Monthly Archives: March 2013

Texas Defamation Law Changes On The Way?

Texas defamation law
Texas defamation law may be changing soon. If passed, the new proposal will make suing for slander and libel a little more difficult.

Update: HB 1759 became law on June 14, 2013.

***Original Article***

It may become harder to sue for defamation in Texas. In addition to the Lone Star State’s anti-SLAPP statute – which aims to discourage questionable defamation lawsuits – legislators are considering a new retraction law proposal that also encourages defamation arbitration. The goal? Lessening the number of slander and libel lawsuits cluttering Texas courts.

Administrative Basics of HB 1759 – Texas’ New Defamation Law Proposal

Todd Hunter – a Republican representative from Corpus Christi – sponsored HB 1759, which aims to mitigate costly and time-consuming slander and libel lawsuits.

If passed, this new Texas defamation law would require mandatory arbitration periods before court hearings. Plus, it would introduce new rules regarding retractions.

What If: Texas Defamation Under HB 1759

Texas House Bill 1759 outlines a defamation resolution process.

Step One: If parties discover defamatory material about themselves, they would have 90 days to send letters to the publishers/distributors requesting removal, updates, or retractions. If a party doesn’t submit a grievance within 90 days, the plaintiff forfeits their right to seek punitive damages.

Step Two: Once the accused defamer or publisher receives the alteration or removal request, said outlet could seek an explanation (presumably so they can decide to hand over the information or not).

Step Three: Outlets must execute Corrections and retractions in the same manner as the original statement. For example, if the correction involves a story that ran on the front page of a newspaper, the retraction must be on the front page of a newspaper. If the statement broadcast on the 7 p.m. nightly news, the correction must also broadcast on the 7 p.m. nightly news.

If The Law Works As Intended, How Will It Change Texas Defamation Law?

The goal of the new Texas defamation statute is to unclog the state’s current defamation drain. When two parties jump into litigation, both sides typically “dig in” and refuse to compromise. The stubbornness leads to belabored, but fruitless, hearings that ultimately waste taxes. Legislators hope the new law will diminish contentious, unnecessary defamation lawsuits.

Get In Touch With A Defamation Lawyer Licensed In Texas

Kelly Warner is located in Arizona, but we’re also licensed to practice in Texas. If you’re in need of a lawyer who focuses on slander and libel litigation, get in touch with Kelly Warner Law today.

Wee Man Isn’t Happy About Elf Man Illegal Downloading Lawsuits

illegal downloading elf-man lawsuits
Wee Man is not happy about Elf-Man Illegal Downloading Lawsuits.

P-rn studios aren’t the only entertainment niche diving into the piracy litigation pool. One of the dare devils from Jackass, Jason “Wee Man” Acuna, has found himself caught in the center of an online copyright infringement case. But the actor wants fans to know that he’s not the wizard behind the Elf-Man illegal downloading crackdown.

New Rash Of Illegal Downloading Lawsuits: ELF-Man Downloaders Under Siege

A straight to DVD Christmas miracle, Elf-Man chronicles the high-jinx of a stranded Elf who helps the beleaguered Harper family during Christmastime.

Now, I know what you’re thinking. A true Hollywood powerhouse like MGM or Miramax must be behind Elf-Man. But no, Elf-Man was the brain child of Elf-Man LLC – a small independent movie company. And now Elf-Man LLC is suing about 200 people in Oregon and Colorado for allegedly downloading the movie illegally.

Wee Man Speaks Out Against Illegal Downloading Lawsuit

A true adversary of propriety himself, Wee Man informed his Twitter legion that he is not down with Elf-Man LLC’s litigious pursuits.

From WeeMan’s Twitter:

@massive my representation has spoken to them…I’m not backing it at all…Has NOTHING to do w/me!! It’s all them…

Elf-Man’s illegal downloading lawsuits seem to be following the standard piracy litigation script established by firms like Prenda Law, with a history of representing so-called copyright trolls.

Elf-Man Illegal Downloading Lawsuit Features A New Plaintiff Argument

The Elf-Man illegal downloading lawsuits include a new plaintiff argument. In a presumable attempt to frame the plaintiffs in a sympathetic, cash-poor light, the lawsuit specifically mentions the perception that movie people are loaded. It reads:

“When the perception that those affiliated with a motion picture are already wealthy, and the end product, such as a DVD costs very little to make, a reality disconnect often builds in the minds of much of the public, namely that those associated with a motion picture do not need any more money.”

Do Judges Get The Whole “Copyright Troll” Thing Yet?

Judges, for the most part, have been loath to give p-rn companies the upper hand in illegal downloading lawsuits, but how will they handle claims from less salacious plaintiffs? Will courts find differently in cases that don’t involve adult entertainment – a controversial medium in it of itself? We’ll have to wait and see.

In the meantime, rest comfortably in the knowledge that Wee Man is not behind the Elf-Man illegal downloading lawsuit.

Why is it difficult to pass a federal cyberbullying law? (Hint: The First Amendment)

why is it difficult to pass a federal cyberbullying law
Why are legislators having a tough time drafting federal cyberbullying laws that pass?

Why is it difficult to pass a federal cyberbullying law? Let’s discuss.

Every day, minors are tormented online by peers and parents of peers. To escape the emotional digital prison, some victims, like Missouri teenager Megan Meier, have even paid the ultimate price.

Recognizing the destructive effects of cyberbullying, victim advocacy groups have pushed for online harassment laws, and politicians have hastened to draft effective statutes.

Why Is It Difficult To Pass A Federal Cyberbullying Law?

But few federal cyberbullying law proposals have worked.

So, why is it difficult to pass a federal cyberbullying law? Why can’t politicians strike the right balance between curbing dangerous digital harassment and protecting free speech? In most cases, the failure is a result of sloppy language that creates censorship loopholes.

Below are three examples of online harassment laws introduced within the last 12 months. Notice a pattern?

New York’s Cyberbullying Bill: Politicians Wanted To Outlaw Anonymous Online Speech, But Were Sent Back To The Drafting Table

The Internet Protection Act was New York’s attempt at curbing cyberbullying. Under the proposal, victims would “claim” offensive posts; if the poster refused to reveal their legal name, the website operator would be compelled to remove the material. Legislators introduced the bill, but then quickly pulled it for language revisions.

Though touted as a cyberbullying prevention act, the IPA also includes protections against “mean-spirited and baseless political attacks.” The Internet Protection Act specifically mentions trade libel, as well.

Illinois’s Cyberbullying Proposal: Legislators Proposed Limits on Anonymous Online Speech, But Quickly Crawled Back & Are Now Working on Another Option

On February 13, 2013, Illinois State Senate representative Ira I. Silverstein introduced the Internet Posting Removal Act – SB 1614. Like New York’s proposal, Illinois addressed the issue of anonymous cyberbullying.

An aggressive piece of legislation, SB1614 aims to ameliorate cyberbullying thusly:

Anonymous Internet poster; right to know. A web site administrator upon request shall remove any comments posted on his or her website by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name and home address are accurate.

When you read the bill solely through cyberbullying prevention lenses, it makes sense. But what happens when a politician uses the statute to silence critics? Precise language is a must when it comes to laws; loose lips sink ships, and loose language can annihilate freedoms.

Arizona’s Cyberbullying Law: At First It Failed, Then Succeeded After Language Changes

In the spring of 2012, the Arizona State Legislator passed House Bill 2549, which outraged free speech advocates. Detractors bristled over a broadly worded section of the bill:

“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic device and use obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”

Arizona’s Governor, Jan Brewer, agreed with the detractors. She made it clear: Change the language or she’d veto HB 2549. So, sponsors went back to the whiteboard, struck the words “annoy or offend,” and defined that actions rely on explicit threats. With those changes, Gov. Brewer signed it into law. As such, it’s now illegal in Arizona “for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons” to do the following:

  1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.
  2. Disturb by repeated anonymous, unwanted or unsolicited electronic communications.

The Arizona cyberbullying law does dedicate a section to the precedence of constitutionally protected speech.

Ireland’s First ‘Honest Opinion’ Defamation Case

Denis O'Brien honest opinion Defamation case
Irish businessman, Denis O’Brien (above) won a defamation lawsuit against a journalist who argued “honest opinion.”

Billionaire Denis O’Brien won a watershed libel lawsuit. He didn’t collect mega-bucks, but the ruling is of mega-importance. The first “honest opinion defamation case” considered since Ireland’s 2009 defamation law reform, the press closely followed O’Brien vs. Associated Newspapers.

Who Is O’Brien?

Denis O’Brien isn’t one of those discreet rich guys. No, he’s more like the Donald Trump of Ireland – a conspicuously rich guy — who rocks a memorable quaff and isn’t afraid to litigate. Like Trump, O’Brien is a corporate builder – but instead of real estate slinging, the Irish native dabbles in mobile and Wi-Fi wrangling.

As is often the talk around any great fortune, considerable speculation surrounds the source of O’Brien’s billions. Detractors believe he got his money the old fashioned way – courtesy of a great crime; (rumors of a Faustian bargain, with a government official, consistently swirl).

He denies the allegations. Regardless, the controversy made him infamous in Ireland.

Why Did O’Brien Sue For Libel?

In 2010, when the devastating earthquake rocked Haiti, private citizens and public figures slipped into super hero capes and crashed into the streets of the island nation as fiercely as the earthquake – O’Brien included.

But Paul Drury, a journalist for the Irish daily Mail, was skeptical of O’Brien’s post-quake generosity. In what Drury’s lawyer would later call a “sarcastic, cynical piece,” the reporter opined that O’Brien’s relief efforts were motivated by personal monetary concerns over Digicel – his mobile company with substantial interests in the Caribbean.

Offended by Drury’s character slight, O’Brien filed a defamation lawsuit.

O’Brien v. Associated Newspapers: Example of An Honest Opinion Defamation Case

In 2009, Ireland overhauled its defamation laws and “honest opinion” became a viable defamation defense. O’Brien’s case was the first time a jury considered and ruled on the defense.

Jury’s Decision in O’Brien v. Associated Newspapers: Free Speech Is Vital, But Not  At The Expense Of Character Attacks

The O’Brien ordeal was well-publicized, and Ireland was divided. Team O’Brien trumpeted the importance of reputation and lambasted unscrupulous sensationalism. The other side’s stance is best summed in Team Drury’s closing statement:

“The right to express opinion is vital to society. This case is about the simple truth of the right to express an opinion. We want you to stand up for the right of someone to express his view.”

But in the end, the jury sided with O’Brien.

Would O’Brien Have Won This “Honest Opinion Defamation Case” In A U.S. Court?

Would a U.S. court have handed down the same ruling? Probably not. Since the 1960s, actual malice has been the standard in American defamation lawsuits involving public figures. As such, celebrities, officials and public personalities suing for slander or libel must prove that the plaintiff knowingly printed falsehoods with the express intent of harming the plaintiff.

Considering United States case law, the chances of O’Brien winning this case in an American court is between slim and none. A judge or jury would most likely consider Drury’s comments opinion. Furthermore, under U.S. law, the plaintiff must prove how the statement caused material harm; O’Brien would probably have had a tough time producing evidence that he lost money or was denied a business opportunity on account  of Drury’s comments.

Libel Tourism: Is It Gone For Good?

Traditionally, defamation laws in Commonwealth countries are a lot more plaintiff-friendly than United States slander and libel laws. Being that humans are innately subject to the law of least resistance, many defamees endeavor to file in a favorable jurisdictions, even if that means filing in a foreign court with tenuous ties to the issue at hand.

The open nature of the Internet, however, blurred publication and distribution borders, causing a boom in libel tourism at the beginning of the 21st Century. Defamation plaintiffs in North America cited inconsequential hyper-links and blog mentions to justify foreign jurisdiction.

Governments quickly caught on to the practice and have since moved to curtail international court hopping. Officials in the United States passed the SPEECH Act, a bill which safeguards U.S. citizens from foreign defamation awards. In the United Kingdom, perhaps the most-sought after libel tourism jurisdiction, parliamentarians are actively debating changes to that country’s defamation laws.

Despite official efforts to tamp libel tourism, exceptions still exist. If you’re looking to file an international defamation lawsuit, it’s best to talk in an international libel lawyer.

The first Irish libel lawsuit to test the country’s “honest opinion” defense, O’Brien vs. Drury will be preserved in the annals of international defamation law.