Tag Archives: Defamation

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).

Sixth Circuit holds thedirty.com entitled to Section 230 immunity

Plaintiff Jones (a high school teacher and Cincinnati Bengals cheerleader) sued the website thedirty.com and its operator for defamation over a number of third party posts that said mean things about plaintiff. Defendants moved for summary judgment, arguing that the Communications Decency Act — 47 USC § 230(c)(1) — afforded them immunity from liability for the content created by third parties. Articulating a “goofy legal standard,” the district court denied the motion, and the case was tried twice. The first trial ended in a mistrial, and the second time the jury found in favor of plaintiff.

Defendants sought review with the Sixth Circuit Court of Appeals on the issue of whether whether the district court erred in denying defendants’ motion for judgment as a matter of law by holding that the CDA did not bar plaintiff’s state tort claims. On appeal, the court reversed the district court and ordered that judgment as a matter of law be entered in defendants’ favor.

Section 230(c)(1) provides 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.” At its core, § 230 grants immunity to defendant service providers in lawsuits seeking to hold the service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.

But the grant of immunity is not without limits. It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. A defendant is not entitled to protection from claims based on the publication of information if the defendant is responsible, in whole or in part, for the creation or development of the information.

The district court held that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Thus, the district court concluded that “[d]efendants, when they re-published the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials.”

The appellate court held that the district court’s test for what constitutes “creation” or “development” was too broad. Instead, the court looked to the Ninth Circuit’s decision in Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and adopted the material contribution test from that opinion:

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

In the Sixth Circuit’s language, “[A] material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.”

In this case, the defendants did not author the statements at issue. But they did select the statements for publication. The court held that defendants did not materially contribute to the defamatory content of the statements simply because those posts were selected for publication. Moreover, the website did not require users to post illegal or actionable content as a condition of use. The website’s content submission form simply instructed users generally to submit content. The court found the tool to be neutral (both in orientation and design) as to what third parties submit. Accordingly, the website design did not constitute a material contribution to any defamatory speech that was uploaded.

Jones v. Dirty World, No. 13-5946 (6th Cir. June 16, 2014)

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

Lawyer’s tweet about case was not defamatory

Plaintiff sued an attorney and his law firm for defamation over a tweet the attorney posted about one of his cases that read as follows:

[Plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees. The RICO suit was not frivolous. The 500K lawsuit is frivolous, however, so buyer be wary.

(Defenant used Twitlonger to account for the number of characters over 140.) The trial court dismissed the defamation lawsuit on an anti-SLAPP motion. Plaintiff sought review with the Court of Appeal of California. The court affirmed the dismissal.

It found that the tweet was nonactionable opinion, holding that “deprecatory statements regarding the merits of litigation are ‘nothing more than the predictable opinion of one side to the lawsuit’ and cannot be the basis for a defamation claim.” Further, insofar as the tweet asserted “[plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees,” the attorney was stating his subjective opinion with respect to corporate governance at the plaintiff company. Accordingly, the tweet was not actionable.

Getfugu, Inc. v. Patton Boggs LLP, 2013 WL 4494952 (Cal.App. 2 Dist. August 21, 2013)

Website operators not liable for third party comments

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana, March 6, 2012)

Plaintiff was upset at some local government officials, and ended up getting arrested for allegedly trespassing at the public library. Local newspapers covered the story, including on their websites. Some online commenters said mean things about plaintiff, so plaintiff sued a whole slew of defendants, including the newspapers (as website operators).

The court threw out the claims over the online comments. It held that the Communications Decency Act at 47 U.S.C. 230 immunized the website operators from liability over the third party content.

Defendant argued that the websites were not protected by Section 230 because they were not “providers of interactive computer services” of the same ilk as AOL and Yahoo. The court soundly rejected that argument. It found that the websites provided a “neutral tool” and offered a “simple generic prompt” for subscribers to comment about articles. The website operators did not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory.

Oregon media shield law did not protect blogger from having to reveal her sources

Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D.Or. November 30, 2011)

Plaintiff filed a defamation lawsuit against defendant, who self-identified as an “investigative blogger” and a member of the “media.” Defendant asked the court to protect her from having to turn over the identity of the sources she spoke with in connection with drafting the allegedly defamatory content. She claimed that she was covered under Oregon’s media shield law, which provides in relevant part that:

No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

The court gave two reasons for finding that defendant was not covered by the shield law. First, although defendant thought of herself as the “media,” the record failed to show that she was affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, according to the court, she was not entitled to the protections of the law in the first instance.

Second, even if defendant were otherwise entitled to those protections, another part of the statute specifically provides that “[t]he provisions of [the shield law] do not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” Because this case was a civil action for defamation, defendant could not rely on the media shield law.

Court protects identity of anonymous email sender

Sandals Resorts Intern. Ltd. v. Google, Inc., — N.Y.S.2d —, 2011 WL 1885939, (N.Y.A.D. 1 Dept., May 19, 2011)

Some unknown person sent an email to a number of undisclosed recipients containing information that was critical of the hiring and other business practices of the Caribbean resort Sandals. Irritated by this communication, Sandals filed an action in New York state court seeking a subpoena to compel Google to identify the owner of the offending Gmail account.

The trial court denied the petition seeking discovery. Sandals sought review with the appellate court. On appeal, the court affirmed the denial of the petition for discovery.

Under New York law, a person or entity can learn the identity of an unknown possible defendant only when it demonstrates that it has “a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” In this case, the court held that the petition failed to demonstrate that Sandals had a meritorious cause of action.

The court found that nothing in the petition identified specific assertions of fact as false. It also found that the lower court did not err in reasoning that the failure to allege the nature of the injuries caused by the statements in the email were fatal to the petition.

It went on to find that even if the petition had sufficiently alleged the email injured Sandals’ business reputation or damaged its credit standing, it would still deny the application for disclosure of the account holder’s identification on the ground that the subject email was constitutionally protected opinion.

In discussing this portion of its decision, the court said some interesting things about the nature of internet communications, apparently allowing a certain characterization of online speech to affect its rationale:

The culture of Internet communications, as distinct from that of print media such a newspapers and magazines, has been characterized as encouraging a “freewheeling, anything-goes writing style.” […] [T]he e-mail at issue here . . . bears some similarity to the type of handbills and pamphlets whose anonymity is protected when their publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences such as economic or official retaliation. […] Indeed, the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.

The court made clear that these observations were “in no way intended to immunize e-mails the focus and purpose of which are to disseminate injurious falsehoods about their subjects.” The real cause for concern, and the thing to protect against, in the court’s view, was “the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court orders to silence their online critics, which threatens to stifle the free exchange of ideas.”

Amazon and other booksellers off the hook for sale of Obama drug use book

Section 230 of the Communications Decency Act shields Amazon, Barnes & Noble and Books-A-Million from some, but not all claims brought over promotion and sale of scandalous book about presidential candidate.

Parisi v. Sinclair, — F.Supp.2d —, 2011 WL 1206193 (D.D.C. March 31, 2011)

In 2008, Larry Sinclair made the ultra-scandalous claim that he had done drugs and engaged in sexual activity with then-presidential candidate Barack Obama. Daniel Parisi, owner of the infamous Whitehouse.com website, challenged Sinclair to take a polygraph test.

Not satisfied with the attention his outlandish claims had garnered, Sinclair self-published a book detailing his alleged misadventures. The book was available through print-on-demand provider Lightening Source.

Amazon, Barnes & Noble, and Books-A-Million (“BAM”) each offered Sinclair’s book for sale through their respective websites. (Barnes & Noble and BAM did not sell the book at their brick and mortar stores.) Each company’s website promoted the book using the following sentence:

You’ll read how the Obama campaign used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph exam in an attempt to make the Sinclair story go away.

Parisi and his Whitehouse Network sued for, among other things, defamation and false light invasion of privacy. BAM moved to dismiss pursuant to Rule 12(b)(6) while Amazon and Barnes & Noble moved for summary judgment. The court granted the booksellers’ motions.

Section 230 applied because booksellers were not information content providers

The booksellers’ primary argument was that Section 230 of the Communications Decency Act shielded them from liability for plaintiffs’ claims concerning the promotional sentence. The court found in defendants’ favor on this point.

Section 230 provides in relevant part 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 major issue in this case was whether the online booksellers had provided the information comprising the promotional sentence. The court found that the pleadings (as to BAM) and the evidence (as to Amazon and Barnes & Noble) did not credibly dispute that the booksellers did not create and develop the promotional sentence.

But not so fast, Section 230, on some of those other claims!

The court’s treatment of Section 230 in relation to plaintiffs’ false light claim and the claims relating to the actual sale of the book were even more intriguing.

Plaintiffs argued that their false light claim was essentially a right of publicity claim. And Section 230(e)(2) says that immunity does not apply to claims pertaining to intellectual property. There is some confusion as to whether this exception to immunity applies only to federal intellectual property claims or to both federal and state IP claims. On one hand, Perfect 10, Inc. v. CCBill says that only federal intellectual property claims are excepted from immunity (which would mean that state law IP claims would be barred by Section 230). On the other hand, cases like Atlantic Recording Corp. v. Project Playlist, Doe v. Friendfinder Network and Universal Communication System v. Lycos suggest that both state and federal IP claims should withstand a Section 230 challenge.

In this case, the court indicated that it would have sided with the cases that provide for both federal and state claims making it past Section 230: “I am not inclined to extend the scope of the CDA immunity as far as the Ninth Circuit. . . . ”

But ultimately the court did not need to take sides as to the scope of Section 230(e)(2), as it found the use of plaintiff Parisi’s name fit into the newsworthiness privilege. One cannot successfully assert a misappropriation claim when his name or likeness is used in a newsworthy publication unless the use has “no real relationship” to the subject matter of the publication.

The court also seemed to constrain Section 230 immunity as it related to the online booksellers’ liability for selling the actual book. (Remember, the discussion above, in which the court found immunity to apply, dealt with the promotional sentence.) The court rejected defendants’ arguments that the reasoning of Gentry v. eBay should protect them. In Gentry, eBay was afforded immunity from violation of a warranty statute. But it merely provided the forum for the sale of goods, unlike the online booksellers in this case, which were the distributors of the actual allegedly defamatory book.

Even though Section 230 did not serve to protect BAM, Barnes & Noble and Amazon from liability for defamation arising from sales of the book, the court dismissed the defamation claim because of the lack of a showing that the booksellers acted with actual malice. It was undisputed that the plaintiffs were limited-purpose public figures. Persons with that status must show that the defendant acted with actual malice. That standard was not met here.

Woman mistaken for Spitzer prostitute in Girls Gone Wild internet video awarded $3 million

Arpaio v. Dupre, 2011 WL 831964 (D.N.J., Mar 3, 2011)

It has been three years since Eliot Spitzer resigned as governor of New York for getting busted for hooking up with a prostitute (time flies!). Shortly after he resigned, Girls Gone Wild offered Ashley Dupre, the high-priced prostitute Spitzer was accused of patronizing, a million dollars to be in a new Girls Gone Wild magazine spread and promotional tour. But when the producers realized they already had archival footage of her from years earlier, they revoked that offer.

Dupre sued Joseph Francis, the head of Matra Films (the producer of Girls Gone Wild) for $10 million alleging that he improperly used Dupre’s image from the archival footage. She claimed that because she was only 17 at the time, she didn’t understand the nature of what she was doing. Francis responded by releasing a video that made its rounds on the web (maybe NSFW) that showed the 17-year-old Dupree saying she was of age, and presenting a New Jersey driver’s license bearing the name of plaintiff Arpaio.

Plaintiff filed this lawsuit against Dupre and Girls Gone Wild alleging defamation and invasion of privacy. After none of the defendants responded to the lawsuit, the court entered default against the Girls Gone Wild defendants. Plaintiff never properly served the complaint on Dupre, so it did not enter default judgment against her.

The court awarded plaintiff $3 million in damages. It based this figure on her testimony and other evidence relating to plaintiff’s distress from being mistaken for Dupre, her concern that future employment would be jeopardized from employers doing a Google search on her and learning of the situation, the harm from plaintiff’s children (someday) being exposed to insulting material, and plaintiff’s symptoms consistent with post traumatic stress disorder.

Seventh Circuit: Website operator does not have to obey injunction in defamation case

Blockowicz v. Williams, No. 10-1167, (7th Cir. December 27, 2010)

Plaintiffs got an injunction that ordered defendants to remove defamatory content from the web that defendants had posted. When the defendants did not comply with the injunction, plaintiffs asked the court to enforce the injunction against Ripoffreport.com, the website on which some of the defamatory content appeared.

The lower court refused to extend the injunction to cover Ripoffreport. Plaintiffs sought review with the Seventh Circuit. On appeal, the court affirmed the refusal to enforce the injunction.

It held that plaintiffs had failed to show that Ripoffreport was in active concert or participation with the defendants. Absent this collaboration, the website was outside the court’s ability to control.