victims of cyberbullying). as follows: B See generally Burrell, supra note 6 (discussing how In Montgomery, Alabama, after the Internet has changed defamation law allowing the students sang "My Country, 'Tis of average Internet user to become a publisher). See Thee" on the State Capitol steps, also Guinness, supra note 6 (noting that the increase their leaders were expelled from in number of defamation cases may be a result of school, and truckloads of police users' lack of understanding of the law). armed with shotguns and tear-gas 9 See Guinness, supra note 6 (stating that a tweet or ringed the Alabama State College Facebook post could potentially reach every Internet Campus. When the entire student user). body protested to state authorities 10 See id. (proposing potential for laymen to be by refusing to re-register, their involved in expensive lawsuits involving social dining hall was padlocked in an media); Communications Decency Act, 47 U.S.C. § attempt to starve them into 230 (1998) ["CDA"] (providing immunity to Internet submission. service providers from acts of third parties). Id. at 257. Further, Sullivan alleged the following 11 See Guinness, supra note 6 (discussing the statement referred to him: opportunity for individuals to inadvertently expose Again and again the Southern themselves to liability on the Internet). violators have answered Dr. King's peaceful protests with intimidation 12 See Joel Stein, How Trolls are Ruining the and violence. They have bombed Internet, TIME (Aug. 18, 2016), available at his home almost killing his wife http://time.com/ 445711 O/internet-trolls/, archived at and child. They have assaulted his https://perma.cc/34VR-L9J8 (describing the person. They have arrested him pervasiveness of Internet trolls and their perceived seven times -- for "speeding," power through anonymity). "loitering" and similar "offenses." 13 See generally Defamation: A Lawyer's Guide § And now they have charged him 1 :7 (discussing requirements for establishing a prima with "perjury" -- a felony under facie case for defamation). which they could imprison him for 14 Restatement (Second) of Torts§ 558 (Am. Law ten years .... Inst. 1977). Id. at 257-58.

94 23 See id. at 258 (describing Sullivan's allegations 37 See id. (comparing differences between the Curtis that the statements made about the police were Publishing Co. and The Associated Press's implicitly defamatory statements about him as a publications). result of his role as police commissioner). 38 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 24 See id. (describing Sullivan's contention that every 343-44 (1974) (establishing criteria for defining time police was mentioned in the statements it was someone as a limited public figure). actually referring to him in his role as Police 39 See id. at 325 (outlining preliminary case Commissioner). background). 2 5 See Sullivan, 376 U.S. at 258-59 (acknowledging 40 See id. at 325-26 (explaining context of article on inaccuracies in the statements at issue). Specifically, Gertz). the trial court found: the students at the 41 See id. at 326 (describing alleged defamatory demonstration sang the National Anthem not "My statements at issue). The alleged defamatory Country, Tis of Thee;" while nine students were statements claimed that the National Lawyers Guild expelled it was not as a result of the demonstration; helped plan the Communist attack on the Chicago the cafeteria was never padlocked; and it stated that police during 1968 Democratic Convention. Id. Dr. King was arrested seven times, when in fact he 42 was arrested four times, just to name a few. Id. See id. (acknowledging the gravity of the misstatements and inaccuracies in the article on 26 See id. at 259 (outlining additional mistakes in the Gertz). advertisement, and stating that Sullivan was not even 43 the police commissioner when some of the events See id. at 327 (listing Gertz allegations against occurred). Robert Welch, Inc.). 44 27 See id. at 261 (stating that the manager of the See Gertz, 418 U.S. at 327 (describing Gertz's Advertising Acceptability Department testified that allegations against Robert Welch, Inc.). he approved of the publication without confirming 45 See id. at 331 (qualifying the standard for the accuracy, even though he could have verified it determining reckless disregard for truth). with recent New York Times articles). 46 See id. at 339-40 (quoting New York Times Co. v. 28 See id. at 265 (explaining that a state court Sullivan, 376 U.S. 254, 256 (1964)). The Court providing damages under state common law satisfies explained the lack of constitutional protection for state actor requirement for First Amendment false statements of fact. Id. defense). 47 See id. (stressing that inadvertent misstatements 29 See id. at 270-71 (discussing importance of First are an unavoidable downside to free debate Amendment protection on civilian's rights to criticize protection). those in positions of authority). 48 See id. at 342 (describing which individuals 30 See id. at 279-80 (outlining standard of proof for qualify as public figures for purpose of defamation public officials). law). 31 See Sullivan, 376 U.S. at 279 (discussing the fear 49 See id. (emphasizing importance of characterizing that if individuals could be liable for defamation suits plaintiffs based on their varying ability to change at a lesser standard of proof that they would be public opinion). deterred from voicing their criticism). 50 See id. at 344 (recognizing a greater state interest 32 See Curtis Publishing Co. v. Butts, 388 U.S. 130 in protecting private citizens who are more (1967) (expanding the Sullivan standard of actual vulnerable to defamation). malice to public figures). 5l See Gertz, 418 U.S. at 344-45 (highlighting the 33 See id. at 135-37 (establishing the background of inevitability of public scrutiny when in the public the defamation claim). sphere). 34 See id. at 140-41 (outlining background of 52 See id. at 349 (discussing the lower standard of Walker's defamation claims). proof for private individuals). 3 35 See id. at 154-55 (discussing the extent to which 5 See id. at 351-52 (identifying the limited scope of Butts and Walker thrust themselves into the public Gertz's public persona). sphere). 54 See id. (stressing that Gertz was not enjoying 36 See id. at 156-59 (holding that the information general notoriety in the community rendering him a about Walker was important to public interest and general public figure). thus it was necessary to immediately disseminate it).

95 55 See id. (distinguishing limited public figures from responsible were mainly head Maple a general public figure). wrestling coach, Mike Milkovich, and former superintendent of schools H. Donald Scott .. 56 See id. (recognizing the significance of the fact . Anyone who attended the meet ... knows in his that Gertz did not project himself into the public heart that Milkovich and Scott lied at the hearing debate of the criminal proceeding). after each having given his solemn oath to tell the 7 5 See Gertz, 418 U.S. at 353 (reversing the decision truth . . . But they got away with it. and remanding for further proceeding to see if Gertz Id. at 4-5 (alteration in original). could prove that Robert Welch, Inc. was liable under 66 See id. at 3-4 (discussing initial facts of the case). the lesser standard). 67 See id. (providing background information). 58 See Dun & Bradstreet, Inc. v. Greenmoss Builders, 68 Inc., 472 U.S. 749, 749 (1985) ["Dun"] (determining See id. (outlining allegations against Diadiun and actual malice is not required in matters of private the newspaper). concern). 69 See id. (finding that the caption "TD Says" 59 See id. at 75l(outlining background of alleged indicates that it was Diadiun's opinion). defamatory statements 70 See id. at 9 (discussing argument of the 60 See id. (discussing the Supreme Court's respondents for qualifying the statements as protected reasoning). The report incorrectly stated that opinion). Greenmoss Builders, Inc. had filed a voluntary 71 See Milkovich v. Lorain Journal Co., 497 U.S. 1, petition for bankruptcy. Id. 18 (1990) (stating that opinions can also imply an 61 See id. at 749-50 (recognizing less Constitutional "assertion of objective fact"). The Court used the protection for speech on purely private matters). example "Jones is a liar" to explain that this sentence 62 See id. at 759 (examining purpose of implies that the speaker has additional knowledge on Constitutional protections for public speech). which he relies in order to establish this opinion. Id. at 19. 63 See id. at 760 (recognizing lesser protections for 72 See id. at 21 (explaining that transcripts and private speech). witnesses could be used to prove whether or not 64 See Dun, 472 U.S. at 761-63 (holding that the Milkovich did perjure himself, and thus there was an creditor report was not a public concern, but a implied fact in the statement). Further, the statement personal one, and thus the statements were provided was not a parody or hyperbole that would "negate the the lesser standard). The court treated the company impression that the writer was seriously maintaining as a private figure. Id. See also Robert E. Drechsel, that the petitioner committed the crime of perjury." Defining "Public Concern" in Defamation Cases Id. Since Dun & Bradstreet v. Greenmoss Builders, 43 73 See id. (refusing to require the Plaintiff to prove FED. COMM. L.J. 1, 1 (1990) (discussing lesser First the statement is a fact, not an opinion as a threshold Amendment protection provided to defendants in issue in defamation cases). The Court found that the defamation cases involving matters of private current tests for proving defamation were adequate concern). without further establishing some "artificial 6 5 See Milkovich v. Lorain Journal Co., 497 U.S. 1 dichotomy between 'opinion' and fact." Id. (1990) (establishing criteria for the opinion defense). 74 475 U.S. 767 (1986) (discussing the difference The headline for the article was "Maple beat the law between public and private concern in defamation with the 'big lie."' Id. at 4. The alleged defamatory law). sentences were as follows: 7 [A] lesson was learned (or relearned) 5 See Milkovich, 497 U.S. at 19 (clarifying opinion yesterday by the student body of Maple Heights High in Hepps with respect to proving that an opinion School, and by anyone who attended the Maple­ cannot imply a false fact and still be considered Mentor wrestling meet of last Feb. 8 ... A lesson privileged opinion). which, sadly in view of the events of the past 76 See id. at 20 (stating that an opinion is a defense year, is well they learned early ... It is simply this: If in defamation matters when it is mere opinion and you get in a jam, lie your way out ... If you're does not contain or imply a false fact). successful enough, and powerful enough, and can 77 See James G. Webster, THE MARKETPLACE OF sound sincere enough, you can stand an ATTENTION: How AUDIENCES TAKE SHAPE IN A excellent chance of making the lie stand up, DIGITAL AGE 6 (2014) (discussing the significance of regardless of what happened ... The teachers attention in the new millennium).

96 78 See John Rousse, The Economy ofAttention, in 22 Then, "Slash Gear," as the highest earning blogger at ENGLISH EDUCATION, No. 2, 83 (May 1990) (stating $60,000 - $80,000 per month). that attention is so important to us because we are 94 See Anat Keinan, et al., The Blonde Salad, CASE educated to be selfless-to give attention to others 9-515-074,2 (Jan. 2015) (explainingthatFerragni rather than to receive attention ourselves). went from her second year of International Law at 79 See Webster, supra note 77, at 15 (examining the Bocconi University in Milan in 2009, to being named Internet as a platform for garnering attention). one of Forbes' 30 under 30 for Arts & Style in 2015). 80 See id. at 16 (identifying methods for obtaining an See also 30 Under 30, FORBES (2015), archived at https://perma.cc/GV47-4GLB (estimating that audience in the digital age). 81 Ferragni, at 27, would make approximately $8 See id. million dollars in 2015). 82 See id. (discussing the difficulties of using the pull 95 See Keinan, supra note 94 (examining how Chiara method to seek attention). Ferragni turned her blog into a successful career); 83 See id. (illustrating an effective use of the push Chiara Ferragni, Harvard, THE BLOND SALAD BLOG method). (Feb. 23, 2015), archived at https://perma.cc/MYZ7- 84 See id., at 16 (establishing the push method of TXBB (describing being contacted by Harvard for a seeking attention as the preferable method for case study written about her successful business Internet users). plan). 85 See id. (discussing how using both push and pull 96 See Keinan, supra note 94, at 2 (discussing how methods in conjunction with each other is most Ferragni started her blog merely to share her daily common). outfit choices). 86 See Jeremy Harris Lipschultz, SOCIAL MEDIA 97 See id. (describing Ferragni's popularity on social COMMUNICATION: CONCEPTS, PRACTICES, LAW AND media platforms such as Flickr and Lookbook.nu). ETHICS 17 (2015) (discussing the growth ofonline 98 See id. (establishing Ferragni's initial success on advertising and marketing on social media). platforms usually used by professional 87 See Our Story & Mission, EMARKETER (Feb. 26, photographers). 2017), archived at https://perma.cc/YP3S-559 A 99 See id. (commenting on Ferragni's ability to reach (marketing itself as one of the world's most people and gain attention through her blog). frequently cited media research providers). 100 See id. at 2-3 (demonstrating success for bloggers 88 See Lipschultz, supra note 86 (illustrating the in the United States). The pair began recognizing amount of money spent on advertising on social that they were creating a brand through Ferragni's media platforms). social media image. Id. 89 See id. (discussing potential growth in advertising 101 See id. (noting how the blog became a "salad" of on social media sites). Ferragni's many interests). 90 See Jnstagram 's Ad Business is on a Rapid 102 See id. (describing Ferragni and Pozzoli's plan to Trajectory: Facebook's decision to integrate establish dedicated followers). Instagram into its ad system has helped boost 103 See Keinan, supra note 94, at 3 (recognizing revenues, EMARKETER (Nov. 8, 2016), archived at Ferragni's method to establish loyalty garnered https://perma.cc/9628-YY 4Q ["Jnstagram 's Ad instant popularity). Business"] (showing growth ads marketed on 104 See Keinan, supra note 94, at 3 (discussing Instagram). 91 Ferragni's invitation to fashion week along with other See Overview, NANIGANS (Feb. 26, 2017), press). archived at https://perma.cc/6672-47CT (explaining l05 See Keinan, supra note 94, at 3 (noting that that Nanigans is an ad automation firm that uses Ferragni's presence at fashion week gained her even software, which filters metadata tags in order to more attention). optimize on advertising on the Internet). 106 See Keinan, supra note 94, at 3 (recognizing that 92 See Jnstagram 's Ad Business, supra note 90 (highlighting growth of the use of Instagram in they were "selling" Ferragni as a fashion girl to the public). advertising since it was acquired by Facebook). 107 See Keinan, supra note 94, at 4 (examining 93 See Annika Darling, The 10 Top Earning Bloggers Ferragni and Pozzoli's plan to gamer international in the World, THE RICHEST (Feb. 12, 2014), archived attention). at https://perma.cc/X3NM-MZLZ (listing Ewdison

97 108 See Keinan, supra note 94, at 4 (discussing 9WEH (providing a 16 hour chronicle ofMedine's efforts to actively pursue business development). observations and experience at New York Fashion Week 2016). 109 See Keinan, supra note 94, at 4 (describing additional measures taken to gain attention). 125 See Stein, supra note 12 (discussing the growing number of Internet trolls who feed on the attention 110 See Keinan, supra note 94, at 4 (describing the new business model used in order to gain more provided by the Internet). advertisers and recognition). 126 See Stein, supra note 12 (analyzing factors attributing to the prevalence of Internet trolls). 111 See Keinan, supra note 94, at 5 (illustrating how Pozzoli and Ferragni combined Ferragni's interests in 127 See Marie Southhard Ospina, 13 Most Absurd order to gain sponsors in addition to attention from Comments from Internet Trolls that These Positive followers). Bloggers, Activists, & Models Have Received, BUSTLE (Aug. 10, 2015), available at 112 See Keinan, supra note 94, at 5-6 (noting https:!lwww.bustle.com/articles/l 03308-13-most­ successful partnerships with luxury brands). absurd-comments-from-internet-trolls-that-these­ 113 See Keinan, supra note 94, at 6 (stating that bodv-posi tive-b loggers-activists-models-have, Ferragni was becoming the most internationally archived at https://perma.cc/PGR8-2NJD (listing famous blogger in the world). derogatory and harassing comments made about 114 See Keinan, supra note 94, at 7 (showing that bloggers weight and appearance). Ferragni has used her notoriety in order to not only 128 See Stein, supra note 12 (acknowledging be an observer of fashion, but now a creator as well). anonymity felt by the mask of the Internet leading to 115 See Keinan, supra note 94, at 8 (utilizing the a rise in Internet trolling). social media platform to keep her business relevant in 129 See Milkovich v. Lorain Journal Co., 497 U.S. 1, the evolving Internet in order to maintain her 20 (1990) (discussing the protection provided to attention economy). opinions in defamation law). 116 See Keinan, supra note 94, at 5 (indicating the 130 See id. (establishing that opinion, which does not nearly immediate increase in daily views as a result imply a false fact is provided full Constitutional of using Instagram). protection under defamation law). 117 See Leandra Medine, MR Round Table: How 131 See id. (highlighting the need for the public and Man Repeller Makes Money, MANREPELLER (June media defendants to be able to have the freedom to 17, 2016), archived at https://perma.cc/HSG4-VB62t publish discontent of our leaders). (illustrating how Medine transformed her personal 132 See id. (distinguishing the requirement for media blog into a business). defendant's to prove that an opinion is a false fact); 118 See Medine, supra note 117 (stating that Medine see also Dun & Bradstreet Inc. v. Greenmoss initially blogged for herself and her friends while in Builders, Inc., 472 U.S. 749, 761-63 (1985) (stating college). that matters of public concern are protected). 119 See Medine, supra note 117 (examining how 133 See Anthony Ciolli, Chilling Effects: The Medine turned her personal blog into a fulltime Communications Decency Act and the Online business). Marketplace ofIdeas, 63 U. MIAMI L. REV. 137, 148 120 See Medine, supra note 117 (discussing the (2008) (demonstrating the lack of censorship to importance of being honest with followers to keep speech on the Internet). their attention). 134 See CDA, supra note 10 (protecting Internet 121 See Medine, supra note 117 (establishing the service providers from civil liability from acts of importance of maintaining your brand vision while third parties). See generally Terms of Use, posting sponsored posts). INST AGRAM, 122 See Medine, supra note 117 (stating that more https://help.instagram.com/4 787 4555885251 l(Jan. money is made from their content posts about 19.2013) (stating that if you do not opt-out of specific brands and not banner advertisements). arbitration you are agreeing to waive your right to a 123 See Medine, supra note 117 (reiterating the jury trial and noting that this arbitration clause is importance of keeping paid posts "on brand"). common for many different social media platforms). 135 See Eugene Volokh, TheDirty.com not Liable for 124 See Leandra Medine, Leandra's NYFW Diary: 16 Hours ofKrispy Kremes and Nudity, MANREPELLER Defamatory Posts on the Site, THEWASHINGTON (Sept. 13, 2016), archived at https://perma.cc/5S2N- POST (June 16, 2014),

98 https://www.washingtonpost.com/news/volokh­ providers were subject to liability for third party conspiracy /wp/2014/06/ 16/thedirty-com-not-liable­ postings). for-defamatory-posts-on-the- 147 See Zeran, 129 F. 3d at 332 (acknowledging that site/?utm term=.d3aabal2b571 (providing immunity Zeran only filed suit against AOL as the publisher of for Internet service providers from third party posting the post). See also Dendrite Intern., Inc. v. Doe No. of defamatory speech). 3, 775 A.2d 756, 756 (N.J. Super. Ct. App. Div. 136 See Joanna Schorr, Malicious Content on the 2001) (outlining the needed to get a court order Internet: Narrowing Immunity Under the requesting the identification of an anonymous Communications Decency Act, 87 ST, JOHN'S L. REV. poster). 733, 744 (2013) (extending immunization for Internet 148 CODE OF ETHICS OF SOCIETY OF PROFESSIONAL service providers to harassing content whether or not JOURNALISTS (1996), it is covered by constitutional protections). https://www.spj.org/pdf/ethicscode.pdf [hereinafter 137 See Ciolli, supra note 133, at 153 (finding that "Code of Ethics"] (suggesting a code of ethics for the CD A's immunity for publishers and distributors journalists and publishers to follow). can be damaging for victims of online defamation). 149 See id. (addressing a need for journalistic 138 See Zeran v. American Online, Inc., 129 F.3d integrity). 327, 328 (4th Cir. 1997) (recognizing CDA as a 150 See id. (outlining journalistic ethical standards defense to defamatory message posted by third­ intended to minimize harm). party). 151 See 50 Am. Jur. 2d Libel and Slander § 105 (2nd 139 See id. at 329 (noting that this matter involved an ed. 2016) (distinguishing between different anonymous postings on an AOL message bulletin categories of plaintiffs in defamation law). board alleging to advertise "Naughty Oklahoma T­ 152 See Thompson v. Lee, 880 So.2d 300, 304 (La. Shirts" (referencing the Oklahoma bombing)). App. 2d Cir 2004)(finding that the First Amenment 140 See id. at 328-29 (claiming that although Zeran allows a person's subjective opinion about another called AOL to remove these messages and was told individual to be a defense to defamation). that the account which posted these messages would 153 See Communications Decency Act, 47 U.S.C. § be closed, a news radio got a copy of the first posting 230 (1998) (providing immunity to Internet service and Zeran continued to receive death threats; thus he providers to posts by third parties). felt that AOL did not take enough action to remove or monitor postings). 154 See Webster, supra note 77 at 49 (discussing the use of attention economy in social media). 141 See Zeran, 129 F. 3d at 328 (1997) (outlining protection provided to Internet services providers and 155 See Medine, supra note 117 (establishing how the significance of not treating them as publishers of Medine transformed her personal blog into a business third party posted content). enterprise); see also Keinan, supra note 94, at 2-4 (demonstrating how Ferragni and Pozzoli used 142 See id. at 330 (stating that Section 230 was Pozzoli' s know ledge from business school in order to enacted because "[i]t also found that the Internet and attract more followers). interactive computer services 'have flourished, to the benefit of all Americans, with a minimum of 156 See Gertz v Robert Welch, Inc., 418 U.S. 323, government regulation"') (quoting CDA §230(a)(4) 351-52 (1974) (defining limited public figure for the (emphasis in original)). purpose of defamation law). 143 See id. at 332 (comparing AOL to publishers 157 See Curtis Pub. Co. v. Butts, 388 U.S. 130, 154- such as books or magazines and thus finding that 55 (identifying how a person can thrust themselves AOL is protected by §230). into the public sphere for a limited purpose). 144 See id. (stating that although publishers and 158 See Gertz, 418 U.S. at 351-52 (examining the distributors are examined differently, a distributor is extent to which Gertz has voluntarily entered into still a type of publisher). public sphere); see also Medine, supra note 117 (explaining how Medine started her fashion blog for 145 See id. at 333 (recognizing the potential colossal other like-minded "maurepellers"). See also Keinan, implications of liability for Internet service providers supra note 94, at 2-3 (establishing how Ferragni without the protection of the CDA). blogs about her interests in fashion, travel, and 146 See id. at 328-33 (highlighting the risks to the photography). development of the Internet if Internet service 159 See Gertz, 418 U.S. at 351-52 (comparing general public figure with limited public figure).

99 160 See Rachel Stmgatz, The Blonde Salad's Chira 17 4 See Burrell, supra note 6 (discussing how Ferragni Talks Fifth Anniversary and Footwear ordinary users do not fully understand the legal Launch, WWD (Sept. 9, 2014), ramifications of what they post on the Internet); http://wwd.com/business-news/media/the-blonde­ Bullying Definitions, supra note 7 (analyzing how the salads-chiara-ferragni-talks-fifth-anniversary-and­ Internet creates an arena for cyberbullying). footwear-launch-788804 7I (commenting on how 175 See Bullying Definitions, supra note 7 Ferragni posts about her daily life) (commenting on (recognizing that cyberbullies may not recognize the how Ferragni posts about her daily life). effect of their actions since their actions take place 161 See Medine, supra note 117 (stating how Medine online). established her business based on "transparency" and 176 See Milkovich, 497 U.S. at 21 (articulating that an does not want to trick her followers); Keinan, supra alleged defamatory statement is an opinion when it is note 94, at 3 (explaining how Pozzoli and Ferragni not a fact that can proved to be true). were marketing Ferragni as a "fashion girl" in order 177 See Burrell, supra note 6 (demonstrating how the to gain followers). Internet allows anyone to become a publisher of 162 See Gertz, 418 U.S. at 351-52 (concluding a thoughts and ideas and the problems this fact can person who voluntarily enters the public sphere for a cause). limited purpose is different than one that is a 178 See Milkovich, 497 U.S. at 14 (establishing the generally known figure). need to provide retribution for harm done to citizens 163 See id. at 342 (evaluating lessened protection "wrought by invidious or irresponsible speech"). needed for public figures due to their access to 179 See id. (stating that there is no societal value for resources to reestablish their reputations). false statements made with actual malice or reckless 164 See id. at 342-43 (recognizing that public figures disregard). and public officials have greater access to media to 180 See id. at 18-19 (relying on Gertz dictum in refute statements made against them). defining opinion). See also Dun, 472 U.S. at 760 16 5 See id. at 334 (establishing that both public (quoting Harley-Davidson Motorsports, Inc. v. figures and limited public figures must prove alleged Markley, 279 Or. 361, 366, 568 P.2d 1359, 1363 statements were made with actual malice). (1977)) (recognizing that there is no threat to "free 166 See id. at 328 (defining actual malice as and robust debate of public issues" when the matter is knowledge of the falsehood of statements made or purely of private concern). This, the Court reasoned, reckless disregard for whether the statement was false was because there was no interference with the or not). public's ability to self-govern, nor censorship of the 167 See id. at 343 (determining that certain areas of a press. Id. limited public figure's life are not part of the public 181 See Milkovich, 497 U.S. at 12 (addressing sphere). purpose for defamation law as a means for repairing 168 See id. at 348-49 (treating private lives of limited wrong done to an individual). public figures as not part of the public sphere). 182 See Dun, 472 U.S. at 758 (examining the need to 169 See Milkovich v. Lorain Journal Co., 497 U.S. 1, protect speech that promotes political and social 7 (1990) (identifying that there are four elements of change). the opinion defense in defamation cases and the 183 See Burrell, supra note 6 (stating that there is a factors are analyzed under the totality of the prevalence of bullying based on an individual's circumstances approach). appearance on the Internet). 170 See supra part III. Ssee also New York Times 184 See Burrell, supra note 6 (recognizing the harm Co. v. Sullivan, 376 U.S. 254, 254 (1964) (stating that can be created on the Internet when any ordinary that Sullivan filed a defamation case against New user becomes a publisher of speech). York Times); Gertz, 418 U.S. at 323 (stating that 185 See Zeran, 129 F. 3d at 327-28 (discussing the Gertz sued publisher Robert Welch, Inc. for protection available to Internet service providers defamatory statements made against him). under the CDA). 171 See CODE OF ETHICS, supra note 148 (suggesting 186 See id. (stating that CDA does not recognize a code of ethics for journalists to adopt). Internet service providers as publishers of the third­ 172 See id. (noting that journalists owe the public party posts). See also Dendrite, 342 N.J. Super. at professionalism). 134 (providing instructions to trial courts when a 173 See id. (encouraging journalistic integrity).

100 court order is required to obtain the identification of an anonymous source). 187 See Zeran, 129 F. 3d at 330 (asserting that the purpose of the CDA was to allow Internet service providers to grow and enter the marketplace with limited government regulation). 188 See Statistics, supra note 2 (recognizing the potential rise of social media users worldwide to rise to 2.95 billion by 2020). 189 See Bullying Definitions, supra note 7 (commenting on rise of cyberbullying in school aged children); Stein, supra note 12 (determining that anonymity on the Internet creates Internet trolls).

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