Short Take: Is “Defamation By Clickbait” A Thing?

Harvard lawprof Larry Lessig was not pleased with the headline.

A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret

Lessig wasn’t thrilled with the lede either.

It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.

And so Lessig characterized this in his suit against the New York Times as “clickbait defamation.” Is there such a thing?

This title and lede are false. Yet I’ve found — in the months since this was published, facing the endless attacks I get in person and online—that the challenge is to focus anyone’s attention enough long to see just why they are plainly false. Offering a tweet-length proof that a perfectly tweetable headline is flatly false is not, it turns out, simple.

Ironically, Ken White lawsplained the problem with the suit on the twitters.

Prof. Lessig’s primary challenge here is overcoming the general rule that, in evaluating whether a statement is defamatory, one must look at it in its entire context, including surrounding text and circumstances.

The entirety of the New York Times article makes clear what the headline does not, and as Ken properly notes, the defamation law isn’t prone to taking a snippet out of context when it comes to determining whether content is defamatory. On the other hand, Larry Lessig’s point, that the headline and the lede artfully crafted an impression that he was promoting something that he was not, has some traction.

So: I did not defend taking money from Epstein. I didn’t say it was ok to take money from Epstein “if in secret.” I said it was wrong to take Epstein’s money, “even if anonymous.” The assertion—in the tweeted headline and lede—to the contrary is thus flatly false.

While Lessig is defending his own honor in his suit against the Times, a newspaper he “loves,” the concept raises two concerning trends that the law has yet to address. The first is that “clickbait” headlines have become ubiquitous, the sort of headlines that grab you by some part of your anatomy because they’re so provocative that you just have to find out what they’re talking about. As we all know, they’re almost always wrong, or at the very least underwhelming, when you actually click and look, but still, you feel this impulse to do it.

The second is that headlines and ledes are regularly twitted or facebooked (is that a word?) as stand-alone posts. After all, what use is clickbait if you don’t see it and aren’t moved to click? So out they’re sent by rosy-cheeked interns, whether at the New York Times or Gawker, into the wild to bring in eyeballs and, with them, ad dollars.

Except all the people who don’t click, who don’t read beyond the headline and lede, who aren’t subscribers to the New York Times, Millennial Edition, remember the headline and never consider the “entire context, including the surrounding text and circumstances.”

In other words, the clickbait headline becomes all there is for those with short attention spans and a twitter addiction. If that happens, all they know about what Lessig “said” is what the false headline says he said, even though he never actually said it.

I still can’t believe truth alone was not a sufficient incentive for the Times to correct its false statements. But so be it. A suit like this might complement the incentives for truth.

Mind you, if this is happening with a beef between the New York Times and a Harvard lawprof, what are the chances it would go better if the dispute were between some media outlet with lesser standards and, say, me? But for now, the law presumes that defamation can’t be premised on Lessig’s “clickbait headline” approach because it credits the surrounding text as having sufficient meaning to temper any misunderstanding.

While that seems fair, and certainly favors the ability to express one’s thoughts freely without risk of the unduly sensitive suing over every offending word, it similarly seems less useful to the target of the headline in the hands of a malevolent actor with mad clickbait skillz. It’s really not that hard to write a headline that maliciously false, but squishy enough in the context of subsequent text to escape liability. And if it brings in the eyeballs, why not?

14 thoughts on “Short Take: Is “Defamation By Clickbait” A Thing?

  1. Mark Amery

    Seems to me the law ought to be that if you share your headline publicly, or allow it to be indexed on Google, but the actual content is behind a paywall or a region filter or is otherwise unavailable to many of the headline’s readers, then the headline should be considered as a standalone publication for the purposes of evaluating whether it’s libellous. Requiring that the headline be interpreted in light of “context” that readers don’t have access to – and which often doesn’t really contextualise the headline so much as admit that it was completely false – permits any outlet with a paywall and a narrow readership to tell damaging lies to the wider public with impunity.

    The rule I propose wouldn’t create a “risk of the unduly sensitive suing over every offending word”, as you put it, because that standalone publication would still be evaluated under the same standards libel law applies to a full article: it would have to be a false and damaging statement of *fact*, not mere opinion. It would simply outlaw the dishonest ploy of making such outright false and damaging factual statements and then escaping liability because theoretically the reader could have gone on to read you admitting you were lying if they’d ponied up enough $$$.

    Reply
    1. Anthony Kehoe

      All well and good, except what you describe (article unavailable to non subscribers) is no different than seeing a headline on a newsstand and having to buy the newspaper to read the article. Having to buy the newspaper is something people have had to do since the founding of the printing press.

      Reply
      1. David

        Yes, but by the same reasoning a misleading headline available for free to viewers in the newsstand, but having to buy the paper or magazine to read the full story, could attract liability.

        Reply
      2. Kathryn Kase

        Agreed.

        And Lessig would still be considered a public figure and subject to the actual malice standard. I predict this case ends with summary judgment for The Times.

        Reply
    2. C. Dove

      Interesting idea. Under that proposed rule, would something Trump says or twits as “fact” count as a “standalone publication”? He is behind a paywall (of sorts) and, in some respects, it can be difficult to ascertain whether one of his twits has any veracity. Or, if Trump ain’t your speed, what if I overhear a guy on the BRT saying Greenfield likes Chunk Monkey ice cream and I take that to mean Greenfield is therefore untrustworthy.

      Reply
  2. B. McLeod

    Maybe the Internet has paved the way here for a change in existing law. “Media ethics” is a considerable misnomer, and there is no real question that these sorts of blatantly false headlines are intended to mislead.

    Reply
  3. Turk

    I was thinking of re-tweeting this piece out there with:

    “Greenfield arrested on child porn charges?”

    But I just couldn’t do it it. Morally.

    Reply
  4. Aaron G.

    If you can sue a tabloid then I’d imagine a suit against an internet-based journal based on headlines alone. Both are making money off of outrageous claims.

    Reply
  5. Dave Landers

    What is this pile-on with SHG at the center of the scrum. He is an honorable man and I also do not understand humor.

    Reply

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