Can You Defame Someone By Directly Creatively 'Quoting' Them? New York Court Says You Can.

from the the-64-character-question dept

Thu, Dec 3rd 2015 11:42am — Tim Cushing

The Daily, a short-lived, iPad-only "newspaper," may be in the process of setting a defamation land speed record: 64 characters.

The defamation lawsuit, which just survived The Daily's motion to dismiss, revolves around the following statement -- half of a comment tweeted by the plaintiff, New York DJ Rashad Hayes.

I was gonna start shooting in the air, but I decided against it.

There's a lot of context surrounding this quote, but it was removed (and recontextualized) by The Daily Holding.

DJ Rashad Hayes was an employee at a club where two recording artists -- Drake and Chris Brown -- participated in a bar brawl over Rihanna, Brown's periodic girlfriend and assault victim. Bottles were thrown. Fists were thrown. And, after it had all died down, Hayes -- who was not at the club that night -- engaged in Twitter discussions about the event, delivering the following tweet as a joke:

I was gonna start shooting in the air, but I decided against it. Too much violence in the hip-hop community.

The Daily covered the bar brawl for its iPad subscribers. It decided to use Hayes' tweet to liven up the story. First, it stripped away half the tweet. Then it stripped it of its context, divorcing it completely from some jokey Twitter trash talking between friends and hip hop fans.

Finally -- and most damningly -- it completely recontextualized Hayes' tweet by turning it into a statement made by someone actually present at the club on the night of the brawl.

On June 15, 2012 the Daily posted a news article about the altercation, titled "Ri-Ri's Rumble," which included the following statements:

" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'

"Perhaps to show he didn't care that Drake had hooked up with his ex — or to flaunt the fact that he's rekindled his romance with her — Brown sent a bottle to Drake's table. Drake sent it back with a note, a witness told the New York Post. It read, I'm f***ing the love of your life [Rihanna], deal with it.'

"And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club. I was gonna start shooting in the air but I decided against it,' Hayes said."

Not only did the iPaper recast a tweet as an eyewitness statement, but it also allegedly made up every other quote from Hayes it included in its article.

Specifically, plaintiff alleges that defendants falsely identified him as a witness who made the statement: "So we're sitting in there. Me, a couple of others, Chris . . . Drake comes in and keeps eyeballing the table," when he never made any such statement to anyone. Plaintiff further alleges that the article implied that he had stated, "I was gonna start shooting in the air but I decided against it" to a reporter in seriousness, when that statement was only a tweet he made in jest. Further, plaintiff alleges that he was not at WIP on the night of the fight and that by failing to publish his full tweet, the Daily changed it from one eschewing violence, to one that made it look as if plaintiff were a "gun-toting psychopath with an itchy trigger finger."

Hayes claims the article resulted in him being banned by the club and ended negotiations for a permanent position as a DJ.

The Daily claimed it could not be held liable for publishing Hayes' "own words," even considering the removal of context. It also claimed the quotes it allegedly made up were not libelous.

The court agreed with part of its argument.

With respect to the first alleged defamatory statement (" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'" [boldface omitted]) and the allegedly fabricated portion of the second statement ("And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club." [boldface omitted]), neither the language, nor the implication that plaintiff was a witness to the incident, are libelous on their face, meaning that the complained of words are not commonly understood to subject a person to public contempt or ridicule. Stated another way, the import of this statement is innocent on its face since it merely conveys that plaintiff was sitting at a table observing his surroundings; even if false, this statement is not defamatory.

As for the "own words" defense, the court says context matters, even when directly quoting someone.

Courts typically compare the complained of language with the alleged truth to determine whether the truth would have a different effect on the mind of the average reader. Although it is conceded that defendant accurately quoted plaintiff's own words from Twitter, that does not necessarily mean that the statement could not have produced a worse effect on the mind of a reader than the truth as alleged by plaintiff. A reader could read the alleged defamatory statement in the context of the rest of the article and think that plaintiff was actually present in the club, prepared to shoot a firearm; whereas, a reader of plaintiff's isolated statement on Twitter may not have the same impression. In this unique case, the context of the two versions of the same statement is crucial.

[...]

Even if we were to adopt the "own words" defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader.

To that end, the court denies The Daily's motion to dismiss. Hayes is instructed to enter a "show your math" pleading for special damages -- something more specific than the $3,000,000 he argued he was owed (without support/documentation) in his original complaint.

So, the truth/"own words" isn't an infallible defense to defamation accusations. However, the truth in this case wasn't the whole truth. And the "own words" were stripped of their original context and injected into an entirely (and allegedly entirely fabricated) narrative. So, the normal defamation accusation defenses remain solid. The Daily just went out of its way to severely damage its own safety valves.

Half a Tweet (PDF)Half a Tweet (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: chris brown, context, defamation, drake, new york, quoting, rashad hayes

32 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 3 Dec 2015 @ 11:45am

Considering what this is about, I'd call the title clickbait.....
[ link to this | view in chronology ]
- Mason Wheeler (profile), 3 Dec 2015 @ 1:18pm
  
  Re:
  Agreed. Come on, TD guys. You're better than that.
  [ link to this | view in chronology ]
- Anonymous Coward, 3 Dec 2015 @ 2:50pm
  
  Re:
  If it is a clickbait it was a good one.
  
  You were expecting a "WTF?! How can the NY court do that?" moment but got a "WTF?! How can a paper be that stupid?" one.
  
  So you got what you came for: a WTF and a facepalm
  You got both just not for the reason the thought about at first glance. I'd call that a clever twist in story telling.
  [ link to this | view in chronology ]
Grey (profile), 3 Dec 2015 @ 11:50am

Context is as important as punctuation.

"Lets eat Grandma!"

"Lets eat, Grandma!"
[ link to this | view in chronology ]
- limbodog (profile), 3 Dec 2015 @ 1:07pm
  
  Re:
  I like to eat my cats and not using commas
  [ link to this | view in chronology ]
Joel Coehoorn, 3 Dec 2015 @ 12:08pm

New Context
This might be defamation. Not because they used his own words. Not because they removed context. It might be defamation because they created new context surrounding the quote.
[ link to this | view in chronology ]
Anonymous Coward, 3 Dec 2015 @ 12:09pm

CLICKBAIT
"Can you defame someone by directly quoting them out of context? New York court says you can"

Nothing to read here, seems very obvious, no controversy at all, move on, read something else.

"Can You Defame Someone By Directly Quoting Them? New York Court Says You Can."

Oh my god, that's a million kinds of wrong, click on that, gotta read it, gotta know what it's about.

Glad I've got my Adblockers on, clickbait be fucked.
[ link to this | view in chronology ]
- Anonymous Coward, 3 Dec 2015 @ 12:33pm
  
  Re: CLICKBAIT
  That title would be clickbait on Buzzfeed, but maybe not at TechDirt. Depends on how well you know the normal tone and subject matter. Context is a bastard.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Dec 2015 @ 12:41pm
    
    Re: Re: CLICKBAIT
    Time was if a tech dirt headline said "this stinks", then the story was about something that stinks. Lately that same headline may just as well be on a story about something that is starting to turn but hasn't released an odour quite yet.
    And when that's the case, as it is here, it's clickbait.
    [ link to this | view in chronology ]
    - Anonymous Coward, 3 Dec 2015 @ 1:19pm
      
      Re: Re: Re: CLICKBAIT
      Since you appear to be so concerned about it you could, you know, not click on it and stop complaining.
      
      If you really believe that complaining about the posts adds to the conversation you could, you know, start your own blog. Or try reddit.
      [ link to this | view in chronology ]
      - Anonymous Coward, 3 Dec 2015 @ 1:29pm
        
        Re: Re: Re: Re: CLICKBAIT
        "you could, you know, not click on it and stop complaining"
        
        Well, no you can't. The very nature of clickbait is that you can only discover it in hindsight, which makes it an irritant.
        [ link to this | view in chronology ]
  - Whatever (profile), 3 Dec 2015 @ 11:11pm
    
    Re: Re: CLICKBAIT
    Clickbait is clickbait, no matter what it is. The title almost manages to misrepresent the story as strongly as the "Ipad App news" thing did.
    
    They didn't quote him. They didn't just remove content. They created context and a bogus story to support the few quoted words.
    
    "App News Site Fakes quotes Context, loses in court" would be much more appropriate.
    [ link to this | view in chronology ]
- Zonker, 3 Dec 2015 @ 2:16pm
  
  Re: CLICKBAIT
  "Can you defame someone by directly quoting them out of context? New York court says you can"
  This was actually Tim's original headline before he was partially quoted out of context in the final article:
  "Can You Defame Someone By Directly Quoting Them? New York Court Says You Can."
  ;)
  [ link to this | view in chronology ]
Roger Strong (profile), 3 Dec 2015 @ 12:13pm

I'm not even remotely a legal expert, but it seems to me that this isn't so much a case of defamation as a related thing called "false light." A couple examples in the Wikipedia article seem similar.

Of course one can follow the lead of patent trolls and declare it newsworthy because it's "False light... with a computer!!!"
[ link to this | view in chronology ]
- Chris Rhodes (profile), 3 Dec 2015 @ 12:25pm
  
  Re:
  Indeed, it reminds me of that apocryphal sailor story where the first mate enters into his logbook: "Captain sober today."
  [ link to this | view in chronology ]
- TimothyAWiseman (profile), 3 Dec 2015 @ 3:50pm
  
  Re:
  It is important to remember that the details of false light vary from jurisdiction to jurisdiction quite a bit.
  
  However, I suspect that defamation is better here than false light. For one thing, in most places, false light is viewed more as an invasion of privacy than anything else. You often cannot put a public figure(think celebrity, but slightly broader) in a false light in the legal sense.
  
  For another thing, it seems that in order to create the false context for his words they did publish false information. That false information may not have been defamatory in and of itself, but it was vital to the harmful change in context. For all practical purposes, their information was false and there are alleged actual damages rather humiliation or unwanted exposure alone, meaning defamation fits quite well.
  [ link to this | view in chronology ]
  - Roger Strong (profile), 3 Dec 2015 @ 4:23pm
    
    Re: Re:
    > For one thing, in most places, false light is viewed more as an invasion of privacy than anything else.
    
    I thought that was "private disclosure of private facts" - another limit to truth being an absolute defence against defamation.
    
    > it seems that in order to create the false context for his words they did publish false information.
    
    Ah. Fair enough.
    [ link to this | view in chronology ]
    - TimothyAWiseman (profile), 4 Dec 2015 @ 10:41am
      
      Re: Re: Re:
      To be nitpicky, I think you mean "public disclosure of private facts". But, while related and the same facts may give rise to at least reasonable allegations of both, that is slightly different.
      
      Public disclosure is also a violation of privacy, but it has a few key differences. For one thing, a "false light" claim has to actually put someone in a false light. It must imply something about the person which is not true. One of the famous cases involved publishing someone's picture next to an article about someone else that stated the other person was pregnant and other facts. The article was not about the woman pictured and did not mention her by name, but by attaching her picture next to it someone could easily have believed it was her and drawn false conclusions. Public disclosure does not have any requirement that even the implications be false.
      [ link to this | view in chronology ]
Anonymous Coward, 3 Dec 2015 @ 12:30pm

Context
My whole life and everything I've ever said to that point is the context of my words. Don't quote me unless you include the context.
[ link to this | view in chronology ]
Anonymous Coward, 3 Dec 2015 @ 12:34pm

clickbait

titles like this that lead to non-stories just piss readers off. techdirt should strive to be better.
[ link to this | view in chronology ]
blogagog (profile), 3 Dec 2015 @ 1:04pm

don't misquote
I told my brother, "I couldn't eat the meal because a little kid sitting next to me was picking his nose and wiping his boogers on the table."

He quoted me as saying, "I... eat... boogers."

Can I sue him?
[ link to this | view in chronology ]
- Anonymous Coward, 3 Dec 2015 @ 2:02pm
  
  Re: don't misquote
  YES...
  
  The question of whether you can sue someone or not is always yes.
  
  Will you win... well maybe, maybe not!
  [ link to this | view in chronology ]
Anonymous Coward, 3 Dec 2015 @ 2:34pm

stopped reading at ipad-only "newspaper"
ipad .. apple .. nuff said.
[ link to this | view in chronology ]
Glenn, 3 Dec 2015 @ 2:37pm

I was gonna post, but then I changed my mind.

(Oops, sorry... left out the "not". My bad.)
[ link to this | view in chronology ]
Bjarne, 3 Dec 2015 @ 2:58pm

This is radical but...
...say we make lying illegal... that would... change the playing field I guess.

For the better? Perhaps... not sure...
[ link to this | view in chronology ]
- annonymouse, 3 Dec 2015 @ 3:21pm
  
  Re: This is radical but...
  That would be a hardship for lawyers salesman bankers enforcers and politicians, well unless it was a capital crime then it would be a one time offense.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Dec 2015 @ 6:03pm
    
    Re: Re: This is radical but...
    Hey! Lawyers don't lie! They just bend the truth. If they lie they go to jail. Weird world when the only people who can go to jail because of a lie are lawyers.
    [ link to this | view in chronology ]
- Anonymous Coward, 3 Dec 2015 @ 3:33pm
  
  Re: This is radical but...
  95% of people would never get a date again.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Dec 2015 @ 3:39pm
    
    Re: Re: This is radical but...
    Plus anarchy. Nobody who would want (and be willing) to hold a political office would ever get elected to one.
    [ link to this | view in chronology ]
DB (profile), 3 Dec 2015 @ 3:07pm

Yes, I said all of those words. Just not in that order."
[ link to this | view in chronology ]
Anonymous Coward, 3 Dec 2015 @ 6:39pm

2 Pac and Biggie are still going at it? Good to see they have lawyers this time. Good luck getting that much coin out of me, in a lifetime.
[ link to this | view in chronology ]
Anonymous Coward, 4 Dec 2015 @ 10:06am

Political ads ...
...are full of snippets taken out of context and re-assembled in order to cast the comments in a totally different light. Can these creative authors (hopefully) be sued for similar defamation? You know, what's good for the goose...
[ link to this | view in chronology ]