The anonymous internet
In cyberspace, sarcastic statements, it seems, are likely opinion and not actionable defamation. (This is a good thing for me, by the way, especially since I avoid anonymity and tend towards stamping my sarcasm with my electronic signature.) The Internet’s production of voluminous commentary, much of which is anonymous, perhaps necessitates this conclusion. The very anonymity that promotes what the court in Sandals International Resorts Limited v. Google noted as a “freewheeling, anything-goes writing style” (at p. 17, quoting Cheverud, Comment, Cohen v. Google, Inc., 55 NY L Sch L Rev 333, 335 (2010/11)) would wreak havoc on courts if each insinuation was considered actionable defamation.
In this case, Sandals petitioned the court to force Google to provide them with information about the anonymous sender of an email alleged to have asserted defamatory content. “The gist of the e-mail [was] that the country of Jamaica gives subsidies to the Sandals resort, paid for by Jamaican taxpayers, while the foreign corporation that owns the resort company hires only foreigners for its senior managerial positions and hires Jamaican nationals only for menial jobs at its Jamaican resorts.” See p. 3. The court noted that the email certainly contained facts implying that the resort was racist. But, because those facts were surrounded by questions inciting others to investigate the sender’s allegations and links to web pages that supported the sender’s allegations, the sender’s statements were not defamatory. Thus, the appellate court upheld the lower court’s decision to deny Sandals’ petition.
Sandals is of course not the first lawsuit to address what constitutes allegedly defamatory assertions sent over the Internet. In the social media context, individuals, even on their non-anonymous accounts protected only by whatever privacy settings the individuals choose, frequently make assertions that cross the threshold of what could be considered defamatory statements. It is not hard to do in cyberspace; there is something comfortable about posting information about someone when that someone is not directly in front of you. It reminds me of the mantra ‘if a tree falls in the forest, and no one is around to hear it, did it really make a noise?’ The corollary: if I posted an email, but no one was there to see me post it, did I really post it? When it’s anonymous, perhaps you didn’t? If it’s only on private social media account, it depends: is your company archiving your statements?
While the boundaries of what is permissible and what is not in the world of cyberspace are still being delineated, one thing is evident: There is a much higher threshold for what is impermissible on the Internet than everywhere else. The court observed that “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts…” at p. 18. Regardless, unless you’ve chosen to lead the life of a maverick (and you still may not be taken seriously), I would caution readers to use prudence with their Internet postings.