Open Questions on Media Company Liability for Statements Made by Talent

by Akin Gump - Excubitor

A recent case has raised questions about whether or not a media company can be held liable for defamatory statements made by its talent on social media. The case arose after a falling out between two television stars, Mykel Hawke and Joseph Teti. The deterioration of their friendship was lengthy and dramatic, involving alleged jealousy on the part of Hawke after his show was canceled, tension caused by the death of a mutual friend and several social media posts made by both parties. The conflict came to a head when Teti posted to his official social media fan page that three psychologists had diagnosed Hawke with having Narcissistic Personality Disorder and that the Army was revoking his Special Forces Tab. Hawke relied on these posts to file suit against Teti, bringing in Teti’s media company employer as a co-defendant.

Hawke argued that the media company was guilty of defamation and tortious interference based on Teti’s social media posts because it failed to “adequately train personnel in public interaction, when and what types of communications employees should say publicly and/or put into print,” and further “failed to take action to stop the defamatory statements from being posted online” once they were made aware of them. Hawke also stated that the company was liable under the principle of respondeat superior because Teti’s statements were made within the scope of his employment.

The defendant company responded with a few interesting arguments of its own. First, the company claimed that, based on the Communications Decency Act (CDA), they could not be considered publishers of the defamatory statements and were therefore shielded from any liability. Section 230 of the Communications Decency Act says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This section of the CDA is commonly used to provide protection when defamatory content is published by a third party to its site, so long as the tech company is not materially contributing to the tortious content. The media company in this case painted itself as a similar type of party, arguing that it was amere provider of an official social media page rather than the publisher of its content, and that there were no “facts supporting that [the company] knew Teti or the other third parties were going to make the posts beforehand, much less that it had knowledge of their content.”  In response to Hawke’s respondeat superior argument, the company claimed that Teti was not an employee, but instead was hired as an independent contractor by an affiliated LLC, an altogether different entity not named in this lawsuit, to star in the media company’s show. And even if Teti were an employee, the company argued that the statements made by Teti about Hawke were “outside the course and scope of his duties[,]” thus negating the final connection necessary to hold an employer liable for the actions of its employee.

Although the Maryland District Court granted the defendant’s motion for summary judgment, the decision could easily be misunderstood as blanket immunity for media companies when their affiliated talent makes defamatory statements. However, that is not the case. In fact, the court let the media company off the hook for more technical reasons. The court disagreed with the plaintiff’s argument that the media company had published the posts. It did not, however, rely on the media company’s CDA rationale to inform its decision. Instead, the court concluded that there was simply not enough evidence that the social media posts had come from an official account controlled by the media company rather than from an unofficial account controlled by Teti himself. Regarding the plaintiff’s second theory of liability, respondeat superior, the court agreed with the media company, finding that Hawke had not presented enough evidence that Teti was actually defendant’s employee rather than the employee of an affiliated LLC. Based on this, the court found no need to broach the question of whether Teti’s statements were made in the course of his duties at the media company.

Although the decision did not answer the question of hypothetical vicarious liability directly, it did leave open potential liability in cases in which the connection between the defendant and the social media account is stronger, or even perhaps a case in which the connection between the employee and employer is clearer. In the absence of more concrete court rulings on these questions, other media companies should be cautious and deliberative in deciding whether to closely monitor the social media posting of its talent.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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