Aaron Morris

Fake Social Media Account by Police Allowed Without Warrant

Keep your friends close, and your Instagram friends even closer.   One of your online friends might be the police and a search warrant fis not needed to befriend you on social media. A US District …

Source: www.thenationaltriallawyers.org

To quote Bugs Bunny, “What a maroon!”

When a string of burglaries occurred, the police had a pretty good idea who it might me. They found the suspect’s Instagram account, and asked (under an undercover account) to become “friends”. The suspect agreed.

The suspect then proceeded to send out pictures of all the stolen property to his “friends”, which now included the police. Busted.

The suspect sought to exclude the evidence, claiming the police needed a search warrant, but the court disagreed.

“Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment” as in the case of U.S. v. Meregildo (883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)) where a Facebook “friend” was a cooperating witness and allowed law enforcement to access Meregildo’s posts regarding his violent acts and gang activity.

‘Revenge Porn’ Law Sees First Conviction In California

selfie - revenge porn

 

A man who posted nude photos of his ex-girlfriend without her consent on her employer’s Facebook page is the first person to be convicted under California’s “revenge porn” law, the Los Angeles City Attorney’s Office reported Monday.

Noe Iniguez, 36, of Los Angeles was sentenced Monday to one year in jail and 36 months of probation and will be required to attend domestic violence counseling for violating both the state’s revenge porn statute and two restraining orders.

Source: www.huffingtonpost.com

The facts of this case are horrendous, and illustrate the need for such a statute.

As I have written here before, we have successfully sued for this sort of conduct, but this law adds another means to help victims of revenge porn.

The “revenge porn” statute is contained in California Penal Code section 647. The statute is quite extensive, and contains a number of provisions. The “revenge porn” section of the code, as that term is usually meant, is contained in sub part 4(A). Basically, the statute requires a tacit approval between the parties that any intimate photos will remain private. Interestingly, that section states that “any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person” is liable under this Penal Code.

I already see a problematic loophole. In the photo above, we see a woman taking a selfie. If she then sends that photo to her boyfriend, and after they break up he posts the photo, would it still be covered under this section? After all, the boyfriend is not the person who “photographed or recorded” the intimate body parts.

Here is Penal Code 647 in its entirety:

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Google has free speech right in search results, court confirms

A San Francisco court ruled last week that Google has the right to arrange its search results as it pleases, which confirms the company’s long-held view, while underscoring the stark difference in how U.S. and European seek to regulate the search giant.

Source: gigaom.com

The number of callers have gone down as the defamed public becomes more educated on the topic, but I still get a lot of calls from potential clients wanting to sue Google for the information reported in its search results.

I always viewed this as wanting to sue the telephone company because it listed the phone number of a con artist in the phone book. Just as the phone book simply lists the names and telephone numbers of people with telephones, Google results are just a report of what is out on the internet. Google, quite appropriately in my opinion, has always argued that its search results are neutral, and it cannot be responsible for whatever its search spiders happen to find.

With that said, the frustration of defamation victims is understandable. The squib that Google creates in conjunction with the search results can often be more damning than the defamatory posting itself, because of the truncated nature. 

It this recent challenge to Google, the plaintiff added a slight twist. CoastNews was miffed that it was ranked high on Bing and Yahoo, but that Google was pushing it far down the search results because it perceived CoastNews as a competitor. It sued, claiming that Google was being unfair, and should not be able to determine the position of websites returned in the search results.

Google brought an anti-SLAPP motion, which was granted.

Richmond Restaurant Encourages Bad Yelp Reviews

 

 

 

Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be the worst-rated restaurant in the Bay Area.

To achieve this end, Botto Bistro is encouraging all of its customers to leave one-star Yelp reviews; it is even offering deals for anyone who pens a crummy review: 25% off any pizza and a chance to win a cooking class. (Hat-tip to Richmond Standard.)

Source: insidescoopsf.sfgate.com

I applaud these restaurant owners.

In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write bad Yelp reviews. It’s just a great way to get people to realize that anyone can write anything.

Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, “Yes we are. Thank you for noticing.”

Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract.  How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the “contract” between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?

Court of Appeals upholds $14.5 million defamation verdict against State Farm in hail fight

The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals.

 

In a decision issued Tuesday, the three-judge panel found Hamilton Superior Court Judge Steven R. Nation correctly denied the insurance giant’s request for a new trial based on a claim that roofing contractor Joseph Radcliff obtained the judgment through fraud on the court.

The case grew out of a 2006 storm that battered Central Indiana with golf-ball-size hail and ravaged thousands of homes. The damage tally topped $1 billion, with State Farm alone paying out more than $200 million on about 50,000 damage claims.

 

The payout to Radcliff, however, was not the result of damage to homes or cars — but for what a Hamilton County jury determined was damage State Farm did to the roofing contractor’s reputation.

 

Source: www.indystar.com

These cases are becoming so commonplace, I’ve taken to calling them the “second appeal”. Here’s the way they work.

The defendant loses in the trial court, then they lose on appeal, so they bring their own action or motion back in the trial court, claiming the original verdict was achieved by a “fraud on the court”, usually based on some evidence the defendant claims would have resulted in a different result.

There is support for such case, but the circumstances for a successful fraud on the court claim are extremely narrow. Here, the insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. That approach won’t fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a “Mulligan” because it failed to vigorously defend the case the first time around.

In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had “defrauded” the court by allowing it to enter a judgement, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.

See on Scoop.itDefamation Law

Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit

Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.

“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”

What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”

Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”

Source: www.washingtonpost.com

This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.

See on Scoop.itDefamation Law

Jones Day Threatens SLAPP Suit Against Detroit-Area Blogger

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Jones Day, the third largest law firm on the planet, is focusing their weighty legal acumen and collective wrath upon the head of one lone Detroit-area blogger who dared to poke serious fun at their activities in the Detroit bankruptcy proceedings. Also found in the blogger’s sardonic cross hairs is one of the firm’s former associates, Kevyn Orr — aka, Detroit’s Emergency Manager — both parties are being scorched in parody by the outspoken blogger over their joint roles in looting the already decimated city coffers.

Source: www.democracy-tree.com

Business clients call to ask me to examine some review that was posted on-line, wanting to sue for defamation. When I advise them that the comments are permissible statements of opinion and not actionable defamation, the next question is almost always, “but can you at least send a cease and desist letter to make him take it down?”

No, I can’t, because it would be a toothless threat designed to intimidate someone out of exercising their right of free speech.

Apparently the law firm of Jones Day does not operate under the same standard, especially when its own ox is being gored. As you’ll see from the letter they sent, the firm claimed that a blogger could not use its name in order to criticize it. This is a common ploy, used in the hope that the recipient of the threatening letter won’t know any better. Free speech would be dead indeed if critics could not name the people and entities they are criticizing. Just as Stephen Colbert can use the name and even the logo of Domino’s Pizza in his parody news report, this blogger was free to use the name and logo of Jones Day, and any action by Jones Day would have been a clear SLAPP suit. Here is the letter that the Electronic Frontier Foundation sent in return, calling Jones Day’s bluff.

Sleeping Fan Sues New York Yankees, MLB, ESPN for Defamation

Andrew Rector proved today that you really can sue anyone – even MLB, ESPN or the New York Yankees – for just about anything.

Source: www.rantsports.com

Clients often call and say, “can this person sue me for defamation if I [fill in the blank].” As I always say, and as this case illustrates, anyone can sue anybody for anything. The question is, can they do so successfully? Here, a sleeping baseball fan by the name of Andrew Rector is suing for the comments made by the sportscasters when the camera captured him napping.

Can he sue for defamation? Yes. But will he be successful? The answer here will be, no. A ridiculous and frivolous suit.

[UPDATE:] My prediction was correct. As reported by the New York Daily News, the court threw out (or should I say, put to sleep?) Rector’s ridiculous legal action.

Here is the video of the incident in question, which resulted in the unsuccessful legal action:

Cooley Law School loses defamation suit against New York law firm

Cooley Law School has lost an appeal in their defamation lawsuit against a law firm that posted criticism of the school’s reporting of student debt on a popular law school message board.

The school had filed a $17 million lawsuit against Kurzon Strauss LLC, a New York firm, and two attorneys associated with the firm, Jesse Strauss and David Anziska, accusing them of posting defamatory statements on the popular law school message board “JD Underground“. The post said that federal regulators were investigating Cooley Law School over student loan default rates and employment for graduates.

Those statements were later retracted, but the firm then began preparing a proposed class-action lawsuit against the school, at which point Cooley filed its suit against the firm accusing them of defamation, breach of contract and interference with business relations, among other claims.

A trial court granted judgment to Kurzon Strauss before trial, saying that Cooley Law School was a “public figure” and therefore would have to prove that the firm acted with a disregard for the truth, a bar the court said Cooley could not clear

Source: www.mlive.com

When in individual or entity is deemed to be a “limited public figure”, the theory is that such a person has greater access to the media, and therefore tell their side of the story. Therefore, when a limited public figure sues for defamation, they have  a higher standard of proof to show that defamation. Specifically, they must show the person who allegedly defamed them acted with “actual malice” or “reckless disregard for the truth”.

Here, the court concluded that Cooley Law School would not be able to meet that burden.

Bitcoin Extortion Letters Threaten Pizza Restaurants with Yelp Libel

Pizza restaurant owners in America have been bombarded with letters threatening them with bad online publicity including bad reviews on sites such as Yelp, as well as physical damage such as food contamination — and demanding payment in Bitcoin, according to a report by veteran security blogger Brian Krebs.

Source: www.welivesecurity.com

The pizza in the photo looks like it deserves a bad review, but setting that aside, here is yet another example of Yelp reviews being used as a form of extortion. Click on the photo to get the complete article.

Aaron Morris

Morris & Stone, LLP

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Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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