For more than a year, the media news and gossip website FishbowlDC made Washington publicist Wendy Gordon the subject of a weekly feature called “Wendy Wednesday.” This included posting a photo of her, often taken from her Facebook page, and making up a story about what she was doing in the picture. A little strange? Definitely. Harmless fun? Maybe not.
Gordon has had enough. She filed a defamation lawsuit last week in DC Superior Court seeking $2 million in damages. Fishbowl’s made-up stories about her often involved a sexual theme, describing her as provactively dressed and promiscuous. In her lawsuit, Gordon says “Wendy Wednesday” has caused her emotional distress, embarrassment, and mental anguish. She claims that the postings have caused “substantial injury” to her business interests and reputation.
In one example, cited in Gordon’s legal complaint, the website commented that “the sultry look on her face says it all. Wendy is DTF [“Down to F**k].” The same post also implied that Gordon could have an STD, according to her lawsuit.
Another gem quoted in the complaint: “This week we have found the scariest Wendy picture to date. It’s a shot of Wendy wishing she was working the waxy wang of one time Washington mayor, Hizzoner Marion Barry.”
You know what? If someone wrote things like that about us on the Internet, we’d call a lawyer, too. But does Gordon have a strong case against FishbowlDC and editor Betsy Rothstein and writer Peter Ogburn, both of whom are named in the lawsuit?
We talked to Michael Rothberg, a partner at Dow Lohnes, who specializes in representing newspapers, magazines, online ventures, TV stations, and other media outlets. He is not involved in this particular matter, and stresses that with his limited knowledge of the case, he can’t make a definite judgment about its merits. But he did help us dissect the key legal questions involved.
First, if the person bringing a defamation claim is a “general-purpose public figure”—a.k.a. a celebrity—he or she has to meet a much tougher legal requirement to bring a successful lawsuit. If, for instance, Michael Jordan sued a blogger for writing something negative about him, he would have to prove the blogger did so with “actual malice.” Says Rothberg, “It’s a very high standard.”
Gordon obviously isn’t a household name, and private figures only have to prove that the statements made about them were false and hurt their reputations—a much easier feat than proving they were made with malice.
But Rothberg explains there’s a chance that a publicist could be considered a “limited-purpose public figure.” People who fall into this category also must prove actual malice in order to successfully sue for defamation. Limited-purpose public figures inject themselves into the public spotlight with respect to a certain issue or matter. For instance, if a publicist seeks out media attention in an effort to brand himself as a public relations expert, and then a reporter comments negatively on the publicist’s PR ability, the publicist might be deemed a public figure on that issue, making it tougher for him to prove he was defamed. In our opinion, it seems like this would be a stretch in Gordon’s case, given that Fishbowl’s commentary about her was largely personal and not related to her work. And as far as we can tell, Gordon wasn’t seeking attention as a PR expert.
But even if the court agrees that Gordon is a private figure, there’s still another defense Fishbowl could use. Rothberg says that if readers could easily tell that Fishbowl’s postings about Gordon were fake and just meant as a joke, she may not have a case. “If a reasonable person wouldn’t take [the postings] seriously, then there wouldn’t be a valid claim,” says Rothberg. “Even if it’s a terrible joke, it still wouldn’t be actionable. The amount of tastelessness really doesn’t matter.”
Therein lies the rub: “Wendy Wednesday” was certainly terrible, and it was absolutely tasteless. But was it defamation? Jury’s out.