On February 26, 2016, pop star Kesha texted Lady Gaga seven words that ended up costing her dearly. The message—“she was raped by the same man”—was presumably meant to be private, but the law didn’t see it that way. In the eyes of the courts, specifically in the eyes of New York State Supreme Court Judge Jennifer G. Schecter, Kesha’s claim that record producer Lukasz “Dr. Luke” Gottwald assaulted Katy Perry was defamatory, that “publication of a false statement to even one person, here Lady Gaga, is sufficient to impose liability.” The judge ruled in favor of Gottwald, who was suing Kesha for defamation. For the music industry, it was the latest chapter in an ongoing saga; for everyone else inside and outside of it, it begged one question: Are people liable for what they claim in their texts?
The short answer is yes. Defamation, a false statement of fact that damages the reputation of someone else, can come in myriad forms of communication. In the case of Kesha, who has been in a legal battle with Gottwald since 2014, when she accused him of drugging and raping her (a claim he denies), it was her text to Gaga. Gottwald and Perry both denied the assault happened, so there was no evidence to support what Kesha said in her message. (Dr. Luke’s lawyer declined to comment on this story. Kesha’s lawyers did not respond to requests for comment.) Since the judge’s ruling on February 6, fans have flocked to support the pop star. But the case may have broadly set a surprising precedent, one that some lawyers believe could indicate that the courts need to reevaluate how they treat digital messages.
On the one hand, none of the half-dozen lawyers WIRED spoke with for this story could recall a defamation case in the last few years that didn’t involve some mode of digital communication. On the other, most of those modes are relatively new, and many folks may not even know they’re responsible for their statements on them. (If they did, Twitter would be a much different place.) In previous decades (the ones before smartphones), libel cases were traditionally local, and involved printed or written false and/or harmful statements (e.g., a scrawled note left at a London bar calling Oscar Wilde a sodomite). Tech has multiplied defamers’ available tools and range. The internet in particular “has become a minefield of defamation … providing individuals with the unlimited ability to post defamatory content,” notes a 2019 Southwestern Journal of International Law review of digitized defamation. Countless recent cases—from Elon Musk’s “pedo guy” saga to congressperson Devin Nunes suing accounts that impersonate his mom and his cow—have involved defamatory statements made in cellphone videos or in writing (more than once the writing was just emoji) or comments posted on Yelp and Twitter. As the #MeToo movement has grown, alleged victims and assailants alike have filed suits for defamatory social media postings. Last month, Harvard Law School professor Lawrence Lessig sued The New York Times for what he calls “clickbait defamation.”
The fog of digital defamation law isn’t likely to lift soon. Though President Trump has repeatedly vowed to make defamation easier, his calls have so far gained zero traction. And, in part to help staunch the tech-charged onslaught, 30 states have passed anti-SLAPP (strategic lawsuit against public participation) laws that allow courts to throw out frivolous cases designed to silence critics. (Nunes sued his trolling bovine in Virginia, which has weaker anti-SLAPP statutes.) Still, tech has “made defamation broader and deeper and more frequent,” says Charles Tobin, a partner at the firm Ballard Spahr. “With people sending communications quickly without giving it a few seconds’ thought, you’re less likely to spend the time to explain yourself. And the less context you put in your communication, the more likely it is that a judge is going to say it’s defamatory.”
Defamation based on private texts messages, however, is much less common, and until recently remained largely theoretical. For example, a Guardian article from 2007, nearly a decade into texting’s reign as a primary form of communication, questioned whether texting’s “ephemeral nature” would mean it qualified as slander (spoken defamation) or libel (published defamation) and whether the mobile carrier would be the party held liable for transmitting defamatory messages. There have since been sporadic cases internationally, especially in countries with far more draconian defamation laws. In 2011, a retired Thai truck driver was charged with sending four texts defaming Thailand’s royal family, allegedly calling them a “dickhead dynasty.” Uncle SMS, as the man came to be known, denied even knowing how to send texts, but was sentenced to 20 years in prison, five for each text, and died in jail.
For every lawyer WIRED spoke with, Kesha’s was the first case they’d heard of centered on a single text sent to a single person. Unlike with public social media posts, “the typical reason you don’t see lawsuits over text messages is that the victim doesn’t know about those text messages,” says Eric Goldman, a law professor at Santa Clara University. According to a previous statement from Kesha's lawyer's, the texts "would have remained completely private, except that Dr. Luke and his team took an email obtained only in discovery and decided to publish it," in his amended defamation complaint in 2017.
While most lawyers agree that the allegation that Dr. Luke raped Katy Perry was defamatory, some disagree with the judge’s decision that Dr. Luke is not a public figure, and that the texts were not of “public concern.” To defame a public figure, the plaintiff has to prove “actual malice.” in this case that Kesha knew or had strong reason to believe the claim was false before she sent it. (Kesha and Lady Gaga both claim they first heard of the allegation from a record executive, who has since denied stating the allegation.) But since the judge deemed Dr. Luke to be a private citizen, and that the allegation wasn’t of legitimate public concern, the producer only needed to prove the statement was false. “The judge missed the boat entirely on that,” says Tobin. “In the #MeToo era, the paradigm between a female and a man in power is without question a matter of public concern. Even if she defamed him, I do think that the judge should have judged the case under a heightened standard of scrutiny.”
So, is the law behind? Not as much as the average citizen. “The law is going to be pretty adept at applying to any medium that comes about; the change is going to come from people’s appreciation that they can in fact get sued for their postings,” says Thomas Burke, a partner at Davis Wright Tremaine who teaches media law at UC Berkeley. People use social media and text threads to “express themselves in ways they may not do anywhere else, particularly not in person.” They’re often texting while walking down the street, using “direct, declarative sentences,” that, devoid of context, could gleefully trip into a defamation trap.
Defamation cases often hinge on context, and the courts are slowly broadening what constitutes that context. Tobin says that “a growing number of courts are willing to follow hyperlinks” embedded in potentially defamatory posts “and include that material when interpreting the context of a post. More courts need to do that.” Had Kesha prefaced her statement with something like, “as we’ve heard alleged before, she was raped by the same man,” a judge would have been less likely to rule that as defamatory. But most people don’t text like that.
Courts, lawyers argue, should also place greater weight on the steps those who are sued take to mitigate damages, like swiftly deleting a defamatory tweet, posting a clarification, or other actions that show the person "may regret posting a statement that the defendant may have impulsively published in the first place," says Burke. The more the law factors in efforts to stop libelous statements from getting out of hand, the less likely damage claims will get out of hand.
Broadly, though, “people should not be nervous about the text messages they send to friends. But on the other hand, everything we say and do is potential ground for a defamation lawsuit,” Goldman says. “That’s the real kicker for most people. They don’t realize that defamation law regulates every interaction they have with every other person. People say to themselves, But I was just talking, I was just chatting, I was just texting. Defamation law doesn’t care.”
When considering defaming someone in a private text, know that your risk of a lawsuit is probably far lower than Kesha’s. The key is to consider what you type in the first place. Texting may just feel like an expression of your consciousness, but it isn’t just conversation, it’s publication. Unless you’ve worked in the proper context and qualifiers, sometimes it’s best to heed Kesha’s own advice from High Road’s title track: “delete the message, and pass me a beverage.”
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