NH Supreme Court: Defamatory retweets protected under federal Section 230 law

May 12—CONCORD — A former Merrimack Valley Middle School teacher cannot sue students who retweeted profane, defamatory statements that fellow students created when they hacked into the school computer system and tweeted out changes they made to her webpage, the New Hampshire Supreme Court ruled Wednesday.

The 4-0 decision relied on Section 230 of the Communications Decency Act, a provision in federal law reviled by Trump conservatives for the exemption from libel and defamation suits that it grants to high-tech companies such as Twitter and Google.

In this case, the exemption applied to six students at the Merrimack Valley High School who retweeted shots of the hacked and altered webpage of science teacher Debbie Banaian. The material portrayed Banaian as a sexual pervert seeking sexual liaisons with students and parents, according to a lawsuit she filed.

Some of the less objectionable alterations included:

"Hey, kids talk to your dads for me. I'm a hot cougar tall and blonde."

"Welcome to: Mrs Banaian's 8th Grade Raperoom."

"Thank you all for allowing me to touch your children."

Banaian, a champion female arm wrestler, sued the students because people need to think twice about what they post and repost on social media, said her lawyer, Brian Shaughnessy of Bedford.

She also felt that Merrimack Valley School District officials were focused on protecting students and parents, he said.

"No one's standing up for the teachers," Shaughnessy said.

Email and telephone messages left with Superintendent Mark MacLean and high school Principal David Miller on Wednesday were not immediately returned.

The hacking took place in 2016. Banaian was subject to schoolwide ridicule and went on worker compensation for six months, according to her initial lawsuit. She became physically ill and needed counseling and professional support, according to the lawsuit.

She returned to work for about 1 1/2 years but had to relive the ordeal when she filed the lawsuit in 2019. A teacher of 22 years, she eventually qualified for disability from the New Hampshire Retirement System because of the incident.

Banaian sued the hacker, the original tweeter and 20 students identified by their Twitter handles.

"This was such a betrayal that her former students would do this to her. She lost all sense of safety," Shaughnessy said.

She sued for defamation. In the suit, Shaughnessy compared the retweets to a defamatory newspaper article, which would be subject to libel actions under existing law.

But the Supreme Court ruling heavily cited Section 230 of the Communications Decency Act, which says 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."

Justice Anna Barbara Hantz Marconi wrote that Twitter falls within the definition of an "interactive computer service" and that the retweeters are "users" of the service. Shaughnessy had argued that the term "user" applied to libraries, universities and other places that provided internet access when the law was written in 1996.

The Supreme Court rejected his argument.

"We conclude that it is evident that Section 230 of the CDA abrogates the common law of defamation as applied to individual users," Marconi wrote in a seven-page decision joined by three other justices.

If the Supreme Court had decided in Banaian's favor, Shaughnessy believes the case would have landed in the U.S. Supreme Court.

"I only had a long shot in getting this case through," he said. "But if you look at it with your legal hat, it's really stupid to say these retweeters are users."

Shaughnessy said insurance companies representing the six defendants raised Section 230 as a defense.

Shaughnessy said Banaian won default judgments against the hacker, but she won't likely be able to collect. Caiden Winchester, the hacker, died in October 2020. The family of Cameron Tillman, the original tweeter, has no insurance coverage.

Shaughnessy said the initial intent of Section 230 was admirable. In part, it protects organizations such as libraries that offered internet access from defamation claims, he said, but it now protects anyone who makes defamatory statements online.

"What's your recourse? Nothing," he said.

Banaian, who is in her late 50s, is listed as a competitor in the World Armwrestling League. Her page on the WAL website still lists her as a middle school teacher. She also has a YouTube channel.

Shaughnessy said a school resource officer was initially involved, and Banaian filed a complaint with police. Police told her it was a juvenile matter and they would let her know what was to come of it, but they never did, according to the suit.

The school district did not inform her of any disciplinary action against any of the students, Shaughnessy said.