Internet Defamation Blog

posted by Aaron Morris on Aug 16

It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act.  In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.

But the attorney could not leave it alone.  I can almost see his mind working.  He thinks to himself, “these individuals will never be able to pay the judgment, so I’d better look around for some deep pockets.”  So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com. 

I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements.  I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy.  I know it’s a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong.  Here, twitter.com is named because the defendants sent out “tweets” sending their followers to the defamatory content.  Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com.  How could these companies possibly be liable?  Well, according to plaintiffs and their attorney, they are liable because what the defendants did amounted to an “irresponsible use of technology.”

Apparently, in this attorney’s world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server.  Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion every account that sets a domain name to forward elsewhere.  Clearly there could be no Internet if such duty and liability could be imposed.

In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content.  Among the public there is an urban legend that a company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.

A copy of the complaint can be found here, and a detailed article about the case can be found here.

posted by Aaron Morris on Aug 1

Trials are decided by humans with all their human experiences.  Whether a judge or jury is deciding a case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate.  Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts.  Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”

At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation.  In the case, the defendant took a disliking to a local dog kennel for whatever reason.  She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.”  The kennel took exception to this characterization, and sued for defamation in Small Claims Court.  (In one of my earliest postings, I sing the praises of suing for defamation in Small Claims Court.  Take note how effective that can be.)

The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages.  The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing.  But what caught my eye was the simple logic of the judge, the sort of logic that sometimes alludes other judges.  First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.”  That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass.  The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11. 

Wow.  A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business.  Thank you Canada.