By ALEX COSTELLO
Finkel, 18, filed the suit last month, alleging that her former classmates — Michael Dauber, Jeffrey Schwartz, Melinda Danowitz and Leah Herz — published defamatory statements about her on a password-protected Facebook group page. Facebook allows users to create secret groups that other users can join and post pictures and comments on the group page. Some of these groups, like the one named in the lawsuit, called “90 Cents Short of a Dollar,” are accessible only to those with a password. Finkel was not one of the private group's six members, two of whom were not named in the suit.
In late January and early February 2007, derogatory comments were posted on the Facebook group page about someone referred to as “the eleventh cent” and “fossas,” which were names that Finkel alleges described her. Her complaint includes a 21-page printout, allegedly from the secret Facebook group. The printed posts —which are riddled with spelling errors —include references to drug use, bestiality, homosexuality and sexually transmitted diseases.
Several posts describe a scheme to fill a locker with garbage; one reads, “.. we rig it so that when she opens the locker it falls and rips open in fron of everyone ... and no dry objects either ... its got to be liek rotten bananas and such foods that would make her smell bad ... also its got to be a day where her mom has a meeting in a nother town so she cant go home.”
Using online forums to “spew hate and malice” is a serious issue, Finkel wrote in
a letter to the Herald, and the effects,
she added, can be far-reaching. “The four people involved
created this Facebook page for the sole purpose of disseminating vile and contemptible comments about me,” she
wrote. “This behavior went way beyond high school meanness.”
Finkel added that the people her complaint accuses of defaming her were once her close, trusted friends who betrayed her in the most vicious way. “This Facebook page was only a part of their concerted efforts to make my life as miserable as possible for two years,” she wrote. “At that time, I did not feel that I could take any action against them while I was still in school because I couldn't take the chance of making a bad situation worse.”
Finkel’s attorney, Mark Altschul, said that by writing the posts, the defendants committed libel — the written form of defamation — and he described the posts as “pretty horrific.”
Finkel will have to show a court that what her former fellow students posted was wrong and that it hurt her. “They didn’t realize the consequences of their actions,” said Denise's mother, Linda Finkel. “They just went about their business — they’re all away at college, and apparently they were able to put it out their minds. But the consequences of their behavior created a very traumatic situation for my daughter.
“What they did went way beyond saying she was fat or her hair looked funny or she had bad skin,” Linda Finkel added. “These are very serious allegations.”
The complaint also names the parents of Finkel's former classmates, alleging that they knowingly or negligently assisted in defaming her.
The Daubers and the Schwartzes declined to comment, and the Herzes could not be reached. But Bari Danowitz, Melinda Danowitz’s mother, said she doesn't believe the lawsuit will stand up in court.
“I think it’s completely frivolous, and I believe it will be thrown out,” Danowitz said. She questioned why, if the comments were so hurtful to Finkel that she decided to sue, a recent call from a reporter was the first time she had heard about any of this.
“My daughter is now 18 years old and in college, and this is the first time I’m hearing about something that allegedly occurred when she was 16,” she said. “There was nothing from the school, nothing from any parents, nothing at all.” Danowitz also pointed out that her daughter, along with the three other defendants, were honor students at OHS and were “good kids with good reputations.”
According to Julian Ku, a law professor at Hofstra University who specializes in defamation cases, Finkel may have a good case against at least some of the students, but would have a tough time proving the liability of the parents. “It is often difficult for plaintiffs to show the harm, but here, at least one of the allegations, having to do with serious sexual misconduct, would qualify as ‘defamation per se,’ meaning the allegation itself is presumed by the court to have caused harm,” Ku wrote in an e-mail to the Herald. “But overall, [Finkel] has an above-average defamation case with a decent chance of prevailing against some of the defendants for some of the harms. (I doubt she will win the amount she seeks, though, and I think some of the defendants might escape liability.)”
The suit names Facebook because the site published the group's posts. “If a newspaper goes and publishes something horrific about someone, it’s not only the reporter who’s responsible, it’s also the publisher,” Altschul said. “Facebook is now ... I guess you’d call it an Internet publisher.”
Barry Schnitt, a spokesman for Facebook, said, “We see no merit to this suit and we will fight it vigorously.”
According to Facebook's terms of service, users are “solely responsible” for content they post on the Web site.
Akilah Folami, another Hofstra law professor who works on Internet law cases, said she believes Facebook is not liable, as has been the ruling in suits involving other Web sites in the past, under the Communications Decency Act. “Which is the applicable act for this whole notion of cyber bullying, which is what this case is about,” Folami said. “How far and to what extent is cyber bullying going to be allowed, either by third parties or by Web sites that post the material, defamatory or otherwise, constituting bullying online? To what extent will the Web site provider be found liable?
“Generally, no,” Folami added. “Facebook is not liable for third-party postings on their site because of this law that creates an immunity for Web site providers or distributors of information, as the law calls it.”
Linda Finkel, however, said her daughter's lawsuit goes beyond cyber-bullying. “People who know us and know my daughter have been extremely supportive of us,” she said. “But most people are saying, 'Bullying? Oh, everybody gets bullied.' But this really rises above just bullying.”
Comments about this story? ACostello@liherald.com or (516) 569-4000 ext. 207.
