You can rate your favorite pizza place online. Why not your ex-boyfriend?
That’s the idea, at least, behind Lulu. The popular app allows women, verified through their Facebook profiles, to rate men using pre-written hashtags. Options include: “#MakesTheBed,” “#ManChild,” and #KissableLips.” The app then calculates a rating, ranging from 1 to 10, based on the hashtags selected. Finally, the app posts the rating and selected hashtags to a profile page:
As you might imagine, some men aren’t thrilled that their bed-making habits, among other things, are being broadcast online. As one online commenter wrote: “This is straight-up harassment. It invites women to . . . publish electronic slander about people.” The commenter has his legal doctrines mixed up—slander only applies to oral statements; libel applies to written ones—but is his general point valid? Does Lulu need to worry about libel lawsuits?
Answering this question requires a two-step inquiry. First, can Lulu be held liable for the actions of its users? Second, if Lulu can be held liable, are hashtags such as “ManChild” libelous?
The Communications Decency Act
The Communications Decency Act of 1996 governs whether websites are liable for comments made by users. Yes, a law passed in 1996—a time when we logged online by dial up, gossiped in AOL chat rooms, and updated our Geocities pages—controls liability in the Twitter-era.
The purpose of the law was to minimize “the threat that tort-based lawsuits,” such as libel, “pose to freedom of speech in the new and burgeoning Internet medium.” To that end, Section 230 of the Act shields from liability a provider of an “interactive computer service” that publishes information “provided by another information content provider.”
• “Interactive Computer Service”: “Interactive Computer Service” is a complicated way of saying that Section 230 protects “entities as different as an online matchmaking service, a copy shop, an online bookseller, an online auction service, a public library, and an Internet user who created a chat room” qualify. A mobile app, even one that rates the kissability of lips, probably qualifies.
• Publication: As with defamation, “publication” only requires that the statement be “communicated to some third person.” Hashtags aren’t always the easiest things to understand, but they likely qualify.
• “Information Content Provider”: A website isn’t an “information content provider” unless it provides the “essential published content.” This means that a website can remove and even edit content so long as it doesn’t significantly change its meaning (for example, by editing the statement “Fred is not a criminal” to remove the “not”).
Lulu supplies the pre-written hashtags, transforms the hashtags into a rating, and then posts the rating, along with select hashtags, on a profile. But women are responsible for selecting the hashtags. Further, Lulu does not does not actively curate profiles, but instead generates them using a pre-determined formula. It’s a close call, but the broad purpose of Section 230—furthering free speech by shielding websites from torts—likely favors Lulu.
Even if a man could overcome Section 230, he would still have to show that the hashtag in question—for example, “#ManChild”—was libelous.
“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” We’ve already established that Lulu is a publisher, so let’s break down that legalese into two key elements:
• Falsity: A libelous publication must contain a “false statement of fact.” By contrast, an opinion—even one that’s “pernicious”—usually is protected. The distinction between opinion and fact is “a difficult one,” and depends largely on context—what courts call the “totality of the circumstances.”
The “totality of the circumstances” indicates that the hashtags in question likely are opinions, not statements of facts. Consider, for example, “#ManChild.” Unless your name is Benjamin Button, “#ManChild” isn’t a literal description, but an opinion about your maturity. Further, the hashtag isn’t appearing in the New York Times, but instead on a gossipy app. Reasonable readers aren’t likely to assume that the hashtag is true. Even if they did, it would be hard to disprove.
• Defamatory: Even if the hashtags were “false statements of fact,” they would still have to be “defamatory”—that is, they would have to expose a person to “hatred, contempt, ridicule, or obloquy,” cause him to “be shunned or avoided,” or have a “tendency to injure him in his occupation.” That’s a high standard: being labeled a “#ManChild” may disqualify a man with future girlfriends, but it probably won’t subject him to “hatred, contempt, ridicule, or obloquy.” Further, if employers “ha[d] a tendency” to fire someone for being a “#ManChild,” a lot of twenty- and thirty-something males would be out of work.
The takeaway? Unless Lulu starts using hashtags such as “AxeMurderer” or “ConvictedFelon,” a scorned ex-boyfriend would have a better chance of getting back together with his ex than winning a libel suit against Lulu.