NH high court: No defamation in ‘retweets’

New Hampshire Bulletin
Published: 5/15/2022 9:58:59 PM
Modified: 5/15/2022 9:57:12 PM

CONCORD — The New Hampshire Supreme Court ruled last week that people who repost false information on Twitter or other social networks cannot be sued for defamation, blocking an attempt by a middle school teacher to sue a group of people who had retweeted a prank post claiming she was “sexually perverted.”

In a unanimous, four-justice opinion, the court held that Section 230 of the federal Communications Decency Act is designed to protect “users” of “interactive communities services” from defamation lawsuits or other lawsuits — and that those users include individuals.

The lawsuit was brought by Debbie Banaian, a former middle school teacher at Merrimack Valley School District in Penacook, who in 2016 was subjected to an act of digital sabotage. That May, a student hacked into the middle school’s website and changed the text on Banaian’s personal page, inserting a statement that she was “sexually perverted and desirous of seeking sexual liaisons with Merrimack Valley students and their parents,” according to the lawsuit.

Another student took a screenshot of the fake post and posted it to Twitter, the lawsuit continued. A number of others then “retweeted” the post, causing it to spread across Twitter.

Banaian said the incident subjected her to “school-wide ridicule” and prevented her from working for six months, while she dealt with “financial, emotional, physical, and reputational harm,” the ruling noted. She then sued five of the people who retweeted the original Twitter post, seeking damages for defamation and infliction of emotional distress.

Hillsborough Superior Court held that Section 230 of the federal act protected the people retweeting the false information against legal action.

But Banaian and her attorneys countered that the defense was a misapplication of the law, arguing that the law was intended to protect internet service providers, coffee shop owners, libraries, and other businesses offering internet against liability for things posted online — not the users themselves.

The New Hampshire Supreme Court rejected that argument, pointing to a California Supreme Court ruling that found that Section 230 protections apply to individual users as much as internet providers.

The New Hampshire court also cited the dictionary definition of “user,” the key word appearing in Section 230, which the court noted included individuals accessing online services.

“That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language,” the court held.

First passed in 1996, Section 230 has been most prominently used to shield Twitter, Facebook, and other companies from liability for the content produced on their platforms.

But the act has received increased attention in recent years after former President Donald Trump began campaigning for its repeal. Trump and some Republicans have argued that it protects social media companies from facing lawsuits when they ban certain members or remove posts or tweets that violate their content policies.

Opponents of repeal have countered that if the law were eliminated, social media companies could be regarded by courts as the publishers of the content on their sites, which could necessitate more content moderation, not less.

While the law is less commonly used to shield individuals’ actions on social media platforms, Wednesday’s ruling solidifies that as a possible defense.

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