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.
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.
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.
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.
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.
