Videos Alleging Strangers Have Monkeypox Run Risk of Libel Suits

Posting a video to social media that falsely implies others have monkeypox could be grounds for a libel lawsuit, defamation attorneys say.

One such TikTok video depicted a woman sitting on a train with a genetic condition that causes small, raised tumors to form across her skin. A picture of a monkey and a question mark captioned the video, implying wrongly the woman in the post had monkeypox.

False claims like that TikTok video can heighten shame around chronic skin conditions as well as monkeypox. The videos—and the fearful messaging that accompanies them—reflect a lack of understanding about how monkeypox spreads, and how to protect against and treat it, said Stella Safo, an HIV primary care physician and founder of Just Equity for Health. Filing a libel suit is one way to fight back, although those cases should be handled sensitively to avoid compounding stigma, advocates caution.

“The claim you need to make is that you were harmed by being associated with this condition,” said Leslie Wolf, a Georgia State University College of Law professor who specializes in health law. However, if you want to prevent people from posting those videos, but don’t want to add to the stigmatization of monkeypox, she said, “it really is a Catch-22.”

A successful libel claim would show that the plaintiff is the subject of the video, that their skin lesions are wrongly identified as monkeypox, the post was made without a good faith basis, and the plaintiff suffered damage, said Arnold & Porter attorney Dori Hanswirth.

People have won suits for false portrayals implying they have conditions such as HIV. But the threat of a libel claim may not be enough to deter some of these posts.

“There are a million bad things a stranger on the internet can do, and they continue to go on, even though there’s possibilities of theoretical legal action,” said WilmerHale attorney Kirk Nahra, who specializes in privacy and cybersecurity.

Stigma and Framing

Accusing someone of having a “loathsome disease,” constitutes libel per se. Whether false allegations of monkeypox are in this category is “an open question,” Clare Locke attorney Daniel Watkins said.

The “loathsome disease” phrasing is at least as old as the King James Version of the Bible and was used in medieval common law, said Georgia State University College of Law professor Paul Lombardo. Once associated with leprosy, the label now typically includes sexually transmitted conditions such as HIV, he said.

A New York appeals court ruled that a model could sue for defamation in 2018 after her photo was used without her consent in an advertisement promoting rights for people with HIV. Ostracism is still a likely effect of an HIV diagnosis, so the defamatory material falls under the “loathsome disease” category, the court said.

“This is not to imply that we in any way regard HIV or any other disease to be ‘loathsome,’ and we disfavor the use of that word,” Justice Angela M. Mazzarelli wrote for the court. She called for the category to be reworked.

Alleging someone has a particular condition should not be actionable as defamation per se because “the disease is objectively shameful,” but because people with that condition are the “targets of outmoded attitudes and discrimination,” she said.

Lessons Learned

Public health officials and scholars say filing defamation claims can prevent the harmful spread of myths and fears related to monkeypox, but that it’s important to handle these claims sensitively. Men who have sex with men have been hit hardest by monkeypox, although the Centers for Disease Control and Prevention has not deemed monkeypox a sexually transmitted infection.

“Our way of thinking about these cases has changed and should change,” said Temple University Beasley School of Law professor Scott Burris, who directs the Center for Public Health Law Research. “This talk started as far back as HIV: Realizing we should not treat the disease as a moral stain was integral to properly fighting the disease. I don’t think we need to relearn that with monkeypox.”

Public health systems must clarify what causes monkeypox and how it spreads to ease uncertainty, Safo, the HIV primary care physician, said. People must be able to access diagnoses and then receive support in treating their lesions, she said.

“When you have a public health response that isn’t robust, individuals take it into their own hands to be extra vigilant, and this is what happens,” Safo said.

Lilly Simon has always had to handle harassment about her neurofibromatosis type 1 from people like the person who uploaded the original video of her on the train, she said in a video response posted to TikTok.

Simon told Bloomberg Law she doesn’t plan to sue. The person who filmed the video was “just a kid,” she said, and she doesn’t want him to suffer financially. Instead, she’s raising awareness about NF1 with the Children’s Tumor Foundation.

“If people had known, they wouldn’t have made that mistake,” Simon said. Going all-in with the foundation will “really get my revenge,” she said.