The Law and Business of Social Media
October 28, 2020 - Defamation, Litigation

S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

In Ganske v. Mensch, a defamation suit stemming from a “battle by Tweet,” a federal district court in New York held that the allegedly defamatory statements in the defendant’s Tweet were nonactionable statements of opinion and dismissed the case. The case illustrates that courts in such “Twibel” (Twitter + libel) cases may view Tweets and similar statements on social media as informal and “freewheeling” in nature, which reasonable readers would understand to be expressions of opinion rather than statements of fact.

Charles Ganske, a former Associated Press (AP) journalist, sued Louise Mensch, a blogger and former member of the British Parliament, for defamation and tortious interference. Ganske argued that Mensch defamed him and interfered with his employment at AP based on a single Tweet that she posted on July 27, 2018, by which she “interjected herself” into a Twitter thread between Ganske and another Twitter user with the handle @Conspirator0.

Mensch’s Tweet from her @patribotics Twitter account stated: “To this xenophobic tweet of yours, sir, I fear we must tell @APCentral ‘citation needed’. You clearly personally spread Russian bots on your own site; and @Conspirator0 work on it has sent you into a frenzy of tweeting and trying to discredit him.”

Ganske claimed that Mensch’s Tweet contained false and defamatory statements about him because neither he nor his Tweets were xenophonic and he never spread Russian bots on any website. He also alleged that Mensch deliberately tagged his employer, AP, and published the Tweet to @APCentral in order to interfere with his employment. Ganske’s employment with AP was later terminated, and Ganske argued that this was the result of Mensch’s Tweet.

However, the court sided with defendant Mensch, holding that the statements in her Tweet were expressions of opinions rather than defamatory statements of fact. The court explained that statements of fact may be defamatory, while expressions of opinion cannot be defamatory and are entitled to “absolute protection under the New York Constitution.”

In ruling that the first statement in Mensch’s Tweet (that Ganske’s Tweet was xenophobic) was a nonactionable expression of opinion, the court focused on the nature of Twitter and other social media platforms. The court cited a number of prior cases to support its determination that “courts have consistently protected statements made in online forums as statements of opinion rather than fact.”

The court also noted that social media communications such as Tweets are generally “informal” and “unedited,” which leads readers to give less credence to such remarks even when they are allegedly defamatory. Additionally, the court concluded that the statement that Ganske’s Tweet was xenophobic is incapable of being proven true or false, and that such claims are part of the exaggerated, freewheeling, anything-goes writing style characteristic of online forums. The court came to similar conclusions regarding the other allegedly defamatory statements in Ganske’s Tweet, emphasizing that the context alone—i.e., a social media platform such as Twitter—supported the conclusion that these statements were nonactionable opinions.

Based in part on this conclusion, the court granted Mensch’s motion to dismiss Ganske’s defamation claim. As the court noted, “[i]f the Internet is akin to the Wild West . . . Twitter is, perhaps, the shooting gallery, where verbal gunslingers engage in prolonged hyperbolic crossfire.” In this virtual Wild West where users regularly engage in Twibel warfare, plaintiffs may find themselves on the defensive when trying to make out a defamation claim based on Tweets and other social media posts.