A person who posted a link on her Facebook page and “liked” the post on her own page cannot be held liable for publishing allegedly defamatory content, the Pennsylvania Superior Court has ruled.
In a nonprecedential opinion posted Nov. 18, the Superior Court affirmed the Lehigh County Court of Common Pleas’ grant of summary judgment in favor of Jenae Wolfe Holtzhafer, as well as several other defendants in a defamation lawsuit.
“[Ms.] Holtzhafer, by providing a link to the challenged posting, without reiterating the content of that posting did not initiate a republication,” Judge Sallie Updyke Mundy wrote for the court. “Her motivations and her designation of the link with a ‘like’ as alleged by appellants, is not equivalent to a reiteration of the defamatory content as to constitute republication.”
Otto Slozer and John Donches sued Patrick Slattery, Citizens for Strong Communities and Jenae Wolfe Holtzhafer for defamation in 2012. They added Wesley Barrett and Craig Neely as named defendants in a 2013 amended complaint.
According to Judge Mundy’s opinion, Mr. Slattery, through the Citizens for Strong Communities, published a website called Ottosback.com that said Mr. Donches, a candidate for Emmaus Borough Council, was affiliated with Mr. Slozer. The website included negative commentary about both Mr. Donches and Mr. Slozer.
The defendants filed a number of motions for summary judgment and the trial court granted them all, dismissing the plaintiffs’ claims with prejudice, Judge Mundy said.
In one of those motions for summary judgment, Ms. Holtzhafer had argued that merely posting a link on one’s website without substantive commentary does not constitute publication of the material on the linked site.
Ms. Holtzhafer posted the link to Ottosback.com on her Facebook page and included the comment, “ ‘Oh, politics ... this is when I'd like to fast forward to November 9 and know what the future holds! This election is critical. Please get out and vote!’ ” the Superior Court opinion said, quoting the trial court.
According to Judge Mundy, the plaintiffs argued that by “liking” that post on her Facebook page, Ms. Holtzhafer “communicated her attitude to the substance of the referenced article, sufficient to be considered a republication of the alleged defamation.”
The Superior Court disagreed with that argument, looking to a recent decision from the U.S. Court of Appeals for the Third Circuit. The trial court relied on the same case, In re Philadelphia Newspapers.
In that case, the Third Circuit said linking to previously published material is not republication because it does not alter the substance of the original publication.
The Superior Court said the trial court correctly applied the Philadelphia Newspapers principles to Ms. Holtzhafer’s case. Choosing to “like” the link, the court said, does not reiterate or republish the content.
Susan Ellis Wild of Gross McGinley represented Ms. Holtzhafer. She said a finding in favor of the plaintiffs would have been “a real danger to free speech.” She said there are not many cases dealing with Facebook “likes” she was able to rely on.
“We felt that it was just an incredibly important issue,” Ms. Wild said. “I’m on Facebook, I read people’s articles, I like a lot of them ... we all do that every day.”
Ms. Wild noted that Ms. Holtzhafer’s husband is involved in politics, but said the defendant herself is not a “political person.”
Lawrence M. Otter, an attorney for Slozer and Donches, said he was disappointed with the decision. He said the Superior Court “missed the point” that posting the link on Facebook was part of a campaign plan. “If it’s part of an organized campaign plan, it goes beyond simply ‘liking’ it,” Mr. Otter said. “I think the court swung and missed on that.”
Lizzy McLellan: 215-557-2493 or email@example.com. On Twitter @LizzyMcLellTLI. To read more articles like this, visit www.thelegalintelligencer.com.