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 eludes 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.
Judicial Attitudes Often Do Not Match Reality
I originally reported this as a Canadian case, but one of the parties to the action called to inform me this was a U.S. case. Turns out there is on Ottawa, Illinois. Who knew? In relating the story I wasn’t particularly concerned about the location because I was using the case to illustrate a judicial attitude rather than a point of law.
The action involves a dispute over a bed and breakfast. The plaintiffs were seeking approval of the B and B from a planning commission. Some in the community apparently did not want the approval to go through, and posted comments about the plaintiffs on the Internet. Plaintiffs considered what was said to be defamatory, and sued.
The judge found in favor of poster “birdie1” after determining that the comments were no more than opinions and therefore were not defamatory as a matter of law.
But it was the judge’s comments about the case against “FabFive from Ottawa” that caught my eye. The plaintiffs were seeking to force the website to disclose the identity of that poster. In denying that request and ultimately dismissing the action, the judge concluded that “no reasonable person would give credence to comments posted anonymously at a web site.”
Virtually ALL comments are posted anonymously on the Internet, but in this judge’s estimation, no one takes them seriously. I can just picture this judge — probably a Luddite who refuses to use a computer — reading the complaint and saying to himself, “FabFive from Ottawa? What’s a FabFive? No one is going to listen to someone calling himself FabFive.”
Lesson to learn: No case is ever a “slam-dunk” (as so many potential clients like to tell me) because there are always humans in the equation. When you read the law, keep in mind that there may be “elements” that you will need to prove that are not specified in any statute or case law but which arise from the attitudes of the judge or jury.
