Communications Decency Act Shields Craigslist from Liability
I’ve explained here several times that the Communications Decency Act is a necessary evil because you could never have open forums for discussion on the Internet if the operators of the websites were required to read and approve every message posted. Perhaps the Amazons of the world would have the resources to hire a huge staff to monitor all postings, but any popular discussion site that started to attract thousands of visitors would likely be required to stop offering a public forum if it became responsible for the things posted by visitors.
Some attorneys still don’t understand this reality. Take the case of Richard M. Berman. Poor Richard was shot by someone using a handgun purchased from a for sale ad posted on Craigslist. He hired attorney Paul B. Dalnocky, who sued Craigslist for more than $10 million, claiming it was responsible for the handgun ending up in the bad guy’s hands. The civil complaint alleged Craigslist “is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the goods and services” sold on its site. When interviewed for an article on Law.com, attorney Dalnocky said, “We weren’t seeing Craigslist as a publisher — we were seeing it as a regular business that should have monitored its business better. I mean, how can you run a business with millions of ads and have only 25 employees monitoring it?”
No, Mr. Dalnocky, the question is, how would a service like Craigslist be possible if attorneys could sue for things posted in those millions of ads? The answer is it wouldn’t be possible. You allege “millions” of ads are posted on Craigslist. Let’s assume a person could review 1000 ads during a work day. That’s probably not realistic, because that means the person would need to review more than two ads per minute (assuming an eight-hour work day with two 15 minute breaks). Some ads go on for pages so I don’t think one could really review more than two ads per minute, but let’s go with 1000 just to keep the numbers simple. Thus, Craigslist would need to hire 1000 employees for every one million ads posted. It’s going to be very difficult for old Craig to maintain his business model that permits me to post free ads for my 8-track tapes if he is required to hire thousands of employees.
And, Mr. Dalnocky, what would those thousands of employees be looking for, exactly? Guns can be legally sold, and I did not see anything in the court’s decision about any alleged illegality of the gun sale in question. Rather, your complaint alleged that Craigslist was liable because it breached its “duty of care to ensure that inherently hazardous objects, such as handguns, did not come into the hands of . . . individuals, such as Mr. Ortiz.” (Ortiz was alleged to have shot Richard Berman.) What, in that ad, would have put the reviewer on notice that this gun sale was going to end badly?
The attorney representing Craigslist is no doubt a subscriber to the Internet Defamation Blog, and therefore knew that the Communications Decency Act (CDA) is not limited only to claims for defamation. Craigslist moved for dismissal under §230, which states that no “provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that no “cause of action may be brought and liability imposed under any State law that is inconsistent with this section.”
The court properly dismissed the case under the CDA because, let’s say it all together, a website operator cannot be held liable for comments (or ads) posted by third parties, and is not liable for failing to somehow monitor those comments (or ads). One of the earliest cases involving the CDA was an action against Ebay. Someone sued, claiming that Ebay should be held liable for the counterfeit items that were being posted and sold, trying to impose on it an obligation to review and investigate every ad. Ebay prevailed in that action, and Craigslist properly prevailed in this one.
The full court decision can be found 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.
Trial Judges Still Struggling With Application of Anti-SLAPP
A recent decision by the California Court of Appeal, which reverses a trial court’s decision to dismiss the underlying defamation case, beautifully illustrates how trial courts still do not understand the anti-SLAPP statute. It’s unfortunate the plaintiff had to go through an appeal in order to educate this particular judge. The following summary of facts and quotes are taken from the Court of Appeal’s opinion. I apologize for the long post and multiple citations, but I want to have a place where people can be directed for the proper anti-SLAPP considerations and standards.
The action appears to have roots going back to 2003, when there was an altercation between Rabbi Chaim Seidler-Feller, Director of Hillel at UCLA, and Rachel Neuwirth, a journalist working in the Los Angeles area. Neuwirth alleged that Seidler-Feller had attacked her without provocation in October 2003. Shortly after this attack, she alleges in her complaint, “disciples of Seidler-Feller maintained in public print that [she] had provoked the attack by making inc[e]ndiary statements” to him. Neuwirth denied these allegations. As a result of her injuries, she said, she sought legal redress and reached an “amicable settlement” with Seidler-Feller and Hillel accompanied by a letter of apology from Seidler-Feller, “published in various tribunals,” in which he “acknowledged that the attack upon [Neuwirth] was unprovoked, that he took full responsibility for said attack and apologized for his actions.” Continue reading
Twitter comments basis for a Internet defamation lawsuit
Courtney Love
Twitter comments (along with others) have now become the basis for a Internet defamation lawsuit.
Courtney Love, always a class act, has been posting “tweets” about fashion designer Dawn Simorangkir, also known as Boudoir Queen. Simorangkir claims that Love failed to pay money that was owed to her. Love claims otherwise, and refered to Simorangkir as a “nasty lying hosebag thief”, as well as accusing her of being a drug addict and a prostitute, according to the Associated Press.
Assuming the comments were false, the statements are clearly defamatory, but the case will still present some interesting issues if it ever makes it to trial. Defamation is always about reputation, and defamatory remarks do not always translate to loss of reputation. Given the context of the statements and the person making them, will anyone believe that Simorangkir is guilty of the acts claimed by Love?
[Update] In March 2011, Love settled the Internet defamation lawsuit by paying Dawn Simorangkir a reported $430,000. So did Love learn anything from this experience? Apparently not.
Now she is being sued by her former attorney, Rhonda Holmes. Ms. Holmes is piqued that Love allegedly tweeted:
“I was fucking devastated when Rhonda J Holmes Esq of San Diego was bought off.”
Love is also alleged to have stated that she had been “hiring and firing lawyers” and claimed that Holmes had “disappeared” and stopped taking her calls after “they got to her.”
No reasonable person could interpret these statements as meaning anything other than Love was accusing Holmes of taking a bribe, but Love’s current attorney argued the point anyway. In a demurrer to the complaint he claimed that “there is no limit to one’s imagination regarding the possible meaning of a phrase like “they got to her.”
Right.
The Los Angeles Superior Court judge hearing the matter didn’t buy it either, and overruled the demurrer.
Nursing Student Dismissed Over Blog Posts
Happier Days at the Nursing School
Another reminder that you will be judged by what you write.
A student dismissed from the University of Louisville’s nursing school because of her Internet postings has sued the university, alleging that it violated her First Amendment rights.
The nursing school expelled Nina Yoder on March 2, saying her MySpace postings “regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold,” according to a copy of her dismissal letter, which was attached to the suit.
In her blog postings, copies of which she attached to her own complaint, Yoder makes caustic comments about Christians and blacks. I attempted to go to the website to make my own determination about the appropriateness of her comments, but she appears to have taken down her MySpace page.
According to an article posted at courier-journal.com, the nursing school is upset because some of Yoder’s postings are about specific patients (although they are not mentioned by name). In one of her postings, she wrote about a birth she witnessed: “Out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell … screeching and waving its tentacles in the air.” I’m not sure a patient would want the miracle of her child’s birth described in that way by someone who should, like any medical professional, respect her privacy, but I can also see that as a failed attempt to humorously describe what she had seen.
But there was far more. The school officials were probably equally unimpressed when Yoder wrote about how the nursing school is in downtown Louisville, adjoining an area “inhabited by humanoids who have an IQ of 10 and whose needs and actions are basically instinctive. As in, all they do is ––––, eat, –––– and kill each other.” She did, however, graciously concede, “OK, maybe I am generalizing yet again.”
As discussed in my prior blog posting, Yoder and her supporters are using the “there’s so much trash on the Internet you can’t hold my trash against me” defense. As Yoder wrote in her letter requesting reinstatement to the nursing program, “If profanity was grounds for dismissal for the School of Nursing, the nursing school would go bankrupt.”
The court has not yet set a hearing date on Yoder’s request that the nursing school be ordered to reinstate her. We’ll know then if the trash defense worked.
[UPDATE] Thanks to Web Savy Med Student for providing me with an update on this case. I was unable to find the court’s ruling, but according to Web Savy and other sources, Yoder took the case to court and was reinstated to the nursing school. The court dodged any free speech issues, and instead decided the matter strictly on the honor code. Although her comments were “objectively distasteful”, according to the court those comments did not deal with her profession and did not violate any confidentiality since the patient could not be identified.
Undefended Case Results in Huge Jury Verdict
It’s amazing what you can do when the defendant doesn’t show up at trial.
A South Florida jury has awarded a record $11.3 million in damages to a woman who was defamed by another woman on the Internet.
Sue Scheff of Weston, Fla., sued Carey Bock of Mandeville, La., in December 2003 over the messages posted calling her a crook, a con artist and a fraud, USA Today reported Wednesday. The dispute was centered on a referral business Scheff runs that helps parents of troubled children find appropriate schools, the newspaper said. After their transaction involving Bock’s two sons, Bock began posting the messages, the jury was told.
Bock was unable to pay an attorney and did not attend the Broward County, Fla., trial or enter a defense, and Scheff said she doubted she’d see any money at all.
Lawyers Still Ignorant of Communications Decency Act
There are still many attorneys making money representing clients on Internet defamation cases that can’t be won. They are either ignorant of the law, or ignoring it. My firm has been schooling others on the Communications Decency Act for years. See, for example, Winning the Fight for Freedom of Expression on the Internet and A Victory Against Spam. But there are still a number of firms that still need an education. A case just came down in New York, where someone tried to sue a web host for the comments posted on his website.
Let’s all say it together. If a website is created that allows visitors to post their comments, under the Communications Decency Act the host of that website cannot be held liable for any defamatory remarks that others post. The law is very black and white in this area. The myth still continues that if the defamed party makes the website operator aware of the defamatory material, he somehow becomes liable for failing to take it down. That is simply not true.
There is a lot of abuse on the Internet, and ideally a web host should respond to requests to remove defamatory posts, but if that were made the law then the ability to host a community forum would disappear in almost all instances.
Consider a helpful, innocent person who decides to start a restaurant forum, discussing the local businesses. Someone goes on and leaves a post that a local sushi restaurant is using old fish. The sushi restaurant contacts the host, and insists that the post be taken down, claiming they use nothing but fresh fish. How would our hypothetical web host go about investigating such a claim? Is he required to go to the restaurant and inspect the receipts to determine the freshness of the fish? Must he insist that the poster provide proof of the old fish?
Most likely, if faced with civil liability, the host would simply take down the post. And when reviewing all the protests became too time consuming, the forum would disappear. The day Congress passes a law requiring website operators to verify all the claims made by visitors to their sites is the day that most free speech ends on the Internet. Many would prefer that, but in my opinion the open approach is the better approach.
How to Stop Defamation When You Can’t Afford an Attorney
Is there a way to stop Internet defamation when you have limited funds to hire an attorney?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation?
The Small Claims Court Approach
In Superior Court, the judge can craft an equitable remedy along with awarding any damages. In other words, if you sue someone for Internet defamation, the judge can not only award money damages, he or she can order that the defendant remove all defamatory postings from the Internet. Small Claims Court, on the other hand, can only award money damages – the judge is not permitted to fashion any sort of equitable relief.
For this reason, most attorneys never think to recommend Small Claims Court for a defamation action since the court has no power to remove the offending posts. However, for a personal grudge match on the Internet, Small Claims Court can be very effective. In California, you can recover up to $10,000 in Small Claims Court – certainly enough to sting a defendant and make him think about the “value” he is receiving in return for his false statements. And while I’ve never tested the point (attorneys are not allowed in Small Claims Court), an argument could be made that an Internet defamation is an ongoing harm. Thus, after successfully suing, if the remark still remains, you could theoretically bring another action (subject to the One Publication Rule). And certainly every new defamatory post would support a new action.
Most of the time, after you obtain a judgment, unless the defendant has a mental disorder, he or she will be very willing to remove the offending material to avoid paying the damages if that option is offered. And therein lies the strength of suing in Small Claims Court when you can’t afford to sue in a higher court. Even though the court can’t order the defendant to act in a certain way, the judgment you obtain will put you in a strong bargaining position.
Don’t underestimate the power of a court judgment, even one that comes from Small Claims Court. A defendant may have no ability to pay today, but a judgment is good for ten years, and can be renewed for another ten, all the while earning interest, and all the while damaging the defendant’s credit. And defamation is an intentional tort, meaning it can’t be discharged in bankruptcy.
Finally, even if you never collect a dime, a judgment from any court can go a long way to clearing your name.
“Joe, I heard that Bill was saying you cheated him on a business deal. Is that true?”
“Bill was saying that, and I took him to court for defamation and won. The judge ruled that everything Bill was saying was a lie. I didn’t want to have to sue him, but I’m not going to let someone get away with calling me a crook.”
A famous example of this approach involved Teddy Roosevelt. During the Presidential campaign, he was accused of frequently being intoxicated. He sued and won, and all the papers reported how he had proven that he was not a drinking man. The amount he sued for and won? Six cents.
Many years ago I worked as a volunteer Small Claims Judge in Arizona, and it was sad to see cases where I knew the person was probably entitled to the damages they were seeking, but they were not able to present sufficient evidence to prove the case because they came unprepared. You are going to be suing for as much as $10,000, so take the time to do it right. An excellent guide to prepare for Small Claims Court is Everybody’s Guide to Small Claims Court in California
What are the Elements of Defamation?
We can answer all your questions about defamation, but sometimes if you have a general understanding of the law, you can ask better questions about the facts of your case. Some attorneys think a defamation action is like a personal injury case, but the proof necessary for a defamation action is very different. As a nation, we put such a value on free speech that the burden is high to prove defamation.
Defamation is the inclusive term, including both slander and libel. In other words libel and slander are both defamation, but libel is printed and slander is spoken. Defamation occurs when someone makes a false, unprivileged statement about someone to a third party, which attacks the person’s professional character or standing, claims that an unmarried person is unchaste, claims the person has a sexually transmitted disease, or that the person has committed a crime of moral turpitude. Stated another way, to constitute defamation the statement must falsely accuse the plaintiff of immoral, illegal or unethical conduct. Generally, the statement must harm the reputation of the person, but in the case of per se defamation, damages will be presumed. This last point is very important, because if a plaintiff had to prove actual damage, the burden of proof in most cases would be nearly impossible.
Let’s examine each element more closely:
1. False Statement of Fact
Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, it a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion. Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.
On the other hand, some believe that they can escape liability by casting a fact as an opinion. A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion. Adding the word “opinion” to a defamatory statement does not automatically shield the speaker from liability. The determining factor is whether the “opinion” is about a verifiable fact. For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, “in my opinion the food was horrible and the restaurant has rats,” the statement about rats is defamation (assuming it is false) because it is a verifiable fact. Similarly, “In my opinion, he cheats on his taxes” is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.
2. Unprivileged
There are many statutes that afford a “privilege” to someone to speak, and in those cases the person is shielded from defamation. (See Civil Code section 47.)
For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window. Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out. You’ve just made a false statement to a third party, claiming that your neighbor was breaking the law. Can you be sued for defamation?
No, because there is a statutory privilege afforded to anyone making a good-faith report to the police. There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action. We often get calls from people wanting to sue a witness because “he lied on the stand” or submitted a false declaration. But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege (although a witness who testifies falsely can be criminally prosecuted for perjury). Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report. They want to sue the evaluator for the “lies” contained in the report. Such actions are barred in almost every case because of the litigation privilege. The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong.
One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were. An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance. Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.
3. Statement made to a third party
No statement, no matter how false and vile, can constitute defamation if it is made only to the person that is the basis of the statement. Defamation arises from a loss of reputation. How can you lose reputation if the statement is made only to you. And if you repeat the slander or show someone the libelous statement, the speaker or publisher remains free from liability, because you are the one that “published” the statement.
4. Immoral, illegal or unethical conduct
A statement is not defamatory just because it is false, even if it arguably casts the person in a bad light. Your application to join the local bowling league is rejected, and you later find out that one of the people on the board stated you were a really bad bowler. In fact, you are an outstanding bowler. Nonetheless, it is not defamation since being a bad bowler is neither immoral, unethical or illegal.
5. Harm to reputation
Finally, even if all the elements for defamation are met, the facts can sometimes present a difficult case to prove. For example, assume that while at a party, a stranger approaches your spouse and falsely tells him or her that you are having an affair. If your spouse laughs it off, then how has there been a loss of reputation? The statement is defamatory, because it falsely accuses you of immoral conduct, but how were you damaged? If, on the other hand, your spouse storms from the party, drives home and puts all your belongings in the front yard, then what was your reputation to begin with? If your spouse was willing to believe such a statement from a stranger with no further investigation or collaboration, then he or she did not hold you in very high regard in the first place. You apparently did not lose any reputation, because it was not there to start. This is just one example of the nuances that arise in a defamation action.
What can I do?
Most attorneys think in terms of suing, and will want to run to court. At Morris & Stone, we carefully examine your goals to determine the best plan for your specific situation. We are ready and able to go to court if that is the best approach, but sometimes other approaches better fit your goal. For example, in one case our client was defamed by a newspaper. He walked around with a cloud over his head, knowing that many people had read and believed the horrible, false accusations printed about him in the paper. Even if the paper printed a retraction, it would be a little paragraph buried on page 12 that no one would read. Similarly, money damages would do nothing to restore his good reputation.
The solution? We prepared and served a complaint to apply pressure, and then negotiated a settlement that was beyond anything our client could have hoped for. In addition to paying our client damages, the paper agreed to provide four pages for our client’s use. He was free to use one page at a time over several weeks, or use all four pages at once, to publish a retraction of the things that were said about him. In other words, he was given a blank canvas to use however he wanted to clear his good name.
That was the perfect remedy for that client, and we will work to find the prefect solution for you.
Your reputation is priceless
Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged. Silence is perceived as acceptance. If you did nothing about what was being said about you, it must be true. The goal in a defamation action can be to recover damages, but often that is not the primary goal. The priceless value of a defamation action is to gain back your reputation. When someone says to you, “but didn’t I hear or read somewhere that you [fill in the blank]?”, you can answer, “yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages.”
Subpoenas not subject to anti-SLAPP in Internet Defamation Case
Plaintiff obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Defendants, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 425.16 motion to strike (anti-SLAPP motion). The threat of having to pay defendants’ attorney fees was sufficient for him to withdraw his request for subpoenas. Nonetheless, the Does proceeded on their section 425.16 motion to strike.
The trial court granted the Does’ anti-SLAPP motion to strike, and awarded them their attorney fees. The trial court concluded that a request for subpoenas was sufficient to trigger the anti-SLAPP procedure. The Court of Appeal disagreed, and concluded that a request for subpoenas does not fall within section 425.16, and therefore the trial court erred in granting the motion and in awarding attorney’s fees.
This was another example of a trial court misusing the anti-SLAPP procedure to try to clear its trial docket. In a standard action, where defendant tries to strike the complaint by way of an anti-SLAPP motion, the trial court must afford reasonable discovery so that plaintiff can try to find sufficient evidence to create a prima facie case. If a plaintiff could be subjected to an anti-SLAPP motion from the mere request for discovery, that would greatly reduce his ability to defend his reputation.
Tendler v. jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802
