Can You Sue Internet Trolls?

Devin Nunes is not too happy about these tweets and many others apparently. So he is suing @DevinCow, several other Twitter users, and Twitter corporate to get the tweets taken down, to prevent any further similar tweets in the future, and for $250 million.

Nunes has been representing California's 22nd congressional district since 2003 and is an outspoken defender of the current president who is regularly seen on right leaning cable TV shows. As much as the internet likes to dunk on him, it is worth assessing Nunes’ claims to see if they have any validity. This is not to make the case in favor of the representative, but to address the larger implications his case may have if the courts entertain his arguments. But before addressing the specifics of Nunes’ case, here’s a primer on the current state of the internet.

Anyone who has spent any amount of time on a social media platform or the internet at large knows that while there are plenty of users interacting in good faith with each other, there are also plenty of characters whose goals are more sinister: trolls.

Internet trolls can only be described as users who try to make internet interactions as difficult as possible. They thrive on misinformation, mocking, harassment, and any attention in general. Most people tend to either block or mute these types of internet characters but at some point a line is drawn and users who feel like they have exhausted all of their resources turn to the platform for help. 

It would be a mistake to view all social media platforms through the same lens and treat them as a monolith. But it is fair to say their terms of use all have common themes about what is and isn’t allowed in user interactions. Some of these include, prohibitions on:

  • Harassment 

  • Threats of violence 

  • Discrimination 

  • Doxxing 

Mucho ado has been made about enforcement of these platform specific rules, but largely, for people who feel that a platform has not justly enforced their own rules, the only remedy is to abandon their account and maybe start fresh at some point in the future. For others though, especially those plagued by trolls, if the platform does not resolve their issue then it’s time to evaluate the "possibility of legal recourse.

So truly it seems the only meaningful civil suit option to take down trolls is a charge of defamation.” 

Of course the threshold for legal remedies is a bit higher than the remedies any platform or website could provide, but once it’s met, the trolls could find themselves in serious legal jeopardy.

So let’s turn back to Rep. Nunes’ case against various users to see how all of this could play out.

First, what legal grounds does Nunes have to sue on if we’re only in Twitter’s realm of rules? Actually, there are several well known grounds on which those who feel aggrieved can typically seek legal recourse regarding others’ internet conduct. These include, but are not limited to:

  • Blackmailing; 

  • Hacking (of private information and publishing it);

  • Terroristic threats; and

  • Defamation 

Here’s where things get a little interesting though. The first 3 are all criminal offenses meaning that they would require law enforcement to investigate and a prosecutor to agree to bring charges against the offending trolls. This type of case would likely be lengthy in time and would most likely not include any monetary gain for the victim.

So truly it seems the only meaningful civil suit option to take down trolls is a charge of defamation. 

For defamation Nunes would have to prove the following three things:

  1. The defendant made a false and defamatory statement concerning him;

    • (laymens: something must have been said/written as if it were fact, but it is actually false, it must cause injury to the person’s reputation)

  2. The defendant made an unprivileged publication to a third party;

    • (laymens: someone made the lie available to other people either by verbal communication or writing it down for others to read, and this usually doesn’t apply to those statements made in court settings)

  3. The publisher acted at least negligently in publishing the communication (this is only required for public figures/famous people).

Honestly, most of the criteria seems to be met for a defamation claim when examining some of the tweets Nunes is upset about. But, and this is a big but, there is a defense that looms large in this case that challenges one of the defamation requirements. It’s a free speech defense of satire. For those unfamiliar with satire, here’s a brief primer.

It has been held by numerous courts that satire is protected by the free speech provisions of the first amendment. But what is satire really?

“Satire is ‘the use of humor, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues.’

In other words: defamation is a malicious lie passed off as truth; satire is a humorous skewering of a cultural or political event – regardless of whether or not you agree with the viewpoint.” - via RM WARNER LAW

So basically this a “beauty is in the eye of the beholder” type situation. It would really come down to how a court and/or jury perceived these tweets about Nunes and whether they seem more like satire or defamation. And furthermore, every tweet would have to be individually evaluated to determine if they were merely satire or blatant lies meant to harm Nunes’ reputation.

It would really come down to how a court and/or jury perceived these tweets about Nunes and whether they seem more like satire or defamation.

To answer our original question. In short, yes you can sue trolls. But it seems like a claim of defamation is the only civil suit option on the table (besides some state specific laws like Virginia’s weird “insulting words” law that we’ll just ignore for right now). Most other legal claims will be criminal in nature and would require cooperation with law enforcement for any relief.

Tyrone Scott