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.”

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