Category Archives: Anti-SLAPP
Rashad Richey drops lawsuit against Andre Walker
I received a message from Andre Walker today that Rashad Richey has dropped the lawsuit against him. Congratulations for Andre and the good guys for winning this one!
Last month I wrote a blog post about Georgia Democratic Party Official Rashad Richey suing blogger Andre Walker for defamation. Andre Walker is a former democratic official, turned conservative blogger who writes for Georgia Unfiltered. I wrote that essentially Richey had no case against Walker and that the entire purpose of the case was to intimidate Richey.
The advice I give to anyone in this situation is don’t panic, and Call Me. Most of the time it is a nothing case, and that the best thing you can do is not be intimidated by meaningless threats. I applaud Andre for not backing down and defending his first amendment rights.
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.
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.
Obsidian Finance Group v. Cox- A Case every blogger should know.
I recently spoke on a panel discussion on legal issues facing bloggers at BlogCon 2012 in Charlotte, NC, generously sponsored by FreedomWorks, and the Franklin Center for Government and Public Integrity. I intended to discuss a very important case currently being litigated in the United States District Court for the District of Oregon, but ran out of time.
In my opinion, this case shows the need for first amendment issue advocacy on behalf of bloggers, and also expressly shows why it is important for bloggers to have insurance.
The facts of the case are simple. The defendant made statements on her blog which may have been defamatory. The Plaintiff filed a defamation suit against the defendant. The judge dismissed on summary judgment all but one of the issues contained in the complaint (a summary judgment is where a judge rules that there is no issue that needs to be brought to trial, and that as a matter of law, the case is decided in one way or another). On the one issue that remained, the judge ruled very strongly against the first amendment rights of bloggers.
Shield Laws
While the court stated that shield laws did not apply, due to the information being allegedly defamatory, the Court also opined on how shield laws should apply to bloggers.
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is 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, she is not entitled to the protections of the law in the first instance.
So, shield laws do not apply to bloggers because they are not “media” because they are not affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, etc. etc. This is an important factor to think about. Is it a requirement under the law to be “affiliated” with a news service to be considered “media”? This is particularly interesting because the law cited in the previous paragraph states that the “Medium of Communication” is broadly defined, and is not limited to “News papers, magazine, periodical, etc.”. So is the court here narrowing the scope of the definition of “Media” to explicitly exclude bloggers?
Anti-SLAPP and the First Amendment
Oregon has an anti-SLAPP law. The defendant made the mistake of not attaching the anti-SLAPP motion at the outset, however the judge said that this didn’t matter because in this case the First Amendment protections did not apply in the first place. If the plaintiff is a public figure, then in general, the plaintiff has to prove that the defendant had “actual malice” in stating the false or defamatory statement (see. New York Times v. Sullivan, 376 U.S. 254 (1964)). In this case the judge ruled that the plaintiff was not a public person or even a limited public person, so actual malice is not the standard. This is not the important part. If the person is not a public person, then the plaintiff still needs to show that the defendant was at least negligent in their publication of the false or defamatory comment (Gertz v. Welch 418 U.S. 323 (1974)). The court ruled that Cox was not a media defendant, and so Gertz did not apply, therefor not allowed the First Amendment protections afforded to the media.
Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
Again, we have the court applying a test to define what is and what is not considered “media”. The court stated that the defendant showed no evidence to define her as media. But, should she have to? Shouldn’t the court rule in favor of First Amendment protections, and leave it to the defense to prove in front of a jury that she is somehow “not” media? How can this be a ruling as a matter of law?
Need for Advocacy
Cases like this are likely to come up, and judges are likely to rule in the very same matter. This is why bloggers need advocates. They need advocates to reform legislation to specifically mention “bloggers” as media because the nature of media is changing, and the courts are slow to recognize this. With the shuttering of many small market newspapers and the shift of the remaining groups away from expensive investigative reporting, it has been up to bloggers and online media groups to pick up the slack. They cannot do it alone, there needs to be cohesion amongst bloggers to protect their first amendment rights. There needs to be active advocacy on behalf of bloggers.
Need for Insurance
As I stated last week at BlogCon, bloggers need insurance, and this case is a prime example of why. Originally the defendant defended herself pro se, and I speculate she did so because she could not afford legal representation. This was largely a mistake and she lost largely because she did not have the necessary legal training. But more importantly the amount in controversy is $2.5 Million. $1.5 Million to the Finance Group, and $1 million to the named plaintiff. This types of lawsuits have the potential to render many bloggers destitute for merely exercising their first amendment rights. Insurance could have the effect of both helping to pay litigation costs, and making payouts in the event the defendant loses. Like I stated before, insurance programs for bloggers are in development. In the mean time, bloggers need to check to see if they are covered under their existing insurance programs
The entire court opinion can be read here.
Forever 21 v. Blogger or: Reasons to Hire Skyles Law Group, LLC
Skyles Law Group, LLC, focuses its practice on Internet Law. I have experience with cases similar to this one. Either side could have come to me and I would have given good advice, but they didn’t. Oh well, here is what I have to say.
News sites and blogs are buzzing today about a cease and desist letter sent to a California blogger by the retail chain, Forever 21. Here is the breakdown. Rachel Kane owns and runs a blog called WTForever21, with the URL http://www.WTForever21.com. The blog name and URL are obviously amalgamations of the retail chain “Forever 21″ and the internet chat acronym, which is short for “What the (Fiddlesticks)”. Put them together you have WTForever 21. The blog is a satirical look at the products and the business practices of Forever 21. To fulfill its satire, it uses images of products from the website, to criticize the products. I have very little personal knowledge of Forever 21, and its product line. My wife tells me that most of the stuff they sell is crap knockoffs of designer fashion, which in itself might be an infringement on intellectual property, but I digress.
The blogger received a cease and desist letter from Forever 21, which was reprinted by Jezebel.com. The letter basically states that the URL, the website name, and the use of images from their website all infringe on Forever21′s trademark and copyright. This is a classic SLAPP suit, or Strategic Lawsuit Against Public Participation. A SLAPP suit is one designed to keep people from saying something about a company, individual or organization. They are usually initiated by wealthy groups or individuals against critics with less resources, with the intent of keeping them silent due to the high costs of fighting the suit. Even if there is an infringement, Forever 21 may not be able to prevail in a law suit, because Rachel Kane has a defense rooted in the First amendment.
I recently worked on a similar case on the plaintiff’s side. A client had a website which posted information. An individual who was not happy with the information being posted decided to put up a fake site whose name was identical, and url was almost identical, except for a few dashes between words, and other modifications. If read out loud, the URLs would be identical. The site was not a satire, but one which attempted to “expose the truth” about the writer behind my client’s site, the site also claimed asked for donations to their fake organization. I sent a cease and desist letter telling him to take the site down, that the site infringed on copyright and trademark, that they were fraudulently representing themselves as an organization and soliciting for donations. Lastly, because they were committing fraud, if they were sued and had a judgment against them, they would not be able to discharge through bankruptcy. It was a pretty harsh letter. After some sabre rattling, the person took the site down, and the situation was over.
This situation is very different. First, the standard for trademark infringement is that the mark must create a “likelihood of confusion” that the average person would mistake it for the real mark. In other words, a reasonable person must be dumb enough to think that WTForever 21 is actually Forever 21. In the case I worked on is distinguishable because there was an actual likelihood of confusion. The URLs were almost identical, and would sound the same if read outloud. The use of WTF diminishes the possibility of confusion both because of the satirical tone, and the disimilar look and sound.
Secondly the content, and use of images is covered by fair use. Fair Use is defense to copyright and trademark infringement covered by the Copyright Act of 1976, 17 U.S.C. § 107, which states:
Section 107. Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Dentist must pay Legal Fees in anti-SLAPP suit
Posted on Media Post, a California dentist is ordered to pay $81,000 in legal fees to Yelp after he sued Yelp over disparaging comments made by a critic on the services review site.
Background
Yelp is a services review site where user can post reviews of businesses from restaurants to attorneys (I love all my clients very very much btw). Reviews can anonymously post anything they wish any business on this site. In general, Yelp tends to be fair. I have been involved in one incident where a company posing as a reviewer posted negative reviews about their rival company. Upon learning of the situation, Yelp removed the negative postings in a timely manner.
In this case, a reviewer posted a negative review stating their son was lightheaded after receiving anesthesia at the dentist office, and stating he received a filling containing lead. The dentist alleged emotional distress from the review. Unable to get to the reviewer, the dentist went after Yelp. The California court of appeals dismissed the case under California’s Anti-SLAPP law.
What is a SLAPP Lawsuit?
SLAPP is an acronym meaning “Strategic Lawsuit Against Public Participation”. Originally it referred to lawsuits by individuals, companies, and organizations for defamation and other suits intended to intimidate individuals from coming forward and criticizing them or their activities. Often times, these lawsuits had little merit, but were designed to cause defendants to incur large legal fees making them less likely to say anything negative in the first place. In order to prevent SLAPP lawsuits, states enacted “Anti-SLAPP” legislation which are supposed to limit SLAPP lawsuits by increasing their likelihood of dismissal before trial, providing for a quick and inexpensive dismissal to SLAPP lawsuits. They mostly by shifting burdens of proof. In anti-SLAPP motion, all the defendant has to do is show that the activity complained against was consitutionally protected, namely Free Speech. The burden shifts to the plaintiff to show that they have a more than reasonable chance of prevailing. If the judge denies the anti-SLAPP motion, the defendant can appeal, but if it is dismissed, the defendant is entitled to legal fees from the plaintiff. In general, the law makes SLAPP lawsuits an economically negative option.
In this case, because the lawsuit was dismissed vis-a-vis an anti-SLAPP motion from Yelp, the dentist plaintiff must pay Yelp the legal fees incurred in defending against the suit, $81,000 here. The irony is the initial legislation was supposed to protect the little guy from attacks by the big guy, but the law is a double edged sword which supposed to affect everyone equally. Here the little guy has to pay the big guy $81,o00. Legislator beware.
James Skyles
