2

It is in the news that Elon Musk's social media platform X has sued Media Matters a media watchdog group. Media Matters has published multiple reports about X alleging adverts for major companies have appeared next to "controversial content", particularly far right and antisemitic content as I understand it.

From the complaint I THINK what happened is Media Matters curated an account's activity such that is was likely to get these pairings of advertisements with controversial content. This involved using an account that had been active for at least 30 days and exclusively followed a small subset of users consisting entirely of accounts in one of two categories: those known to produce extreme, fringe content, and accounts owned by X’s big-name advertisers. They then did lots of scrolling and refreshing, probably automated, and took screenshots whenever the right pairing came up. They reported the eventual pairings, but not the method they used to generate them. This is claimed to have been intensional with an aim to harm X’s revenue stream.

There is an answer here that seems to explain roughly how this could be successful:

Further, certain statements might be literally true but defamatory by implication or by omission. For instance, a newspaper story saying "Ms. Newton shot Ms. Nichols after walking in on her with Mr. Newton" may be defamatory if Ms. Newton walked in on Ms. Nichols, Mr. Newton, and several other people having a pleasant discussion around the dinner table, rather than walking in on Ms. Nichols and Mr. Newton having sex. Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 419-20 (Tenn. 1978) (“The clear implication of the article is that Mrs. Nichols and Mr. Newton had an adulterous relationship and were discovered by Mrs. Newton, thus precipitating the shooting incident. ... The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. It is no defense whatever that individual statements within the article were literally true.”)

Assuming I have got the gist of the argument correct, and X is claiming Media Matters made true but defamatory statements, what would X have to demonstrate? Would it be the that the general public was misled, would it be that the internet marketing professionals who made the decisions to put the adverts were misled or would it be that Media Matters knew the truth but thought one or other of those groups would be misled? Would it be a case of proving one or more were in fact misled and/or that that outcome was likely?

The case is filed in Texas, but answers for any jurisdiction would be interesting.

1
  • 2
    Consider the possibility that the X lawsuit lacks a valid legal basis, which is quite likely given the parties involved. This is a classic SLAPP.
    – ohwilleke
    Commented Nov 23, 2023 at 19:42

2 Answers 2

1

That what was said is not "substantially true"

A crisp formulation of the doctrine states that a publication is substantially true if (a) it is factually similar to the literal truth, and (b) it differs from the truth by no more than immaterial details.

The argument in this case will turn on weather Media Matters alleged manipulation of X's algorithm and the failure to report that manipulation turned something that is objectively true (that pairings of advertisements with controversial content actually happened) into something that "differs from the truth by no more than immaterial details".

Justice Kennedy, writing for the Court in Masson v. New Yorker Magazine, Inc., formulated the substantial truth doctrine in terms of a mental impact test, namely that “a statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’”

At the very least, X has an arguable case.

5
  • Thank you for this, can you clarify is it clear who "the reader" is here? The relevance would be if one supposed that the general public may have been mislead but internet marketing professionals who made the decisions would not have been.
    – User65535
    Commented Nov 23, 2023 at 10:08
  • The reader is whoever is recieving the message.
    – Trish
    Commented Nov 23, 2023 at 10:12
  • @Trish not exactly, the reader is a reasonable person who might have received the message.
    – Dale M
    Commented Nov 23, 2023 at 10:58
  • ah yes, forgot spelling out reasonable
    – Trish
    Commented Nov 23, 2023 at 10:59
  • 3
    This isn't really correct. The substantial-truth doctrine isn't a way to attach defamation liability to true statements; it's a defense to defamation liability for false statements.
    – bdb484
    Commented Nov 23, 2023 at 13:03
1

(with some comparisons to )

Terminology

First, whether a statement is defamatory is separate from whether it is true or false. In Canada, for example, a statement is defamatory as long as it "would tend to lower the plaintiff’s reputation in the eyes of a reasonable person" (Grant v. Torstar Corp., 2009 SCC 61). And in the United States, courts also separate the two. See for example, Pegasus v. Reno Newspapers, Inc., 118 Nev. 706 (Nev. 2003)

The general elements of a defamation claim require a plaintiff to prove: "(1) a false and defamatory statement...

However, ultimate liability for defamation does depend on the truth or falsity of the defamatory statement. In the U.S., the plaintiff must generally prove the defamatory statement is also false in order to make out the case. In Canada, the burden shifts to the defendant to prove on a balance of probabilities that the defamatory statement is true in order to avoid liability. So your question is still makes sense when considered from this angle.

The impugned statement may convey more than its literal meaning

Courts recognize that meaning is contextual. It is not enough for a defendant to argue that a defamatory statement is literally true, if the defamatory sting of the comment stems from non-literal meaning.

In Canada, (see Weaver v. Corcoran, 2017 BCCA 160, at para. 71):

Words may convey a defamatory meaning literally, inferentially or by legal innuendo. Literal meaning is conveyed directly; inferential meaning, indirectly; and legal innuendo, by extension based on extrinsic facts. ...

Where the literal meaning of words is in issue, it is unnecessary to go beyond the words themselves to prove that they are defamatory. Where a claim is based on the inferential meaning of words, the question is one of impression: what would the ordinary person infer from the words in the context in which they were used? Both literal and inferential defamatory meaning reside within the words, as part of their natural and ordinary meaning. In contrast, where legal innuendo is pleaded the impugned words take on defamatory meaning from outside circumstances beyond general knowledge, but known to the recipient.

Application to your question

In Canada, X's only burden would be to establish three things:

  • that the statement was defamatory, in the sense that it would tend to lower X's reputation in the eyes of a reasonable person;
  • that the statement was about X;
  • that the statement was published to at least one other person.

In claiming that the statement would tend to lower X's reputation, X can rely on literal meaning, inferential meaning, or legal innuendo (explained above).

If the claim succeeds that far, the burden will shift to the defendant. That defence would have to be in relation to the defamatory meaning established by the plaintiff. That is, if the plaintiff were to establish some defamatory inferential meaning was communicated, it is that meaning that the defendant would have to justify via truth or some other defence.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .