Newspaper not liable for alleged defamatory letter to editor published online

The Appellate Court of Illinois has sided in favor of a local newspaper in a defamation lawsuit brought against the paper over a reader’s allegedly defamatory letter to the editor. The court held that the Communciations Decency Act (at 47 U.S.C. 230) “absolved” the newspaper of liability over this appearance of third party content on the newspaper’s website.

Plaintiff — a lawyer and self-identified civil rights advocate — sent several letters to local businesses claiming those businesses did not have enough handicapped parking spaces. Instead of merely asking the businesses to create those parking spaces, he demanded each one pay him $5,000 or face a lawsuit.

One local resident thought plaintiff’s demands were greedy and extortionate, and wrote a letter to the editor of the local newspaper covering the story. The newspaper posted the letter online. Both the newspaper and the letter’s author found themselves as defendants in plaintiff’s defamation lawsuit.

The letter-writer settled with plaintiff, but the newspaper stayed in as a defendant and moved to dismiss, arguing that federal law immunized it from liability for content provided by the third party letter-writer.

The lower court dismissed the defamation claim against the newspaper, holding that the Communications Decency Act (at 47 U.S.C. §230) protected the newspaper from liability for the third party letter-writer’s comments posted on the newspaper’s website.

Plaintiff sought review with the Appellate Court of Illinois. On appeal, the court affirmed the dismissal.

The Communications Decency Act (at 47 U.S.C §230(c)(1)) says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The appellate court found that the leter-writer was another information content provider that placed comments on the newspaper’s website. Therefore, it held that the Communications Decency Act “absolved” the newspaper from responsibility.

Straw v. Streamwood Chamber of Commerce, 2015 IL App (1st) 143094-U (September 29, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

Complaint site does not have to identify its users

Petitioner filed an action in New York state court seeking to compel PissedConsumer.com to disclose the identity of the person or persons who posted certain statements to the site. These statements criticized petitioner for allegedly failing to fulfill an advertising promise to give the user a $500 gas card. The anonymous user went on to complain that petitioner “will forget about you and … all the promises they made to you” once “you sign on the dotted line.”

The trial court denied the petition to compel PissedConsumer.com to turn over the names of its users. Petitioner sought review with the Appellate Division. On appeal, the court affirmed.

It held that the lower court properly denied the petition since petitioner failed to demonstrate that it had a meritorious cause of action as required to obtain pre-action discovery:

Nothing in the petition identifies specific facts that are false and when the statements complained of are viewed in context, they suggest to a reasonable reader that the writer was a dissatisfied customer who utilized respondent’s consumers’ grievance website to express an opinion. Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a non-defamatory meaning, grounded in opinion.

The court seemed to recognize the importance of anonymous speech, and that one must not lightly cast aside its protections. If you’re going to go after an online critic, best have a cause of action that you can actually plead.

Woodbridge Structured Funding, LLC v. Pissed Consumer, — N.Y.S.2d —, 2015 WL 686383, (February 19, 2015)

Evan Brown is an attorney in Chicago helping clients with technology, intellectual property and new media issues.

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

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