Offensive vs Illegal Content: Why is some online abuse protected?

One of the most frustrating aspects of reporting content is understanding and acknowledging the difference between content that is offensive (sometimes grossly offensive), but protected and content that is actually illegal or a violation of a social media platform’s terms of service. This line can be especially blurry if the content in question is about you or about someone who you care about.

People have a legal right to believe the most ridiculous things. They have the right to share those beliefs with others, in person and online. Even if you and I might find those beliefs to be foolish or even offensive. What they don’t have the right to do is to defame a living person. In this country, people who have passed don’t have the right to be free from damage to their reputation. But you can’t make a claim about a living person that would hold them in a bad light or potentially damage their reputation, unless the claim is true. People also don’t have the right to harass people, whether claims that they are making are true or not.

Let’s look at two of the most common types of reports that end in the removal of content: defamation and harassment.

Example. Mary’s husband Bob has died. Jack has a YouTube channel devoted to discussing true crime cases.

Defamation:

Defamation requires a direct statement, made as if it were fact, about a living person, by someone purporting to know the truth through insider knowledge, that is in fact a lie.

Protected Speech – If Jack made a video and claimed that Mary’s husband was murdered, even if there is no evidence, that is legal. In fact if the case was high profile, was on the news, had tv shows about it etc. it would be very common for people to make videos, blogs, or posts discussing the case or even making complete guesses about what happened to Bob.  Jack could claim that Bob was a cheater, or con artist, or an abusive husband. but, because Bob is passed, Bob no longer has the right (in the US) and his family don’t have the legal right to protect his reputation.

Of course that sort of post would be really offensive to Mary and her family. She would feel that it was a violation of her privacy. She might feel that it damaged her husband’s reputation. But, under the law, it isn’t illegal.

Further, If Jack created a video or post and claimed that Bob deserved to be murdered, again that is offensive, but not illegal or actionable (unless it falls under the harassment definition, more about that later).

Actionable or Non-Protected Speech – Now, if Jack made a video claiming that Mary killed her husband or that some other living person murdered Bob AND the police had not arrested that person, that would be actionable, because it is defamatory or holds Mary in a bad light to the public. If however, Mary was arrested or named as a person of interest, speculation about Mary’s guilt would not be defamatory.

Harassment:

Harassment requires repeated, unwanted contact, by the harasser to the victim.

Non-Actionable – Continuing with our example, if Jack makes a video and claims that Bob was murdered and simply posts it online, that is not harassment. Even if Mary saw the video and was offended or upset, even if friends and family of Mary found the video and were incensed, the existence of a non-defamatory video doesn’t equal harassment, even if the content is offensive.

Actionable – If Jack makes a video and claims that Bob was murdered and then emails a link to that video to Mary directly, that is potentially harassment. If Jack emails it (or similar posts) multiple times, clearly to unsettle Mary, that is actionable harassment.

If Jack makes a video and claims that Bob was murdered and posts that video on Mary’s personal Facebook account or other social media, that is potentially harassment. If he continues to post unwanted content on Mary’s personal Facebook page, that is actionable harassment.

Where it all gets sticky…

Of course, it’s not always straight forward.

Celebrity or people who seek fame vs private citizen – In this country, a person who actively seeks fame or public attention is generally required to meet a higher threshold of defamation and harassment before content is actionable. What constitutes celebrity can be subjective. A movie star, musician, politician, or other public figure has chosen to pursue life in the public eye. But what about someone who is in the public eye because they have been the victim of a crime? Generally the law treats people who didn’t seek fame not as celebrities, but as private citizens which affords them greater rights to privacy. So even though we may know their names thanks to interviews or news coverage, victims are afforded the same protections as private citizens.

If a victim chooses to use their ability to interact with the media to create a platform, that private citizen status can change. Victims who write books, go on speaking tours, sell their story for films or tv shows, or participate in documentaries are typically seen as seeking fame and lose some of that protection.

True crime commentary – Globally, people love a captivating crime story. Entire television channels are dedicated to examining crimes, especially unsolved crimes or salacious headline grabbers. Thanks to blogs, YouTube videos, and podcasts, “regular” people now have the ability to create content about crimes, discussing and speculating about the crimes they see on the news. As long as the creators of these true crime shows don’t violate the rights of the victim’s families or others, true crime commentary is perfectly legal.

Of course the family members of victims are often extremely upset that their loved one is being discussed and speculated upon for entertainment, by strangers. So, if Jack makes a video discussing the death of Bob and speculating that he was murdered, as long as Jack doesn’t claim that Mary murdered him (unless Mary was arrested) he is allowed to create that video, post that video on his own channel, and even charge money for access to that video. All of that is legal.

Engagement – Let’s say that a friend forwarded Mary a link to a video that appears on the Jack’s true crime channel. That video discusses and speculates about the death of Bob. If Mary contacts Jack and asks him to remove the video and stop discussing Bob’s death and he refuses, that isn’t harassment. In fact, if Mary continues to contact Jack, demanding that he remove the content, Mary can be guilty of harassing Jack! He he a legal right to create those non-defamatory videos, even if they are offensive.

If Mary or her friends and family contact Jack and ask him to remove the content, but instead he makes more non-defamatory content, and the communication descends into name calling and back and forth accusations in the comment section, officials tend to view that as voluntary engagement. In order for harassment to be actionable, Jack has to do something to connect his content to Mary directly by emailing her links or posting content on her personal social media. If Mary is choosing to seek out Jack’s content, that action is not harassment in the eyes of the law. In fact, Jack is probably thrilled that Mary and her family and friends come onto his page and attack him online since he can sell his followers on the ability to interact with the “murdered man’s wife.”

Summary:

The HONR Network reports and removes tens of thousands of pieces of content each year. However, we don’t have the ability to simply remove content that we find offensive. We have to work within the bounds of the law and within the terms of service of each internet company. Understanding the legal limitations of defamation and harassment and reporting actually actionable content goes a long way to helping us protect victims.

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