YouTube defamation

[a11111]

What is the name of your state (only U.S. law)? California

I have a YouTube channel where I post funny video game clips for fun. A few weeks ago I posted a game of my friend and I playing Call of Duty (we have permission to post it, that isn't the issue here) and him talking about his ex girlfriend. He's careful to never say her name or give away any personal information about her whatsoever, and the gist of the story is that she cheated on him, etc. She saw the video and filed a privacy violation complaint with YouTube and they denied it due to the fact that he/I never mentioned her name, and he could have been talking about any of the 5-6 ex girlfriends he has had.

Then someone at her school discovered the video and left a comment with her name and phone # (my friend and I were not aware of the comment, as there were hundreds of comments from general gaming fans on YouTube and it would have been impossible to read all of them). The girl called the police and they called my friend to make him aware of the comment, and he promptly deleted it, as well as removed the video entirely. I told him he didn't have to remove the video, but he said the girl was calling his parents and constantly harassing them so he wanted to get it over with so he wouldn't have to deal with her.

Now she is trying to sue him for defamation, saying that he slandered her name. He is very upset as he's a college student and can't afford to spend thousands of dollars on a lawyer to defend himself against a crime he didn't commit. I feel that she has no case for the following reasons:

- He never mentioned her name or gave any information about her whatsoever. He only used the phrase "my ex girlfriend" in the video, thus it could be any of the girls he has dated in his entire life.
- He didn't leave the comment with her personal information. Someone else (whom neither of us know) left it.
- He removed the comment with the personal info as soon as he became aware of it. He even removed the entire video just to make sure no one else left similar comments.
- On top of all that, she has no way of proving that the story about her (that she cheated on him) is false. And he had no intention of causing her harm when he simply posted a video of him playing video games and telling the story.

My question here is are my points valid? Does she have a case, or is she just being silly? Also, do I have any liability in this (I didn't know the girl, my friend was the only one talking in the video, but we posted it to my YouTube channel)?

 

[Antigone*]

What is the name of your state (only U.S. law)? California

I have a YouTube channel where I post funny video game clips for fun. A few weeks ago I posted a game of my friend and I playing Call of Duty (we have permission to post it, that isn't the issue here) and him talking about his ex girlfriend. He's careful to never say her name or give away any personal information about her whatsoever, and the gist of the story is that she cheated on him, etc. She saw the video and filed a privacy violation complaint with YouTube and they denied it due to the fact that he/I never mentioned her name, and he could have been talking about any of the 5-6 ex girlfriends he has had.

Then someone at her school discovered the video and left a comment with her name and phone # (my friend and I were not aware of the comment, as there were hundreds of comments from general gaming fans on YouTube and it would have been impossible to read all of them). The girl called the police and they called my friend to make him aware of the comment, and he promptly deleted it, as well as removed the video entirely. I told him he didn't have to remove the video, but he said the girl was calling his parents and constantly harassing them so he wanted to get it over with so he wouldn't have to deal with her.

Now she is trying to sue him for defamation, saying that he slandered her name. He is very upset as he's a college student and can't afford to spend thousands of dollars on a lawyer to defend himself against a crime he didn't commit. I feel that she has no case for the following reasons:

- He never mentioned her name or gave any information about her whatsoever. He only used the phrase "my ex girlfriend" in the video, thus it could be any of the girls he has dated in his entire life.
- He didn't leave the comment with her personal information. Someone else (whom neither of us know) left it.
- He removed the comment with the personal info as soon as he became aware of it. He even removed the entire video just to make sure no one else left similar comments.
- On top of all that, she has no way of proving that the story about her (that she cheated on him) is false. And he had no intention of causing her harm when he simply posted a video of him playing video games and telling the story.

My question here is are my points valid? Does she have a case, or is she just being silly? Also, do I have any liability in this (I didn't know the girl, my friend was the only one talking in the video, but we posted it to my YouTube channel)?

How do you know she is suing him?

 

[a11111]

How do you know she is suing him?

He's my friend, and he called me to tell me about it. He said they've set a court date and everything.

 

[quincy]

To answer your last question first, you could potentially share in liability for the content on your site, if you had any involvement in the content's creation. If you didn't, you may have protection, an immunity from suit, under the Communication Decency Act's Section 230. A review of your site and all facts of the particular video in question would be needed to give you a better indication of any liability you and/or your site may have.

As for your friend, he has already been served with a summons and complaint for defamation? He may wish to beg or borrow money from someone, or look for free legal assistance, prior to the court hearing. Even if he is a poor college student, he may stand to be poorer should the ex-girlfriend win her suit against him.

She may, indeed, have a defamation claim that she could win, whether she was identified by name or not. She was obviously identifiable by the comments made, as you said someone identified her and posted her phone number on your site after seeing the video. It does not take a name-based identification for a defamation suit to be winnable, as long as there is someone who can connect the defamatory comments made with the person about whom they were made.

It is wise that your friend removed the video, as this can mitigate any damages that may be awarded the ex-girlfriend. The removal does not eliminate the cause of action, however. If there has been any reputational injury from the original posting and viewing by others of the video, that is all that is needed to support a suit.

Because, I am assuming, both your friend and his ex-girlfriend are nonpublic figures, the standard of fault that the ex-girlfriend needs to prove is negligence and not actual malice. This is a "reasonable person" standard of care as opposed to showing the intent to injure of malice.

It is impossible for anyone on this forum to tell you if your friend is likely to lose the defamation action. Without knowing all facts, your friend has, at a minimum, truth or opinion as defenses to the action. And, without knowing all facts, it is hard to say if what he said in the video was defamatory. I imagine he will find that out soon enough.

So that he can find out prior to court how doomed he may or may not be, I seriously recommend he consult with an attorney. An attorney, while an expense he may find hard to afford right now, could prevent him from expenses he may be burdened with in the future. An attorney can help him with any defense to the suit.

Good luck.

 

[a11111]

She may, indeed, have a defamation claim that she could win, whether she was identified by name or not. She was obviously identifiable by the comments made, as you said someone identified her and posted her phone number on your site after seeing the video. It does not take a name-based identification for a defamation suit to be winnable, as long as there is someone who can connect the defamatory comments made with the person about whom they were made.

This is the part that interests me, because we both rewatched the video multiple times trying to figure out how someone could have identified her, but we couldn't figure it out. The information he gave was quite general "we dated for a couple years, my mom liked her, then I found out she was a cheating slut." Now, if some random person can hear "cheating slut" and immediately identify that it's this specific girl out of every single girl my friend has dated in his life, I can't imagine he could be faulted for that.

 

[quincy]

Although your friend will probably not be real pleased to hear this, when a defamatory statement is leveled against a single unnamed individual who is part of a small and identifiable group of individuals, every single individual in that small group could have a legal claim for defamation.

In other words, unless the number of ex-girlfriends your friend has is pretty darn large, every one of your friend's ex-girlfriends could have a separate cause of action against him.

For example: I can say without legal risk that an unidentified female in the city of Detroit is a "cheating slut." With nothing more than that to identify the specific female, no one female in Detroit has a defamation claim against me that they could be successful with. The group of females is just too large. However, if I narrow the group down by saying that a female teacher at a named Detroit school is a "cheating slut," there are only a select-few females about whom my comment could refer. All of these female teachers would be identifiable and all in this small group of female teachers have been defamed by my comment. Each could potentially sue me.

With that said, this particular "cheating slut" comment may not be enough on its own to support a defamation suit. A review of the video in its entirety is necessary because context plays an important role in defamation. This comment could very well be construed as opinion and not false fact. But, again, it depends on the video in its entirety.

You have posted on this site about one of your YouTube videos before, a11111. Perhaps you may wish to check out the following site, which offers good information to anyone hosting a website or posting content on a website. It outlines the legal risks a person posting online can face and how best to minimize these risks. Visit http://www.kcnn.org/legal_risk.

Good luck to your friend, a11111. Tell him I recommend he consult with an attorney in his area.

 

[a11111]

Thanks Quincy, and yes I remember you from my previous thread. I'll let him know to talk to an attorney, but the issues I still have are:

- Does she have to be identifiable to the general public, or just to his circle of friends? For example, if he says "I dated a girl who cheated on me," obviously no one in the general public would be able to identify who he's talking about, but people in his circle of friends might be able to deduce it.

- Isn't the burden of proof on her to prove that his statement "this girl cheated on me" is a lie, and that he actually committed the crime?

- Furthermore, I'm surprised courts even care about silly high school drama and 18 year old girls complaining about "omg I cheated on my boyfriend and he told people and now I'm not one of the popular kids anymore." How does something like this not get laughed out of the courtroom?

 

[quincy]

For defamation, a defamatory statement must be published. To be published, the defamatory statement must be communicated to a third party. A third party is one person other than the person defamed.

When a defamatory statement is made online, of course, it is communicated to many more than just the one additional person needed for a defamatory statement to be actionable.

The reputational injury, however, is generally created when people who actually know the person who was defamed hear the defamatory words and believe the statement enough to react to the defamed person in a negative way (through shunning, firing from a job, denial of a job, whatever). Strangers on the internet probably don't care a whole heck of a lot that someone they don't know is a cheating slut.

All this ex-girlfriend needs to say in court is that a statement was made about her and it is false and her reputation was harmed as a result. She will want evidence of this reputational harm to support an award of damages (although this evidence would not be necessary if the statement is judged to be defamatory per se - reputational harm in that case would be presumed and damages can be awarded on presumed injury).

The ex-girlfriend does not have to prove that what was said is false. It is often hard to prove a negative. It would be up to your friend, in his defense, to prove what he said is true (or pure opinion, or privileged, or whatever other defense he may have).

Even though a plaintiff in an action does not have to prove that a statement made is false, if a plaintiff can show a communication is false, it helps in defeating any defense of truth a defendant may try.

A court may not be thrilled to hear a case, but if the case is before them, they will hear the facts of it and a decision will be made. The ages of the parties are not as important as the facts presented. Young adults and children can be defamed as easily as old adults and, because of the young age, the reputational harm caused by a defamatory remark could even be more severe.

Again, a review of the entire video is necessary to determine if this ex-girlfriend has any chance at all of being successful with her defamation claim. Certainly based on the small snippets you've provided here, it does not seem like much of a case against your friend.

But, anyone can sue anyone else for pretty much any reason at all, whether a suit has merit or not. An attorney who reviews the facts of your friend's situation may find the case filed against him has no merit at all and the attorney could recommend that your friend file a motion to dismiss.

Without knowing all of the facts, I honestly can't tell you what your friend is up against or if he has a legitimate defense. All I can tell you is that whenever a person has been served with a summons and complaint, a personal review of the matter by an attorney is wise. It's what I advise.