In the future, everyone will be world-famous for 15 minutes. – Andy Warhol
In the future, everyone will be world-famous to 15 people. –Momus
No one can dispute that the Internet has changed the world as we know it. From the ways in which we communicate with each other, to the ways in which we access information and make decisions, every aspect of our lives is to some extent governed by the Internet. This technological wonder has greatly enhanced our lives, and it has created some complexities that Andy Warhol could never have imagined when he uttered his famous words in 1968. One of these complexities is the application of legal principles to the Internet. And one area of law where jurists need to provide further guidance is the public figure doctrine as it applies to people and activities on the Web. My purpose in writing this post is not to provide a comprehensive discussion of these issues, but hopefully it serves as a good start to anyone who’s interested in this area.
A preliminary and potentially significant issue in every defamation action is whether the plaintiff is a public figure. This is because public figures are held to a higher standard of proof than private individuals. Indeed, the standard is so high that few public individuals are able to meet it.
There are two different kinds of public figures: the all-purpose public figure, and the limited purpose public figure. The all-purpose public figure is one who has achieved such pervasive fame or notoriety that he or she becomes a public figure in all contexts (think Michael Jordan or Oprah). The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited number of issues. In most cases there are no facts to suggest that the plaintiff is in all–purpose public figure. Therefore, typically the fight is over whether the plaintiff is a limited purpose public figure.
California courts have adopted a 3-part test to determine whether a plaintiff is a limited purpose public figure. First, there must be a public controversy. This means that the controversy was debated publicly and had substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard, it is enough that the plaintiff “attempt to thrust him or herself into the public eye.” And finally, the alleged defamation must be germane or relevant to the plaintiff’s participation in controversy.
So what exactly is a public controversy and how might that be applied to the Internet? In one case, the court wrote: “A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.” “Courts must exercise care in deciding what is a public controversy.” “To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question.”
So how should courts handle this issue in light of the fact that people debate all kinds of issues on the Internet? In other words, what is a “public controversy?” Unfortunately, California courts have done very little to flesh out this concept, and so it remains to be seen what qualifies as a public controversy. However, courts should make clear that private disputes should not be interpreted as public controversy solely because the purported dispute draws attention from the public. Stated another way, private beefs or disagreements do not become public controversies simply because they gain attention. Otherwise, one could argue that every business that is listed on Yelp.com that has customer reviews is embroiled in a public controversy.
A second an important issue is the level of the alleged public figure’s voluntary involvement in the controversy. In fact, voluntariness appears to be one of the most important elements in determining whether someone is a public figure. For example, issuing press releases and posting letters to a website was enough for one court to find that the plaintiff had inserted itself into a public controversy. And in another case, the fact that plaintiff had invited media attention for a commitment ceremony and posted information about that ceremony on a website was sufficient to make the plaintiff a limited purpose public figure. But what about situations where the “voluntary involvement” only happens on the Internet and is only disseminated to a limited number of people? There are scores of people who write tweets or post comments on forums about the issues of the day. How should the law treat those? We need more published decisions in this area.