Richard Raysman is a Partner in our New York office .
Twitter, Facebook and other social networking sites have become the latest battleground between two often conflicting legal concepts: the right of a person to speak freely, even in a vitriolic way, versus the right of another to obtain cognizable redress if those words cause subsequent emotional or physical harm. Which argument prevails, and the reasoning therein, has become a hotly contested aspect of technology law in the 21st century.
The latest case to tackle this often vexatious question is Patterson v. Grant-Herms, No. M2013-00287-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2013). The case involves a decision by an operations agent (the "agent") for Southwest Airlines to sue a passenger for slander, defamation, libel and false light invasion of privacy after the latter unleashed a fusillade of complaints about the conduct of the agent via her Twitter and Facebook accounts. The passenger's complaints were prompted by the refusal of the agent to permit the passenger to board alongside her children. On social media, the passenger alleged that it was the fourth time the agent had refused to permit her children to board alongside, and that the agent has "the WORST customer service."
In response to those statements, among others made by the passenger to the flight attendants and on southwest.com, the agent filed suit alleging the causes of action enumerated above. Specifically, the agent alleged that the statements of the passenger were defamatory because they attempted to paint her as someone who would "endanger the welfare of a four-year old child." The Tennessee Court of Appeals rejected this argument. First, it noted that defamation occurs when a statement is in part designed to harm the reputation of another so to lower her in the "estimation of the community," and that this statement did not do so because it was merely the passenger expressing her frustration. Second, though the court noted that the passenger left out aspects of the incident unfavorable to her, the words themselves construed in their "plain and natural" meaning could not reasonably be thought to portray the agent as someone with a propensity to endanger the welfare of a child.
However, the court reinstated the agent's false light invasion of privacy claim after it had been thrown out on summary judgment grounds in the lower court. In Tennessee, part of the standard for false light is whether there existed a "major representation of [her] activities that serious offense may reasonably be expected to be taken." Additionally, the standard for determining whether such offense can be taken in the context of a false light claim notes that the literal accuracy of separate statements does not immunize the speaker if the overall presentation of the statements renders them susceptible to casting an individual in a false light. Accordingly, since the selective posting of the circumstances by the passenger implied that the agent was rude, incapable of performing her job and more concerned with adherence to airline rules than the welfare of a child, summary judgment was inappropriate on the false light claim.
As the passenger in Patterson elsewhere noted, tweets and Facebook postings directed at companies is often the optimum way to engender a quick and sympathetic response. Companies rightly fear the contagion of negative publicity that could occur were the tweets or posts to be spread amongst the growing contingent of regular social media users. However, as the court in this case acknowledges, a passenger's fervent desire for redress can potentially infringe on the legal rights of third-parties. Accordingly, what constitutes passenger "frustration" and therefore not defamatory will likely confront other courts in the upcoming years.
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