Court treats degrading online postings as protected free-speech opinions

October 19th, 2012 by John S. Merculief II

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Trademark Infringement in the Presidential Election?

October 17th, 2012 by Eric E. Johnson

Romney Believe in America - Get the DetailsI don’t want to spoil anything, so click here if you want to find out about the details of the Romney tax plan, including how he will cut $5 trillion in spending without increasing the deficit.

Cute, huh? (At least if you are a Democrat.) Now that you’ve seen that, let’s think about the legal implications. The website, romneytaxplan.com, is a product of the Democratic National Committee. Yet the website conspicuously carries the Romney campaign logo and uses the Romney campaign’s slogan and adopted typestyle. So, is there a trademark problem?

Yes and no.

This is a good example of why it is so important in evaluating intellectual property problems to not only apply the blackletter law, but to also ask the practical question: Would this plaintiff sue?

Trademark law should generously protect parody uses of trademarks. Yet it doesn’t always. Consider this parody ad that appeared in a humor magazine called Snickers:

One taste and you'll drink it oily. Michelob Oily.

The case was Anheuser-Busch, Inc. v. Balducci Publications, 28 F. 3d 769 (8th Cir. 1994). Anheuser-Busch, brewers of Michelob, sued for trademark infringement and trademark dilution. The federal district court dismssed the case, but the Eighth Circuit Court of Appeals reversed, holding that the brewery could continue on with its action. I seriously disagree with that case. And there several cases upholding dismissals in the realm of trademark parody. But the Anheuser-Busch case is still, regrettably, good law.

There’s also the case the U.S. Chamber of Commerce pursued against a prankster group, The Yes Men, who produced a faked Chamber of Commerce press release and website to go along with a fake press conference they held about support for climate change legislation.

The fact is, the Romney campaign can sue the DNC and the case would have some legs.

But will they?

No way.

There’s no way the Romney campaign is going to draw attention to the website and look humorless and loser-y by filing suit. Or even threatening. So it’s a good call by the DNC to ignore precedent that points to a potential for legal liability. Calculated risk-taking is often the right prescription when advising clients about IP liability concerns.

U.S. v. Michael Upholds Indictment for Facebook Threat to Police

October 17th, 2012 by Eric E. Johnson

Venkat Balasubramani at Technology & Marketing Law Blog has a good analysis of U.S. v. Michael, (S.D. Ind., Oct. 9, 2012), a case which rejected a Facebooker’s attempt to dismiss an indictment for threatening posts directed at the DEA. (That’s “Drug Enforcement Agency” for our overseas readers). Read Balasubramani’s post for background. Here I want to add my opinion.

I agree with Balasubramani that there has been “a disturbing number of cases that involve criminal liability for these types of statements posted online.”

But I’m less troubled by the indictment in this particular case.

Here’s what Michael posted to Facebook, broken down:

These guys will get whats coming to them … My master assures me that the DEA will be exterminated and humiliated before the end is over …

No true threat there. It sounds like Michael is “threatening” the DEA with the a return of Christ. That’s not a real threat, and it should be protected speech. Next:

WE R COMING FOR YOUR PIG ASS. The only thing the DEA knows how to do is lie and deceive … Its time we answered there crimes with bloodshed and torture.

We are getting closer to a true threat here. But nonetheless, I think that this is sufficiently general that it should be protected speech. For most crazy anti-law-enforcement speech, including the above statements, I think the correct response – and the one the law ought to sanction – is to get a warrant and monitor the person. But then there’s this:

I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.

This is where I think we have something that the government ought to be able to prosecute. Michael has indicated a desire to kill a law enforcement officer at a traffic stop. That is something that could happen instantly, without further warning. And while the feds might be monitoring Michael and thus would not be caught flatfooted, a local police officer might not be. Using threat laws prophylactically to take a person off the street under such circumstances seems to me a reasonable means to avoid a tragedy. Moreover, the speech value of this particular language is low.

Threats directed at the government ought to be accorded more tolerance than threats directed at a private person. For a private person, the threat itself can constitute a significant psychological harm. When it comes to threatening speech directed at the government, I am more comfortable if threat laws are used in a preventative capacity.

Admittedly, threat laws are not closely calibrated to a preventative role. Once the threat is dissipated, the conviction will remain. Threat laws punish speech. And that being the case, I continue to find them concerning. But their application in this circumstance, at least, seems appropriate to me.

By the way, I had to look up Jason Voorhees. He’s the hockey-mask wearing Jason from the Friday the 13th movies. I guess I’m out of it – at least when it comes to 1980s-spawned horror franchises – but I, personally, was thrown off by the use of his last name.

Professor Ludington on Loosening Jurisdictional Hurdles Against Bloggers

October 13th, 2012 by Eric E. Johnson
Headshot of Sarah H Ludington

Professor Ludington (Photo: Campbell U.)

Professor Sarah H. Ludington of Campbell University has just published Aiming at the Wrong Target: The ‘Audience Targeting’ Test for Personal Jurisdiction in Internet Defamation Cases in the Ohio State Law Journal (73 Ohio State L.J. 541). She takes issue with a blogger-friendly Fourth Circuit case that said someone publishing on the internet can’t be sued for defamation outside of their state unless they specifically targeted an audience in that state. Professor Ludington would prefer for bloggers to be able to be sued away from their home so long as they have “minimum contacts” with jurisdiction in which the lawsuit is being brought.

Here’s the abstract:

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The jurisdictional safe harbor (ironically) provided by the veryn ubiquity of the Internet is no doubt welcomed by media defendants and frequent Internet publishers (e.g., bloggers) whose use of the Internet exposes them to potentially nationwide jurisdiction for defamation. But it may go too far in protecting libel defendants from facing the consequences of their false and injurious statements. For every libel defendant insulated from jurisdiction in a remote location, there is also a libel plaintiff who has potentially been denied an effective remedy in a convenient location. This article argues that the jurisdictional test created in Young is flawed and particularly should not be applied to libel defendants. It concludes with a simple suggestion: that the appropriate test for personal jurisdiction over libel defendants in cases of Internet defamation is the standard minimum contacts analysis.

Ha’p Media Law Prof Blog.

Pippen’s Self-Affirmation Lawsuit is Over

October 10th, 2012 by Eric E. Johnson

(Photo from Scottie Pippen's Facebook page. Used without permission.)

A federal court in Illinois has dismissed a defamation case brought by Scottie Pippen against various websites for saying he was broke. The reason Pippen lost is because he failed to allege the actual malice hurdle required by the First Amendment for defamation cases brought by public figures.

This looks less like a win for the defendants and more like a withdrawal by Pippen. I’m not sure why Pippen couldn’t have kept going with this lawsuit – at least for a little while – by amending his complaint.

My guess is that Pippen probably had a lousy case he wasn’t going to win. So that begs the question, why did he file in the first place? Well, I think this is probably a typical celebrity-blowing-off-steam lawsuit. Throwing the lawyers around makes the celeb feel good and provides a way to try to blunt bad press with the news that the celeb is going to court. But, in this pattern, the case doesn’t go anywhere. The celeb  just gives up after a little while. It’s kind of an obnoxious use of the judicial system.

Ready to roll your eyes? Here’s the first paragraph of Pippen’s complaint:

It is a most foul libel indeed to be falsely accused of being bankrupt.

Oh, for crying out loud. Then look at the next paragraph:

That is what happened to Scottie, and the malicious libel was disseminated across the nation by the media.

Ooooh. I love the arm-over-shoulder cooing of his first name.

Then comes the third paragraph. It’s over 900 words and reads like a Wikipedia entry about Pippen that was written by his publicist. It starts by saying where he was born and then goes through his whole career, bestowing one accolade on the Pippen after another.

Then, at the end of the complaint, there is a prayer for relief asking for $1 million from each defendant.

Sometimes a complaint isn’t written for the court so much as it’s written for the media – what is sometimes called a “press release complaint.” Those are bad enough. But Pippen’s complaint appears to be the kind that is actually written for the client. Ugh. It’s lawyer-mediated self-affirmation. And it’s a colossal waste of time. Courts ought to feel more comfortable sanctioning this kind of thing.

At any rate, Pippen proved one thing in countering rumors of his insolvency: He at least has enough money that he can waste bags of it on a pointless lawsuit.

From a legal angle, the lawsuit is well-summed-up in the court’s minute order:

MINUTE entry before Honorable Sharon Johnson Coleman: In its order of 8/02/2012, the court dismissed plaintiff’s complaint, but allowed him to seek leave to file a complaint that made allegations that were legally sufficient under constitutional and defamation principles. The complaint that plaintiff now seeks leave to file alleges with more detail the recklessness of defendants’ publications regarding his financial status. However, as the court has observed, the malice required to establish liability for defamation of a public figure such as famed and well-respected athlete Scottie Pippen is greater than the mere failure to investigate, no matter how allegedly egregious that failure may be. The court concludes that plaintiff’s proposed amended complaint cannot be considered a sufficient allegation of defamation against a public figure. Plaintiff’s motion for leave to file that amended complaint is accordingly denied, and this action is dismissed with prejudice. Plaintiff’s motion for partial summary judgment is denied. Civil case terminated.

Some case documents for your reference:

  • Minute Order of September 26, 2012 dismissing lawsuit [pdf]
  • ORDER of August 2, 2012 granting motion to dismiss [pdf]
  • ARIZONA BOARD OF REGENTS’ INDEPENDENT MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT[pdf]>
  • COMPLAINT [pdf]

ZAGG v. Catanach – Extended Excerpt

October 5th, 2012 by Eric E. Johnson

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”

October 5th, 2012 by Eric E. Johnson

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

September 27th, 2012 by Eric E. Johnson

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

September 26th, 2012 by John S. Merculief II

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.

Introducing Contributing Blogger John S. Merculief II

September 25th, 2012 by Eric E. Johnson

John C Merculief II self-portrait in automobile windowI’m tremendously excited to introduce Blog Law Blog’s first contributor, John S. Merculief II.

John is a second-year student at the Texas Tech University School of Law, where I am currently a visiting professor. He put up his first post last week.

A veteran journalist, John worked in newspapers for over a decade, including a tour of Texas dailies in San Angelo, Abilene, and the Houston area. He got into reporting after getting a bachelor’s in liberal arts from the University of Texas at Austin and a master’s degree in newspaper journalism from the renowned program at Syracuse University.

As a journalist-turned-budding-lawyer, it’s no surprise that John has a particular interest in media law. That will be extremely helpful for Blog Law Blog blogging. And as a bonus, he also happens to have an interest in municipal law. Regular readers know that that will definitely be a plus as we see more and more and moooooooooooore blog law scuffles involving local government officials.

Tomorrow, John returns with a post about what happens when you mix blogging, bad-mouthing, and bar-tending!

Australia’s Attempts to Curtail Twitter Bullies Ineffectual

September 19th, 2012 by John S. Merculief II

The Canberra Times is reporting that the leader of New South Wales is asking the Australian federal government for tighter controls on what are called Twitter “trolls.”

The request is in response to an incident in which a star rugby player received an anonymous vulgar Tweet regarding his mother, who died of pancreatic cancer.

To put this in context, online abuses that get almost universal disapproval here in the United States – but that are protected speech under the U.S. Constitution – are actually out of bounds under Australian law, according to the newspaper:

A Twitter user or troll found to ”menace, harass or cause offence” using the social networking medium could be jailed for up to three years.

A person can be prosecuted under this section if they use a ”carriage service” – essentially, any communication device – to pressure another person, in a way that would be regarded by ”reasonable persons” as being ”menacing, harassing, or offensive”.

There are also laws at state level that can be used to stamp out offensive online behaviour.

But there’s one major caveat. Because these “trolls” set up bogus accounts to do their dirty deeds and then deactivate them quickly, it seems that no one has actually been prosecuted for their Twitter behavior.

CSLSA 2012 Scholarship Conference Submissions Deadline Extended

September 17th, 2012 by Eric E. Johnson

Central States Law Schools Association - CSLSA - logoThe Central States Law Schools Association has announced an extended deadline to submit abstracts for the 2012 Scholarship Conference. Legal scholars now have until Friday, September 22, 2012 to submit an abstract of 500 words or less to Professor Melissa T. Lonegrass at Missy.Lonegrass@law.lsu.edu. The conference invites presentations on works in progress as well as finished articles.

This years conference will take place October 19-20 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. This has been a great conference in the past, and I’m sure it will be again this year. (I will be there.)

Twitter Deserves Continuing Credit for Defending Privacy in Harris v. N.Y.

September 15th, 2012 by Eric E. Johnson

gavel coming down on twitter birdFrom what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

Arbitrations and the Corporate Litigants Who Love Them

September 11th, 2012 by Eric E. Johnson

Tim Cushing at Techdirt picked up on the post I did on the Barnes & Noble case (where I, in turn, was picking up on the post Venkat Balasubramani did on Eric Goldman’s Technology & Marketing Law Blog).

In my post, I tried to explain why arbitration is such a great deal for corporations. For various reasons I didn’t dwell on the question of whether corporations get better-than-fair treatment in the arbitration itself. But they do. Much better.

Cushing picked up where I left off by citing to a Seattle Post Intelligencer article reporting the results of a Public Citizen study finding that corporations beat consumers about 95 percent of the time in arbitration.

The Public Citizen study the PI was talking about appears to be this one: The Arbitration Trap: How Credit Card Companies Ensnare Consumers [pdf].

The details are interesting. The key statistic in the study is actually 94 percent – that’s the winning rate for corporations in the cases handled in California by the private arbitration service provider called the National Arbitration Forum. (California formed the sample pool because California, unlike other states, requires public reporting of some limited data by arbitrators.)

The 95 percent figure is for just a small group of specific 28 arbitrators. But it’s that elite group that gets almost all the work!

The Busiest Arbitrators Produce the Results Corporations Seek: In California, a small, busy cadre of 28 arbitrators handled nearly 9 out of every 10 NAF cases. This group ruled for businesses 95 percent of the time. Another 120 arbitrators handled slightly more than 10 percent of the cases in which an arbitrator was assigned. They ruled for businesses 86 percent of the time and for consumers 10 percent.

Can you imagine what it would be like if, instead of judges getting their salary from the government, they were paid by litigants. And can you imagine if there were different court systems competing with one another, all vying for the repeat business of litigants who constantly find themselves being sued? Well, you don’t have to imagine it: That’s arbitration.

As a corporate user of arbitration, you pick the arbitration firm upfront by selecting it in the terms of service or credit-card holder agreement. Of course, you are going to pick the firm that gives you good results. And since arbitration firms are competing for the loyalty of corporate customers, they are going to pick the arbitrators that give those corporate customers what they want. That’s not something dirty for the corporation to do, mind you. That’s just a general counsel doing her or his job. But it sure creates incentives that are skewed.

The report explains:

Arbitrators have a strong financial incentive to rule in favor of the companies that file cases against consumers because they can make hundreds of thousands of dollars a year conducting arbitrations. The arbitrators are chosen by the arbitration firms hired by MBNA and other corporations, which are unlikely to pick arbitration firms that produce results they do not like. Arbitrators routinely charge $400 or more an hour. Top arbitrators can charge up to $10,000 per day and some make $1 million a year. In comparison, California Superior Court judges earn $171,648.

(Yeah, judges don’t make as much. But, in fact, the judgeship is a great stepping stone to being an arbitrator.)

The Public Citizen report explains how systemic bias can develop:

A Race to the Bottom for Arbitration Firms: Companies track how arbitrators rule, and do not choose arbitrators who do not rule in their favor. One NAF arbitrator, a Harvard law professor, was blackballed after she awarded $48,000 to a consumer in a case in which a credit card company filed a claim against the consumer. After the same credit card company had her removed from other pending cases, she resigned, citing NAF’s “apparent systematic bias in favor of the financial services industry.”

Hey, do you get the feeling that Harvard law professor they might have been talking about was Elizabeth Warren? Yeah, me too! Warren was thanked in the acknowledgments section, but it’s just as likely she was their source for information about a different Harvard law professor. (Harvard does have a huge faculty.)

Barnes & Noble Loses in Court for Lack of Notice on Terms of Service

September 5th, 2012 by Eric E. Johnson

Barnes & Noble logoVenkat Balasubramani over at Eric Goldman’s Technology & Marketing Law Blog talks about a defeat for online retailer Barnes & Noble in their attempt to enforce a terms-of-service arbitration clause.

The case is interesting to any bloggers wondering what they can and can’t get away with by linking to a page of “Terms of Service.”

The plaintiff in Nguyen v. Barnes & Noble 12-cv-0812-JST (RNBx) (C.D. Cal.; Aug. 28, 2012) sued because after he purchased two HP TouchPad tablet computers at a price he was happy with, Barnes & Noble e-mailed him saying they had cancelled the order.

Before getting to the merits – whether Nguyen be able to get his tablets at the price at which he allegedly purchased them (and of course he should!) – B&N moved to enforce an arbitration clause in the B&N terms of service.

An arbitration clause allows a party – generally a huge corporation – to prevent a plaintiff – usually a consumer – from being able to litigate in court and get a trial by jury. Instead, the case goes to arbitration, where one or more arbitrators decide the case wholly outside the court system.

Corporations love arbitration in consumer disputes because arbitration alleviates the possibility of huge jury verdicts. It also can force plaintiffs to withdraw from the fight, because in the typical arbitration, both sides must pay the arbitrators fees, which can be too steep for a consumer to bear (in the thousands of dollars), especially when the potential recovery from an arbitration is likely to be low (maybe just in the hundreds or even less in a typical consumer dispute). Corporations also love arbitration because it prevents class-action litigation, which makes it economical to sue companies for having ripped off large numbers of people where any given individual’s loss was small. (It will come as no surprise that Nguyen’s suit was brought in a such a way that it could have blossomed into a large class action if the facts warranted.)

So B&N lost its bid to put Nguyen’s case into arbitration. Why? B&N couldn’t show that Nguyen had notice of the terms.

B&N buried the arbitration clause in terms of service that were linked to at the bottom of the bn.com pages. B&N could have had a pop-up “I agree” window or even just a box that Nguyen had to check saying he agreed to and had read the terms of service. They also could have written on the checkout screen about the transaction was subject to terms of service. But they didn’t do any of that. So, as a result, it looks like Nguyen will get his day in court.

Sounds like a win for consumers, huh? Balasubramani says not so fast:

It’s temping to see this case as a pushback on terms of service that contain arbitration clauses. However, it’s more likely an outlier in the sense that B&N’s terms of service implementation was so shoddy that it’s not likely representative of the typical terms of service case. If B&N had provided ample notice, the court would have probably enforced the terms and, as in the Slide and Zynga cases, required the consumer to arbitrate his claims.

Balasubramani sarcastically calls Nguyen’s claim “a tragic and sad story,” but says, “It’s tough to have much sympathy for B&N here … there’s zero excuse for not requiring the consumer to check the box and indicate assent to the terms as a condition of completing the transaction.”

Well, I think it’s hard to feel much sympathy for Barnes & Noble for the simple reason that they ripped Nguyen off. I say, give the man his tablets at the price he bought them! Barnes & Noble even sent an e-mail confirming the order … before they cancelled it. B&N has seller’s regret. Too bad. A deal’s a deal, I say. Cough up the tablets.

Unfortunately, you can bet Barnes & Noble will get their terms-of-service assent right next time.

Big online retailers like Barnes & Noble, eBay, and Amazon have consumer reviews and ratings to help consumers avoid getting ripped off when buying unfamiliar products or purchasing from a third-party seller. That’s great – ratings and reviews have been a positive innovation for consumers.

But clickwrap arbitration clauses have been a bad technological development for consumers. The portal entities – such as Barnes & Noble, eBay, and Amazon – have privileged positions in a not-so-competitive marketplace. There are few players, making choice limited. Consumers ought to be able to take these online companies to court when warranted. Unfortunately, the twin innovations of clickwrap agreements and arbitration clauses all too often make big corporate online players answerable to no one.

 

Apple’s Victory Over Samsung is Bad for Bloggers and Blog Freedom

August 24th, 2012 by Eric E. Johnson

Apple won huge today in its patent battle with Samsung over smartphones (Wired).

It’s a pretty dark day for the net.

While most of the chatter at this point seems to be about how this is likely to raise the price of your smartphone (it is) or make it less good (true also), there are even more important stakes: This is about free expression in the United States.

Here’s the problem: Apple doesn’t just make great phones and tablets that are expensive, Apple makes phones and tablets that censor content.

Apple has shown consistent willingness to use its power as the holder of the keys to the hardware and the operating system to lock out content creators it doesn’t approve of. Now that Apple is able to use the patent law to snuff out competition, and now that phones are one of the most important ways in which we communicate today, Apple has become a real threat to free speech.

Assuming we have a strong open-source ecosystem, as we did with Android up to this point, if you didn’t like Apple’s censorship, then you could always just walk away. Depending on what flows from this verdict, that ability to walk away may no longer be a practical alternative.

If Apple becomes essentially the only game in town for decent smartphones, then when you are away from a computer and alone with your phone, you’ll get to see and say what Apple says you can see and say. That would be a tragedy.

Memo to the appellate lawyers for Samsung: Consider briefing a First Amendment angle here.

Facebook Posts Get Former Marine Held for Month in Psych Ward

August 23rd, 2012 by Eric E. Johnson

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.

Feds’ Approval of Verizon Deal Bad for Consumers

August 22nd, 2012 by Eric E. Johnson

A good article by my friend Troy Wolverton of the San Jose Mercury News about federal regulators’ approval of a joint venture by Verizon and multiple cable operators:

Approval of Verizon-cable agreement a bad deal for consumers

Such deals may make accessing the internet more difficult and more expensive.

Practical Advice for Protest Reporting from Web Chat with Law and Journalism Experts

August 17th, 2012 by Eric E. Johnson

I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.

Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.

“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.

Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.

For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.

John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.

It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.

“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”

With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.

Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.

Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.

Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.

CMLP Hosting Talk on Reporting at the Political Conventions

August 15th, 2012 by Eric E. Johnson

CMLP logoThe Citizen Media Law Project has announced that its Digital Media Law Project, along with the International News Safety Institute and an organization called “Free Press,” will be hosting live web chats about legal issues involved in doing reporting/blogging at protests of the Republican and Democratic national conventions. The talks will be tomorrow, August 16 at 7 p.m. (I’m guessing that means Eastern Time), and then again next Thursday, August 23 at 8 p.m.

CMLP notes that almost 90 people have been arrested in the United State while doing reporting at protests. The webcasts will include journalists relaying their personal experiences, presented along with legal analysis.

It’s free and there’s no advance signup necessary. Go to the Free Press website to participate.

Cybersecurity Act Now Pending in U.S. Senate

July 30th, 2012 by Eric E. Johnson

Jennifer Granick at the Stanford Center for Internet and Society has a good post on the Cybersecurity Act, now pending in the U.S. Senate, authored by Sen. Joseph Lieberman (D-Conn.), Sen. Dianne Feinstein (D-Calif.), Sen. Jay Rockefeller (D-W.Va.) and Sen. Susan Collins (R-Maine).

Jennifer also includes a link to her annotated version ([pdf]) of the bill. The bill is 211 pages. So any annotations are very helpful.

Jennifer says that the bill is “a step forward for those who see government implementation of state of the art security practices lagging behind.” But she emphasizes that the legislation “needs work,” especially to narrow the amount of government cyberspying the bill permits.

The bill already reflects some work by privacy advocates. Amendments that have been inserted to the bill to curtail government civil-liberties incursions are explained by Michelle Richardson in a post on the ACLU’s Washington Markup blog.

The bill, in its current form, does not weigh heavily on private industry, since it offers only “guidelines” for non-government actors, not regulations. But, as Jennifer notes, a report on national cybersecurity issues concludes that voluntary efforts on the part of industry “will be inadequate against advanced nation-state opponents.” In other words, the wisdom is that we will need government regs to keep the power company safe from North Korea.

Almostinnocentbystander Unmasked as Linda Cook

July 24th, 2012 by Eric E. Johnson

I was pleased yesterday to get a call from Almostinnocentbystander, the anonymous blog commenter from Idaho who has drawn the ire of Republican-party county-level committee member Tina Jacobson.

Unfortunately, the newspaper that runs the Huckleberries Online blog where Almostinnocentbystander left her comments, is no Twitter. The Spokesman-Review decided to not try too hard to resist giving up Almostinnocentbystander’s identity and, instead of appealing a trial court order, decided simply to hand over the requested information. It’s sad to see a newspaper cave like that.

Resigned to being unmasked, Ms. Cook decided to control the manner of her outing and sent an opinion piece yesterday to another Idaho news outlet, which published it with her real name, Linda Cook.

There’s more background on the case in an L.A. Times piece.

More on my conversation with Linda later.

If a Newspaper is a Community Talking to Itself, What’s a Web Forum?

July 18th, 2012 by Eric E. Johnson

Stacked desks and chairs at Fisk Hall, Medill School of Journalism, Northwestern UniversityStacked desks and chairs in Fisk Hall, Medill School of Journalism, Northwestern University. Photo by me.

On Monday I linked to Dan Turner’s opinion piece in the Los Angeles Times about a local-politico-vs-anonymous-blog-commenter in Idaho.

I wanted to follow up about one particularly interesting comment Turner had:

Web forums, which often function as a sort of blotter for the communal subconscious; comment sections tell us what people are really thinking, even the things they’d be afraid to say under their own names. There is a certain value in that — putting on a mask sometimes frees us to unmask our true feelings. This only causes problems when people treat these anonymous posts with more seriousness than they deserve.

Turner’s quote is a funny take on something I learned in freshman year of journalism school back in 1991 at Northwestern University. A professor told us that one way to define a newspaper is, “A community talking to itself.”

I really liked that definition. And as I took it – as I think the professor intended it – as a glorious compliment to newspapers. It upholds a gives the newspaper a singular and transcendent place in society.

But what are the implications of that 1991 doctrine in the world of 2012?

If a newspaper is supposed to be a community talking to itself, then, in this day and age, when compared with the interactive web, newspapers are just really bad, inefficient newspapers.

After all, how can a mostly monolithic, once-a-day, information bottleneck of a newspaper be a better incarnation of a community talking to itself than a community actually talking to itself?

The fact is, thanks to the web, we see what it really looks like when a community talks to itself. And it’s not real pretty. It lacks the majestic specialness of the grand ol’ newspaper. It’s a garish, sprawling, ungrammatical, hyperbolic, font-impoverished, spectacle of gaucheness. Even in the words of a staunch defender, it is witheringly described as having “a certain value.”

Ouch.

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

July 17th, 2012 by Eric E. Johnson

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.

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Big Win for Bloggers: TechnoBuffalo Court Victory Shields Source of Leaked Photos

July 17th, 2012 by Eric E. Johnson

stylized "B" logoJon Rettinger, the founder and editor of gadget blog TechnoBuffalo, e-mailed me to let me know that they have won in their attempt to shield the source of leaked images of a yet-to-be-released cell phone.

Judge Michael R. Panter of the Cook County Circuit Court granted TechnoBuffalo’s motion for reconsideration, thus denying plaintiff Johns-Byrne Company, a commercial printer who made the packaging for the phones, the ability to find who in their company leaked the photos.

This is a substantial legal victory for the blogosphere, because it puts blogs on a potentially equal footing with mainstream news media when it comes to the special legal privileges that allow journalists to keep sources anonymous.

Whether blogging will inherit the privileged legal status of the traditional news media is, in my mind, the biggest question in blog law. This case strongly suggests the answer should be “yes.”

The key issue in applying the Illinois law was whether a blog would count as a “news medium.” Judge Panter decided it did, applying the law straightforwardly:

The issue of whether a blog/news site such as TechnoBuffalo is to be treated as a “news medium” is novel and has seldom been dealt with by other states containing shield laws. … “News” is defined by wwww.merriam-webster.com as “a report of recent events” and “previously unknown information.” Similarly Dictinary.com [sic] defines “news” as “a report of recent events.” Under the ordinary meaning of “news,” the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo’s article falls under the broad, plain meaning of “news.” … In sum, withing the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.

I applaud Judge Panter’s decision not only because it was, in my judgment, the right one, but even more so because it wasn’t results-driven jurisprudence. Judge Panter made it clear was was not love-struck with the scoop-savvy blog, which solicits anonymous tipsters:

Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious. It may weaken the very industry that TechnoBuffalo depends upon. It may itself be actionable under the statutes and authorities JBC cites. However, as of this writing, it cannot be excluded from the extremely broad protection of the journalistic privilege.

That’s an excellent example of good judging.

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