Communications Decency Act Still Unknown to Many Attorneys
It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act. In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.
But the attorney could not leave it alone. I can almost see his mind working. He thinks to himself, “these individuals will never be able to pay the judgment, so I’d better look around for some deep pockets.” So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com.
I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements. I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy. I know it’s a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong. Here, twitter.com is named because the defendants sent out “tweets” sending their followers to the defamatory content. Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com. How could these companies possibly be liable? Well, according to plaintiffs and their attorney, they are liable because what the defendants did amounted to an “irresponsible use of technology.”
Apparently, in this attorney’s world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server. Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion every account that sets a domain name to forward elsewhere. Clearly there could be no Internet if such duty and liability could be imposed.
In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content. Among the public there is an urban legend that a company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.
A copy of the complaint can be found here, and a detailed article about the case can be found here.
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.
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.
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.
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
“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.
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.
