Defamation based on private texts messages, however, is much less common, and until recently remained largely theoretical. For example, a Guardian article from 2007, nearly a decade into texting’s reign as a primary form of communication, questioned whether texting’s “ephemeral nature” would mean it qualified as slander (spoken defamation) or libel (published defamation) and whether the mobile carrier would be the party held liable for transmitting defamatory messages. There have since been sporadic cases internationally, especially in countries with far more draconian defamation laws. In 2011, a retired Thai truck driver was charged with sending four texts defaming Thailand’s royal family, allegedly calling them a “dickhead dynasty.” Uncle SMS, as the man came to be known, denied even knowing how to send texts, but was sentenced to 20 years in prison, five for each text, and died in jail.
For every lawyer WIRED spoke with, Kesha’s was the first case they’d heard of centered on a single text sent to a single person. Unlike with public social media posts, “the typical reason you don’t see lawsuits over text messages is that the victim doesn’t know about those text messages,” says Eric Goldman, a law professor at Santa Clara University. According to a previous statement from Kesha’s lawyer’s, the texts “would have remained completely private, except that Dr. Luke and his team took an email obtained only in discovery and decided to publish it,” in his amended defamation complaint in 2017.
While most lawyers agree that the allegation that Dr. Luke raped Katy Perry was defamatory, some disagree with the judge’s decision that Dr. Luke is not a public figure, and that the texts were not of “public concern.” To defame a public figure, the plaintiff has to prove “actual malice.” in this case that Kesha knew or had strong reason to believe the claim was false before she sent it. (Kesha and Lady Gaga both claim they first heard of the allegation from a record executive, who has since denied stating the allegation.) But since the judge deemed Dr. Luke to be a private citizen, and that the allegation wasn’t of legitimate public concern, the producer only needed to prove the statement was false. “The judge missed the boat entirely on that,” says Tobin. “In the #MeToo era, the paradigm between a female and a man in power is without question a matter of public concern. Even if she defamed him, I do think that the judge should have judged the case under a heightened standard of scrutiny.”
So, is the law behind? Not as much as the average citizen. “The law is going to be pretty adept at applying to any medium that comes about; the change is going to come from people’s appreciation that they can in fact get sued for their postings,” says Thomas Burke, a partner at Davis Wright Tremaine who teaches media law at UC Berkeley. People use social media and text threads to “express themselves in ways they may not do anywhere else, particularly not in person.” They’re often texting while walking down the street, using “direct, declarative sentences,” that, devoid of context, could gleefully trip into a defamation trap.
Defamation cases often hinge on context, and the courts are slowly broadening what constitutes that context. Tobin says that “a growing number of courts are willing to follow hyperlinks” embedded in potentially defamatory posts “and include that material when interpreting the context of a post. More courts need to do that.” Had Kesha prefaced her statement with something like, “as we’ve heard alleged before, she was raped by the same man,” a judge would have been less likely to rule that as defamatory. But most people don’t text like that.