I enjoyed talking with Anna Devlantes and Corey McPherrin this morning on our local Fox affiliate’s morning program about defamation online and the challenging problem of unmasking anonymous defendants. The video is embedded below, or you can go here if it’s not showing up in the RSS feed.
Johnson v. Arden, — F.3d —, 2010 WL 3023660 (8th Cir. August 4, 2010) The Johnsons sell exotic cats. They filed a defamation lawsuit after discovering that some other cat-fanciers said mean things about them on Complaintsboard.com. Among the defendants was the company that hosted Complaintsboard.com – InMotion Hosting. The district court dismissed the case [...]
A North Carolina trial court recently ordered the editor of the local community blog Home in Henderson to turn over the names and addresses of six pseudonymous commenters who allegedly defamed former Vance County commissioner Thomas S. Hester, Jr. As the Reporters’ Committee for Freedom of the Press noted, the court used a lower standard in determining whether to order disclosure than is common in cases of this kind. In a June 28 order, Superior Court Judge Howard E. Manning, Jr. determined that six of out of twenty anonymous comments about Hester were actionable and therefore concluded that Hester’s interest in proceeding with the case overcame those commenters’ qualified First Amendment right to speak anonymously.
Judge Manning’s reasoning is somewhat difficult to follow. He praised the standard set forth in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), the leading case on this issue. Yet, he also qualified this endorsement, saying he would only use "some" of Dendrite‘s test in making his determination. In reality, Judge Manning simply tested the legal sufficiency of Hester’s allegations, considering a testing of the evidence "way too stringent and premature." This is at odds with Dendrite, which clearly requires that the plaintiff support his claim with a prima facie evidentiary showing "[i]n addition to establishing that [his] action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted." Dendrite, 775 A.2d at 760 (emphasis added). In essence, the court simply applied a motion to dismiss standard, reminiscent of that articulated in older cases like Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).
One of the noteworthy aspects of this case is the blog editor’s argument in his motion to quash that the identities of the commenters were protected by North Carolina’s shield law, N.C.
Gen. Stat. § 8‑53.11. Unfortunately, the court never directly addressed the issue in its decision and so didn’t decide whether Home in
Henderson‘s editor qualified as a journalist for purposes of the law.
In recent years, courts in Montana, Oregon, and Illinois have considered whether news sites can invoke state shield laws to protect the identity of anonymous commenters. It’s too bad this court did not weigh in on this question from the North Carolina perspective.
(Marina Petrova is a rising second year student at UCLA School of Law and a CMLP legal intern.)
(Photo "Anonymous #16" courtesy of Flickr user JacobDavis, licensed under a CC Attribution-NonCommercial-No-Derivs 2.0 Generic license.)
Earlier this week, we received the good news that travel blogger extraordinaire Christopher Elliott sucessfully resolved the defamation lawsuit brought against him by Palm Coast Travel. Chris found a top-notch lawyer to help with his case through our Online Media Legal Network (OMLN) (thanks for the shout out to the network, Chris!).
Huge props go to Gregory Herbert and his team at Greenberg Traurig for answering the Bat-Signal and bringing the matter to a successful resolution. It’s dedicated professionals like Greg that make OMLN work.
Of course, I would be remiss if I failed to remind all of our readers about OMLN. OMLN is a network of lawyers and law school clinics from across the country willing to offer free and reduced fee legal representation for qualified online media ventures and other digital media creators. OMLN lawyers are available to tackle a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.
So if you find yourself facing a lawsuit over your online publishing activities, drop us a line (Bat-Signal optional).
Last Monday, the New York Times ran an article about T&J Towing’s lawsuit against a college student, Justin Kurtz, over a Facebook group page he started called “Kalamazoo Residents against T&J Towing.” Several other news outlets and blogs have picked up the story, in no small part due to its David-and-Goliath appeal.
Kurtz apparently created the Facebook page days after T&J towed his car from the parking lot of his apartment complex. On the page, Kurtz claims that T&J removed his parking permit and improperly towed his car. Other Facebook users have chimed in—the group now has over 13,800 members, many of whom have posted comments about their own negative experiences with the company.
Given the widespread coverage, one would think that it would be easy to get a hold of the complaint and other court documents, but I had no such luck. I searched all over the Internet for the documents, skimming dozens of pages to no avail. I also tried Michigan court websites. No luck. I even emailed the reporters whobroke the story. No reply. Finally, one of Kurtz’s lawyers was kind enough to send me copies of the complaint and answer (thanks to Dani Liblang!).
The complaint is a short read. It does reveal, however, that the towing company believes that Kurtz libeled it by "falsely and publicly claimed that Plaintiffs have towed vehicles where no violation has occurred and which claims are untrue." Cmpt. ¶ 4. And Sam points out a potentially interesting Section230 issue: T&J’s complaint implies that Kurtz should be liable for the statements of others posting to his Facebook group, alleging that Kurtz "has absolutely no way of knowing whether or not all of the written submissions to his website have any truth or validity." Id.¶ 7. This may be one of those rare instances where Section 230 protects a "user of an interactive computer service," as opposed to a "provider" of such a service (like Facebook itself). See 47 U.S.C. § 230 (c)(1).
We’ll be monitoring this case in our database entry, T&J Towing v. Kurtz.
(Marshall Hogan is a rising second-year law student at Columbia Law School and a CMLP legal intern.)
It’s often said that bad cases make bad law. In the case of a decision issued by a New Jersey state court back in December, a bad case has also made for bad law commentary.
You may have heard about the Apex Technology case, which we covered in our Legal Threats Database. In a broad order issued days before the Christmas holiday, a New Jersey court issued the takedown of three websites critical of the H-1B visa program, which allows skilled foreigners to work in the U.S.
The order was issued in connection with a defamation case in which Apex Technology Group, Inc. sued the anonymous posters of comments on the Endh1b.com blog (now offline), accusing Apex of not paying the workers it placed and other improprieties.
Apex e-mailed Endh1b.com, seeking removal of the comments. Instead of complying, Endh1b.com posted the e-mail, made further accusations against Apex, and solicited funds for a legal defense. The offending posts about Apex also appeared on other sites opposing the H-1B visa program, including www.itgrunt.com and www.guestworkerfraud.com.
Apex then went to court, seeking a preliminary injunction barring all three sites and the posters from posting additional "false, defamatory and/or negative statements related to Apex and/or its officers and directors" in advance of trial, and ordering the operator of Endh1b.com to assist in identifying the anonymous posters.
As reported in our Threats Database, on Dec. 23, 2009 the judge issued an order granting the preliminary injunction. But the order went further, ordering Yahoo! and Facebook to help identify the posters, ordering Endh1b.com and the other sites to bar future posts and remove the offending posts, and, incredibly, ordering the hosts of all three sites to remove the sites from the web.
Update: On June 25, 2010, the trial court granted a defense motion to dismiss the case, and lifted its previous order. But the overreaching order was still in effect for six months.
Two weeks after the judge issued the preliminary injunction order, Electronic Frontier Foundation senior staff attorney Kurt Opsahl wrote a blog post critizing the court’s order, calling it "deeply dangerous and wrong."
The New Jersey court order is therefore wrong in at least four ways: (1) it creates a prior restraint that takes down too much speech, (2) it wrongly punishes websites for the speech of their commenters, (3) it wrongly requires the identification of anonymous speakers without sufficient opportunity to challenge the disclosure, and (4) it wrongly enlists out-of-jurisdiction upstream providers who did not act in concert with the websites in taking down speech. We hope the parties and the upstream and domain name hosts involved will seek to overturn it.
Vivek Wadhwa, a visiting scholar at UC-Berkeley, Director of Research for the Center for Entrepreneurship and Research Commercialization at Duke University, and Senior Research Associate for the Labor and Worklife Program at Harvard Law School, responded to Opsahl’s post in TechCrunch.
In a post titled, "How The EFF Lost Its Way By Defending Hate Mongers And Tunnel Rats," Wadhwa criticized Opsahl for disregarding what Wadhwa said was the virulant racism and xenophobia on the Endh1b.com, itgrunt.com and guestworkerfraud.com sites.
You can debate the merits of the EFF stance from a legal standpoint. But the EFF cannot function in a contextual vacuum. I am certain its employees feel overworked and underpaid like those of many other non-profits. But, by siding unwaveringly with some of the most hateful sites on the Internet and not even mentioning the nature of those sites, the EFF betrayed its charter of upholding justice. A simple Google cache search would have easily shown Kurt and his colleagues that the sites in question were vitriolic. By giving Tunnel Rat [the site owner's psydonym] a free pass, the EFF encouraged several major media outlets to echo its one-sided defense of the ability to talk about killing and hurting Indians and H-1B holders. If people want to have a debate about whether H-1B visas are good for America, let’s have it. But if the most spirited response they can muster is to threaten the lives of their opponents, they’ve already lost the debate.
That’s when first-year Harvard law student Harry Zhou weighed in. Discussing the controversy on the "JOLT Digest" blog of the Harvard Journal of Legal Technology in a post titled "Digest Comment: Determining the Proper Scope of Prior Restraints against Blogs in Defamation Cases," Zhou does a "on the one hand, on the other hand" analysis, but eventually concludes that the Apex order is proper because of the one-sided nature of the sites.
To conclude, a prior restraint should be able to reach beyond directly relevant materials to the extent that it serves the purpose of curbing immediate reputational harm. But a court should caution against expanding the scope of a prior restraint for values unrelated to the plaintiff’s claims. When determining the proper scope of a prior restraint against a blog, a court should consider: 1) whether the blog deals with a variety of topics, 2) whether the opinions expressed on the blog are diversified, 3) whether the blog owner directly contributed to the allegedly defamatory materials, and 4) whether a narrow removal would escalate instead of mitigate reputational harm. In Apex, the takedown was likely proper because it may have been the only effective way to temporarily stop the numerous anonymous users from spreading the allegedly defamatory information about Apex.
Wadhwa’s post generated several hundred comments, while Zhou’s generated only a few.
But as commenters to both of the posts pointed out, it’s extremely dangerous to endorse courts ordering the shut-down of entire web sites based on allegations they contain defamatory information: which, after all, is the only legal claim that Apex made against the anti-H-1B web sites.
It also is extremely disturbing that the blog posts endorse restricting speech on a important political issue: H-1B visa policies in particular, and American immigration policy in general. As the Supreme Court has held, "[t]he First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)).
As a practical matter, the culture of the Internet effectively negates any such effort at restricting content: when a federal court in California ordered the shutdown of the entire Wikileaks website in response to a claim by a Cayman Islands bank, the material just appeared elsewhere on the web. [The case was eventually dropped, and the order vacated.] So an order such as the one issued against the anti-H-1B websites is likely to be ineffective, and to just result in the offending material becoming more prominent.
As a legal matter, the U.S. Supreme Court has held that even narrowly tailored prior restraints on speech are constitutionally suspect. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) ("prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights").
The Supreme Court has also consistently held — perhaps most notoriously in the Skoie, Ill. Nazi march case (Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977)) and the flag-burning cases (Texas v. Johnson, 491 U.S. 397 (1989) and U.S. v. Eichman, 496 U.S. 310 (1990)) — that offensive speech is entitled to protection under the First Amendment.
We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.
U.S. v. Eichman, 496 U.S. at 318-19 (citations omitted).
In R. A. V. v. City of St. Paul, 505 U.S. 377 (1992), the court struck down a St. Paul, Minn. ordinance that specifically criminalized symbols and writing that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," saying that by protecting some categories and not others, the ordinance was unconstitutionally content-based and overbroad.
So, there is no "proper scope of prior restraints against blogs in defamation cases," at least not on the basis of the racism and bigotry that Wadhwa sees in the anti-H-1B visa sites, or on the grounds that the defamatory information may "pop up" elsewhere on the site, as Zhou seems to fear.
[F]reedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
The ordinance as construed by the trial court [in this case] seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.
Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949) (internal citations omitted).
In these cases, the Supreme Court has reminded us of the true meaning of the First Amendment: except for a few, limited types of speech (obscenity, "fighting words"), it generally prohibits the government, including the courts, from restricting speech that offends someone. In fact, the real purpose of the First Amendment is to allow such speech, especially when it offends someone.
For the London Free Press – April 5, 2010
Read this on Canoe
Court upholds judge’s decision a hyperlink to defamatory material doesn’t make the person posting the link liable for defamation
The British Columbia Court of Appeal decision in Crookes vs. Newton dealt with the issue of whether posting hyperlinks on one’s own website that link to [...]
The Supreme Court of Canada today granted leave to appeal in the Crookes v. Newton case, which involves alleged online defamation and the liability for linking to a defamatory article.
Update: Coverage from Canwest on the implications of the case.
The reform of British libel law has been something of a will o’ the wisp in recent years. Every few months it seems, the issue jumps to the fore, either through international pressure, a judicial decision, or a domestic campaign. But just as quickly, it disappears back into the legal morass.
But finally, it looks like Britain’s legal heavy hitters are getting involved. Last week, British Justice Minister Jack Straw rolled out the Labour government’s outline for a long-needed libel reform bill. The Independent reports:
Mr Straw said ministers were now "convinced" that reform of the law in
England
and Wales was necessary, amid concerns that existing legislation was
having
a "chilling effect" on freedom of expression. . . .
"On the basis of all the views that have been submitted, the Government
is
convinced that reform of the law on libel is needed, and that action
should
be taken on a number of aspects and procedures," Mr Straw said.
"The Government believes that the programme of work which it intends to
take
forward represents an effective and practical way to ensure that our
libel
laws achieve a fair and just balance which enables people to protect
their
reputations against defamatory allegations without having a harmful
effect
on freedom of expression."
This is no small thing. Previous pushes for libel reform have been largely by soft powers—non-governmental bodies and lower court judges who have tried to distinguish the cases that earned London its "libel capital of the world" title. But Mr. Straw’s statement indicates that Labour is finally throwing its weight behind libel reform, and a considerable weight it is too. As British legal website The Lawyer writes, "the deeper problems [of libel law] are really such that primary legislation is
necessary." And primary legislation is finally possible with Labour’s commitment.
Straw outlines the reform plans in more detail in an article he wrote for The Guardian:
The main areas we are looking at are threefold. Firstly, we’ll be
introducing a single publication rule, under which a defamation claim
will have to be brought within one year from the date of the original
publication. The interests of people who are defamed will be protected
by giving the court the power to extend this period where necessary.
This
element will specifically tackle the problem of internet publishing,
and the way the law currently allows defendants to be
taken to court every time allegedly libellous content is accessed
online. This causes great uncertainty, as publishers are effectively
subject to open-ended liability. Clearly, our current laws are not fit
to handle the realities of the 21st century media landscape and internet
use—this change will address that.
Secondly, the Bill will
include provisions to prevent the growth of so-called "libel tourism",
which some believe has been increasing rapidly in recent years. I’m
asking the Civil Procedure Rule to consider tightening the rules where
the court’s permission is required to serve defamation cases outside
England and Wales. This will help head off inappropriate claims at the
earliest stage and stop them from reaching court.
Finally—and
perhaps most importantly for the media—we’ll be looking at whether to
introduce a statutory defence to protect publications that are in the
public interest. A statutory public interest test which is clearly and
simply expressed could help ensure that the work done by journalists,
scientists and NGOs to investigate and inform the public can continue—while also preserving the right we all have to protect our reputations.
This is all excellent news. A statutory confinement on "publishing" is welcome—the idea that a website is "published" every time it’s downloaded is as ludicrous as saying a book is "published" every time it’s opened. And putting an end to libel tourism is huge—the British libel laws have produced some outrageous results, highlighted by the case of Rachel Ehrenfeld, which spurred legislation from New York, California, Illinois, and Florida, as well as efforts on the federal level, to stop the enforcement of such rulings in the US.
And indeed, the "public interest" defense is sorely needed, though the concept needs further fleshing out. Based on Straw’s description, it doesn’t seem quite the powerhouse that the First Amendment is, and it may be similar to the common law public interest defense found in the law of many U.S. states. One wonders who decides just what’s in the "public interest"—is it categorical, based on the type of publisher? Straw’s statement about "a statutory defence to protect publications that are in the public interest" could be read that way. Hopefully it’s less about "publication" as the organization than as the article—surely, a blog post or a forum comment about an issue of the day is as much "in the public interest" as a newspaper article or NGO report. Still, at first blush, Straw’s proposal holds promise. Hopefully, the parliamentarians can fulfill that promise.
Naturally, the various proponents of libel reform in Britain are pretty pleased. The Times of London (a paper not known for its support of Labour) wrote in an editorial that "the Justice
Secretary’s proposed reforms are right," and the Libel Reform Campaign, a British NGO that espouses, well, libel reform, "welcomed" Straw’s commitment. And while The Guardian did not weigh in with an editorial on the subject, that may just be because its support is so obvious that it needs no mention.
Of course, Labour support is all well and good, but the soonest such a reform bill could be considered is in the next parliament, which will be elected this spring. The knowledgeable reader is likely aware that the current Labour government may well be ousted in elections, in which case it wouldn’t matter much what Straw thinks. So what says his counterpart in the Tories, who are favored to take over the government?
Good news! The Conservative shadow minister, Henry Bellingham, has also come out in support of libel reform, reports journalism.co.uk. Citing word from the Libel Reform campaign, journalism.co.uk writes that Mr. Bellingham would make libel reform a priority. The Conservatives had been the last remaining major party that had yet to support libel reform, until Bellingham’s commitment. Not exactly as encouraging a commitment as Straw’s, but they’ve spoken out in favor of libel reform now, which they hadn’t before.
So it’s finally looking like a matter of "when," not "if," libel reform comes to pass in Britain. Given the embarrassment that is British libel law, hopefully that "when" is sooner than later.
(Arthur Bright is a third-year law student at the Boston
University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)
Photo courtesy of Flickr user Jerome Briot (http://www.flickr.com/photos/briot/),
licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0
Generic license (CC
BY-NC-ND 2.0).
A.Z. v. Doe, 2010 WL 816647 (N.J. Super. App. Div. March 8, 2010)
Even if you do just a cursory review of cases that deal with online anonymity, you are bound to come across a 2001 New Jersey case called Dendrite v. Doe. That case sets out a four part analysis a court should undertake [...]