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.
Yes I’m Calling You a Spammer. What are You Going to Do About It?
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 aware 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.
Facts versus Law on Summary Judgment Motions
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 and law.
In a persuasive holding the 9th 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 9th 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 1st 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.
Biegel v. Norberg — Chilling On-Line Reviews?
Yelp is based in San Francisco and is viewed there as a favored son for some reason. When someone dares to challenge Yelp or its postings, many of our Northern California neighbors get exercised. I received several calls from media outlets over the past couple of days, seeking comment on the case of Steven Biegel v. Christopher Norberg, an Internet defamation case involving Yelp.com.
The simple facts are these. Norberg was treated by Biegel, a Chiropractor. Norberg was told the treatment would cost a certain amount if he was paying for it out of his own pocket, but his insurance company was allegedly billed at a much higher rate. This apparently bothered Norberg, so he posted a review on Yelp.com, giving Biegel just one star and questioning the honesty of his billing practices. When Biegel complained about the review, Norberg replaced it with a new entry, accusing Biegel of attempting to harass him into silence. Biegel then responded by suing Norberg for defamation. The trial is set for March 2009.
Note that Yelp is not being sued, only the person that actually posted the allegedly defamatory statements. Nonetheless, many are bothered by such a lawsuit, concerned that it will have a chilling effect on the willingness of people to post their views on sites such as Yelp.com and Citysearch.com. Some have suggested to me that just as the website is immune from liability for anything said by visitors, that immunity should be extended to the visitors as well.
I fought at the forefront of cases involving the Communications Decency Act, which shields website operators from liability for the comments of others, because that make infinite sense. We would not have open forums and dialog on the Internet if the website operators had to fact check every comment posted.
But on the issue of whether those who post the comments should be protected, I find myself cast as the curmudgeon, seeking to stifle freedom of speech. Here is how the San Francisco Chronicle quoted me:
“Sites that are seemingly well intended are turning into wastelands of defamatory and unspecified allegations,” said Aaron Morris, a partner with Morris & Stone LLP in Orange County who is not involved in the case. “There needs to be some sort of blowback against unfettered speech. People should be able to go on and say, ‘That’s not a true statement about me, and I need to be able to attack this.’ “
If everyone played nice, review sites would not be a problem. But they don’t. Suits against those who post defamatory statements won’t chill free speech, but they will chill defamatory speech, and that’s a good thing. You see, those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap. Honest reviews don’t stand a chance against the bogus ones.
So what about the Norbergs of the world, who just want to post their comments without fear of legal action? Yes, the target of the criticism can file an action, but he will pay a heavy price if the posting was not defamatory. The poster can first respond with a simple anti-SLAPP motion, which stops everything including discovery and allows the court to determine whether the speech was protected and whether the plaintiff has a chance of prevailing. If the motion is granted, the plaintiff pays all of the poster’s attorney fees. He’ll then come to me, and we’ll file a SLAPP BACK action, suing the prior plaintiff for malicious prosecution, winning the poster millions of dollars and me a beach house (individual results may vary). Now who is chilled?
Dude, who’s my plaintiff? — Courts allow anonymous plaintiffs
On August 12, 2008, the Second District U.S. Court of Appeals reaffirmed the national and local trend toward recognizing a litigant’s right to proceed anonymously through the courts. In order to sue under a pseudonym, plaintiff’s generally must show that the need for confidentiality outweighs the public’s right to know and any prejudice suffered by defendant due to the secretive pleading. While not necessarily a light burden for plaintiffs, the real strain of the increasingly minted right is on defendants.
Depending on the context of the suit, major public backlashes could be directed at defendants helpless to stop the tide. For instance, defendants sued civilly (publicly) for sexual abuse stand to lose much in the way of reputation, and eventually income, no doubt due in large part to the public’s natural inclination to distance themselves from what might be a perpetrator. While public scrutiny of the would be victim once would serve as a blow-off valve to some extent, now defendants are not only left to deal with an unrelenting public reaction, but will dually reap heightened scrutiny for the same allegations as plaintiffs who have convinced the court of the need for confidentiality will have generally shown that they would face unwarranted injury should their identities be disclosed. In other words, defendants will have no way to call public attention to a plaintiff’s credibility, and the public will be informed, or may very well assume, that defendants or their associates had posed a threat to the plaintiff prior to or during the litigation.
Defendants’ aggressive depiction of all factors assessed by courts of their jurisdiction in deciding whether or not to permit plaintiffs to act incognito is the only recourse afforded to diminish the risk of anonymous lawsuits. Particularly, considering the public has a well established right to know who is using the court system, focusing on the lack of need to preserve a plaintiff’s identity and the severe damage that could be inflicted on a defendant’s personal and/or professional reputations as a result of the anonymous lawsuit would be key. Also, seeking an anonymous designation as a defendant may also assist in preventing unfair prejudice. Ultimately, regardless of a defendant’s choice of tactics the courts have once again increased the need to vigorously litigate cases at the earliest of stages, which requires a heightened state of readiness, and can make litigation all the more daunting.
1. Sealed Plaintiff v. Sealed Defendants, Docket No. 06-1590-cv (Dist. 2d, 2008).
2. Id. at 7-8.
Undefended Defamation 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.
A Showing of Ill-Will Sufficient to Establish Defamation
California Civil Code Section 47 affords certain privileges that protect a person from liability, even if he speaks or writes something that would otherwise be defamatory. Civil Code section 47, subdivision (c), provides that a communication is privileged if it is made “without malice, to a person interested therein, (1) by one who is also interested….” Trial courts, anxious to clear their dockets, sometimes read far too much into this simple statute, and find a privilege in cases the statute was never intended to cover.
In Mamou v. Trendwest Resorts, Inc., an employee brought action against his employer, alleging national origin discrimination, retaliation, and defamation. The Superior Court, Santa Clara County, granted Trendwest’s motion for summary adjudication, and employee appealed.
The defamation claim was based on Mamou’s assertion that Trendwest had told other employees that he was starting his own competing business, and had used Trendwest information for that purpose. This would be both illegal and unethical, and therefore qualifies as defamation. However, the trial court found that the communications were covered by Section 47, and on that basis granted Trendwest’s motion for summary judgment, thereby dismissing Mamou’s case.
Application of the Section 47 privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present-whether, in traditional terms, the “occasion” was “privileged.” (Taus v. Loftus.) At trial the defendant bears the burden of proof on this question. If he succeeds, the burden shifts to the plaintiff to show that the statement was made with malice.
For purposes of a statutory qualified privilege, “[t]he malice referred to … is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person. The factual issue is whether the publication was so motivated. ‘Thus the privilege is lost if the publication is motivated by hatred or ill will toward plaintiff, or by any cause other than the desire to protect the interest for the protection of which the privilege is given’.” (Agarwal v. Johnson.)
The Court of Appeal found that a jury could easily find that the statements by Trendwest personnel were motivated by ill will towards plaintiff. Mamou alleged that one was hostile toward him as a member of the “Syrian regime” some members of Trendwest management had, inferentially, undertaken to purge. A jury would be entitled to find that these feelings would naturally engender spite and ill will toward Mamou, and that this was what motivated Trendwest personnel to make the statements Mamou claimed were defamatory.
This was just one example, but the Court of Appeal concluded that it was enough for Mamou to show evidence of a single triable issue of fact. Since he obviously did, the trial court erred by granting summary judgment on the defamation cause of action.
The analysis is somewhat circular, and sometimes escapes trial courts. Inter-office communications about an employee may well be privileged under Section 47. Say, for example, an employer believes that an employee stole from the company, and fires the employee on that basis. Thereafter, when asked why the employee was fired, the employer tells other employees that he had stolen from he company. If the employee sues for defamation, and can prove that he never stole from the company, would he prevail? Probably not, because in this hypothetical the employer genuinely believed that the employee was guilty. With no showing of malice, the Section 47 privilege applies.
But where the situation gets more complicated is when the employee is claiming that the defamation itself is the evidence of the ill-will constituting malice. If in our hypothetical there was no basis for the employer to believe that plaintiff was responsible for the theft, then telling that story may be sufficient showing of malice. This is a distinction that is sometimes difficult to get through to the trial court.
Decisions Mixed on Whether On-Line Reviews are Matters of Public Concern
“I wish I’d never posted that online review!”
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 succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.
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. Claims stemming from these acts are subject to a special motion to strike unless the trial court determines that the plaintiff has demonstrated a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).)
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.” ( Id., subd. (e).)
But note that the section requires a “public issue.” Many parties and judges forget this element, as illustrated by the recent, unreported decision, European Spa, Inc. v. Kerber, decided by the First District Court of Appeal on August 28, 2008.
In European Spa, a Yahoo.com user posted a review of the Spa, which stated:
“My first impression was its tacky décor. Then I encountered an extremely rude European gentlemen, I believe this is the owner. From what I could see, the employees are miserable and tired. When I went into the steam room I saw mildew and brown spots on the walls…. I could not even sit in there. I went for my massage, and that was ok. But the room had a strange smell and the blankets were dingy. It was also very cold. I guess the owner does not put on the heat. There is just too much to go on about. I will never go there again, and I will make sure I will tell as many people as I can about the horrible experience that I had.”
Another review, posted on Yelp.com, stated:
“One star is even too much for this place. First of all, when I walked in there it looked like selling a whole bunch of useless things you’ll wind up selling at a garage sale. The service was horrible. I had this creepy old European man helping me and he was just outright rude. The guy was acting as if he was doing me a favor by letting me come to his spa…. And what was with the 18 percent service charge? ? ? It’s questionable that the therapists or the providers ever receive it. My massage was ok and that was the only highlight of this…. And their sauna and steam room … was really disgusting. Their lounge are was just full of tacky decorations as what I’ve heard they’ve been around for a long time, and I really don’t understand why…. I would never come back and much would rather go to the spa at my gym.”
The owners of the spa were convinced that these posts came from a former employee that had started her own competing spa, not from customers. (As it turned out they were right, but they suspected the wrong employee.) They sued the former employee, who brought an anti-SLAPP motion, claiming that whether or not she was the person who had made the posts, they were protected free speech.
Resolving the merits of an anti-SLAPP motion requires a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if so, proceeding next to whether the plaintiff can establish a probability of prevailing on the merits. (Overstock.Com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)
Several years ago the court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero) made inroads into articulating the boundaries of what constitutes a “public issue” or issue of “public interest” as those terms are used in section 425.16, subdivision (e). Surveying the pertinent case law, the Rivero court identified three categories of statements that fit the bill: (1) the subject of the statement concerned a person or entity in the public eye; (2) the statement or activity involved conduct that could directly affect large numbers of people beyond the direct participants; or (3) the statement or activity concerned a topic of widespread public interest.
The court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 also addressed the issue, delineating some attributes of an issue which would render it one of public, rather than merely private, interest: “First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relative small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy….’ Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of persons.”
In European Spa, the court concluded defendant was wrong in concluding that reviews posted on the Internet are subject to an anti-SLAPP motion, because they did not meet the “public interest” element. The reviews did not connect with or encourage any larger discussion or public debate of general societal or consumer issues related to the spa industry. For example in Gilbert v. Sykes (2007) 147 Cal.App.4th 13, a patient/consumer created a Web site that related the consumer’s experiences with plastic surgery performed by a prominent, widely known plastic surgeon, as well as information and advice for those considering plastic surgery. As the reviewing court explained, these statements concerned a matter of public interest within the meaning of section 425.16. The assertions that a high profile surgeon produced nightmare results that prompted extensive revision surgery contributed toward public discussion about the risks and benefits of plastic surgery in general. Equally important, the Web site was not limited to attacking the plastic surgeon, but contained advice, information and other features, including tips on choosing a plastic surgeon, that contributed to the general debate over the pros and cons of undertaking cosmetic surgery. (Gilbert v. Sykes, supra, at pp. 23-24.) The (fraudulent) spa reviews did not rise to that level, and the trial court denied the anti-SLAPP motion on that basis.
The same week, the Second District Court of Appeal came to a different conclusion in the unpublished decision of Kim v. IAC/InterActive Corp. There, a review about a dentist was posted on Citysearch, which read:
“Don’t go there-worse dentist in Glendale.”
I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. “Because you’re an HMO patient, we cannot schedule you at convenient times.” He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!”
The dentist filed a complaint and subpoenaed the records from Citysearch, and then filed an action against the poster, Citysearch.com and other defendants. The defendants filed an anti-SLAPP motion, which the trial court granted based entirely on the fact that the dentist was unlikely to prevail in his action.
The result was correct, but the reasoning was flawed. The statement did not cross the line into defamation or trade libel, and the action against Citysearch.com would never have survived under the Communications Decency Act, which shields Websites from liability for information posted by others. But the court never considered whether the post was a matter of public interest.
Print-on-Demand Publishers not Liable for Defamation, Maine Court Holds
When is a publisher not a publisher? When it is a copy machine. Confused? Consider the following case.
In Sandler v. Calcagni, a defamation action was filed in the federal district court in Maine over a book that was printed and distributed by BookSurge, a print-on-demand service owned by Amazon.com. In case you are not yet familiar with these services, they are “publishers” that permit anyone to upload a tome and have it made into a book. The author can buy copies of his own book to sell or distribute, and in the case of BookSurge and others, the book will be added to Amazon’s catalog of available books. If someone comes across the author’s book, it can be ordered, printed and shipped.
In the Sandler case, a dispute arose among some high school students and one of the parents came up with the creative idea of publishing a book in order to tell her side of the story. The target of her vitriol responded by suing her for defamation, along with BookSurge as the publisher of the book. With traditional books, the publisher can be held liable for defamatory content, because it is presumed that the publisher reviewed and edited the book and therefore had the opportunity to make certain the author could back up the claims. But can that model be applied to a print-on-demand service that never sees the material?
In Sandler, the court said no. The court correctly concluded that print-on-demand publishers are really no different than electronic copy machines. The author uploads the text to BookSurge’s servers, and whenever someone wants a copy they can cause the book to be printed. Since the “publisher” has nothing to do with the content of the book, the court found that it could not be held responsible for the defamatory content
This is just one case, and it is not controlling on other states, but I predict every state will reach the same conclusion. If the publisher is merely acting as a copy machine, it makes no more sense to hold it liable than you would hold Microsoft or Adobe liable for providing the publishing tools.
