Monthly Archives: March 2013

Texas Defamation Law Changes On The Way?

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

Soon, it may become difficult 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 proposal that would encourage defamation resolutions that don’t involve the court. The main impetus for the bill is lessening the number of slander and libel lawsuits currently cluttering benches across the state. By passing, legislators hope to give media outlets and would-be defamation plaintiffs a viable, equitable avenue to rectify defamation battles before they begin.

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

Todd Hunter – a Republican representative from Corpus Christi – is the primary sponsor of HB 1759. According to reports, the proposed law is meant to thwart costly and time consuming slander and libel lawsuits.

If passed, the new Texas defamation law would outline a process by which people would be forced to attempt an amicable resolution, with the offending entity, before filing for a court hearing.

How Defamation Would Work In Texas If HB 1759 Is Enacted

Texas House Bill 1759 outlines a simple process. It works like this:

Step One: If an individual or business comes across defamatory material about themselves or their business, he or she would send a letter to the publisher/distributor requesting that the material be removed, updated or retracted. The requester has 90 days from the moment of discovery to remit their request. If he or she does not submit their grievance within 90 days, the plaintiff risks forfeiting their right to seek punitive damages.

Step Two: Once the media outlet or slanderer receives the alteration or removal request, said outlet is allowed to request a written explanation of why a retraction, change or correction is needed.

Step Three: If the publisher or speaker agrees to make the requested retraction or correction, it must be done 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 was made on the 7 p.m. nightly news, the correction must also be made on the 7 p.m. nightly news.

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

As stated, the goal of the new Texas defamation statute is to clear the state’s current defamation lawsuit clog. As explained in several analyses, officials feel that once slander or libel litigation begins, both sides “dig in” and refuse to compromise – which only leads to belabored hearings that don’t end up doing much good for either side — which ultimately is a waste of tax payer funds. Legislators hope that a law which mandates seeking a non-legal rectification first, will diminish contentious, unnecessary defamation lawsuits.

Get In Touch With A Defamation Lawyer Licensed In Texas

Kelly Warner may have our office in Arizona, but we are licensed to practice in Texas, too. We’ve helped many individuals and online business owners who live in Texas – we can lend you a hand too. If you’re in need of a lawyer who focuses on slander and libel litigation, get in touch with Kelly Warner Law today.

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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.

Well, it looks like porn studios aren’t the only entertainment executives diving into the piracy litigation pool. One of the dare devils from the Jackass franchise, Jason “Wee Man” Acuna, has found himself caught in the center of an online copyright infringement case. But the small-statured actor wants fans to know that he’s not the one behind the illegal downloading crackdown involving Elf-Man – a family-friendly DVD movie in which he stared.

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

A straight to DVD Christmas miracle, Elf-Man is a flick chronicling the high-jinx of a stranded Elf who helps the beleaguered Harper family have a happy Christmas. 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 – 200 people the small movie company says downloaded the Acuna movie using BitTorrent technology.

Wee Man Speaks Out Against Illegal Downloading Lawsuit

A true adversary of propriety himself (you don’t attempt the things they attempt on Jackass unless you have a healthy sense of going against the grain), Wee Man took Twitter to inform followers 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, which have 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 – and arguably whinny – 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.”

Now That It’s Not Just Porn Companies Using The ‘Copyright Troll’ Playbook, Will Judges Soften?

Judges, for the most part, have been loath to give porn companies the upper hand in these 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 just have to wait and see. But in the meantime, know that Wee Man is not the man behind the Elf-Man illegal downloading lawsuit.

Difficulties Of Passing A Federal Cyberbullying Law (Hint: The First Amendment)

Why are legislators having a tough time drafting passable cyberbullying laws?

Cyberbullying is a serious problem. Every day, minors are tormented online by peers and parents of peers. To escape the emotional prison caused by cyber harassment, 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.

But few cyberbullying prevention laws have passed.

Why is a seemingly straightforward task – creating a law that prevents kids from harassing peers online – proving so difficult? Why can’t politicians strike the right balance between curbing dangerous digital harassment and protecting free speech? In most cases, the failure to pass a proper cyberbully law is a result of sloppy legal language that creates free speech loop holes.

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 is New York legislators’ attempt to combat cyberbullying. It aims to limit anonymous online comments. Specifically, the draft bill outlines a process wherein victims are forced to “claim” offensive posts. If the poster refuses 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. At the time of this writing, co-sponsors of the statute haven’t announced a re-introduction of the revised bill.

While touted as a cyberbullying prevention act, the IPA also includes protection, for elected officials, from “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, Silverstein addresses the issue of anonymous cyberbullying. He admits to reading the New York draft and told reporters it was the inspiration for his proposal. (Guess he didn’t wait to see how it turned out.)

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. All website administrators shall have a contact number or e-mail address posted for such removal requests clearly visible in any section where comments are posted.

When you read the bill solely through cyberbullying prevention lenses, it makes sense. But what happens when Politicians start using 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 Some Language Changes

In the spring of 2012, the Arizona State Legislator passed House Bill 2549; its homologation outraged free speech advocates. Detractors bristled over a broadly worded excerpt from 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 bill’s detractors. That language would have to change or she’d veto HB 2549. So, sponsors went back to the white board, struck the words “annoy or offend,” and made it clear that a threat must be lodged against a specific person. With those changes, Gov. Brewer signed it into law on May 15, 2012. As such, it is 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.

After changes, Arizona passed their cyberbullying law last year. If New York and Illinois review their proposals and figure out a way to balance online harassment deterrence with First Amendment rights, expect both states to have a new cyberbullying law in the coming year.

Ireland’s First ‘Honest Opinion’ Defamation Case

Denis O'Brien Defamation Lawsuit
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 in Ireland. He didn’t win mega-bucks, but the ruling is of mega-importance. The first “honest opinion” case to be considered since Ireland’s 2009 defamation law reform, O’Brien vs. Associated Newspapers tested how juries would react to the country’s newest defamation argument, “honest opinion” – a defense intended to bolster press freedoms.

Who Is O’Brien?

Denis O’Brien isn’t one of those discreet, super-rich guys. No, he’s more like the Donald Trump of Ireland – a conspicuous rich guy, who rocks a memorable quaff, that ain’t afraid to litigate. Like Trump, O’Brien is a corporate empire 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. His detractors believe the mogul got his money the old fashioned way – courtesy of a great crime. They say he made a devil’s deal with a high-ranking government official to secure a virtual monopoly on the mobile phone market in certain regions. 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. Paul Drury, a journalist for the Irish daily Mail, however, was not convinced O’Brien’s post-quake generosity was purely selfless. 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 opted to file a defamation lawsuit.

Why Is O’Brien v. Associated Newspapers An Important Defamation Case?

In 2009, Ireland overhauled their defamation laws. One of the main changes was the addition of “honest opinion” as a viable defamation defense. O’Brien’s case against the Irish Daily Mail was the first time a jury considered and ruled on the defense. The case established significant legal precedence in Ireland.

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

The O’Brien ordeal was well-publicized, and Ireland was divided. Team O’Brien trumpeted the importance of reputation and lambasted unscrupulous journalists with a taste for sensationalism. On the other side, the attorney for the defense perhaps best expressed the sentiments of Team Drury in his 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.”

In the end, the jury sided with O’Brien.

Would O’Brien Have Won In A U.S. Court?

If a U.S. court heard this case, would it have handed down the same ruling? Probably not. Since the 1960s, actual malice has been the standard in American defamation lawsuits brought by 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.

Using United States defamation case law as a bar, it is unlikely O’Brien would have won this suit had it been tried in an American court. A judge or jury would most likely consider Drury’s comments opinion. Furthermore, under U.S. law, the plaintiff must prove how the statement in question was materially harmful — O’Brien would probably have a tough time producing evidence that he lost money or was denied a business opportunity as a result of Drury’s comments.

Libel Tourism: Is It Gone For Good?

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

The open nature of the World Wide Web, 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 aims to safeguard U.S. citizens from being forced to pay damages in a foreign libel lawsuit if the ruling is contrary to federal U.S. defamation standards. In the United Kingdom, perhaps the most-sought after libel tourism jurisdiction, parliamentarians are actively debating changes to their defamation laws. Their stated primary goal is to limit the number of foreigners taking advantage of their generous plaintiff libel 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 is a significant case in the annals of international defamation law. In the end, the jury decided that, while free speech is important, it doesn’t trump character assassination.