NYLJ “When ‘Following’ Doesn’t Make You a ‘Follower’”
“SDNY Examines the Impact of Twitter Engagement in ‘False Light’ Case”
By Steve Kramarsky & Jack Millson
What’s in a name? And does it matter where its used? The legal profession is famous (or infamous) for picking apart what appears to be common language. Words and phrases that have everyday meanings—things that people simply say and understand as they go about their lives—may turn out to have hidden depths when they are analyzed as the basis for legal claims. Under that lens, context can be extremely important, sometimes transforming the ordinary meaning of a word into something entirely different. For example, some industries have an entire language, built up over time and in common use by sophisticated practitioners, that is entirely foreign to outsiders. In the context of a particular industry, these “terms of art” can even carry meaning that is the exact opposite of their common usage. Lawyers and courts must be aware of that context when examining the language underlying a particular statute, agreement, or claim.
This challenge has been particularly acute in recent years with the growth of new technologies and new ways to communicate and share information. It is common for courts to seek a “real world” analog for any popular digital service, and to attempt to apply legal standards accordingly. Thus, courts have, at various times, analogized Google to the Yellow Pages, Reddit to a newspaper front page, and Twitter to a town square—with varying degrees of success. But that kind of analogy can fail when the digital context transforms the meaning of the terms the court is examining.
If a friend tells you they like your jacket, the meaning is ordinarily clear. But what if someone “likes” your Facebook post? Is it an indicator that they agree with what you said—or even that they “like” anything about it? Given the artificial constraints in many social media systems, clicking the “like” button may be one of the few ways to engage with posted content. Although some systems have “dislike” or “downvote” buttons, many do not. In such cases it can be hard to determine what a “like” is intended to signify for a particular user. Terms such as “follow” and “share” similarly undergo a shift of meaning when used in a digital context, and ignoring these subtle changes in meaning can lead to unpredictable results.
Even where the meaning of a term is unchanged, the message or intent conveyed by a particular action—say sharing a piece of content—may be different on a digital platform than it would be in the real world. Social media systems, for example, value user engagement above all else. They strongly encourage users to interact with posts through likes, comments, and reposts, and users may have a variety of reasons for doing so. Where the user’s state of mind is at issue, that leads to a question as to what conclusions a court can draw from those kinds of interactions. In a recent case out of the Southern District of New York, Judge Woods addressed these issues and examined the meaning that could be ascribed to “following” someone on Twitter and “retweeting” their content. Flynn v. Cable News Network (CNN), 2022 WL3334716 (S.D.N.Y. Aug. 12, 2022).
This article first appeared in the New York Law Journal on September 19, 2022. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson is an associate at the firm.