Internet Defamation Blog

posted by Aaron Morris on May 4

South Korean "Dog Poop Girl"

In America the right to make anonymous comments is protected. In fact, that is why many courts will make a victim of defamation establish a prima facie case of defamation before requiring a website to respond to a subpoena.  

South Korea is not so tolerant, and effective April 1 anonymous posting became illegal under certain circumstances. The new law is called the “Cyber Defamation Law.” The law provides that any Internet user making a comment or upload to a website that has over 100,000 unique visitors a day must append their real name to the comments they make. Sites must identify whether they meet the number of visitors threshold. If they do, the registration process must require the visitor wishing to post something to enter his national identification number.

The Cyber Defamation Law appears to have been a reaction to a story about the “dog poop girl.”  A women’s dog did his business on public transit, and she failed to clean it up.  Someone took pictures of her sitting near the dog’s leavings, posted them on the Internet, and she became a public pariah, to the point that she had to quite school and move away from her home.  Lawmakers in South Korea reasoned that the new law would make those who post Internet messages more responsible for what they say and do on-line because they can now be pursued legally.

America is unlikely to pursue such an approach anytime soon, but the case illustrates that the problems of Internet defamation and bullying are very real, and governments are struggling to find ways to deal with them.

posted by Aaron Morris on Apr 24

Tom Martino

Context is everything is everything in a defamation action.

In the recent Ninth Circuit case of Gardner v. Martino, plaintiffs sold a new boat from their showroom. The buyer of the boat claimed the boat was defective, and went onto a radio show to talk about the failure of the plaintiffs to address the problems. During the show, the host, Tom Martino, listened to the complaints of the buyers and commented that the sellers were “lying” when they claimed that they had tested the boat after performing certain repairs.

The plaintiffs/sellers took umbrage with that remark, and sued Martino, the radio station and the production company for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.

I have commented here before that far too many attorneys think they can take on a defamation action, treating it like any other tort claim. This case illustrates what can happen when the attorney does not fully understand all the nuances of free speech and defamation. No doubt when the attorney was told the radio host called the plaintiffs “liars” that was viewed as an automatic case of defamation. And, in fact, in most cases calling someone a liar would constitute defamation. But here, the attorney apparently failed to consider the context of the statement.

A true opinion cannot constitute defamation unless it is offered as an assertion of fact.  While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.

The two corporate defendants in this case were Westwood One and Clear Channel Communications, both huge companies. No doubt these communication giants hired big firms that billed hundreds of hours at $650 per hour. Now the plaintiffs, who felt hurt by being attacked on the radio and just wanted to clear their reputations, are on the hook for perhaps $100,000 in legal fees.

I am all in favor of taking steps to defend your reputation – it’s what I do – but proceed with caution with an attorney that really knows this area of the law.

posted by Aaron Morris on Apr 15

Backwards Thinking at Goldman Sachs

What to do when you are an investment bank that owes $10 billion to the government and some gnat puts up a website to trash you for the way you do business? If you are Goldman Sachs, you hire a New York law firm to send a ridiculous cease and desist letter.

The website in question is goldmansachs666.com. It was posted by Mike Morgan a short while ago.  He hopes that the site will become a public forum for all things relating to Goldman Sachs.  No doubt anticipating a possible backlash from Goldman, Morgan put a banner at the top of the site, which proclaims:

“This website has NOT been approved by Goldman Sachs, nor does this website have any affiliation with Goldman Sachs.  This website was designed to provide information about Goldman Sachs direct from the public, and NOT from Goldman Sachs’s marketing and public relations departments.  You may find the Goldman Sachs website at www.goldmansachs.com.”

Nonetheless, the New York lawyer, who I assume does not get a lot of calls from NASA headhunters, wrote to Morgan:

“Your use of the mark Goldman Sachs violates several of Goldman Sachs’ intellectual property rights, constitutes an act of trademark infringement, unfair competition and implies a relationship and misrepresents commercial activity and/or an affiliation between you and Goldman Sachs which does not exist and additionally creates confusion in the marketplace.”

So, apparently Goldman Sachs thinks so much of its customers that it believes they would go to a site which says the bank is of the devil, and believe that the site is approved by Goldman Sachs.

A spite site, standing alone, is not actionable.  If the first commercial site created on the web was Acme.com, you can be sure the second site was Acme-Sucks.com.  Such sites have a long tradition on the Internet, and no one gets confused about their purpose.  GoldmanSachsSucks was probably already taken, so Morgan apparently had to get creative.

When it comes to comments on the Internet, always bargain from a position of strength.  If you “demand” that someone take down comments with no grounds to back up that demand, the usual result will be that you have fanned the flames for no reason and for no result.  I turn down perhaps 20 requests per week to send cease and desist letters, explaining to the callers that the comments in question do not constitute defamation, and that it is folly to send a cease and desist letter to someone that is within his legal rights and has no duty to cease or desist.  Apparently New York lawyers take a different approach.

posted by Aaron Morris on Apr 11

The following Internet defamation case is illustrative of some points I have raised here and elsewhere.>

You may have heard of the Internet defamation case involving a website called AutoAdmit. Two Yale students sued a number of defendants, claiming they were defamed on the site’s message board. One of the named defendants was Anthony Ciolli. He was involved with AutoAdmit, but claimed he had nothing to do with the message board where the defamatory messages were published. The plaintiffs apparently came to agree with this contention, and voluntarily dismissed Ciolli in 2007.

Now Ciolli has turned the tables on the plaintiffs. According to an ABA Journal article, Ciolli is suing them along with their lawyers. Ciolli alleges that the negative publicity generated by the suit caused the law firm of Edwards, Angell, Palmer & Dodge to withdraw an employment offer. He is suing for wrongful initiation of civil proceedings, abuse of process, libel, slander, false-light invasion of privacy, tortious interference with contract and unauthorized use of name or likeness, according to the story.

Anthony Ciolli

As I’ve said before, amateur attorneys will name too many defendants, thinking the more the merrier and hoping that even if someone is improperly named, some small settlement can be extracted from in exchange for a dismissal. You see this all the time in construction defect cases, where they name every subcontractor on a job, even though it is abundantly clear that some of the subs could not have possible contributed to the problems.  With the permission of my construction clients, I long ago instituted a zero-tolerance policy whereby we refused to pay any groundless settlement, no matter how small.  The risk is that you could end up going to trial when you could have escaped for, say, $5,000.   However, to date, that has never happened. 

The problem with naming too many defendants is illustrated by this case, where one of the named defendants did not go quietly into the night even though he was voluntarily dismissed.  The better method is to file against the key defendants and conduct discovery to determine if any other defendants can properly be named.  So, Ciolli may have a righteous claim that he should never have been named in the action.

But with that said, it appears that Ciolli and his counsel are making a very similar mistake by bringing too many causes of action. Let’s say a plaintiff gets creative with his pleading and sues a defendant under five causes of action. If he prevails on one or two of the causes, that means the defendant prevailed on the other three or four causes of action. The defendant can argue that he is the prevailing party, which may entitle him to costs and attorney fees. Further, the defendant can sue for malicious prosecution on those causes.

Keeping in mind that I have not reviewed the pleadings, I do not practice in the jurisdiction in question and I am relying on facts as reported by various news sources, I am still willing to predict that Ciolli will lose on five of the aforesaid causes of action.

The first major hurdle Ciolli is going to face is proving that being denied a job with a big law firm is a bad thing. If the comments by the plaintiffs truly prevented Ciolli from going down the big firm path, he should be sending fruit baskets, not suing them.  If the allegations are true, then the plaintiffs saved Ciolli from a fate of working 70-hour weeks for $37 per hour. See, Saving Adil Haq’s Career Life — and Yours, and Why Big Firms Don’t Work.

But setting the big firm aspects aside, the case appears to contain problematic causes of action.  For example, mis-naming a defendant is not an abuse of process; the process is absolutely correct, it is just against the wrong person. Further, if the comments about Ciolli by the original plaintiffs were made in the litigation context, I’m sure the jurisdiction in question will have a litigation privilege against defamation. (If the plaintiffs made the statements outside of the litigation, then Ciolli could prevail.) And while the standard may be different in Pennsylvania, in California the interference with contract action would never survive.

I hope the case goes to trial so my legal theories can be tested, but that may not happen. At this point the parties are still fighting over jurisdiction. The Pennsylvania federal judge decided that Ciolli could conduct discovery to determine whether the action satisfied jurisdictional requirements. I’ll continue to monitor the case.

posted by Aaron Morris on Mar 14

A recent decision out of Maryland illustrates the legal tension that exists between anonymous Internet defamers and those they victimize.

Someone trashed a Dunkin’ Donuts, claiming it was unsanitary and dirty. DD didn’t appreciate that comment, and sought the identity of the person who had posted the comment. In deciding whether the message board was required to disclose that information, Maryland’s highest court decided that the victim of the comments must go onto the board and basically give notice to the defamer. This gives the defamer an opportunity to protect his anonymity by removing the offending comment (although some unscrupulous sites won’t allow the person that posted the comment to take down his own message). Then the victim must persuade the court that the comments constitute defamation. Defamation is not protected speech, so the court can then require disclosure.

Don't Bite Off More Than You Can Chew

It’s a tough course for the victim, because being forced to go into the lion’s den will often only fan the flames. However, as this case makes clear, a victim may well be barred at the door if he does not have the fortitude to take that step.

For a more general discussion of the Maryland case, go to Internet Free-for-All Promises An Ongoing Test of Free Speech.  For a more detailed discussion of the legal issues, go to Maryland High Court Sets Legal Standard for Outing Online Foes.

posted by Aaron Morris on Feb 23

I often get calls regarding wrongful termination where the terminated employee – terminated months earlier – has done nothing to find a new job, concluding that a new job would minimize his damages and hurt his case.  That’s a crazy case of the tail wagging the dog.

Lately I am receiving defamation calls where the victim of the defamation is following a similar counterintuitive strategy. The call usually goes something like this:

Caller: “The Orange County Register published an article saying I cheat on my taxes and am a bad dancer.”

Me: “Is that a false statement?”

Caller: “Entirely false. I’m an excellent dancer!”

Me: “When did they publish this article?”

Caller: “About three months ago.”

Me: “Did you ever demand a correction?”

Caller: “No, I want to sue for damages, not a retraction. If they printed a correction, that might minimize my damages.”

That mentality is problematic on several levels. First, it shows that the caller is not as interested in preserving his reputation as he is in getting money. Second, if an attorney ever did take the case, the failure to ask for a correction would be a problem for the jury. He was so upset by the defamation (the tax part, not the dancing) that he is asking us to give him millions, but he never tried to minimize the loss of reputation by asking for a correction?

Finally, California Civil Code § 48a requires someone who has been libeled by a newspaper or slandered by a radio station to demand a correction “within 20 days after knowledge of the publication or broadcast or the statements claimed to be libelous.” If a plaintiff fails to make the demand in the allotted time, he or she is limited to special damages – the actual, quantifiable damages caused by the defamation, such as loss of business. Fail to make the demand within 20 days, and you give up all general damages, which are 95% of the damages in most defamation cases.

Litigation is a solution to a problem, but it should never drive your life. Don’t act in some artificial manner to “preserve” an action. By all means, save some screen shots as evidence for your action, but if you act to keep the defamatory comments in place, that will hurt your case far more than it helps.

posted by Aaron Morris on Jan 30

One of our current defamation suits involves a man that was accused of being a pedophile. He is not a pedophile, and the defendant freely admits that she does not really think he is a pedophile. Indeed, the Defendant says that our client has never done anything that would warrant her making such a claim. But that doesn’t stop her from making the claim anyway, because she doesn’t like him. That’s why we are suing her for defamation.

Here’s where the case gets stranger. Even though Defendant admits our client is not a pedophile, her attorney brought an anti-SLAPP motion claiming that our complaint should be thrown out because Defendant’s false statements are protected speech. Confused? Let me see if I can walk you through opposing counsel’s logic.

A Strategic Lawsuit Against Public Participation (”SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.  Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant abandons the criticism to make the lawsuit go away.

To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint.  The court then decides whether the speech in question is protected free speech.

Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)  Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

So, the first three types of protected speech arise from the traditional forums – statements made in places like court, during a city council meeting or at some other public forum.  The fourth criteria can be outside a public forum, such as on a blog on the Internet, but that section requires that the matter being discussed concern a “public issue.” There are many competing court decisions that have tried to define what constitutes a public issue.

In our case, defense counsel argued that the Defendant’s false claim that Plaintiff is a pedophile is protected speech because stopping that behavior is a matter of public interest. He actually argued with a straight face that even when the accusation is a complete lie, one can accuse another of being a child molester and be protected from suit because the subject matter is so important. So, under defense counsel’s approach, certain topics would automatically enjoy heightened free speech protection, regardless of the circumstances. This obviously would make the job of defamers easier, because we could simply create a list of topics we find are important enough to be matters of “public interest” and the defamer could falsely accuse intended victims of those items, knowing the speech is protected.

The judge didn’t think that was a very good idea either.  Motion denied.  Defamatory speech is not protected speech under the anti-SLAPP statute.

posted by Aaron Morris on Jan 26

Kudos to Karl Kronenberger for concisely capturing the characteristics of Internet defamation.

I was interviewed today for the syndicated radio show Culture Shocks on the topic of Internet defamation, and the possible chilling effect on free speech by lawsuits against those who publish defamatory comments. The host, Barry Lynn, was very even-handed, but I again found myself being cast as the anti-free speech proponent because I am not opposed to suing those who defame others on the Internet. During such interviews, when I explain that there are “serial defamers” who post false reviews to extract revenge for a perceived slight, or to bash the competition, I am usually met with skepticism.

Yelp Backlash

In his piece entitled Defamation Superhighway, published in the Forum section of today’s Los Angeles Daily Journal, Kronenberger observed: “Despite this great number of prolific and legitimate reviewers, we cannot put our collective heads in the sand and deny that review sites draw some consumers who use them for unlawful purposes under the guise of legitimate free speech. . . . Also, business competitors can post negative reviews while posing as disinterested consumers.” He correctly points out that yelp.com, for example, further enables defamatory content by providing no mechanism for the victim to respond.

As I have explained in greater detail in prior posts, I don’t desire passage of a law that requires review sites to investigate claims of defamation. Such an approach would be unworkable in most instances, since every legitimate post that happened to be negative would be met with a cry of “defamation!” But if the review sites don’t want defamation attorneys to become the Internet Police, then they must permit the users to fill that role. That would include permitting the victim of a defamatory post to respond contiguously with the original post, not as a separate, far-removed post.

I’m reminded of the stereotypical boxing referee you see in the movies. Before the fight, he says to the boxers, “I want a clean fight boys. Keep it clean.” Let the boxers have at each other on review sites, but if you are going to stand back while one hits the other below the belt, then we defamation attorneys are going to step in.

posted by Aaron Morris on Jan 25

I’m surprised I don’t get more of these calls.

A caller to my office today was frustrated because many of her emails are ending up in the recipients’ spam folders. It happens so often that now she has no confidence that the message was received. She routinely follows up with a phone call to confirm receipt, and often must lead the intended recipient through the process of checking their spam folder for the missing message. She said it has become enough of a problem that it is interfering with her business.

I occasionally experience this myself. A new client is eager to get me going on their urgent case, so I quickly prepare and email a fee agreement. Days later they call, frustrated because they still haven’t received the agreement, and I have to direct them to the spam folder. Often as not, they were not even award they had a spam folder. (Yes, I could request receipt notification, but that is imprecise at best.)

Back to the caller. She was frustrated because obviously someone out there in cyberspace is designating her as a spammer, and she wanted to know if she could sue for defamation. Allow me to wax nostalgic, because this exact issue arose in one of my earlier Internet cases.

The Communications Decency Act (”CDA”) immunizes “a provider . . . of an interactive computer service” who makes available to “others the technical means to restrict access to material . . . the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” My client in the earlier case had created a spam filter that was widely used by Internet service providers. A business ended up being designated as a potential spammer, and all of a sudden its messages were being blocked (although it had other email addresses that were not being blocked). The business owner sued my client, and he hired me.

Try as I might, I could not get plaintiff’s counsel to understand the plain meaning of the CDA. He conceded that the creator of a spam filter could be protected, but contended that the spam filter had to be content based. In other words, he claimed that you could block emails containing pornographic pictures, for example, but you could not block the spammer sending the emails, since he might send something other than porn.

This was a nonsensical position. The CDA says that in addition to the obvious stuff like porn, you can also block email you find “harassing or otherwise objectionable.” Anything can be harassing, like those stupid pedi-paw emails that are currently flooding my email. Not surprisingly, I got the judge to throw out the case, and the Court of Appeal agreed.

Bottom line: If there is something about your emails that is triggering spam filters (maybe changing your name to Cialis Viagra wasn’t as clever as you thought), figure out which ISPs take exception to you and why. You may be able to fix the problem on your end, and if not, they may voluntarily tweak the filters. But don’t think you can sue them.

posted by Aaron Morris on Jan 11

When pursuing an action for defamation, on the Internet or off, the first hurdles faced are the dispositive motion to strike under the anti-SLAPP statute and/or a motion for summary judgment.  In their desire to clear their dockets, courts sometimes overreach when ruling on these motions.  A recent case illustrates the point on a motion for summary judgment, where the court confused the distinction between facts an law.

In a persuasive holding the 9^th Circuit Court of Appeals indirectly reiterated to litigators and the courts the importance of distinguishing questions of fact and law on motions for summary judgment.¹ At the district court level in Posey v. Lake Pend Oreille School District, plaintiff Posey lost his first amendment retaliation claim on summary judgment because the court concluded that Posey acted as a public servant purely as a matter of law. Taking the issue up on appeal, Posey contested whether his conduct occurred pursuant to his official duties, providing the 9^th Circuit with the opportunity to decide precisely what type of question Posey had presented to the district court, and whether the issue was proper for summary adjudication.Initially, the Court noted the elusive and vexing nature of the distinction between questions of law and fact, and chose to rely on guiding language from the U.S. Supreme Court: “Facts that can be ‘found’ by ‘application of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.’ ” Moreover, ‘An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question’ at issue . . . for ” ‘the rule of independent review’ will always require the court [to] independently . . . evaluate the ultimate constitutional significance of the facts found.”

The court went onto conclude that the issue of whether speech is made by a private citizen or public actor is a mixed one of fact and law, further concluding that the parties dispute over the scope of Posey’s precise duties presented a genuine issue of material fact sufficient to defeat the appellee’s motion. Aside from the obvious effect on 1^st Amendment pleading, the case also kindly reminds of the importance of isolating each issue in opposing motions for summary judgment. As done by Posey, making a factual issue out of the basis upon which the court will decide a question of law may very well carry a matter to the trier of fact, which is exactly where distressed and sympathetic plaintiffs’ cases truly belong.

1.  Posey v. Lake Pend Oreille School District, et al., 2008 DJDAR 15780.