A Long Island judge has thrown out a $6 million defamation action filed by an Oceanside teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa.
Nassau County Supreme Court Justice Randy Sue Marber (See Profile) ruled that no reasonable person could believe that the allegedly defamatory statements were facts.
“A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil,” Justice Marber held in Finkel v. Dauber, 012414/09.
The Nassau County Supreme Court decision will appear on page 32 of the print edition of Monday’s Law Journal.
“Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.”
The judge also dismissed a negligent-supervision claim against the teenagers’ parents, saying that a computer does not constitute, as required by New York case law, a “dangerous instrument.”
“To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability,” the judge concluded.
Denise Finkel, a former Oceanside High School student who now attends the University of Albany, filed suit in February 2009, naming as defendants Facebook, four of her former classmates—Michael Dauber, Melinda Danowitz, Leah Herz and Jeff Schwartz—and their parents.
According to Ms. Finkel, the four former classmates, along with two others not named in the complaint, set up a private Facebook page, entitled “90 Cents Short of a Dollar,” on which they portrayed Ms. Finkel as “a woman of dubious morals, dubious sexual character, having engaged in bestiality, and ‘IV drug use’ as well as having contracted the H.I.V. virus and AIDS.”
In one typical post, Mr. Dauber altered a picture of Ms. Finkel to include devil ears and added the caption, “Evil has got a new face…it has never looked so terrifying.” In a later post, he wrote, “also i heard that the stds she got were os bad that she morfed intot the devil in one of our pictures [sic].”
Ms. Finkel sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.
In June 2009, Manhattan Supreme Court Justice Debra James (See Profile) granted Facebook’s motion for summary judgment on the basis of the Communications Decency Act of 1996, which provides immunity to service providers for “information originating with a third-party user.”
The case was then transferred to Justice Marber in Nassau County, who dismissed the remaining claims on Thursday.
Justice Marber said that the posts may not have been tasteful, but neither were they actionable.
“While the posts display an utter lack of taste and propriety, they do not constitute statements of fact,” Justice Marber wrote. “The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.”
Ms. Finkel was represented by Mark M. Altschul and Cory Dworken of Altschul & Altschul.
“Given what cyberbullying has become, this is very disappointing,” Mr. Altschul said. “This says that children or others can act without consequence. Facebook has become the media of choice for 500 million people. If this sort of activity continues, there’s going to be a lot of unhappy people.”
The Herz family was represented by Joshua S. Ketover of Ketover & Associates in Garden City.
Mr. Ketover said that the claim has numerous holes that were not addressed in the dismissal, such as a lack of publication, as the Facebook page was set to private.
“I believed that they were looking for a cause of action in a first impression kind of way,” Mr. Ketover said.
The Daubers were represented by Raymond D’Erasmo and Savona, D’Erasmo & Hyer.
The Schwartzes were represented by Lina Rossillo of Morris, Duffy, Alonso & Faley.
The Danowitzes were represented by William Candiloros of Acito, Klein & Candiloros.
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