Discovery Communications is due to appear in court on Thursday in Maryland to argue that it has no place in a war of words on Facebook between two reality TV stars. At stake could be the legal responsibility of media companies for nasty things written by talent on social media.
The dispute involves Mykel Hawke and Joseph Teti, who both served in special forces units of the U.S. military before starring in separate television shows. Hawke got his opportunity first. In 2010, he and his wife were featured on a Discovery survival program called Man, Woman, Wild. While doing so, Hawke became concerned for the safety of his family and hired Teti to serve as personal security. Later, Teti decided to go into show business himself. In 2012, Teti was cast for a Discovery show titled Dual Survival.
The two subsequently had a falling out with each other.
As told by Discovery in court documents, Hawke’s show wasn’t renewed, Teti believed that Hawke became angry or jealous with the success of Dual Survival and the two also dealt with the helicopter crash death of a mutual friend, Mike Donatelli.
“Although Teti was not involved in the crash, Hawke turned on Teti, publicly claiming that Teti was responsible for Donatelli’s death and impugning Teti’s integrity by accusing him of ‘stolen valor,'” states a Discovery summary judgment brief.
Both men then contacted Discovery executives and complained about the other. After Hawke, for instance, told Discovery that Teti was staging threats and defaming him on the network and on social media, Discovery says it applied a filter to its official Dual Survival Facebook page to block any posts containing Hawke’s name.
The dispute then escalated into a court fight that would touch four different states.
In Texas, Hawke sought a protective order in September 2014 against Teti for alleged stalking.
A couple months later, Teti filed a defamation lawsuit in North Carolina against Hawke. According to the complaint, Hawke falsely accused Teti of lying about military service and profiting from the lies. The lawsuit also claims that Hawke made up how Teti created false profiles and usernames and was being harassing.
Hawke then filed his own defamation and tortious interference suit in South Carolina over Teti’s posts on Facebook. Teti allegedly wrote that three psychologists had diagnosed Hawke with having Narcissistic Personality Disorder and that the Army had revoked Hawke’s Special Forces Tab.
What made the last case unusual and pertinent was the appearance of Discovery as a co-defendant. According to Hawke, the television company was jointly responsible for what was written by Teti on social media because it had “failed to take action to stop the defamatory statements from being posted online” and failed to “adequately train personnel in public interaction, when and what types of communications employees should say publicly and/or put into print.”
A judge dismissed Teti from the case for lack of personal jurisdiction. Now, Discovery finds itself fighting Hawke on its own — in Maryland, where the case has been transferred.
Discovery is making several arguments on summary judgment.
The first is a typical defense to defamation, and if a judge accepts it, the opinion will hardly make waves. Discovery contends that Hawke is being “hopelessly vague and inconsistent” about what’s defamatory and where it occurred. The defendant asserts it isn’t reasonably sure which statements were posted on the official Discovery Dual Survival Facebook page.
The other arguments, though, are more provocative.
Discovery tells the judge that Hawke’s claims are barred by Section 230 of the Communications Decency Act. The statute provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and has most commonly been understood to be a safe harbor for tech services. As an example, Google may not be held legally responsible for what appears in search engine results so long as it is not “materially contributing” to them.
Having created and administered an official Facebook page, Discovery holds itself up as a provider of an interactive computer service instead of a publisher.
“Where, as here, a plaintiff casts an interactive service provider in the ‘same position as the party who originally posted the offensive messages,’ the plaintiff treats the interactive service provider as a publisher of the messages,” write Discovery’s attorneys, later adding more (here). “Hawke does not identify facts supporting that Discovery knew Teti or the other third parties were going to make the posts beforehand, much less that it had knowledge of their content.”
Besides claiming CDA immunity, Discovery argues it is not vicariously liable for Teti’s social media statements for another reason.
“Here, even assuming Teti were an employee (he is not), the undisputed evidence shows that his statements about Hawke were outside the course and scope of his duties at Discovery,” states the defendant’s brief. “Under the terms of the Talent Agreement and in practice, Teti’s role was to be on-camera talent, and an expert and producer for Dual Survival. It was not ‘reasonably necessary’ for Teti to make statements about Hawke to accomplish these purposes. Occasionally, Teti’s duties included making himself available to promote the show by appearing for press appearances or interviews arranged by Discovery’s talent relations teams. At no time did Teti’s duties include discussing Hawke on social media on behalf of Discovery or the Dual Survival show. Discovery never encouraged Teti to air personal grievances about any particular individual. Discovery certainly never encouraged Teti to comment on Hawke, much less to make statements about his mental state or military background … Teti made the statements entirely on his own: they were posted during his own free time (not on set) and using his own internet access and devices.”
In response to these arguments (read in full here), Hawke is begging the judge for opportunity to conduct further discovery to ascertain the level of control Discovery has over its own content. Discovery thinks Hawke has already gotten the opportunity to do this, but Hawke believes it’s evident that Discovery was “more than aware of the defamatory remarks” given that he formerly was employed by the company.
“The fact that the slanderous statements were posted on an official webpage of Discovery, by an employee of Discovery, only served to legitimize them to the general public and potential employers of the plaintiff,” writes Hawke’s attorney, Joshua Howle. “Moreover, Plaintiffs submit that a company can be held liable for creating and posting, inducing another to post, or otherwise actively participating in the posting of a defamatory statement in a forum that that company maintains.”
Hawke also wants the judge to allow a jury to decide whether Teti was acting within the scope of employment and nods to “evidence that Discovery sought to control the online behavior of its employees, who were, to the knowledge of the plaintiff, required to submit to agreements regarding online behavior.”
The parties will bring their competing views to Maryland federal judge Paula Xinis in Greenbelt on Thursday.