Monthly Archives: May 2012
Missouri Supreme Court strikes down part of Cyber-bullying law
In general I am opposed to setting aside separate laws for “cyber-bullying”. Bullying is bullying, and while it is easier to do it anonymously online, it should be treated the same as if it were through any other medium, such as random phone calls, and anonymous letters. The problem is, they are usually extremely broad and vague, such as the Tennessee version I have blogged about in the past.
This is exactly what happened here. The law was partially struck down because portions were “void for vagueness”, and therefor violated due process clause the 14th amendment of the United States Constitution. The Missouri cyber-bullying law came about from a bizarre case five years ago when a teenager committed suicide after being humiliated by a classmate’s mother who was posing as a teenage boy she developed a relationship with.
This case dealt with criminal charges against defendant Danny Vaughn, who was charged with criminal burglary and harassment in 2010. According to the Washington Post, Vaughn entered into the residence of his former wife, and repeatedly made unwanted and harassing phone calls to her, which triggered the cyber-bullying portion of the statute.
Under the applicable portion of the statute(Section 565.090.1, RSMo Supp. 2008) harassment occurs when an individual.
(5) Knowingly makes repeated unwanted communication to another person; or
(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the age of such person.
The court ruled that both these portions are unconstitutional because they can be used to criminalize constitutionally protected free speech, specifically with the terms, “frighten”, and “intimidate”. They also opined that “Knowingly makes repeated unwanted communications” was both to broad, and could also be used to criminalize protected speech, especially political speech.
In my opinion though, even in its reduced form, the law could still have been used to prosecute that mother who harassed the teenage girl into committing suicide, so its original purpose remains intact. I do agree with the court that the constitutionally vague portions of the law must be addressed in the legislature.
Question: Something I posted on Scribd was removed, am I liable?
I know I have not been writing much lately. I have actually been busy doing things like, oh… practicing law. I did get this question the other day, which I think is worth writing about
Dear Ask a Cyber Lawyer,
I posted a service manual for an old Honda lawnmower (around 1983) I own on scribd; it was my first upload there. A few weeks later I received an email from scribd indicating it had been removed at someone’s request. A little digging found it was some law firm. I had in fact poked around scribd looking for similar material (i.e. service manuals for mowers, tractors, etc) before posting. There are plenty of similar manuals with copyright notices on their pages so I figured it was OK.Will it most likely end here or am I going to get sued by someone now?
Will it end there? Most likely. As long as you weren’t making any profit from the posting, and as long as Honda was not losing money because of the posting, there is not much financially they can go after you for. It would definitely cost Honda more to go after you for liability then they would ever receive in return. So this will probably end here, and you won’t get sued. Now, if you decided to put the entire Harry Potter collection on Scribd, that would be a different story.
SLAPP’d blogger fights back
A few days ago I wrote about the case of Andre Walker, who is being sued for defamation by Georgia Democratic Party Political Director, Ali Rashad Richey. In the post I mentioned how the causes of action were pretty much moot from the beginning, and how the purpose of the lawsuit was not to win, but merely to silence Walker.
Today, Ask a Cyber Lawyer received a copy of a letter from Walker’s attorney to Richey’s attorney, which both responds to the claims made, and demand to withdraw the complaint, or else Walker will proceed with a claim under the Geogia Abusive Litigation Act. O.G.G.A. §51-7-80 et seq. The full text of the letter is below:
When you are threatened by a corporate entity, a political party, or a government body, for items posted on your blog. Do not panic. Contact an attorney (preferably Skyles Law Group) and you will be taken care of. Make sure that they not only lose, but that they are hurt in the process. Andre has not backed down. He is continuing to voice his opinion. His work can be seen at Georgia Unfiltered.
Judge subpoenas “Anonymous” blogger to appear
I put this in my “scratch my head” and go “hmmm…” category, just because I have never seen this before.
A judge in New York as subpoenaed an anonymous blogger who goes by the pseudonym “Alfred Little“. A Chinese consumer products company has sued “Alfred Little” for defamation an for blog posts he has written accusing Deer Consumer Products of fraudulent transactions, which resulted in a drop in share prices. Deer is seeking damages amounting to $100 million for lost in trade revenue, according to the Chicago Tribune.
What makes this case interesting is the fact that the blogger is anonymous. In most cases, the most difficult part of going after an anonymous defendant is finding the defendant. Most of the time it involves hiring forensic investigators to search IP addresses to find the defendant. This can be expensive and time consuming. The plaintiff would have to spend a lot of money merely to find out who they are actually suing. Unless you have the means to actually find the defendant, you cannot subpoena him.
In this case, the defendant hired counsel, which means they established contact with the court system. This means that through his attorney, “Alfred Little” is a known entity, and can be subpoenaed through his attorney. That may be his downfall, however, there is still grounds for appeal. The trick is, if he actually answers his subpoena and appears, his cover is blown. If he does not appear, “Little” can be fined and put in jail for contempt… that is, if someone can actually find him. His actual identity is still covered under attorney-client privilege, and it appears his attorney is the only person who actually knows who “Alfred Little” really is.
Ask a Cyber Lawyer helps Blogger assert copyright
I met Duane Lester from All American Blogger when I spoke at a blogger conference in Charlotte, NC a few weeks ago.
Last week I got a tweet from Duane. Turns out a small news paper had taken a blog post of his, copied it almost verbatim, and published it in their newspaper. They did not get his permission. They did not attribute the source to him. So here was my complete non-legal advice.
So that is what he did. He wrote a letter to the paper, he attached a bill. He delivered the letter, and in the end, he got a check from the paper for $500.00. He also videotaped the encounter and posted it on his blog. This all can be seen here.
This entire episode shows that the law is a double edged sword. The advice about posting and attributing to bloggers, applies to news publications. You cannot copy and republish an article without violating someone’s copyright. Bloggers can’t do it. Newspapers can’t do it. Select what you want to use, a small fraction of the original work, attribute it, and add your own content, at least double of what you copied at bare minimum. More would be better.
I also encourage bloggers to actually develop relationships with local newspapers. See if you can get what you write republished with permission, and perhaps actual payment. This way, they get content, you get attribution, publicity, and maybe a little cash.
Disclaimer: This blog post contains no actual legal advice. It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
GA Democratic Party Official Sues Bloggers
It’s not surprising that when a politician doesn’t like what is being said about him or her, they go on the offensive. So when I heard that a blogger from Georgia was being sued for defamation, interference with business practices, and negligent infliction of emotional distress, I wanted to look into it further.
The short story is Andre Walker, a former Democrat turned Republican, blogs about Georgia Politics on Georgia Unfiltered. One of the targets of his blog is Georgia Democratic Party Political Director Ali Rashad Richey. Walker did some digging into public records and found some unsavory information about Richey, including convictions, paternity tests, and unpaid child support. Most shockingly, he found out that Richey was on the payroll of a Democratic Party state senator, while he was in jail.
The law suit is a classic SLAPP suit, or Strategic Lawsuit Against Public Participation. I have written about this extensively before. Georgia does have an Anti-SLAPP law, but it is very weak. It only applies to legislators who are suing others as a means of intimidating them into silence about pending legislation.
The crux of the defamation lawsuit was the accusation that Richey was a convicted felon. Whether he was or not is a significant issue, but what is important to this is whether or not bloggers are afforded the same first amendment rights as any other journalists. It appears that the Georgia Democratic Party doesn’t seem to think so.
Retraction Requirement
Georgia has a requirement that before anyone can proceed with a suit for defamation, be it slander or libel, they must first make a request for retraction. (Ga. Code Ann. § 55-5-11,12. for libel and slander respectively). It appears from the wording of the complaint that the complaint that there was no retraction requested. Instead, the retraction is a part of the damages demand. It seems that the only way that Richey would be able to succeed here is to argue that a blog is not a “publication”. Would they also argue then that the First Amendment rights do not apply to journalists?
Libel or Slander?
It appears as well that Richey’s attorneys do not know how to consider a blog as a publication. They decided to sue for both libel and slander. In general, libel only applies to the written word, while slander applies to the spoken word. In the complaint, the counts for libel and slander pretty much say the exact same thing, except one says “libel” and the other says “slander”. So which one is it?
The Likely Result
In the end, the lawsuit this lawsuit is not about winning. It is about intimidation. They want to silence Walker from saying anything about Richey, so they are suing him to scare him into silence. That is how a SLAPP suit works. Lawsuits are expensive to defend. Often times it is easier to shut up than defend against the lawsuit, even though you will eventually win, and probably get attorney’s fees taboot.
It does again illustrate the need to develop insurance and legal defense programs for bloggers. There is something on its way for bloggers. Stay tuned.
Political Tumblrs: An Opportunity to talk about “False Light”
I have to give my wife credit. She is Emily Zanotti of Naked DC who created this highly addictive internet meme “Hey Girl, it’s Paul Ryan” on tumblr. At least this gives me the opportunity to discuss an area of tort law that is often overlooked. Invasion of Privacy, false light. No, this internet meme does not constitute “false light”. However, it is very good example of how a tumblr could become false light.
Invasion of privacy is a very broad tort, it is not just invading someone’s private life and publishing the information. Believe it or not, false light is just one of four types of invasion of privacy.
In general a false light tort has four elements
- A publication by the Defendant about the Plaintiff,
- made with actual malice,
- which places the Plaintiff in a false light; AND
- that would be highly offensive
Notice that the information in the publication does not have to be false, it can be as true as the theory of relativity, it can still be considered false light if it meets the four elements. One example I use when I train reporters is a hypothetical situation involving a Lindsay Lohan type character. She is photographed with powder on her face that looks like cocaine but is actually white powder make up that was accidentally spilt. The photo is then published with the headline “(Insert Name) is whacked out on crack”. The headline combined with the picture could place the defendant in a false light.
Now, can you see how this could work with an internet meme? That picture could be used with a whole number of headlines to the point where it could become a meme unto itself. So, when posting internet memes, just beware of this tort lying in the background. The benefit of doing this about politicians is since they are public figures, it is much more difficult to prove actual malice.
James Skyles
