More Judges Catching Up to the Times
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.
No, I Wasn’t Kidding About the Wisdom of Walking Away
Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action. I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.
You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later. My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage. The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.
Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away. There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim. My client declined.
With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days. Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client. In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.” He suggested the parties and attorneys talk settlement again. My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding. Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy. Ouch.
If you got the tie-in between the photo above and the article, give yourself a prize. It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline. I think I may start dressing like that for settlement conferences.
Consider the Wisdom of Walking Away
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory today in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie I just saw.
The movie was Taken, which I thought was very good. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnaped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000.
Pick your battles. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in today’s case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”
Tony La Russa Drops Action Against Twitter
Even when a lawsuit is weak on merit it sometimes achieves its purpose. I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.
Take the case of Tony La Russa, famous baseball manager. Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal. La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.
La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit. But, obviously, this is not a typical CDA situation. Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material. But there are some interesting side issues. For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books. In that case, the Digital Millennium Copyright Act would trump the CDA. Like a copyright, people have a pecuniary interest in there own identities. Should Twitter be permitted to assist in those that would steal that identity?
The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account. Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?
For more on this story, go here.
Wikipedia Edits Result in Internet Defamation Action
Catherine Crier
Catherine Crier is a former Dallas District Court judge who left the bench to launch a career as a television journalist. Crier has worked as a correspondent for Court TV and the Fox News Channel. This week she found herself on the other side of the bench, as the plaintiff in an Internet defamation action.
Crier is upset by changes that were made to her Wikipedia page. Specifically, some moron defamer decided it would be clever to insert information about a disbarred Texas attorney named Catherine Shelton. The defamer simply took a published article about Shelton, changed “Shelton” to “Crier” wherever it appeared, and inserted the revised article into Crier’s listing on Wikipedia. Wikipedia affords anyone the opportunity to edit articles, and the open marketplace is supposed to result in a fairly accurate encyclopedia entry. However, if the person is dedicated to inserting the false information, it becomes an editing war. No doubt Crier decided to eschew that game, and went straight to the lawsuit.
Crier has already determined the IP address of the defamer, and will now ask 162nd District Judge Lorraine A. Raggio to issue a subpoena to AT&T (the Internet service provider) ordering it to identity of the owner of the specified Internet protocol address.
Procedurally this is a pretty standard case, although the Wikipedia aspect is a little different, since that site is unique in permitting the victim of defamation to make his or her own changes to the defamer’s comments. But I put this case here as another example of the sort of nonsensical information that finds its way onto the Internet. We fight for a free marketplace of ideas, but who would argue that this sort of behavior should enjoy any protection? What possible motivation could the defamer have had for posting this falsified article, other than to spread malicious misinformation?
Crier’s petition can be found here.
South Korea Passes Cyber Defamation Law
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.
“Lying” Comment Was Not a Verifiable Fact Given Context
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.
Goldman Sachs Tries to Silence Spite Site
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.
Tables Turned on Plaintiffs in Internet Defamation Case
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.
Anonymous Speech is an Protected Freedom – To a Point
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.
