Monthly Archives: June 2012

Sport Defamation Lawsuit: Another New Orleans Bounty Scandal Case On The Way?

sport defamation case study

“Bountygate” Birthed A Couple of Sport Defamation Lawsuits

Doesn’t look like the New Orleans Saints bounty scandal is going away anytime soon. In fact, Anthony Hargrove may be the next athlete to enter the sport defamation ring with NFL Commissioner Roger Goodell.

As we reported last week, Jonathan Vilma  is already suing Goodall for defamation over statements made regarding the Saint’s alleged “pay to injure” scheme.

Anthony Hargrove, former New Orleans’ Saint and current defensive tackle for the Green Bay Packers, was one of the players implicated in the scandal.

“Pay Me My Money”

In an infamous 2010 NFC championship video, Hargrove can be seen mouthing to a teammate, “Favre is done.” He was also pegged as the person saying, “Pay me my money,” on the recording. But here’s the rub: the “money” statement was said “off camera,” eliminating definitive proof that Hargrove uttered the words. Moreover, Earl Heyman – another player –said he was sitting next to the individual who made the comment and it wasn’t Hargrove.

Celebrities Have It Harder

Hargrove is a celebrity, and therefore would have to prove “actual malice” to win this sport defamation lawsuit. Meaning, he would have to prove that the party that released the tape — and attributed Hargrove’s voice to the ostensibly incriminating statement — did so willfully and recklessly.

Teammate: It wasn’t Him

According to CBS Sports, “people close to the situation who say almost everyone on the Saints team knows the identity of the voice on the tape and they say it’s not Hargrove.” If CBS Sports is correct, and Hargrove can subpoena a gaggle of teammates who will swear he didn’t say “pay me my money,” the defensive tackle could pass the actual malice test. In other words, Hargrove has a chance at winning a defamation claim against Goodall if his attorneys file a narrow claim focusing only on the “pay me my money” statement.

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Cyberbullying Law: Is Defamation A Viable Option?

cyberbullying law

Facebook, the First Amendment, and the Future of Cyberbullying Law

In 2012, a group of tweens pelted a schoolmate — we’ll call her *Tina* — on Facebook. Take down requests to Facebook went unanswered, and since the incidents happened outside of school,  police and school officials’ hands were tied. But instead of giving up, Tina filed a defamation lawsuit, which raised a question worth considering: What are the chances of winning a defamation lawsuit filed in response to a cyberbullying situation?

Julie Hilden of Justia.com reviewed the case, and many of her points are worth repeating. So, let’s take a look.

Tina’s Cyber Bullying Defamation Lawsuit Background

The crux of this cyberbullying law case centers on a phony Facebook profile. The page is made to look like Tina controls it and includes childish barbs. For example, the page lists Tina’s native language as “Retardish”; it also features a racist video — again, posted under Tina’s name. On advice of police, Tina and her family reported the fake page. Unfortunately, Facebook didn’t respond in a timely manner. So, instead of waiting, Tina, with the help of her parents, filed a defamation lawsuit against the perpetrators.

Why defamation? Because the page appeared to be Tina’s creation. Plus, the things posted on the page were untrue and had a deleterious effect on Tina’s reputation.

This is not the first case where someone has been taken to court for making a “parody” or phony page online. The Associated Press wrote:

Justin Layshock of western Pennsylvania was suspended after he created a MySpace parody in 2005 that said his principal smoked marijuana and hid beer behind his desk. The suspension was overturned by a federal judge, who found that school officials failed to show the student’s profile disrupted school operations. The judge’s decision was later upheld by an appeals court.

In West Virginia, Kara Kowalski sued school officials after she was suspended from her high school for five days in 2005 for creating a web page suggesting another student had a sexually transmitted disease. A federal appeals court upheld the suspension, dismissing Kowalski’s argument that the school shouldn’t punish her because she created the site at home.

The U.S. Supreme Court declined to hear either case.

The Anatomy of A Cyberbullying Defamation Lawsuit

Now that you know a little bit more about the case, let’s talk about the applicable law.

SOCTUS Doesn’t Seem Interested Yet

When bad conduct happens away from school, schools’ hands are tied when it comes to  doling out punishments. Quite a few cases have been tried in the courts – but so far, SCOTUS has declined to hear such cases.

The Issue of Harm

Basically, libel is a false, negligent, harmful statement.  So, in this cyberbullying law suit, one of the main issues became: was Tina materially harmed by the bullying?

Because the fake page creators knew each other and knew the postings were false, it may be hard for her attorneys to prove actual damage. And if the bullies didn’t believe the false information they posted, did other students believe it?

Parody & Satire Aren’t Defamatory

Remember “The People v. Larry Flynt,” the movie based on Hustler Magazine v. Falwell? Parody figured centrally in that case; the decision ultimately being: reasonable people wouldn’t believe the cartoon over which Falwell sued. Otherwise stated: satire and parody aren’t defamatory.

The same theory applies here. Did any of Tina’s schoolmates actually believe the information on the fake Facebook page? Moreover, can tweens be considered “reasonable people” when it comes to emotional stresses?

Other Options For Cyberbully Plaintiffs

What may have been a better tact for Tina? Instead of defamation, perhaps she should have focused on just one of the false claims in her lawsuit, thereby narrowing the scope, making a ruling in her favor more likely. Moreover, it may have been beneficial as Julie Hilden points out, for her to have filed an “intentional infliction of emotional distress” claim.

Speak With A Professional About Your Cyberbullying Situation

So, did Tina win the case? Truth be told: we can’t find information on how the case resolved. Best guess: either the case is on-going, it was settled, or dismissed.

Does that mean a cyberbully defamation case won’t work for you, too? Not necessarily.

Defamation laws in the United States have clear limits. If, after some research, you think you may have a valid claim, dialogue with an attorney experienced in both cyberbullying law and defamation law.

“It Wasn’t Me!”: A Viable Legal Defense For Hacking?

legal defense for hacking

Due to the advent of identity theft, botnets, trojans and other digital mischief, does “I didn’t do it” work as a legal defense for hacking?

What defense do some accused hackers use? “I didn’t do it!” And truth be told, with the proliferation of intelligent malware and the existence of programs like WATSON, the premise isn’t far-fetched.

Consider the complexity of Stuxnet, Daqu, and the more recent flame worms/viruses to know that smart hackers are formidable opponents; experts at masking.

Way back in 2003, Reuters published a piece about the “I didn’t do it” legal defense for hacking. One of the alleged, profiled hackers had been acquitted of security breach charges for supposedly accessing a corporate computer system without consent.

According to Reuters:

In two other cases, [the man was] accused of downloading child pornography but their attorneys successfully argued that trojan programs found on their computers were to blame.

What Would It Take For The “It Wasn’t Me” Legal Defense For Hacking To Work?

However, this is not to say all security breach cases are the same or that “It was a virus on my computer” would work in every court around the world. Still, the case raises a legal ethics question: Are people being falsely accused of hacking crimes? And if so, what checks and balances must be established before politicians pass another digital security act?
The day a non-Sapiens computer commits a crime is near. Heck, it may have already happened. Regardless, for an “It wasn’t me” legal defense for hacking to work, defendants would need to prove independent action on the computer’s part. Plus, the arguing attorney would need superior reductive rhetoric skills — not to mention a deep understanding of technology — to convince a judge and an entire jury that the defendants had no clue the destructive action was happening.

Security Breach Counsel

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Google Autocomplete Lawsuit: The Case of the Man in Japan

Google autocomplete lawsuit
New lawsuit in Japan challenges Google’s auto-complete search.
A Google autocomplete lawsuit out of Japan has legal watchers around the globe wondering. This article includes a brief case summary and discussion about claim’s potential international Internet law implications.

Sure, it’s a time saver. But what if Google’s autocomplete suggested  “criminal” and “jerk” for your name? Would you file an Internet defamation lawsuit against the search engine? One man in Japan did just that.

Man in Japan Files Google Autocomplete Lawsuit

A man in Japan is suing Google over an unsavory autocomplete on his name. Filed in the Tokyo District Court, the plaintiff exercised his right of anonymity under Japanese law. So, for the purposes of this post, let’s call him “Yuto.”

“Yuto” claims Google’s autocomplete pairs his name with criminal acts. Furthermore, he says information contained on the click through websites is defamatory. But instead of moving forward with a defamation claim, “Yuto” seems to be filing a privacy lawsuit.

On March 19th, 2012, Japanese officials approved the Google autocomplete lawsuit. At the time of this writing, Google has yet to respond.

Curious about Japanese defamation law? Click here.

Considering Autocomplete As A Microcosm Of Current Internet Law Polarities

This case is an interesting in that it weighs free speech and online privacy against the desire of social media companies, like Facebook, to promote a revenue-friendly, open Web.

  • On the one hand, private citizens want their online privacy protected, yet they also want the convenience of a less regulated Internet;
  • The Internet is supposed to be a free speech stronghold, yet many folks want negative opinions about them removed immediately;
  • Nobody wants to pay for services like Twitter and Facebook, but they also don’t want to be a pawn in the behavioral marketing rat-race — the rat-race that allows free services to make money and pay employees.

Search is getting smarter by the day. Fast-developing innovations, coupled with a lack of Internet privacy laws, could result in a surge of online privacy cases – especially since privacy laws in the E.U. and U.S. are heading in different directions.

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Considering a Google autocomplete lawsuit? Kelly / Warner handles all manners of Internet law issues — from Internet defamation to online privacy. Click here to learn more about us and our practice.

Microblogging Law: China Extends Control Over Digital Chatter

microblogging law in China explained
In 2012, the Chinese government passed a strict microblogging law. Ostensibly in service of the country’s Golden Shield Project, China now requires all microblog operators to obtain an operational license. Additionally, the regulation considers forum and blog operators as information service providers (ISPs).

The Golden Shield Project

Microblogging laws in China are no joke. The country’s “Golden Shield Project”  employs about 30,000 “Internet police officers” who spend their days purging the Web of “offensive” material and initiating legal actions against folks who break the nation’s 60-plus online conduct regulations.

A Sampling Of China’s Online Communication Standards & Microblogging Laws

  • Limits on communication with foreign political or social groups are enforced.
  • Online petitions are highly discouraged.
  • Talk of government corruption is heavily monitored.
  • Posting statements in support of a government coup or division in the country is  against the law.
  • Inciting hatred or discrimination is against the law.
  • Promoting the disruption of the “order of society” is against regulations.
  • Spreading rumors (yáo yán) or conjecture is not allowed.
  • Promoting sex, gambling, violence, murder, and feudal superstitions can get you in trouble.
  • Linking to overseas news outlets or distributing overseas news without official approval is frowned upon.
  • Chinese citizens use a stripped-down version of Google and are blocked from Twitter, Facebook and Technorati. Yahoo! Taiwan and Yahoo! Hong Kong are also off-limits.

Microblogging: A Favorite Pastime

Considering China’s strict Internet laws, you’d think blogging wouldn’t be a huge part of the country’s youth culture.

Wrong.

In actuality, China’s tweens, teens, and twenty-somethings are as into blogging as their American counterparts are into reality television and social media. As someone on reddit.com put it, “Chinese students put EVERYTHING about their lives on the Internet.” And just like their Western counterparts, Chinese kids have a favorite social networking website – Sina Weibo. A cross between Facebook and Twitter, Sina Weibo, is hugely popular microblogging platform.

In accordance with nation-wide statutes, Sina Weibo employees a 1,000-person monitoring team. Nevertheless, it’s still considered one of the “freer” online platforms in China.

But that may be about to change since China’s new Internet laws seem to target Sina Weibo.

China’s New Internet Laws Aimed At Eradicating Anonymity on The Web

The primary purpose of China’s new Internet laws is to eradicate anonymity from the web. (Hey, I wonder if that New York Assemblymen got the idea for his bill from the Chinese government?)

The updated statutes stipulate that platforms, like Sina Weibo, must be granted administrative licenses to run their services. Presumably, the license will come with a list of content stipulations.

Moreover, the new Internet laws in China make it illegal for users to sign-up using pseudonyms or fake names.

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Kelly / Warner handles Internet and microblogging law issues with clients in the United States, Canada, Europe, Australia, South America, the Middle East, and Asia To learn more about our top-rated firm, start here.

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NFL Bountygate Leads To Sport Defamation Lawsuit

sport defamation case studyUpdate: January 17th, 2013. Judge Helen Berrigan dismissed Jonathan Vilma’s sport defamation lawsuit against Roger Goodell. She reasoned: “While the Court is extremely disturbed by the fundamental lack of due process in (Commissioner) Goodell’s denying the players the identities and the right to confront their accusers, that was substantially rectified later in the process.”

***Original Article ***

In an off-season loaded with litigation, the NFL has given birth to yet another scandal — the alleged New Orleans Saints’ injury-for-money scheme.

‘Bountygate’ Background: The Makings of a Sport Defamation Lawsuit

What’s “bountygate”?

Well, allegedly, someone in the Saints ranks developed a slush fund to award bonuses for injuring opposing athletes. The investigations began in 2010, but the NFL swept it under the AstroTurf for awhile.

But by March 2012, the NFL couldn’t ignore the clamor; evidence pointed to defensive coordinator Gregg Williams and about 20 odd players. According to reports, Williams and the team members pooled personal money to support the kitty. Some outlets even insinuated that head coach Sean Payton may have attempted a cover up.

NFL Decides To Play Hardball

When team owner, Tom Benson, ordered Payton and general manager, Mickey Loomis, to shut down the scheme, Loomis and Payton supposedly complied. Around this time, whispers circulated that Williams may have ran the same scheme when he was defensive coordinator for the Washington Redskins and the Tennessee Oilers/Titans.

Whatever the case, NFL Commissioner Roger Goodell decided to bring down the hammer. The carnage:

  • Williams – suspended indefinitely
  • Payton – 2012 season suspension
  • Loomis – eight 2012 season game suspension
  • Assistant Head Coach Joe Vitt – six 2012 season game suspension
  • Saints organization – $500,000 fine and forfeiture of their second round draft choices for 2012 & 2013 seasons
  • Jonathan Vilma – suspended for 2012 season
  • Defensive End Will Smith – suspended for four 2012 games
  • Former Saints defender Anthony Hargrove – suspended for eight games
  • Former Saints defender Scott Fujita – suspended for three games

In May 2012, the NFL Players Association arbitrated against two of the suspension grievances and challenged Goodell’s authority to discipline players. Arbitrator Stephen Burbank ruled that Goodell’s authority does allow him to mete out punishment. The union is appealing the ruling.

Vilma Tackles Goodell With A Defamation Lawsuit

Not willing to take the penalties, Jonathan Vilma filed a sport defamation lawsuit against Goodell on May 17, 2012. He claimed his good name was dragged through the proverbial mud by Commissioner Goodell. Goodell has until July 5, 2012 to respond to Vilma’s claim.

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Kelly / Warner is a top-rated law firm that handles all manners of defamation cases, including sport defamation. To learn more about our practice, start here.

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Cyberbullying Lawyer: Defamation May Be An Option To Combat Cyberbullying

cyberbullying lawyer
Cyberbullying kills. Legislators now realize the severity of the situation and are working to craft effective solutions. And these days, cyberbullying lawyers are creatively using torts — like defamation — to fight back.

What Is Cyberbullying, Legally Speaking?

Simply put, cyberbullying occurs when someone uses a digital or mobile devices to harass, torment, or threaten another person. Malicious embarrassment and humiliation may also be considered cyberbullying in the eyes of the law.

Digital Harassment Hurts

Sadly, cyberbullying suicides are becoming common; but thankfully, officials aren’t turning their cheeks. Already, Arizona, California, Connecticut, Illinois, New Jersey, New York, Texas, Virginia, and Washington have specific cyberbullying laws on the books (at the time of this writing; things may have changed since). States that don’t  yet have specific statutes are using other regulations and doctrines to punish flagrant cyberbullying.

Defamation Law As A Defense Weapon?

More often than not, cyberbullying incidents involve lies, which is why many people are turning towards defamation statutes to combat cyberbullying. Sometimes it works, other times it doesn’t. One’s chances largely depend on jurisdiction.

Cyberbullying lawyer Aaron Kelly explained, “It’s possible to win a defamation lawsuit against harassers. It all depends on the facts of the situation. But yes, people have been winning these types of cases.”

Consult With A Cyberbullying Lawyer

Are you — or a family member — suffering under the hands of a cyberbully? If you’re considering legal action, let’s consult about your options. Different jurisdictions follow different rules. Depending on where you live, you may have a solid case.

Let’s begin the conversation; get in touch.

UK Cookie Law: Opt-Ins Required

UK cookie law explained

As of May 26, 2012, websites operating in the UK are required to follow a privacy rule called the “UK cookie law,” which says users must agree to share personally identifiable information with websites.

Cookies are data-carrying digital information files that help site functionality. But they’re also used to track online activity — and that information is typically sold to advertisers.

UK Cookie Law: Penalties

The law went into effect in the U.K. on May 26, 2011, but companies were given a year’s grace period to adjust.

So, what’s the punishment for breaking the UK cookie law? A fine up to 500 pounds (for the first offense).

How To Comply With The UK Cookie Law

A non-official YouTube video, “The stupid EU cookie law in 2 1/2 minutes,” explains the topic succinctly (but makes no pretense of neutrality).

The ICO’s website contains details about the Cookie Law, including an FAQ section and information about cookies.

Do U.S.-Based Companies Have To Comply With The UK Cookie Law?

In short, yes, U.S.-based companies doing business in the United Kingdom — or anywhere in the EU really — should make strides to comply with the UK Cookie Law.

If you would like to talk to an international online privacy lawyer about the standards, contact us today.