Blog Archives
Question: Can I sue someone for impersonating someone on the Internet?
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.
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.
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!
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.
Was it Weiner’s Wiener?
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:
Sexual Harassment
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.
Cyberstalking
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.
Cybercrime
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.
Update 6/7/2011 11:36am
Turns out it was Weiner’s Wiener.
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
