Bob Latham Bulletin

My daughter recently met a friend of mine who happens to be famous (by my old school definition of fame). To see if he was really famous, she did what any high school student would do: she looked him up on Wikipedia.

Of course he had a Wikipedia page, but no one needs to rise to his level of fame (I will not name drop here) in order to have a Wikipedia listing. Indeed, if Andy Warhol were alive today, he might amend his very prescient 1968 observation from “in the future everyone will be world famous for fifteen minutes” to “in the future everyone will have a Wikipedia entry.”

If this state of affairs seems like merely an amusing topic for a sociology paper, I would suggest that what the generation coming of age today regards as “fame” may have significant implications for defamation law. Take, for instance, the issue of a general purpose public figure – someone who has obtained “pervasive fame [there’s that word] or notoriety” – or even a limited purpose public figure. In the old days, those of us on the defense side of defamation actions would search for newspaper or magazine articles, or perhaps even press releases, about the plaintiff. The volume of the material you were able to assemble would give you a good idea of how successful you might be in establishing the plaintiff as a public figure.

But now, in the age of digital media, the calculus is changing dramatically. Do we look to the number of followers that someone has on Twitter as a measure of his/her fame or notoriety? Do we look at the number of tweets someone has issued to assess the level of his/her participation in a public controversy? Do we check the number of tweets about the plaintiff, even if the tweets themselves are not emanating from the plaintiff, in order to see how much in the vortex of a public controversy the plaintiff is? Are Facebook postings relevant to the “vortex” analysis of the limited public figure test?

In addition, one of the historical indicia of public figure status was the access such a person had to “the media.” The fact that someone might have engaged a PR agent to issue frequent press releases to the traditional media and his success in getting fast and successful coverage of his position would help in making him out to be a public figure. Now, virtually everyone has access in some way to “the media” as we broadly define it. A Twitter post can go to all persons who have any interest in the person tweeting. A Facebook posting can go to thousands of people instantaneously. The fact that someone operates a blog could potentially be helpful in showing “access to the media” and thereby be relevant to public figure status.

If this seems like a stretch, consider the fact that even persons in the public eye with almost unbridled access to traditional media have taken to using new media to get their message out quickly. Charlie Sheen, during his ongoing meltdown, doesn’t issue press releases, but rather uses Twitter. Arnold Schwarzenegger’s children used Twitter when they wanted to publicly comment on their father’s peccadillo. Lance Armstrong resorted to Twitter to counter allegations by Tyler Hamilton on “60 Minutes.”

As the proliferation of new media continues, and in fact picks up speed, the historical test for “fame” may be redefined by the standards of a new generation where the “famous” are hard to distinguish from the ubiquitous or prolific.

— Bob Latham is a partner at Jackson Walker. He can be reached at blatham@jw.com.