More Judges Catching Up to the Times
Trials are decided by humans with all their human experiences. Whether a judge or jury is deciding a case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate. Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts. Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”
At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation. In the case, the defendant took a disliking to a local dog kennel for whatever reason. She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.” The kennel took exception to this characterization, and sued for defamation in Small Claims Court. (In one of my earliest postings, I sing the praises of suing for defamation in Small Claims Court. Take note how effective that can be.)
The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages. The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing. But what caught my eye was the simple logic of the judge, the sort of logic that sometimes eludes other judges. First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.” That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass. The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11.
Wow. A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business. Thank you Canada.
Tony La Russa Drops Action Against Twitter
Even when a lawsuit is weak on merit it sometimes achieves its purpose. I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.
Take the case of Tony La Russa, famous baseball manager. Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal. La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.
La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit. But, obviously, this is not a typical CDA situation. Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material. But there are some interesting side issues. For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books. In that case, the Digital Millennium Copyright Act would trump the CDA. Like a copyright, people have a pecuniary interest in there own identities. Should Twitter be permitted to assist in those that would steal that identity?
The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account. Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?
For more on this story, go here.
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.
