Aaron Morris
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.
Tables Turned on Plaintiffs in Internet Defamation Case
The following Internet defamation case is illustrative of some points I have raised here and elsewhere.
You may have heard of the Internet defamation case involving a website called AutoAdmit. Two Yale students sued a number of defendants, claiming they were defamed on the site’s message board. One of the named defendants was Anthony Ciolli. He was involved with AutoAdmit, but claimed he had nothing to do with the message board where the defamatory messages were published. The plaintiffs apparently came to agree with this contention, and voluntarily dismissed Ciolli in 2007.
Now Ciolli has turned the tables on the plaintiffs. According to an ABA Journal article, Ciolli is suing them along with their lawyers. Ciolli alleges that the negative publicity generated by the suit caused the law firm of Edwards, Angell, Palmer & Dodge to withdraw an employment offer. He is suing for wrongful initiation of civil proceedings, abuse of process, libel, slander, false-light invasion of privacy, tortious interference with contract and unauthorized use of name or likeness, according to the story.
- Anthony Ciolli
As I’ve said before, amateur attorneys will name too many defendants, thinking the more the merrier and hoping that even if someone is improperly named, some small settlement can be extracted from them in exchange for a dismissal. You see this all the time in construction defect cases, where they name every subcontractor on a job, even though it is abundantly clear that some of the subs could not have possible contributed to the problems. With the permission of my construction clients, I long ago instituted a zero-tolerance policy whereby we refused to pay any groundless settlement, no matter how small. The risk is that you could end up going to trial when you could have escaped for, say, $5,000. However, to date, that has never happened.
The problem with naming too many defendants is illustrated by this case, where one of the named defendants did not go quietly into the night even though he was voluntarily dismissed. The better method is to file against the key defendants and conduct discovery to determine if any other defendants can properly be named. So, Ciolli may have a righteous claim that he should never have been named in the action.
But with that said, it appears that Ciolli and his counsel are making a very similar mistake by bringing too many causes of action. Let’s say a plaintiff gets creative with his pleading and sues a defendant under five causes of action. If he prevails on one or two of the causes, that means the defendant prevailed on the other three or four causes of action. The defendant can argue that he is the prevailing party, which may entitle him to costs and attorney fees. Further, the defendant can sue for malicious prosecution on those causes.
Keeping in mind that I have not reviewed the pleadings, I do not practice in the jurisdiction in question and I am relying on facts as reported by various news sources, I am still willing to predict that Ciolli will lose on five of the aforesaid causes of action.
The first major hurdle Ciolli is going to face is proving that being denied a job with a big law firm is a bad thing. If the comments by the plaintiffs truly prevented Ciolli from going down the big firm path, he should be sending fruit baskets, not suing them. If the allegations are true, then the plaintiffs saved Ciolli from a fate of working 70-hour weeks for $37 per hour. See, Saving Adil Haq’s Career Life — and Yours, and Why Big Firms Don’t Work.
But setting the big firm aspects aside, the case appears to contain problematic causes of action. For example, mis-naming a defendant is not an abuse of process; the process is absolutely correct, it is just against the wrong person. Further, if the comments about Ciolli by the original plaintiffs were made in the litigation context, I’m sure the jurisdiction in question will have a litigation privilege against defamation. (If the plaintiffs made the statements outside of the litigation, then Ciolli could prevail.) And while the standard may be different in Pennsylvania, in California the interference with contract action would never survive.
I hope the case goes to trial so my legal theories can be tested, but that may not happen. At this point the parties are still fighting over jurisdiction. The Pennsylvania federal judge decided that Ciolli could conduct discovery to determine whether the action satisfied jurisdictional requirements. I’ll continue to monitor the case.
“Fox & Friends” Hosts Not Liable for Repeating Parody
- Fox & Friends
The Internet is an amazing source for both information and misinformation. One of the most telling examples was the case of Sarah Palin. A fictional question and answer session was written and published, with Palin purportedly making the comment that dinosaurs had roamed the earth just 5000 years ago. Many failed to realize (or chose not to recognize) the story was satire, and reported the dinosaur story as true. (Leading to an almost tearful Matt Damon proclaiming during an interview that she was not fit to serve because of her dinosaur beliefs.)
So-called traditional news sources cannot ignore what is posted on the Internet because it often is a breaking source for news; the commercial airline landing in the Hudson river being a recent example. But when parody is mistaken for truth, defamation can occur.
The cable show “Fox & Friends” reported a parody about a school principal as true. The real story was that a middle school student had left some ham on a table frequented by Muslim students. He was disciplined for his insensitivity. The parody took the story to an extreme, claiming that the school principal had instituted an “anti-ham response plan,” designed to teach the children that “ham is not a toy.” The hosts of Fox & Friends reported the parody as truth, and derided the principal for his overreaction. The principal sued for defamation in Levesque v. Doocy.
Fox & Friends was saved by New York Times v. Sullivan, the 1964 Supreme Court decision that created the “actual malice” standard for defamation against a public figure (also referred to as “New York Times actual malice”). But for the fact that the plaintiff was deemed to be a public figure, Fox would have been liable.
Go here for the detailed story, and here for the actual court decision.
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.
Anonymous Posters Are Not Immune from Defamation Claims
Liskula Cohen striking a pose
There is a saying in the legal profession that “bad facts make bad law.” More often, bad descriptions of a case lead to the perception of bad law. The case of the hot cup of McDonald’s coffee is cited to this day as an example of out-of-control personal injury cases because people erroneously believe it was only about a foolish woman putting a cup of hot coffee between her legs. Now, the case of an offended model may turn out to be to defamation what the coffee case was to personal injury.
Here’s the background. Model Liskula Cohen was clowning around at a party where some less than flattering photos were taken. (America’s Next Top Model has taught us that models look very different without their makeup.) Those photos ended up on a blog and the author of the blog published the following:
I would have to say that the first place award for “Skankiest in NYC” would have to go to Liskula Gentile Cohen. How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.
Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one.
Enjoy the pic.
This case is being reported as the one where “a model is suing because someone called her a skank.” Thus, if she is ultimately awarded damages, this will be the case that is cited as evidence that the civil justice system is out of control because you can sue if someone says you are unattractive.
Look carefully at the comments. Defamation arises when someone falsely accuses someone else of, basically, illegal, immoral or unethical conduct. The comments don’t charge her merely with being a skank, but claim she is psychotic, a liar and a whore. The action would never have survived review if all that had been said is that she is a skank. That term is ill-defined and nebulous enough that arguably one could from the pictures form the opinion that word is an appropriate description. But what is the justification for the remainder of the remarks? What is the factual basis for calling her psychotic, or saying she is a lying whore? The comments go far beyond calling her a skank.
Call her thin-skinned if you want, but the case is about whether Google can be compelled to turn over the name of the blogger who made these unjustified remarks. Reports say Cohen buried her head in her hands and broke down in a Manhattan court this past Wednesday, crying as vulgar insults about her were read aloud from the “Skanks in NYC” web site.
Anne Salisbury, a lawyer for the blogger, is seeking to characterize the statements about Cohen as nothing more than “youthful, jocular, slangy” comments which are common on the Internet. And therein lies the rub; the fact that so much trash exists on the Internet is not justification for more trash. We need to defend the right of people to post anonymously on the Internet, but if we are going to fight for their rights, they should be prepared to accept responsibility when the comments step over the line into defamation.
The case was argued on March 11, 2009, and the judge is expected to issue a ruling in a few weeks. For a great description of the courtroom scene, go to Obscenities Fly In “Skank” Hearing. (Note that, once again, the title refers only to the “skank” remark.)
[Update] As I predicted, the Judge ruled in favor of Liskula Cohen, holding that “the thrust of the blog is that [Cohen] is a sexually promiscuous woman”, entitling her to the information she was seeking and to pursue her legal action.
The creator of the site and the comments turned out to be a Rosemary Port, who claimed through her attorney that Google “breached its fiduciary duty to protect her expectations of anonymity.” Port claimed she was going to sue Google for millions of dollars, but apparently someone explained that such a suit would never fly, and she never pursued the action.
After revealing Rosemary Port’s identity, Cohen decided to drop her legal action, stating, “This is about forgiveness. It adds nothing to my life to hurt hers. I wish her happiness.” Sounds pretty classy and un-skank like to me.
Anonymous Speech is a Protected Freedom – To a Point
Someone trashed a Dunkin’ Donuts, claiming it was unsanitary and dirty. DD didn’t appreciate that comment, and sought the identity of the person who had posted the comment. In deciding whether the message board was required to disclose that information, Maryland’s highest court decided that the victim of the comments must go onto the board and basically give notice to the defamer. This gives the defamer an opportunity to protect his anonymity by removing the offending comment (although some unscrupulous sites won’t allow the person that posted the comment to take down his own message). Then the victim must persuade the court that the comments constitute defamation. Defamation is not protected speech, so the court can then require disclosure.
- Don’t Bite Off More Than You Can Chew
It’s a tough course for the victim, because being forced to go into the lion’s den will often only fan the flames. However, as this case makes clear, a victim may well be barred at the door if he does not have the fortitude to take that step.
For a more general discussion of the Maryland case, go to Internet Free-for-All Promises An Ongoing Test of Free Speech. For a more detailed discussion of the legal issues, go to Maryland High Court Sets Legal Standard for Outing Online Foes.
Act Natural When Contemplating Litigation
I often get calls regarding wrongful termination where the terminated employee – terminated months earlier – has done nothing to find a new job, concluding that a new job would minimize his damages and hurt his case. That’s a crazy case of the tail wagging the dog.
Lately I am receiving defamation calls where the victim of the defamation is following a similar counterintuitive strategy. The call usually goes something like this:
Caller: “The Orange County Register published an article saying I cheat on my taxes and am a bad dancer.”
Me: “Is that a false statement?”
Caller: “Entirely false. I’m an excellent dancer!”
Me: “When did they publish this article?”
Caller: “About three months ago.”
Me: “Did you ever demand a correction?”
Caller: “No, I want to sue for damages, not a retraction. If they printed a correction, that might minimize my damages.”
That mentality is problematic on several levels. First, it shows that the caller is not as interested in preserving his reputation as he is in getting money. Second, if an attorney ever did take the case, the failure to ask for a correction would be a problem for the jury. He was so upset by the defamation (the tax part, not the dancing) that he is asking us to give him millions, but he never tried to minimize the loss of reputation by asking for a correction?
Finally, California Civil Code § 48a requires someone who has been libeled by a newspaper or slandered by a radio station to demand a correction “within 20 days after knowledge of the publication or broadcast or the statements claimed to be libelous.” If a plaintiff fails to make the demand in the allotted time, he or she is limited to special damages – the actual, quantifiable damages caused by the defamation, such as loss of business. Fail to make the demand within 20 days, and you give up all general damages, which are 95% of the damages in most defamation cases.
Litigation is a solution to a problem, but it should never drive your life. Don’t act in some artificial manner to “preserve” an action. By all means, save some screen shots as evidence for your action, but if you act to keep the defamatory comments in place, that will hurt your case far more than it helps.
