It's tough to prove online libel if you participate in a forum under a pseudonym, court rules

The Massachusetts Appeals Court today dismissed a Sudbury woman's libel suit against a real-estate broker for allegedly defamatory comments online because the woman failed to prove anybody else knew her true identity behind the pseudonym she used online and so she was unable to prove her reputation had been harmed.

For scholars of esoteric cross-cultural legal issues, the ruling is perhaps a bit of a letdown because it means the court did not feel compelled to resolve what it acknowledged was another issue raised by the suit: Just how far one can go with "pink news," the Chinese term for sexual innuendo or gossip, before it becomes actionable libel.

Yong Li, who had used the pseudonym zeber in a forum on the Chinese-language WeChat platform over a Harvard affirmative-action suit involving Asian-Americans, had sued Yanling Zeng for libel and slander when the discussion turned heated and Zeng responded to a criticism of something she said by zeber by threatening to reveal Li's real identity and, according to Li's translations of the forum (which the court accepted as accurate), demanded Li shut up before the "pink news" about her get out, a rumor that "the whole village" knows about.

Li then sued Zeng for $1 million, based on the alleged harm done to her reputation.

A Superior Court judge dismissed the suit because the reference to "pink news" was an opinion, not stated as fact, and opinion is protected under the First Amendment.

In its ruling today, the appeals court gave a different reason for dismissing Li's appeal of that decision: That her reputation couldn't be harmed if nobody in the forum but Zeng - who had visited her house in her professional capacity to assist in setting a value for it - knew her true identify. Massachusetts courts have set proof of harm as one of four requirements for a winning libel case.

As her complaint acknowledges, she participated in the chat group through a pseudonym. Li does not allege that anyone in the chat group other than Zeng knew that zeber, the target of Zeng's comments, was Li. True, Li alleges that Zeng threatened or "attempted" to unmask her identity. Ultimately, however, she does not allege that Zeng actually unmasked her. Because Li has not pleaded facts plausibly suggesting that Zeng made a statement "of and concerning her," her complaint fails to include a necessary element of a defamation action.

Before reaching that conclusion, the court briefly pondered the concept of "pink news" and just how far one can take it.

According to Li, Zeng's reference created, or passed along, a false rumor that Li had had an affair or had committed some other sort of sexual impropriety. Zeng's statement contained or implied defamatory facts, Li contends, and was not -- as the judge concluded -- pure opinion.

And, the court continued in a footnote, the issue could merit further consideration:

The boundaries of what constitutes "pink-news" and whether such allegations could be defamatory are far from clear. For example, at oral argument, Li seemed to assert that "pink-news" about someone could include an allegation that the person's spouse had been unfaithful, even though a false statement that someone had been betrayed by his or her spouse may not be defamatory.

It then cited a couple of American cases involving libel and statements about adultery.

But that will have to wait for another day, the court continued, proceeding to explain it did not have to unravel that thorny knot because the more easily handled pseudonym issue was enough to dismiss the case.