The Social Network: Defamation or Right to Privacy

by Kasia Kaminski November 27 2010, 22:21

 

In 1952, James Hill, his wife and two children were held hostage by three escaped convicts in their Pennsylvania home. In an interview following the incident, Mr. Hill stressed that “the convicts had treated the family courteously, had not molested them, and had not been at all violent.” Time, Inc. v. Hill, 385 US 374. The convicts were later apprehended and two convicts were killed. The Hill family kept away from the spotlight and sensationalism surrounding the story, moved to Connecticut and resumed a private life. In 1953, author Joseph Hayes published a novel, The Desperate Hours, which depicted a family of four held hostage by three escaped convicts in their home. Hayes’s storyline differed from the actual events by incorporating violence including a beating and a verbal sexual assault to the family by the convicts. The book became a play, also titled The Desperate Hours, which eventually became the subject of a Time Life Magazine article. The Time’s article mentioned the Hill family and gave the impression that “the play mirrored the Hill family’s experience, which, to the knowledge of the defendant….was false and untrue.” After filing suit against Time, Inc. the Supreme Court held in favor of Hill, that the Court cannot refuse the recovery of compensatory damages for “recklessly inflicted invasion of [Hill’s] rights.

Time, Inc. v. Hill demonstrated an invasion of the right to privacy and how under certain circumstances, that right will supersede any First Amendment rights. With the advent of The Social Network in box offices, it is surprising the Facebook creator and Chief Executive Mark Zukerburg has not pursued similar legal action. Facebook has become a fixture in pop culture, with over 500 million users;  even the British Monarchy will soon have a Facebook page, according to CNN. Alternatively, Facebook has been pursuing legal action against sites that use “-book” in its title i.e. Teachbook, Lamebook, Placebook.

The networking site was launched in February of 2004 and has, as The Social Network depicts, been involved in legal controversies regarding it ownership and creation. Ben Mezrich , author of The Accidental Billionaires, collaborated with director David Fincher (Fight Club, Curious Case of Benjamin Button) and Aaron Sorkin, (The West Wing, A Few Good Men) to create the movie about Facebook’s creation. Much of the focus is on the unflattering portrayal of Zukerburg as an arrogant, self-serving and angry Harvard programmer who would stop at nothing to achieve the success of Facebook. Mark Zukerburg chose not to participate in the movie’s production and his opinion of the movie has usually been limited to one word, “fiction.” A CBSnews report quotes Zukerburg saying the movie “got a lot of stuff wrong” and Facebook executives reportedly sought to discredit the film’s unflattering portrayal of him . 

The film’s producers made The Social Network without receiving permission from Zukerberg or securing the right to Mark Zukerburg’s life, a decision based on supposedly having enough research and background to back up the film with Zukerburg’s cooperation. 

In entertainment law, defamation is the unconsented and unprivileged communication to a third party of a false idea which tends to injure plaintiff’s response by lowering the community’s estimation of him, or by causing him to be shunned or avoided, or by exposing him to hatred, contempt or ridicule. Rubin, E. Leonard, Materials and Cases on Various Laws and Practices Pertaining to Entertainment and Communication Arts, p. 79. The requisite elements for a cause of action to exist are 1) a communication 2) to a third party 3) of a false idea 4) injurious to plaintiff’s reputation. Rubin, p. 80. Defamation occurs in one of two forms, libel (written) or slander (oral). Proof that the implications are in fact true defeats an action for defamation as truth is an absolute defense. A  plaintiff does not need to demonstrate malice (intent to defame) and a defendant showing the absence of malice may only reduce damages. Statements can also be defamatory because of the activities of the plaintiff. This includes communicating ideas which “prejudice someone in [the plaintiff’s] occupation, employment, profession or office.”  Rubin, p. 85. 

Zukerberg could also potentially seek legal recourse regarding his right to privacy. Where defamation requires a communication to a third party, privacy can be violated despite no publication to third persons taking place.  Rubin, p. 158. Privacy can also be violated even if the matters delved into are true or not particularly harmful to reputation.    Privacy can also be invaded by “the unreasonable publication of aspects of [a person’s] private life.” Rubin, p. 163. The right to privacy “seems most analogous to that of trespass, by which one has the right to keep unwarranted intruders off his land not because of any resulting emotional distress or loss of rents, but merely to insure the solitude of land owners.” Rubin, p. 158.

Zukerburg’s analysis would begin with the question of is he a public figure? Public figures have a more restricted right to privacy, given the nature of their place in society. Zukerburg could easily argue that before The Social Network came out, his name was not so much in the spotlight as his product, Facebook; that few people knew him name compared to the million of people who recognized Facebook. If, however, Zukerburg fails to demonstrate he is a public figure, he must show malice on the part of the defendant; that the writers and producers of The Social Network knew the information was false and recklessly disregarded the truth. Most importantly though, Zukerburg needs to show how he was damaged: did this movie production hurt him in any way? The common sense factor indicates that above all, Facebook received a level of advertising and public exposure greater than ever before which only benefitted the website. While The Social Network may have taken some creatively liberties in their portrayal of Zukerburg, without being able to show damages, Zukerburg’s legal avenues are limited. 


 

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