This blog recently discussed regular people who have become internet sensations through the use of social media. Chiara Ferragni, for example, started a fashion blog in 2009. She is now a multimillionaire with approximately 5,000,000 Instagram followers. Tay Zonday posted his song “Chocolate Rain” on YouTube in 2007, which led to numerous appearances on daytime and late night talk shows. Nearly a decade later, Zonday’s deep bass voice has been heard a staggering 107,000,000 times on YouTube. While social media platforms have brought individuals such as these increased attention and fame, these platforms have undoubtedly made it more difficult for them to establish a defamation claim.
This result is because the U.S. Supreme Court has placed a higher evidentiary burden on “public figures” or “limited purpose public figures” who pursue defamation claims. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Court defines the two types of public figures as follows: “Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classified as public figures. . . . For the most part those who attain this status have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” Gertz. Unlike non-public figures, those with public figure status must establish that a defendant acted with actual malice in making false statements about the public figure.
Although the inquiry into public-figure status is fact specific, one need not be a celebrity known from coast-to-coast to qualify as a public figure. For example, courts have found general public-figure status when someone has notoriety in a particular community or geographic area. And the entire concept of a limited purpose public figure is having some notoriety related to a particular issue, even if a more general notoriety is not present. Although the application of public-figure status undoubtedly varies from jurisdiction to jurisdiction (e.g., courts have adopted various boundaries for a limited purpose public figure), it is easy to see how one who has achieved a level of notoriety via social media, particularly one who uses social media to air opinions about matters of public controversy, can fall within the scope of being a public figure, and thus have an increased burden in establishing a defamation claim.