Category Archives: defamation
Anti-Semitism is on the rise in Europe, especially in France and Germany. One outlet for anti-Semetic commentary has been twitter. In France, the hashtag #unbonjuif (literally “a good Jew” has been used to spread anti-Semetic jokes. It is now the 3rd most popular hashtag in France.
In France, as well as Germany, the notion of “Free Speech” is not protected as it is in the United States. Germany for example, has outlawed anti-Semetic speech as a whole, something unthinkable in the U.S. The French government is seeking to crack down on the use of twitter to spreed anti-Semitism. The problem is individuals can use twitter anonymously, and twitter servers are offshore and are generally cannot be subpoenaed in French Courts. The solution is this, sue twitter. From France24.com.
According to French lawyer and online media specialist Gérard Haas, Twitter, as a publisher, is legally responsible for the content of its website, just as much as its individual contributors.
He told FRANCE 24 that the only solution for anti-racism organisations was to target individual tweeters and “sue, sue, sue” in response to last week’s anti-Semitic Twitter binge.
“Twitter has to improve its reaction to events like these so that the justice system can quickly identify who has made posts that are illegal under French anti-racism laws,” he said.
While this is happening in France, if a similar situation were to happen in the United States, this course of action could not happen. First, as tasteless and repugnant as anti-Semetic speech is, it is still covered by the first Amendment to the Constitution as free speech, with very little exception.
Even if that were not the case, twitter is protected by the Section 230 of the Communications Decency Act. Most people know the Communications Decency Act as the anti-internet-porn act of 1996. Well, less than a year later, the anti-pornography provisions were largely struck down by the United States Supreme Court in Reno v. ACLU. However, the safe harbor provisions and section 230 still remain.
Section 230 basically gives websites and servers immunity from any slanderous or defamatory communication posted by a third party, stating in part “No 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 key part being “publisher or speaker”. In tort law, a publisher (anyone who prints or repeats the defamatory communication) of information has the same liability as the original speaker. Without that provision, then twitter would be liable for everything everyone posts on its webpage, as would facebook, or any blog or news source with a comments section. So hooray for forward thinking which allows us to have forums to express our thoughts freely, without them having to bear the costs of our own stupidity… for now…
I received this question via email from a reader:
Dear Ask a Cyber Lawyer:
My boyfriend is stationed over seas in the Air Force, and we usually use the internet to communicate. It turns out that his ex-wife has been using an old account of his, and pretending to be him. I just found out that while I thought I have been chatting with him, I was really chatting with his ex. This has caused me a lot of emotional anguish. Is there any way I can sue her?
My response is this. With out knowing anything else about the case, it is possible that there could be several causes of action that could be brought against her by both you and your boyfriend.
First, in some jurisdictions it is actually a crime to impersonate someone on the internet. So it might be worth while to involve the police.
Second, there are civil causes of actions you can bring up. One is the tort of Intentional Infliction of Emotional Distress, or IIED. Intentional Infliction of Emotional Distress occurs when the Defendant intentionally or recklessly commits extreme and outrageous conduct which causes the plaintiff to suffer emotional distress (in some jurisdictions this action must be done in public). If you were induced by this person to commit some sort of act, such as send money, there are fraud actions which may be available as well.
Your boyfriend may also have causes of action available. First, anything she said while impersonating him is likely actionable as defamation. Likewise he may also have an invasion of privacy claim for portraying him in a false light.
My advice is call my firm, or an attorney in your area and make an appointment to discuss the specifics in this matter.
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.
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.
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.
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.
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.
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.
Couple gets $14million after unmasking internet troll: or why it is so hard to unmask an internet troll
I don’t know why I have to find a source in the UK to get a story as juicy as this. News outlets in the states really need to get on the ball. This type of story doesn’t happen every day. It should be in every newspaper because it is interesting, and it makes you want to cheer! Instead we hear that the Kardashian’s signed on with E! for $40million over the next three years. December 21, 2012 cannot come fast enough. But I digress.
A Texas couple has won a $14million dollar judgment after unmasking an internet troll who was defaming them by calling them amongst other things, child molesters, drug pushers and sexual deviants on a Topix.com message board. From The Daily Mail:
The Lesher’s lawsuit investigation led to six parties being named as defendants in an amended petition….
They were Shannon Coyel, the couple’s accuser from the original criminal trial in 2008, her husband Gerald Coyel and his brother James Coyel.
Finding in the Lesher’s favour the court has ordered Jerry Coyel to pay Mark Lesher $5.1 million for mental anguish and loss of his reputation.
It also ordered Shannon Coyel and Charlie Doesher to pay $1.7 million to Mr Lesher, according to the jury.
Furthermore, Jerry Coyel was ordered to pay Rhonda Lesher $3.169 million for mental anguish, loss of her reputation and the loss of her beauty salon business in Clarksville.
Also, it compelled Shannon Coyel and Charlie Doesher to pay Mrs Lesher $1.056 million each.
Neither the Coyels or the Doeshers could be reached for a comment.
The jury in the defamation lawsuit heard that since the ultimately unfounded rape allegations were heard in 2008, a total of 25,000 comments on 70 threads on Topix message boards were posted onto the Internet.
This case illustrates how difficult it is to go after anonymous trolls. First you have to find out who the troll is. If the troll is linked to a domain name, you can look them up on Whois.com, however, if they have any savvy whatsoever, they used a third party source to register the domain name. Third party sources are often under confidentiality not to reveal their sources. The only way to get them to do so is via a court order.
Yes, at the very outset, even before you know if you can get a judgment from the defendant, you need to go to court to find out who the defendant is, and going to court can get expensive. This is why I only take these types of cases when I am paid at least something up front.
The attorney files a lawsuit with an unnamed “John Doe” defendant. It is then up to the attorney to find out who the defendant is, and often times there is only a window of opportunity to do so. The attorney can get a court order to compel the domain name registrar, or the third party source to reveal the name of the party. However, you now have jurisdictional issues if say, the case is filed in Oklahoma, and the third party registrar is in, say Arizona.
If the anonymous source is merely an IP address it can get even harder. The lawyer then has to hire a computer forensics expert to search for the defendant, and that too can get very costly. By the way, the cost for the forensic expert would need to be paid upfront as well.
This is pretty much why it is difficult to see this sort of case to then end. It can be very difficult and very expensive. But if you can get a $14million judgment out of it, more power to you!
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.
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.
A Reader via email asks:
My daughter has had a “fake” Facebook page the past few years – not her real name, to stay anonymous but interact with people who like the same music she did. The fans are more than a little strange and she was only 19 at the time. She interacted with a young man on facebook and email approx 5 months who wanted a relationship with her, without ever divulging her real name/address/phone. She decided against it and ended contact with him a few weeks ago. Now he’s claiming my daughter was stalking him, impersonating someone she wasn’t and that he’s going to sue her for “anything my lawyers can think of.” I’m wondering what she might have done that could be considered illegal. I’m seriously concerned if this guy can actually hunt her down to our actual address with this threat of legal action.
Ok, here is the deal in plain terms. With the limited information I have, the only trouble your daughter probably caused was a violation of facebook’s terms of service. Facebook requires that users must be real persons and do not allow for any sort of pseudo-persons as users of their site.
The only way she could have stirred up some legal troubles is if she impersonated a real person, particularly a celebrity. This would possibly fall under the tort of invasion of privacy- appropriating a false identity. It doesn’t seem to be the case here.
As far as cyberstalking is concerned, the definition differs from jurisdiction to jurisdiction, but in general it is the unwanted and repeated intrusion into another person’s real-life vis-a-vis the internet. It does not look like she has done this, however, her accuser may be liable for cyberstalking himself. False victimization, or wrongly accusing others of cyberstalking is a form of cyberstalking in and of itself. Contacting her through the internet after she has made it clear that she does not want to be contacted is another, more obvious form of cyberstalking. If I were in your daughter’s situation I would make sure that he has no way of accessing her personal information.
Disclaimer: 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.
Although this may be a mere coincidence, religious theorists would lead you to believe that this could be taken as the evidence of a Divine Being, for the chances for randomness of this golden double entendre is so remote, it would defy statistical odds (I apologize in advance, as this post will be full of puns). A member of Congress, married to Secretary of State Hilary Clinton’s long time aide, who happens to have the unfortunate last name of Weiner, has a picture of a semi-erect phallus hidden in boxer shorts tweeted to a 21-year old college coed, Gennette Cordova. If it’s a hacker, then it is no coincidence, no miracle, just someone who thought it would be fun to mess with a congressman, without considering the possible consequences. This does beg the question: Was it Weiner’s wiener?
According to “The Fix“, Chris Cillizza’s political blog in “The Washington Post“, Congressman Weiner cannot state with certitude whether or not the picture was him. Never-the-less, he denies posting the picture on yfrog, and tweeting it to the Seattle area journalism student. He does admit that this incidence has affected him and apologized to the media saying “I am sorry I was a little stiff the other day” (No I did not make that up, obviously the Congressman would not be offended by the jokes in this post).
What are the legal implications of this type of activity? First let’s assume that it can be shown that Congressman Weiner did send the picture:
The possibility of a sexual harrasment complaint or cause of action is minimal. First, there needs to be evidence that Weiner did in fact tweet the picture of his wiener. Second, we need to look into the reltionship between Weiner and Cordova. Sexual Harassment is the unwanted sexual advances, coercion, intimidation or bullying of a sexual nature, or the promise of reward for sexual favors. Even if Congressman Weiner did tweet the picture, it is highly unlikely that the incident would “rise to the level” of sexual harassment because they both admit that they had never met each other.
Again, assuming that it can be shown that Weiner did tweet the pic, is it possible, but not likely, that the action could be deemed cyberstalking. Cyberstalking is the use of the internet to threaten or intimidate an individual sexually, on a systematic basis; or the use of the internet to arrange a meeting with the intent of using the meeting to commit a sexual crime. Whether or not this can be considered cyberstalking is dependent largely on whether or not it was systematic. Since by all accounts, this was a one time incident, it is hard to prove that their was any systematic effort to harm Ms. Cordova, so it is unlikely that any cyberstalking occured.
Now, assuming the system was hacked, was causes of action could there be against the individual hacker?
Invasion of Privacy
Invasion of privacy is a sort of “supertort” that encompasses several different types of situation. In this situation, two possible torts apply, each depending on whether or not it was Weiner’s weiner that it was tweeted.
If the picture was an accurate representation of the Member’s member, the most applicable type of invasion of privacy would be “public disclosure of private facts”. This type of tort occurs when an individual reveals information which is not of public concern, and the release of which would offend a reasonable person. In this case, the information revealed was the size, shape, and contours… well you get the picture.
The other type of invasion of privacy occurs whether or not the picture was or not of the Congressman, however it is more likely to occur if it was not a real picture. This is the tort of “false light”. False light occurs when an individual publishes information (in this case a picture), with actual malice, that places the individual in a false light, and would be highly objectionable. Let’s assume that their was actual malice, and the picture is highly objectionable. If the picture was false, it was likely that the circumstances surrounding the tweet, the fact that it was the congressman’s twitter account, still places the congressman in a false light. If it the picture was real, this tort would apply if the information revealed was misleading. For example, it would be misleading if it implied is that the congressman is a perverted sex maniac, or just a creepy guy.
Outside the realm of tort, there is the possibility that a cybercrime occured, depending on the jurisdiction. 25 states and the District of Columbia considers it a crime if someone hacked into an account and distributed lewd content through the invasion of that account. Here depending on where jurisdiction can be determined, the individual who hacked into the account and posted the picture that may or may not be of the Congressman, may have committed a cybercrime.
All of this rests upon whether or not the individual hacker can be caught. Ms. Cordova has stated that she “knows who it is” who “hacked” into Weiner’s account. This is a good step because twitter keeps accurate records of where tweets come from. It should not take long for a computer forensic’s expert to determine the possibility as to whether or not the individual could have hacked into the account. At that point, simple investigative work involving obtaining a warrant and seizing the suspect’s computers could yield the evidence necessary to charge the individual with a cybercrime.
UPDATE! (6/3/2011) 10:30am
Jon Stewart and the Daily Show have their take on the scandal.
|The Daily Show With Jon Stewart||Mon – Thurs 11p / 10c|
|The Big Wang Theory|
Update 6/7/2011 11:36am
Turns out it was Weiner’s Wiener.