Defendant and plaintiff exchanged spiteful messages in a WeChat group. The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission. The defendant referred to the existence of "pink-news" about the plaintiff. As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."
The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.
The Appeals Court affirmed on different grounds. Plaintiff had been known in the chat group only by a pseudonym. She failed to allege that anyone in the group knew her identity. So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.
The Appeals Court disavowed the grounds of decision in the trial court. The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings. And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.
Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted. Courts in a number of cases have recognized the hyperbolic nature of social media posts. In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job." In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."
At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.
The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020). The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.
