Category Archives: blogging
Posting Beyond Cyber Law
Since I started this blog, the focus has always been on internet related legal issues. This will remain so. After all, this is the concentration of my legal practice. However, most of the questions I receive from readers are about other, more general areas of the law. So while the news and opinion articles contained on this site will still stay focused on Cyber Law, I have decided to include articles answering questions from readers on more general areas of law.
So, if you have any legal questions in a general area, be it, real estate, estate planning, or personal injury, ask away!
Skyles Law Group Website Launch
I am proud to announce the new website for Skyles Law Group, LLC, the law firm which runs Ask a Cyber Lawyer. Please take a look!
I founded Ask a Cyber Lawyer to help people with their internet law needs. Now I am pleased to offer you all of my firm’s legal services. If you have a legal issue that needs to be addressed, please contact me. Note that all of the pages inside the site have a contact form. My firm is here to provide professional legal services to the public. Do not hesitate to call or email me!
You Gonna Eat That?
For our readers from across the pond, you may already be familiar with this story. Recently a nine-year-old Scottish girl was forced by her school to stop posting less-than-flattering pictures of the school’s cafeteria food on her blog. You can read the whole story here and here.
Martha Payne, hard at work!
Now the school has since reversed its position on the matter but nine-year-old Martha Payne is no longer snapping pictures or posting on her blog. She is able to as a matter of policy according to the school, but that does not change the fact that she has opted not to continue for the time being. One can only assume she reached this decision because of all the hassle the school put her through. If you really think about it, all she was doing was taking pictures of what a bunch of kids were being served at lunch (most of the meals looked better than the “food” I was served when I was in grade school). If simple transparency such as this is problematic for a school, then that school has much larger fish to fry. But what is really scary is how quickly and soundly an institution which is supposed to be all about education and sharing information, can put the kibosh on free speech. Judging by the time stamps on the posts, Martha was not even making these posts while at school but the school still felt that it had the authority to quell the speech anyway. This brings the chilling factor to a new level; a school limiting the freedom of speech of its students while the students are outside of school grounds.
Now this happened in the UK and they have a different version of freedom of speech in Great Britain but this kind of thing could easily make its way over here. Currently, freedom of speech both on and off school grounds in the US is being limited by schools under the guise of anti-bullying (story via Forbes.com). This subject garnered even more notoriety when a Rutgers student committed suicide after an incident of alleged bullying involving a web-cam (The Story of Tyler Clementi). Legislation that has allowed for the curtailing of expression by schools has come under some fire lately but seems to have been embraced by many of the statehouses across the United States in one form or another (all but Montana actually). Federal legislation was even introduced but it quickly stalled.
These two concepts may seem rather disconnected but they really aren’t, both stories center around the issue of freedom of expression versus freedom from harassment. On the one hand, we have an interest in protecting students and faculty from harassment but we also have a duty to uphold the First Amendment rights of those same folks. Schools are a place where students are supposed to learn to be civic-minded members of society but they are also a place where they need to be safe as well. This leads to a precarious balancing act which these two stories exemplify quite nicely (I think). In the blogger case, we have a student who is simply posting pictures of cafeteria food, she is doing nothing to put anyone in danger, she is not harassing anyone (unless the headmaster getting phone calls from outraged parents for serving their lil angels crappy food qualifies). On the other side of the fence (barely), we have a student actively bullying another with potentially disastrous consequences (the only consequence for Martha’s blog? Better food @ school). So this begs the question “where do we draw the line?” We sure don’t want to go as far as the Scottish school and actively cut off creative talent but we also don’t want kids tossing themselves off bridges because of some online slur against them. I don’t pretend to have an answer to this question but it is one we need to constantly ask ourselves and discuss or otherwise we will be at the point where we punish little Marthas before we know what hit us. So let’s heed a tale from across the pond and watch carefully where we step.
The best understanding of toeing this line that I have seen came out of the First Amendment Center earlier this year and can be found here.
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.
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.
North Carolina Threatens to Jail Blogger
Here we have yet another reason why bloggers need advocacy.
A blogger writing a blog on his personal experiences combating diabetes using the “paleo-diet”, is threatened with a government mandate which could send him to jail for “practice of dietetics or nutrition” without a license. The blog, Diabetes-Warrior.net, was started as a result of the blogger, Steve Cooskey changing his lifestyle in his fight against diabetes after he was hospitalized in 2009.
The complaint comes from the state diatetics and nutrition board, which regulates the dietician profession. In order to avoid jail he needs to virtually shut down and delete his blog. This is in spite of the fact that he placed this disclaimer on every post ““I am not a doctor, dietitian, nor nutritionist … in fact I have no medical training of any kind”.
From the Carolina Journal:
Declan McCullagh, a CBSNews.com correspondent who writes about online free speech, says the board probably is violating Cooksey’s First Amendment rights.
“The First Amendment says state and federal governments ‘shall make no law’ abridging freedom of speech,” McCullagh said. “It doesn’t say ‘except for what annoys the North Carolina Board of Dietetics and Nutrition.’”
McCullagh pointed to a sentence in Cooksey’s blog the board didn’t approve of: “I do suggest that your friend eat as I do and exercise the best they can.”
“If that language appeared in a book or a magazine article, do you think the board would complain?” McCullagh asked. “How about if someone said that to a friend over dinner at a restaurant? Of course not. But because it’s on the Web, they seem to think that the First Amendment no longer applies.”
A couple of key points. If Cooskey was offering paid services then the state would have a case. However, blogging would have nothing to do with the paid services, the paid service itself would be the violation. Anyone can offer lay opinion. News editorials offer lay opinion on legal issues all the time (and they are more often than not wrong). Are they practicing law without a license? Clearly not. Their activity is covered by the first amendment. The same applies here.
On my blog, on posts where I opine on legal situations, I always include a disclaimer stating that the information contained is not legal advice, and that the reader should consult a lawyer before doing anything. If Cooskey’s disclaimer is not enough, then what is to say my disclaimer is enough, should someone decide to act on the advice given?
James Skyles
