An International Context for the Single Publication Rule
I’ll return to explain the concept in more detail, but here is an article that very nicely summarizes the competing international approaches to the American Single Publication Rule.
Another Blogger Bites the Dust
Another blogger learned this week that you are judged by what you say.
Tara Richerson is a teacher in Washington. She had been blogging since 2004 and many of her postings were about her job. According to court records, when she was demoted from her position as a coach at the school, she wrote the following missive:
“Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. … But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him. … And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community. … Mighty White Boy looks like he’s going to crash and burn.”
The 9th U.S. Circuit Court of Appeals concluded that Richerson’s blog contained “several highly personal and vituperative comments” that justified the Central Kitsap School District’s decision to transfer her from her job as a curriculum specialist and instructional coach to a classroom teaching position. The court found that Richerson’s speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers.
“Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog,” the court wrote in its Tuesday opinion. “Accordingly, the district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson’s First Amendment interests.”
The court ruled that Richerson’s blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it.
According to court records, Richerson was transferred out of her coaching job in July 2007 after school officials discovered her blog months earlier. Another of the blog entries that Richerson came under fire for was one entry in which she allegedly attacked a teacher and union negotiator, who complained to school officials about it. It read: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”
The lesson to learn is that you can and will be held accountable for the things you say. Even if your comments do not cross the line into defamation, they may still be considered inappropriate for other reasons. It is disingenuous for people like Richerson to cry foul and cite the First Amendment when they are held responsible for their own comments. The First Amendment does not state that you can say whatever you want with no fear of repercussion. If someone feels strongly enough about an alleged wrong to blog about it, then they should be willing to stand by those convictions.
The oral argument in front of the Ninth Circuit Court of Appeal is fascinating, and can be heard in its entirety here. I explain to clients that judges and justices tend to paint with a broad brush, and if you find yourself arguing technicalities and minutia, you are probably not going to prevail. Richerson’s attorney did an outstanding job, but he was forced to argue that the adverse job action was based on benign blog posts, not the post set forth above. That was a tough argument to sell.
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.
Indonesia Demonstrates the Other Side of Free Speech Spectrum
Indonesian Jail Cell
After being viciously defamed on the Internet, I think a number of my clients might think this case out of Indonesia is a pretty good solution, but in reality it stands as a stark example of what can happen when the Internet cesspool gets so bad that governments feel they must get involved (and of religious/governmental extremism).
A resident of Indonesia, Prita Mulyasari, was treated at a local hospital, but was not happy with her care. She vented about the treatment in emails to a few friends. Unfortunately, the friends thought their friends should also know about the hospital, so they posted the comments on their Facebook pages.
Not a good plan in a country like Indonesia. For daring to criticize the hospital — which criticism is apparently automatically presumed to be false and defamatory when it involves medical services provided by the government — Mulyasari, 32, was arrested and charged with criminal defamation and faces six years in jail. She sat in jail for three weeks before she was ever charged, and was fined $30,000 under a civil code even before she was charged under the criminal code.
[Update, August 16, 2009] Prita Mulyasari became a cause celeb in Indonesia, with both Presidential candidates offering their support. She was released under house arrest and the court then dropped the charges. But not so fast. With the elections over, a higher court ordered the trial court to reopen the case, stating the court had failed to offer any explanation for dropping two criminal charges.
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.
Illinois Case May Provide Crack in Communications Decency Act
Speedskater Shani Davis
I think there is little doubt that someday a court will permit a circumvention of the Communications Decency Act. As explained here numerous time, the CDA makes a website or website provider immune from liability for content posted by others. But there are constant skirmishes at the fringe. For example, if the website somehow “highlights” the posting or adds its own editorial comments, does it then become responsible for the content? What if a court orders the poster to remove the defamatory content, but the site refuses to cooperate in the process? Can’t the argument then be made that the website operator is then publishing the content since the original poster has disowned it? And while the CDA contemplates that the original poster will be responsible for the defamatory content, what if the person who posted the content dies and the victim is left with no remedy?
This last hypothetical is precisely the issue that is presented by a case currently pending in Illinois. The mother of US Olympic speedskater Shani Davis is suing Google for refusing to remove a blog posting that was made by a user who has since died. There is no doubt that under normal circumstances, Google would be protected from immunity under the CDA. But the blogger, Sean Healy, died of cancer a year after publishing the article in question.
The post by Healy was entitled, “Memo to Cherie Davis,” and claims that the speedskater’s mother made disparaging comments about the views of the US Speedskating Federation. Cherie Davis claims in her suit that she made no such comment. She further claims that because Healy cannot be made to answer in damages and/or remove the content, Google must step up and make things right with this now dormant blog, that just sits on Google’s server, continuing to defame plaintiff.
I’m hopeful that this will be the case that opens a tiny crack in the CDA. I applaud the CDA for protecting websites from liability. As I have explained here before, if website operators became liable for the content posted by others, none could risk having a public discussion board. But I always contended that the open marketplace of ideas can still exist even if we make website operators subject to cooperating with court orders. If a court finds that content is defamatory, there is no reason that a site should fight to maintain that content. The website will be protected by the necessity of a plaintiff having to go to court to have that determination made. Website operators contend even that is too onerous, since they will then have to remove the content, but this is belied by the fact that website hosts, including Google, already comply with demands made under the DMCA to remove copyrighted material.
I’ll keep you posted on the results of this case.
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
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 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.
