Archive for the ‘lawsuits against bloggers’ Category

Blighted and Slighted: Landlords Sue Slumlord Watch Blogger

Tuesday, December 31st, 2013

Blogger Carol Ott of Baltimore Slumlord Watch is being sued by two landlords on allegations that she hired graffiti artists to paint murals on abandoned properties.

Ott’s website – tagline: “If you own vacant property in Baltimore City, clean it up!” – consists of posts with addresses of rotting buildings listed with their owners and contact information for those owners.

According to the Towson Patch, the trusts that own the moralized properties are seeking $2,500 in damages to cover the costs of re-painting. According to the Patch, Ott denies the claims, saying that she provided background information on properties but did not direct people to take action.

Al Jazeera, which has pictures of the murals, reports that Ott recently worked with Wall Hunters, a group of street artists who pasted QR codes to dilapidated buildings with links to landlord contact info.

The Atlantic Monthly recent profiled Ott’s efforts to clean up Charm City’s urban blight.

More:

UK Court Rules 7-Word Tweet Libeled Lord

Tuesday, June 4th, 2013

Gavel coming down on twitter bird, combined with British flagLord Robert Alistair McAlpine was libeled by a tweet from Sally Bercow, the wife of the Speaker of the House of Commons, according to a May 24, 2013 decision of UK’s High Court of Justice.

With a question of damages still pending, the parties terminated the litigation with a settlement on undisclosed terms.

Eric P. Robinson blogged that the case “shows — if anyone still had doubts — that tweets can indeed be libelous.”

“In short — appropriate for Twitter — a libel is a libel, no matter how few characters it contains,” Robinson concluded.

A BBC report in 2012 about alleged sexual abuse in a Welsh foster-care home in the 1970s and 80s communicated an allegation by a victim that one of the abusers was a leading Tory politician, but no particular person was named. Social media speculation following the BBC report then centered around Lord McAlpine.

Then came the libelous tweet from Bercow:

Why is Lord McAlpine trending? *Innocent face*

It turns out Lord McAlpine was not an abuser. The ensuing scandal led to the resignation of the head of the BBC.

It appears Sally Bercow abandoned Twitter.

The case is a good example of how defamation can happen indirectly, and by implication. It also provides a good point of contrast with American law – UK law on libel is much stricter and not subject to the strong protections that we have under the First Amendment on this side of the Pond.

For a full unpacking of the facts and law, read Robinson’s thorough post on Blog Law Online.

Aurora Town Council Apologizes for Suing Bloggers

Thursday, May 9th, 2013

Train station in Aurora. (Photo: Secondarywaltz)

The town council of Aurora, Ontario has voted to make a formal apology to bloggers who were on the receiving side of a meritless defamation lawsuit brought by then-mayor Phyllis Morris in her official capacity.

The council’s motion, which passed 6-2, provided:

THAT the Mayor on behalf of Council, be authorized to issue a formal apology to those named in the action and to the community at large stating our commitment to freedom of speech and our regret that the Town of Aurora was ever associated with a SLAPP action … (Town Council Minutes [pdf])

Kudos to the members of the town council who voted in favor of the apology to bloggers Bill Hogg, Richard Johnson, and Elizabeth Bishhenden.

Councillor Michael Thompson, who, made the motion, explained his concept of responsibility: “There will be some who will say we are not the ones who should apologise because we did not create it, but this Council is now the ones who are responsible and accountable to this Town. Whether we create or inherit an issue, it is our role to act upon, if needed. In this case, I believe in the simple principle when you are wrong, do the right thing, admit it, and make amends where possible.”

One of the no votes was one of the people who had reason to take direct responsibility. Councillor John Gallo was one of the original votes on September 14, 2010 to hire outside council to pursue the bloggers. And Gallo was the lone vote against the council’s action to stop funding the legal campaign after the rest of the town council came to their senses.

Coverage:

Prior coverage on Blog Law Blog:

Thanks to vindicated blogger/defendant Richard Johnson for sending in the tip on this.

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

Tuesday, November 20th, 2012

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

Former Mayor Must Pay $21,275 in Bloggers’ Legal Bills

Monday, October 29th, 2012

Aurora town logo(Image: Aurora, Ontario website, used without permission.)

A court in Ontario has ordered a former mayor to pay $21,275 in legal bills accumulated by bloggers defending themselves against a local politician’s attempt to silence online criticism.

In 2010, Phyllis Morris, then mayor of Aurora, Ontario, waged a litigation campaign against online critics while she was running for re-election. Notably, she got the town council to foot the bill for the lawsuit with taxpayer money. Months later, well after she lost the election, she voluntarily dismissed her lawsuit.

But defendants William Hogg, blog proprietor-moderator, and Richard Johnson, a blog contributor, kept the case file open to press the court for a money award to pay their defense bills.

Their push paid off.

According to the Toronto Star, in making the award, the Ontario Superior Court characterized Morris’ lawsuit as an attempt to hit her critics “quickly and hard,” in order to quiet her opponents “sooner rather than later in the weeks leading up to the October 2010 elections.”

Blogger Christopher Watts has more about the court’s award, plus a link to the court’s opinion, on his blog, Temporary Sanity.

Prior coverage on Blog Law Blog:

Coverage of the fee award:

ZAGG v. Catanach – Extended Excerpt

Friday, October 5th, 2012

ZAGG logoFollowing up on this morning’s post, here is an extended excerpt from ZAGG, Inc. v. Catanach (E.D. Pa. Sept. 27, 2012), denying the motion to dismiss of bloggers / b-school professors Catanach and Ketz of the Grumpy Old Accountants blog. The full opinion is available from the court as a pdf.

ZAGG, Inc. (“Zagg”) has brought this action for defamation and false light under Utah state law1 against Anthony H. Catanach, Jr. (“Catanach”) and J. Edward Ketz (“Ketz”), two business school professors at universities in Pennsylvania. Zagg alleges that Catanach and Ketz published false and defamatory statements about it on a blog. Before the court is the motion of Catanach and Ketz to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. …

Catanach and Ketz authored and caused to be published an article entitled “Don’t Gag on Zagg” on the Grumpy Old Accountants blog. In the article, they made a number of statements about Zagg’s accounting practices. Zagg alleges in its complaint that the following statements from the article are defamatory:

a. “The numbers are giving off so much smoke that we think management may have blinded both the auditors and investors.” b. “At worst, management may be ‘cooking the books.’”

c. “ZAGG’s balance sheet is littered with items prompting valuation and disclosure concerns.”

d. “The company includes accounts receivables from credit card processors in its reported cash balances. You know how we feel about this right? … Instead of the Company reporting positive cash flow for 2011, it really ‘burned’ cash.”

e. “[I]t is ironic and worrying that the ifrogz business segment is losing money right out of the gate.”

f. “Still not convinced that ZAGG management is massaging the numbers? Maybe the following will make the hairs on the back of your neck stand up.”

g. “This is a financial reporting debacle in the making.”

h. “It makes us grumpy when a firm overstates its cash by adding in some receivables, as note 1 explains. And why did ZAGG do this? In an attempt to fool investors about its cash flows!”

To state a claim for defamation under Utah law, plaintiff “must show that defendants published the statements concerning him, that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage.” West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994) …

The statements in issue by Catanach and Ketz on the Grumpy Old Accountants blog were not merely nettlesome or embarrassing but rather were capable of damaging Zagg’s reputation. They directly impeached Zagg’s honesty with statements such as “[t]he numbers are giving off so much smoke that we think management may have blinded both the auditors and investors” and others such as “Zagg’s balance sheet is littered with items prompting valuation and disclosure concerns,” and “[Zagg is] attempt[ing] to fool investors about its cash flows.” These statements imply dishonesty and even criminality and thus are capable of defamatory meaning.

Even when statements may otherwise be capable of defamatory meaning, the Utah Constitution protects expressions of opinion …

The defendants contend that their statements in the Grumpy Old Accountants blog were all expressions of opinion, as noted in a disclaimer at the end of the article stating, “[t]his essay reflects the opinion of the authors and not necessarily the opinions of the Pennsylvania State University, the American College, or Villanova University.” They also point out that a number of statements are preceded with the words, “we think.” These exculpatory words in and of themselves do not save the statements in issue from being defamatory. See Milkovich v. Lorain Journal Co., 497 US 1, 18 (1990). It would undermine the law of defamation if speakers or authors could simply employ a talismanic word formula to absolve themselves of slander or libel. See Id. at 18-19.

Although opinions are protected from defamation liability under the Utah Constitution, any facts implied by the opinion or underlying the opinion are not protected. West, 872 P.2d at 1015. The Supreme Court of Utah … relied specifically on “four factors as useful in distinguishing fact from opinion: (i) the common usage or meaning of the words used; (ii) whether the statement is capable of being objectively verified as true or false; (iii) the full context of the statement –- for example, the entire article or column –- in which the defamatory statement is made; and (iv) the broader setting in which the statement appears.” Id. (citing Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc)).

We will address each factor in turn. The Ollman decision cited by West explained that the first factor, “common usage or meaning of the words used,” was relevant for “determining whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous.” Ollman, 750 F.2d at 979 (citations omitted). The court reasoned that readers of the statements would be “considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning.” Id. Here, the statements by Catanach and Ketz have commonly understood meanings. For example, when a reader sees “[a]t worst, management may be ‘cooking the books’” or Zagg’s “attempt to fool investors about its cash flows,” he or she understands that the authors are implying false numbers in Zagg’s ledger amounting to at least potential criminality.

As for the second factor, the statements by Catanach and Ketz about Zagg are capable of being verified. Accountants are able to look at Zagg’s financial records and public filings to determine whether there were manipulations and irregularities giving rise to “valuation and disclosure concerns,” as accused.

Turning to the third factor, reading the full context of the blog posting would not lead a reader to believe that the statements were opinions and not steeped in fact. Even though the authors did include at the end of the article that the essay reflected their opinions and at times use the phrase “we think,” various statements in the article explained to the reader that the authors had read Zagg’s public filings and financial statements and were basing their statements on these factual disclosures. For example, the article states, “[o]ur review of the Company’s operating environment and the 2011 10-K leads us to conclude that at the very least, the Company’s reported amounts are suspect.” This statement is based on data from the 10-K. In sum, the full context of the article would not lead a reader to conclude it was mere opinion.

The fourth factor requires the court to consider “the broader setting in which the statement appears.” The Supreme Court of Utah explained that statements in newspaper editorials tend to be more exaggerated than “hard news,” and as a result readers are “less likely to form personal animus toward an individual based on statements made in an editorial.” Id. at 1009. This led the West court to determine that the statements at issue in that case, which were published in a newspaper editorial about a mayor of a town in Utah, were not capable of defamatory meaning. Similarly, here readers may be less likely to sell their stock in a company when they read about potential disclosure concerns on the Grumpy Old Accountants blog than, for example, on the front page of The Wall Street Journal. On the other hand, the defendants are professors at business schools, with apparently no political axe to grind. Readers are likely to take their statements about corporate finance seriously. …

In West the plaintiff was a public official, and the court explained that this factor was relevant to its finding that the statements were opinions not capable of defamatory meaning. Id. at 1009-10. The context of any statement is critical. Readers expect that public officials will be criticized in newspaper editorials and that these criticisms are opinions. Id. That is just the nature of politics. Here, in contrast, two business school professors are making statements about the dishonesty of a corporation. Public companies are not routinely accused of fraud by business professors, and any such accusations would not be presumed to be opinions. The statements of Catanach and Ketz about Zagg on their blog are therefore not protected opinions under Utah law because the meaning of the statements is clear, they are capable of being verified, and the context of the statements and the broader settings in which they appear do not signal to the reader that the statements are opinions and not facts.

Accordingly, we will deny the motion of the defendants to dismiss for failure to state a claim because the statements of these business school professors about Zagg on their blog are capable of defamatory meaning and are not protected as opinions. We, of course, make no determination of whether the statements are true or false. Whether defamation actually occurred will be for the fact-finder to decide.

ZAGG v. Catanach Reminder of What’s at Stake When You Click “Publish”

Friday, October 5th, 2012

Bloggers Anthony H. Catanach Jr. and J. Edward Ketz (Photos: Grumpy Old Accountants)

Two business school professors who author the Grumpy Old Accountants blog have lost a 12(b)(6) motion to dismiss against ZAGG, a publicly traded corporation selling mobile phone accessories.

 

The case is ZAGG, Inc. v. Catanach (E.D. Pa. Sept. 27, 2012). The full opinion is available as a pdf. I will publish an extended excerpt later today.

Though this is a federal court in Philadelphia, it applied Utah defamation law.

Eric Goldman analyzes the case on his Technology & Marketing Law Blog. He notes that the professors still might win in the long run. But, he says:

[T]his case is a potent reminder that we as bloggers are betting our house with each blog post we make – and where we disseminate “negative” information that gores someone’s ox, the wounded ox just might gore us back. It’s one of the reasons why, after 2,000+ blog posts over nearly 8 years, my fingers still tremble a bit when I hit “publish” on a blog post that trashes a real live company or person. You as the readers tend to enjoy the bloodsport, but it’s only fun and games until someone gets sued.

Blogger Johnny Northside Victorious on Appeal – $60K Award Struck Down

Thursday, September 27th, 2012

An appeals court in Minnesota has struck down a $60,ooo defamation award against blogger  John Hoff (“Johnny Northside” on his blog). In doing so, the appeals court did what appeals courts are supposed to do – correct erroneous actions of trial courts.

Citizen Media Law Project’s blog has the full story and an analysis of the legal aspects: Justice Delayed But Not Denied – Appellate Court Overturns $60K Verdict Against Blogger for Posting “Not False” Information

Prior coverage on Blog Law Blog:

Ugly Blogging from Coyote Ugly CEO Not Actionable

Wednesday, September 26th, 2012

Coyote Ugly Nashville logoSometimes, it takes a federal judge to explain something that ought to be common sense.

Misty Blu Stewart learned this the hard way, in her ongoing class action lawsuit under the Fair Labor Standards Act against her former employer, Coyote Ugly Saloon.

Stewart claimed that an expletive-laced blog post by Coyote Ugly CEO Liliana Lovell was retaliation against Stewart.

The only problem? Stewart no longer worked for Coyote Ugly at the time of the post.

According to the court: “Under the FLSA, an ‘employee’ is defined as . . . any individual employed by an employer.’” As such, her retaliation claim had to be denied.

Here’s a quick chronology, as set forth in the relevant court opinion, Stewart v. CUS Nashville, LLC, No. 311-cv-0342, 2012 WL 4049968 (M.D. Tenn. Sept. 13, 2012):

  • Sometime before April 7, 2011, Stewart and Coyote Ugly Saloon in Nashville part ways (the post in question, and the court opinion itself, refer to Stewart as having been “terminated”).
  • On April 7, 2011, Stewart files suit, alleging FLSA claims “arising out of Coyote Ugly’s alleged operation of an illegal tip pool and its failure to compensate its employees for work performed off-the-clock and during overtime hours.”
  • On or about May 11, 2011, Lovell creates the offending post on the Coyote Ugly website, saying in reference to Stewart and her lawsuit, “my thoughts are f* *k that b* *ch.”
  • On Feb. 13, the court certifies a class action, with two classes whose parameters track the claims Stewart made in her initial complaint
  • On July 31, Stewart files a motion to amend her complaint to, among other things, add a retaliation claim, based on Lovell’s post.

So, in simple terms, Stewart was essentially telling the court: “Judge! The Defendants just called me a name!”

The hoped-for response from the judge would have been something along the lines of “Defendants, stop calling Plaintiff that name! Just for that, you’re getting a timeout . . . to the tune of several thousand dollars!”

Instead, the only thing the judge could do, having been told of Defendants’ name-calling, is simply to say, “OK. So what? Sticks and stones, Plaintiff, sticks and stones.”

So, just to wrap things up:

  • Stewart is still not a Coyote Ugly employee.
  • Coyote Ugly is still facing the class action suit Stewart brought.
  • Employer retaliation still cannot be effected against people who are not employees.

EEJ’s thoughts:

Even if blogging “f* *k that b* *ch” doesn’t create retaliation liability, it’s still bad news for the defendants. You can bet Stewart’s attorney is working on a plan to make the blog entry admissible evidence for one of the remaining claims. Even if this kind of wash-your-mouth-out blogging doesn’t get you a time-out from the judge, it sure won’t win you friends in the jury box.

The Full Order from Johns-Byrne v. TechnoBuffalo, Plus Excerpts

Tuesday, July 17th, 2012

Updating today’s earlier post, I have now posted the order [pdf] from Johns-Byrne v. TechnoBuffalo, in which the court denied Johns-Byrne’s attempt to find the identity of TechnoBuffalo’s tipster.

Also, here are some more excerpts from the opinion.

More to my point that the judge was not a fan of TechnoBuffalo, thus indicating that the decision in TechnoBuffalo’s favor wasn’t results-driven judging:

Reviewing the [TechnoBuffalo] website is disconcerting. The website makes it clear that TechnoBuffalo is inviting conduct which may or may not be legal and is very likely actionable. They solicit employees of tech companies to be “super secret ninjas” to “discover something top secret in your store’s inventory” and handover “inside information” to TechnoBuffalo who then disseminates it for their own purposes and who will “take your name to the grave.”

And more:

These solicitations are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed. … Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct, the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.

By the way, I do not buy that these solicitations are detrimental to the industry. Also, I don’t think it is accurate to say that Motorola is in “the intellectual property industry.” Moreover, an “intellectual property industry,” as such, tends not to be heavily reliant on employee confidentiality precisely because of intellectual property laws. Much of this line of argument comes from distorted ideas of what constitutes a “trade secret.” But, anyway, it goes to show that this decision was made on the law, not, as we say in the lawyering business, the “atmospherics.”

One more excerpt, in which we see what the court made of Johns-Byrne’s argument that what TechnoBuffalo peddles is not news but “hype”:

JBC asserts that the content of the article at issue, or moreover, any of the content posted on the TechnoBuffalo website, does not amount to legitimate news but is rather mere “commercial hype” and “entertainment.” However, these concepts or terms of art are nowhere to be found in the Illinois Act. The Act nowhere states that certain content is news and other content, like the “hype” or “entertainment” asserted by JBS, is not news. The content of the “news” simply is not discussed and is not a factor in determining the application of the privilege under the current language of the Act. … TechnoBuffalo’s article falls under the broad, plain meaning of “news.” Therefore, JBC’s attempt to distinguish “hype” from actual news is unavailing.

Previous posts:

Shareholder Lawsuits Quickly Follow Facebook’s IPO

Thursday, May 24th, 2012

Nasdaq chart of Facebook stock
Facebook’s falling stock. (Image: Nasdaq)

Facebook and its investment bankers are being sued over an IPO that didn’t “pop” the way so many investors were hoping. After debuting at an issue price of $38, Facebook’s stock has fallen to a low of $30.94. As I write this, it’s trading at a little over $32.

On Friday, I did a post about the law of IPOs. I talked about how much paperwork you have to file with the SEC in order to do a public offering, including a long, boring document called an S-1. So tedious, almost no one will read it. Almost. As I said:

You know who reads S-1s? Other lawyers. In particular, litigators. Lawyers who are looking for some misstatement or some unmentioned fact that will serve as a basis for a lawsuit based on federal securities law. And then it’s off to the courthouse!

Ahem. That didn’t take long. According an Associated Press story published yesterday:

One suit, filed in U.S. District Court in New York, claims Facebook’s IPO documents contained untrue statements and omitted important facts, such as a “severe reduction in revenue growth” that Facebook was experiencing at the time of the offering.

AnnaMaria Andriotis at SmartMoney adds an interesting footnote to this whole story about a trend of declining payouts in securities class-actions. That means the Facebook lawsuits may be just as disappointing to investors as the IPO.

Update on Johns-Byrne Co. v. TechnoBuffalo

Tuesday, May 22nd, 2012

TechnoBuffalo logo and headshot of CEO Jon Rettinger

In the case of Johns-Bryne Co. v. TechnoBuffalo, a commercial printer is suing a venerable gadget blog to find out who leaked photos of some new cell phone packaging the printer was producing for Motorola. When I last blogged about this in January, an Illinois state trial-level court had just rebuffed TechnoBuffalo’s attempt to use Illinois’s reporter’s privilege law to prevent having to turn over information about the leak. The court said TechnoBuffalo wasn’t a “news medium,” and its bloggers aren’t “reporters.” TechnoBuffalo turned around and asked the court to reconsider the ruling and vowed to appeal if necessary.

I contacted TechnoBuffalo’s CEO Jon Rettinger (heroic Twitter profile pic above left) to ask for an update. We talked on the phone. I was impressed with his sense of conviction – he is working hard to protect the blog’s source.

The motion for reconsideration is, at this point, still pending. On reconsideration, TechnoBuffalo has sought to put more support behind the notion that blogs are real news outlets. To beef-up bloggery bona-fides, TechnoBuffalo pointed out that a blog (HuffPo) recently won a Pulitzer. They also pointed out that TechnoBuffalo is syndicated word-for-word on more traditional news outlets, such as Business Insider, and that TechnoBuffalo bloggers are commonly tapped to make appearances on the cable news channels.

This will continue to be an interesting case to watch as it gets right at the heart of the matter the most salient question of blog law: To what extent the law will blogging inherit the privileged legal status of heritage journalism?

Today in Oregon: Blogging Former Church-Goer vs. Pastor with Anti-SLAPP Motion

Monday, May 21st, 2012

Defamation Defendant Julie Anne Smith (Image: Smith via Blogger.com)

A judge in Oregon is set today to hear the anti-SLAPP motion in the case of Pastor Charles O’Neal of the Beaverton Grace Bible Church, who is suing former church member Julie Anne Smith for defamation, seeking $500,000 in damages.

Smith’s blog, Beaverton Grace Bible Church Survivors, documents a cultish, creepy church. One commenter recounts a call for closet-raids to rid female church-goers of skimpy clothing.

An anti-SLAPP motion is a special kind of procedural device that allows the early summary dismissal of a lawsuit that is aimed at shutting down someone’s exercise of their First Amendment rights.

My bet is that Smith will win the anti-SLAPP motion, thus ending the lawsuit.

The best quick rundown of the fact’s is Smith’s own statement on her blog:

I began this blog in Feb. 2012 after noticing that the Google reviews I had posted of my former church were being removed. Days after the commencement of this blog, I received a legal summons suing me and three others for defamation to the tune of $500,000. The story of spiritual abuse needs to be told. People are being hurt emotionally and spiritually by pastors who use bully tactics and we need a place to learn, to talk freely, and to heal. I will not be silenced.

For me, the best evidece of Pastor Charles O’Neal’s sky-high creepster-factor is his own words, quoted by Smith on the blog, as he rails against her in a weird rant with frequent crazy-person use of ALL CAPS.

Nicely put is Smith’s February 25, 2012 response:

I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.

More:

Righthaven Story by Defendant Eriq Gardner is ABA Journal Cover Story

Thursday, April 26th, 2012

Eriq Gardner, legal-issues journalist for the Hollywood Reporter, has penned the ABA Journal magazine’s new cover story: “The Righthaven Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him.”

As a funny aside, the online version of the story says “Posted May 1, 2012 5:20 AM CDT.”

As I write this, it’s April 26, 2012 7:35AM CDT.

Posted May 1, 2012 5:20 AM CDT By Eriq Gardner

Illinois Court Rules TechnoBuffalo Blog Not Covered by Shield Law

Monday, January 23rd, 2012

Photo of shiny booklet with text, logo, and photo of phone
A leaked image published by TechnoBuffalo.

A state court in Illinois has ruled that gadget blog TechnoBuffalo is not covered by the Illinois shield law. Chris Healy of the Reporters Committee for Freedom of the Press reports on the decision.

In August of last year, TechnoBuffalo published photos of an instruction manual for a yet-to-hit-stores Motorola Droid smartphone. The photos came to the blog by way of an “anonymous tipster.”

The Johns-Bryne Company, the printers hired to reproduce the material for Motorola, sued the blog to learn the identity of the leak, and the blog claimed the protection of Illinois’s reporter’s privilege law. The court, however, read the statute in a restrictive way, saying that TechnoBuffalo does not qualify as a “news medium” and its bloggers are not “reporters,” thus making the law inapplicable.

TechnoBuffalo has asked the court to reconsider and has vowed to appeal.

Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012


Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

Dr. Darm Settles Defamation Suit Against Blogger Tiffany Craig in Portland, Oregon

Friday, December 30th, 2011

Jerry Darm headshotOregon plastic surgeon Jerry Darm (Image: Darm, via YouTube)

Blogger Tiffany Craig (Criminally Vulgar, @tcraighenry) has reported that the lawsuit between her and plastic surgeon Jerry Darm has been settled.

This happened back in October, but you’re just now finding out about it on Blog Law Blog, where, with paywall-less blogging, you get what you pay for.

Darm sued for defamation, but then dismissed the suit. It looks like Darm just bailed after he realized that all that was likely to happen was that he would lose and get stuck with legal fees for both sides, thanks to Oregon’s anti-SLAPP law. The complained-of tweet and blog post are staying up.

The suit appears to have arisen out of this blog post, in which Craig embedded a YouTube video, since removed, of an uploaded Dr. Darm television commercial. Underneath, Craig wrote:

Seen that around? Sure you have. If you watch television in Portland Dr Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.

What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action. …

EFFECTIVE 10/18/01 RECEIVED A LETTER OF REPRIMAND FROM OREGON, REQUIRED TO HAVE A CHAPERONE WHEN EXAMINING FEMALE ADULTS, AND ADDITIONAL CONTINUING MEDICAL EDUCATION COURSES. EFFECTIVE 01/08/09 STIPULATED ORDER OF 10/18/01 IS TERMINATED.
That’s right, he was censured by the state because he was examining female patients without a chaperone. If that’s not bad enough? Apparently needed just a teensy bit more education about how to respect the boundaries of his patients.

Oh and California just decided that he shouldn’t be licensed at all. If he tries to get licensed in California, he has to reapply.

And maybe you’re thinking, “so what if he examined a female patient without a chaperone? How is that a big deal.” You should really read the judgement which says:

“Licensee examined Patient A on August 3, 2000 and September 21, 2000 to evaluate the treatment results. Patient A repeatedly expressed concern about some “spider” veins on her legs, but that she could not pay for additional treatment. Licensee informed Patient A that he would provide her with free treatment at his clinic closing time. On or about November 16, 2000 at about 9:30 PM, Licensee used a laser to treat Patient A’s condition on her legs. At the conclusion of the treatment, as she was reclined on her back, Licensee leaned over Patient A and made intimate physical contact with her and inferred that would be his payment.”

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.
I’m don’t think Results May Vary is quite enough to warn people off being treated by Dr. Darm.

Assuming the quotes are accurate, how could this be defamatory?

A report on the settlement by Alex Zielinski in the alternative weekly newspaper, the Portland Mercury, implies it was this:

Craig … didn’t note that Darm’s license is now renewed in Oregon.

So what? If the reasonable implication of Craig’s post was that Darm wasn’t licensed in Oregon, then, true, that could be actionable. But when I read Craig’s post, I certainly do not come away with the idea that Darm is unlicensed in Oregon. Quite the opposite. Craig’s post seems to imply that he still is licensed in Oregon.

A better candidate for the allegedly actionable content is this:

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.

Indeed, the quoted material Craig uses does not support the literal truth of that statement. Making “intimate physical contact” with a patient and “inferr[ing] that would be his payment” does not literally mean that Darm tried to get the patient to sleep with him. But American defamation law is tolerant of this kind of poetic license. An instructive case on this point is another litigation I blogged about out of the District of Oregon in 2011: Obsidian Finance Group v. Cox. (What is up with the onslaught of Oregon defamation-by-blog cases?) According to heritage Portland newspaper The Oregonian the papers filed by Craig’s attrorney, Linda Williams, argued that “the gist” of the blog post was true and that the statements, in context, were opinions based on verifiable facts.

More:

Canadian Supreme Court OK’s Hyperlinking to Defamation

Monday, November 14th, 2011

Front of Supreme Court of Canada courthouse on sunny dayThe Supreme Court of Canada courthouse in Ottawa. (Photo by Philippe Landreville, courtesy of the
SCC)

The Supreme Court of Canada has cleared bloggers from any feared liability for linking to defamatory content.

In Crookes v. Newton, a 6-3 decision held that a hyperlink to defamatory content does not make the linker a “publisher” of the defamatory content, which means that the linker cannot then be sued for defamation. Signaling agreement with the linked-to defamation doesn’t expose the linker to defamation either. Linkers can only be liable for libel if they use the link in such a way that they, themselves, end up conveying a defamatory communication.

Paul Schabas and Jon Goheen on the Inforrm blog have written a good synopsis of the case. In their words:

According to the majority, virtually any text accompanying a hyperlink to defamatory material will not lead to liability unless the text itself is defamatory. Even where a party indicates an unequivocal and positive adoption of the libel, as in the example given by the trial judge, there will be no defamation.

Also, Media Law Prof Blog has posted a long excerpt of the decision.

I’m on the New Lawyer2Lawyer Podcast

Monday, October 31st, 2011

Lawyer2Lawyer logoI’m on the new episode of the Lawyer2Lawyer podcast talking about the Virginia State Bar’s disciplinary case against attorney Horace Hunter because of his blogging. It’s a case that pits legal ethics rules against the First Amendment.

The host of the program is Bob Ambrogi, and other guests are Kevin O’Keefe, CEO of LexBlog, and Peter Vieth, legal editor of Virginia Lawyers Weekly.

I really enjoyed doing the show, and it’s a great case to talk about.

It’s Over in Aurora: Ex-Mayor in Ontario Gives Up on Lawsuit Against Blog

Wednesday, October 26th, 2011


Ex-Aurora Mayor Phyllis Morris. (Image: Phyllis Morris Campaign, used without permission.)

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

More:

Everybody Loses: Tarazi v. Geller Settles

Monday, October 10th, 2011
Headshots of Tarazi and Geller

Attorney Tarazi and blogger Geller (Photos: Tarazi, Geller)

Ohio attorney Omar Tarazi has settled his lawsuit against Atlas Shrugs blogger Pamela Geller. The defamation claim stemmed from Geller’s allegations that Tarazi had ties to terrorists.

Under the terms of the settlement, Geller must delete five posts. No money changes hands.

Both sides are claiming victory – Of course.

In an end to what she termed “litigation jihad,” Geller blogged about the settlement, ”Islamic supremacism has suffered a stunning and well-deserved defeat, and a good, stiff kick in the ass.”

Tarazi was more subdued, blogging, “Pamela Geller finally caved in and agreed to permanently take down all of her defamatory posts regarding me to settle the lawsuit.”

The row came out of the 2009 case of Rifqa Bary, an Ohio girl who ran away from her Muslim parents and converted to Christianity. Tarazi was the attorney for Rifqa Bary’s parents. Bary said that her father had threatened to kill her for apostasy. (Authorities were apparently unable to find any corroboration for Bary’s allegation.) Geller, according to a quote on her site, is the “heroine of the right wing blogosphere.” She is also the executive director of a group called Stop Islamization of America

So, who really won?

Well, for fans of our winner-take-all adversarial system of civil litigation, that’s the shame of settlements. You really can’t say who won. Every time there’s a settlement, both sides can say they’ve reached a favorable outcome. That’s true by definition.

But if you want my outsider opinion, I would say nobody won. In fact, I think they both lost.

Geller is taking down her posts. That means she’s been muzzled. That’s clearly a loss for someone who puts herself out there, according to quotes on her website, as “a paragon of courage and fearlessness” and “an irrepressible firebrand.”

Tarazi, on the other hand, is getting no money out of the suit. The litigation was undoubtedly expensive for him to pursue, and when you ask for $10 million as an opening demand and then walk away with nothing, that’s a defeat in my book.

My reading between the lines is that both sides got tired of pursuing this and agreed to call it off.

In our adversarial system of justice, if everyone gets tired of fighting, that’s not only a loss for both sides, it’s a defeat for the system.

Tarazi said about the settlement, “I am … look[ing] forward to moving on with my life.”

How sad is our litigation system when a lawyer plaintiff wants to move on with his life?

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The ALL CAPS Defense to Defamation

Monday, October 3rd, 2011

Sucks VERY Corrupt Liar EXPOSEFollowing up on Obsidian Finance Group v. Cox, should we go ahead and Confront the ELEPHANT IN THE ROOM?

The case introduces an underappreciated strategy for sidestepping defamation liability. Call it the ALL CAPS libel defense.

If you look closely at the decision, the key behind Cox’s victory seemed to be her wild use of ALL CAPS, Title Caps, and bold typeface, combined with a strong helping of over-the-top invective and continual references to forthcoming proof.

Take a look at this analysis from U.S. District Judge Marco A. Hernandez [pdf]:

Finally, the statements are not sufficiently factual to be susceptible of being proved true or false. Cox repeatedly poses her statements as questions or asserts that she will prove her accusations. For example, she asserts that “a Whole Lot” of the “Truth” is “Coming Soon,” that she “intend[s] to Expose every Dirty Deed,” that Padrick “WILL BE EXPOSED,” that “YOU [meaning Padrick] will BE Indicted SOME TIME, someday,” and that she “WILL PROVE IT ALL.” Padrick Decl. at pp. 1-13. She tells the reader to “STAY TUNED,” and she asks “Kevin Padrick, Guilty of Tax Fraud?” Id. She also states that Padrick is a “cold hearted evil asshole” and is a “Cruel, Evil Discriminating Liar.” Ex. 1 to Padrick Decl.

Defendant’s use of question marks and her references to proof that will allegedly occur in the future negate any tendency for her statements to be understood as provable assertions of fact. Her statements contain so little actual content that they do not assert, or imply, verifiable assertions of fact. They are, instead, statements of exaggerated subjective belief such that they cannot be proven true or false.

Considering all of the statements in the record under the totality of circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion. Plaintiffs’ motion for summary judgment on the liability of the defamation claim is denied.

One way of thinking about this is that Cox’s unconventional style underminded her own credibility to an extent that the court was loathe to treat her allegations seriously enough to make them the basis of a libel case. I’m sorry if that’s harsh. (I know Ms. Cox will probably read this.) But that’s how I interpret the judge’s ruling.

So, I guess the lesson is that if you are going to defame someone, (1) put your foot on the gas, (2) put your pinky on the shift key, and (3) DON’T HOLD BACK!

Where Can a Blogger Get a Lawyer Around Here?

Thursday, September 29th, 2011

A person identifying himself as a friend of blogger Crystal Cox asked in a comment to yesterday’s post where Ms. Cox could find legal counsel. That’s a great question that a lot of folks have. And I am happy to say I have a number of places to suggest for any beleaguered blogger looking for a lawyer to throw them a lifeline:

The Berkman Center for Internet & Society has created, as one of its many projects, the Online Media Legal Network, a network of lawyers, law firms, and law clinics willing to represent qualifying media clients for free (pro bono) or at reduced rates. The list of members reveals a bunch of heavyweights, including Manhattan media-law powerhouse Debevoise & Plimpton. Not only have they represented the New York Times, but they even employed the author of Blog Law Blog as a summer associate back in the late 1990s! How’s that for a claim to fame? Of course, there are a bunch of other stars on OMLN’s roster as well. To get started in seeking representation through OMLN, read up on their process and requirements. They can’t help everyone, but it can’t hurt to ask.

There’s also the 800-pound gorilla, the Electronic Frontier Foundation, the granddaddy of public-interest law firms for electronic media. The EFF explains on their website how they select clients and how to contact them about possible representation. If you can get the EFF to represent you, that’s completely fansmashtic! But know ahead of time: Many will apply, few will qualify.

A more general source of information about getting represented can be found in the Citizen Media Law Project’s guide to finding legal help. Information there will help you learn about looking for pro bono representationgoing pro se (representing yourself), or, if it comes to that, hiring a lawyer (as in, paying them money).

Of course, if your problem is the opposite – if you are looking for someone to sue you – then Blog Law Blog recommends, por supuesto, BLOGGING! Especially effective is blogging about people or organizations (1) who are well-off enough to hire a lawyer, and (2) who are not already the target of a torrent of criticism.

So, my friends, lawyer up, and BLOG ON!

Hyperbolic “____sucks.com” Blog Cleared of Defamation Liability

Wednesday, September 28th, 2011

The Mark O Hatfield U.S. Courthouse in Portland, Ore. (Photo: EEJ)

An interesting case out of Oregon has held that because of the “looser, more relaxed communication style” of blogs, it was not defamatory for blogger Crystal Cox of obsidianfinancesucks.com to accuse bankruptcy trustee Kevin Padrick of various forms of perfidy.

Cox’s blogged allegations against Padrick includeed money laundering, perpetrating “fraud on the courts,” and engaging in various “illegal activity.”

Most stunning to me, however, was that in one post, Cox strongly implied that Padrick had engaged in “Solar Tax Credit Crimes.” If that doesn’t sound reputation-harming to you, consider the geographical context: This took place in Portland, Oregon, my friends.

True story: P-Town is so environmentally conscious, that even at McDonald’s, after you bus your own table, you have to separate out your recyclables.

So I can only imagine that for Porlanders, Solar Tax Credit Crimes are right up there with murder, arson, and aggravated failure to compost.

But Cox didn’t merely imply things. Cox blogged that Padrick was a “Thief,” a “CRIMINAL,” and a “Corrupt Attorney.”

If you were taking a law school exam, you would quickly identify those statements as being factual assertions, which, if provably false and reptuation harming, could give rise to a claim for defamation.

But the federal court in Oregon took a more realist approach. It concluded that, under the totality of the circumstances, a reasonable reader could not have regarded the statements as provably false assertions.

Why not?

The court said that “the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” tended to show that Cox’s statements were not reasonably to be regarded as provable factual assertions.

What’s more, it mattered that the medium at issue was a blog. The court’s August 23 order, according to the RCFP report, explained: “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact[.]”

Yikes. If this is a victory for blog freedom, it sure comes with a sting.

More:

Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.