Monthly Archives: April 2014

Judge Green Lights Conspiracy Theory Trade Libel Lawsuit

cyber defamation lawsuit
Judge green lights cyber defamation lawsuit.

Federal Judge Nora Barry Fischer green lit Tiversa Holding Corp’s trade libel lawsuit against LabMD – a cancer detection facility in Georgia – and author Michael J. Daugherty. Accusations of amoral brinkmanship and government conspiracy anchor this business defamation case. And, in theory, if Tiversa wins, it could affect the traditionally bombastic tenor of the conspiracy theory community.

Who’s Who In This Business Defamation Showdown, And How Did They Become Embroiled In This Lawsuit?

Plaintiff

Tiversa Holdings Inc (Tiversa): Tiversa is a data security company. One day, while out exploring the digital world, a Tiversa bot returned with a curious find — unprotected LabMD files that included the social security numbers and insurance credentials of LabMD patients. According to Tiversa, it contacted LabMD immediately to alert the medical facility of their unprotected files scattered around the Web. Tiversa also took the opportunity to offer LabMD their online data security services.

Defendants

Michael J. Daugherty: Michael J. Daugherty authored “The Devil Inside the Beltway,” a non-fiction expose of (alleged) government shadiness, including digital surveillance and the cyberbullying of small businesses and medical facilities. Marketing for the book included a website and video alleging that Tiversa aided in “abusive government shakedowns” and practiced “psychological warfare.” Other marketing materials included allegations that Tiversa’s actions were tantamount to property theft.

LabMD: LabMD is a cancer detection medical facility. Tiversa discovered their unprotected files online – which included personal patient data. Since medical facilities are beholden to federal medical privacy laws, Triversa’s discovery of the LabMD files was problematic.

When Tiversa offered their services, LabMD requested a quote, but ultimately declined the proposal.

Related Third Parties

Federal Trade Commission: As part of a peer-to-peer security breach investigation, the Federal Trade Commission asked Tiversa for files containing 100 or more Social Security numbers. Basically, since Tiversa is in the business of helping security-challenged companies turn over a new leaf, the commission figured they’d know where the proverbial bodies were buried. And as such, the FTC wanted Tiversa to snitch on any companies with crappy security operations. Tiversa swears, however, that they didn’t hand over the LabMD files.

Regardless, in August 2013, the FTC filed a complaint against LabMD for failing to exercise reasonable measures to ensure the security and protection of sensitive patient data.

The Privacy Institute: Though it’s unclear how the file landed in their laps, an entity identified in court documents as the Privacy Institute somehow obtained a copy of the rogue LabMd files. The Privacy Institute eventually complied with a demand from the FTC for the file in question, and the FTC launched an investigation.

Why Tech Company Tiversa Filed A Trade Libel Lawsuit

Tiversa brass weren’t impressed with Daugherty’s assertions that their company was a government henchman that dimmed on clients. Nor was Team Tiversa impressed with LabMD’s seeming compliance with Daughtery’s narrative. So, the digital data security company filed a defamation lawsuit.

The Defendant’s Argument To Dismiss The Defamation Suit…

As is the case in most business defamation lawsuits, upon notice of the claim, the defendant’s lawyers filed a motion to dismiss. Though, instead of just arguing “truth,” Daugherty’s attorney also argued hyperbole (in the US, a constitutionally protected form of speech).

The Judge’s Reasoning For Not Granting The Dismissal And Letting The Business Defamation Lawsuit Move Forward

Judge Fischer, however, disagreed with the defense. She reasoned that the allegations exceeded permissible limits for hyperbole and opinion, and that given the nature of Tiversa’s business, could irrevocably damage the company’s reputation and bottom line. She pointed out that Daugherty’s comments ran the gamut from insults to allegations of criminal acts, and that many of the statements could be “capable of defamatory meaning.”

Fischer was also convinced that Tiversa would be able to present a valid argument against any “truth defense” the defendants might offer at trial since Tiversa says it inadvertently, not intentionally, accessed LabMD’s file. By accepting the plaintiff’s assertions as true (which a judge must do when deciding whether or not to flag through a suit to trial stage), Fisher waved the case through to the next step.

What To Expect Next In This Business Defamation Lawsuit

If this case isn’t settled, the next major point of contention will most likely be the determination of Tiversa’s status as a public or private entity, which will raise important actual malice issues. Under United States law, public figures have to meet a higher standard of proof in slander and libel suits than a “private” citizen. In most jurisdictions, “normal people” only have to prove that the defense was negligent in publishing the offending material, whereas “famous people” have to prove that the defense knew the statement was lie but published it regardless.

Speak With A Business Defamation Attorney Today

If you are an Internet or tech business in need of legal counsel, get in touch with Kelly / Warner Law, today. Our track record is enviable and we know the niche extremely well. And remember, not every legal action blows up into a full-fledged lawsuit. Oftentimes, issues can be resolved quickly and quietly, with just a simple letter.

Get in touch to start fixing the problem.

Academic Defamation Spat Is The Talk Of The Halls At Ohio College

academic defamationAnd you thought high school students were catty? Well, they “ain’t got nothing” on a passel of professors at Oberlin College currently caught up in a messy tangle of calumny. Accusations of murder, bribery and green card marriage proposals have been flying through the school’s hallowed halls – and what has emerged is a whopper of a defamation lawsuit.

The Tale Of Two Professors

The two main players in this academic libel throw down are Ali Yedes and Samir Amin Abdellatif. Both are gainfully employed by Oberlin College, and, judging by all accounts, the two gentlemen aren’t what you’d call friends. No, it can be safely assumed that they can’t stand each other. From the read of it, Yedes’s and Abdellatif’s relationship resembles a Capulets and Montagues situation.

Accusations (Of Premeditated Murder!)

It’s unclear when the animosity between the two sparked, but over the years, according to the lawsuit, Abdellatif has allegedly accused Yedes of:

  1. Threatening to enlist a Tunisian relative to go all Tony Soprano on (i.e., whack) another professor named Eunjung An (who, subsequently, sued Oberlin for failing to appropriately handle that situation);
  2. Engaging in forgery to help a colleague-friend get a promotion;
  3. “Spying on Jews” by guise of participation in inter-faith groups;
  4. Trying to bribe a teaching assistant into marrying him.

Professor Files Defamation Suit To Stop The Reputation Bleeding

Yedes denies it all and maintains that Abdellatif’s accusations are vicious lies intended to harm his professional reputation. In the words of Yedes lawsuit, Abdellatif’s actions “exposed [Yedes] to public hatred, contempt, ridicule, shame and/or disgrace, threats on his life and well-being that have made him fear for his safety.” Additionally, Yedes is claiming “loss of opportunity, humiliation, embarrassment, damage to reputation, loss of self-esteem, physical damages and emotional and psychological distress.”

What Must One Prove To Win A Defamation Suit In The United States?

Though slander and libel laws differ slightly from jurisdiction to jurisdiction, all state and federal defamation statutes contain at least three elements – all of which must be met in order for a court to deem an incident defamatory. Those elements are:

  1. Publication of a Lie – The first element of defamation is the publication of an unprivileged, false statement of fact (a.k.a., a lie). You can’t sue someone for slander or libel if you can’t prove that he or she was the one who published or published the false statement of fact on which you’re basing your defamation charge.
  2. Harm & Loss – In order to win a defamation lawsuit, the statement under review must have caused harm to the plaintiff’s reputation. Additionally, except for defamation per se cases, slander and libel claimants must prove that the statements in question caused some sort of material harm (i.e., financial loss, loss of job, et cetera).
  3. Fault – Citizens of the United States enjoy considerable free speech liberties. So, it’s acceptable for someone to accidentally tell a false statement of fact if they had every reason to believe it to be true and their motivation was not malicious. In order to win a defamation suit, the plaintiff must prove the defendant was at least negligent in forwarding the information at hand.

In terms of this case, if Yedes can prove that he did not engage in any of the activities Abdellatif attributed to him, Yedes could win – and win big. After all, it sounds like his career was severely stalled because of the row. If, however, Abdellatif speaks the truth, then Yedes may lose.

Contact A Defamation Attorney Today

Do you have a defamation situation you’d like to rectify? We can help. Our firm has an excellent track record of solving all manners of defamation problems. Get in touch today to learn more about your legal options.

International Defamation Update: Russia & China

communist defamation
A pair of defamation lawsuits in China and Russia got us thinking about slander and libel in communist countries.

Every so often, we take a dip in overseas blog waters to learn what online defamation debacles are making headlines abroad. Last week, two tales of communist defamation happenings caught our eye. Pussy Riot won a small slander victory in a Siberian court, while a supposedly fame-seeking teenager in China drew the short defamation straw.

Pussy Riot Member Escapes Defamation Lawsuit

In 2012, notorious Moscow-based punk band, Pussy Riot, pulled an anti-Putin stunt called “punk prayer” that landed the members in jail. One member, Nadezhda Tolokonnikova, ended up in Mordovian Prison, Siberia. After a few months in residence, Tolokonnikova penned an open letter about the jail’s conditions. She lamented the treatment of prisoners and accused the deputy warden of having a penchant for death threats. Then, she took a page from Ghandi’s playbook and went on a hunger strike — (and hey, good for her; you gotta do what you gotta do in certain situations) – at which point officials transferred her out of Siberia and into another detention center.

The Mordovian deputy warden, however, was not willing to let the accusations slide – so he filed a libel lawsuit against his ex-inmate, asking for 500,000 rubles ($14,000) and a full retraction. But the judge, surprisingly, said no-go to the suit. Surprisingly because Russia isn’t known for its defendant-friendly stance when it comes to slander and libel – especially when the plaintiff is an official of any stripe.

So, go Russian government? (Nah, probably not. But three cheers for this libel ruling.)

Chinese Teenager Heading To Jail For Twitter Defamation

Tolokonnikova may have emerged victorious in her defamation showdown, but it looks like her comrade in China, Qin Zhihui (a.k.a., Qin Huohuo), will have to spend three years behind bars for posting some not so celeb- and political-friendly quips. After being very publicly arrested, Zhihui decided to plead guilty to online rumor-mongering over comments he made on the Twitter of China, Sina Weibo. Publically, Qin Huohuo said he “fabricated stories” to “attract public attention.”

The reason Zhihui is receiving a harsh punishment for a seemingly simple act of Twitter bloviating is because China recently passed a draconian online defamation law. The controversial statute absolves law enforcement officials of needing a victim to investigate acts of online defamation. In other words, nobody has to complain about being defamed online; the only thing that has to happen is that a disparaging post or social media quip is either forwarded 500 times or viewed 5,000 times. (Hey Joe, can you get everyone in your office to click on this link so we can go after this author? Thanks.)

Government officials haven’t been shy about making an example of Zhihui, warning “The public should learn from this case.” A party spokesperson continued, “The Internet is a public space that needs order and is protected by rules. People who disrupt order on the Internet and attack others should be punished.”

Just goes to show that the “Internet” – unlike parents – is not the same no matter time, nor place.

Contact A Defamation Lawyer Today

Do you have a defamation problem that needs solving? We’ve successfully addressed defamation issues on behalf of our clients since our doors first opened many years ago. Some cases take time, but we can handle the majority of defamation cases within weeks. If you are dealing with a debilitating defamation problem, get in touch today and we’ll help you fix it. Our track record is great, and we know all the angles to argue.

Twitter Defamation Case: Mara Feld v. Crystal Conway

Photo of horse statute to accompany article about equine Twitter defamation case studyA much publicized Twitter defamation lawsuit has come to an unceremonious end. An equine scandal gone legal, Feld v. Conway clarified the Federal Massachusetts District Court stance on R-rated social media outbursts.

Feld v. Conway Origins: The Genesis of a Twitter Defamation Lawsuit

Our tale begins back in 2010. WikiLeaks was in full swing, royals were getting engaged, and the horse world was buzzing about an equine scandal.

Gossip at the stable was that thoroughbred owner Mara Feld had accidentally sent her gelding to a horse auction instead of a horse farm. As a result, (so the story goes), the poor animal may have ended up in a Canadian slaughterhouse instead of hoofing away his twilight years as a horsey companion.

As is often the case when mistakes become public, the equine-interested peanut gallery took to the Internet to wax poetic about the faux pas — generously showering the owner with jibes and ridicule. One participant, a Kentuckian named Crystal Conway, added to the conversation by Twitter quipping, “Mara Feld…is f*cking crazy.”

Feld was not impressed with Conway’s assessment and decided to sue for Twitter defamation. The way Feld figured, as a PhD-holding toxicologist whose “prospective employers … [found] … her work by searching the Internet for her name,” Conway’s insult could not stay online for all to encounter. In response to Feld’s suit, Conway argued hyperbole – a protected First Amendment form of speech.

But this Twitter defamation case never made it to trial.

Judge Says Twitter Cursing ≠ Twitter Defamation

After reviewing Feld’s filing and Conway’s motion to dismiss, Judge Dennis Saylor IV sided with the latter. Ultimately, he deduced that Feld failed to state an action “upon which relief could be granted.” In other words, since Feld didn’t actually include a false statement of fact on which a defamation action could hang, there was nothing for the court to consider. Additionally, according to MA defamation law, Saylor had to consider the entire context of the statement under review. In the end, Saylor said that Conway’s tweet was akin to an “imaginative expression” and “rhetorical hyperbole” which are both protected forms of speech.
In his own words, Judge Saylor explained:

“Dismissal is appropriate if plaintiff’s well-pleaded facts do not possess enough heft…”

and

The phrase “Mara Feld . . . is fucking crazy,” when viewed in that context, cannot reasonably be understood to state actual facts about plaintiff’s mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact.

Contact A Twitter Defamation Attorney

Are you dealing with an online reputation situation? Has someone bad-mouthed you or your business on social media? If yes, and you’re curious about available legal options, get in touch with Kelly / Warner. We’ve successfully handled many social media defamation cases. In most instances, we’re able to help clients fix the problem quickly and quietly so life and business can get back to normal.

Lawsuits aren’t your only legal option when it comes to Twitter defamation. Get in touch to learn more.

Lexmark v. Static Control: SCOTUS’ False Advertising Standard

Lexmark v. Static Control false advertising ruling
SCOTUS made a big decision concerning the Lanham Act.

A recent Supreme Court decision marks a change in false advertising case law. The Lexmark v. Static Control decision further defined Lanham Act parameters and created a consistent national standard for allowable marketing claims.

First, A Little About the Lanham Act as It Relates To Lexmark v. Static Control

Signed into law in the summer of 1946, and updated several times since, the Lanham Act addresses intellectual property – and by extension marketing – issues, including (but not limited to) trademark dilution, infringement and false advertising.

Who Can Sue For Infringement?

The Lanham Act suggests limitations on who can sue for damages in trademark lawsuits, but the language is vague. As a result, over the years, local and appellate courts have used different tests to determine valid false advertising claims under the Lanham Act. Some courts say only direct competitors can use the Lanham Act for redress, while others say anyone in a quasi-supply-chain can do so.

With the new Lexmark ruling, however, there’s now a single test for all cases.

Lexmark v. Static Control: One of the Most Important Tech Lawsuits of Our Time

Lexmark makes printers and print cartridges. Static Control makes parts for “remanufacturers” that recycle parts on Lexmark toners, and then sell the refurbished cartridges (usually for a lower price).

For remanufacturing to be profitable, companies like Static Control need cheap and constant access to used Lexmark printers and parts. So, in an effort to dissuade consumers from returning their old cartridges to Lexmark instead of refurbishing companies, Lexmark instituted a “prebate” program. To enforce the program, Lexmark equipped their toner cartridges with “turn off” chips that were supposed to prevent other parties from refurbishing Lexmark printer cartridges.

Enter Static Control – toner remanufacturer to the stars. Presumably via reverse engineering, Static Control made a chip that worked like Lexmark’s “turn off” chip, allowing remanufacturers to use Lexmark cartridges outfitted with the special Lexmark prebate chip.

Lexmark sued Static Control for trademark infringement over the “turn off copy chip”. Static Control counter-sued for false advertising and trade libel. The parts manufacturer argued it did nothing wrong by making a chip similar to Lexmark’s, and that Lexmark was in the wrong for sending out industry news blasts saying that the Static Control chips wouldn’t work with their cartridges.

TL;DR: Printer toner cartridge company, Lexmark, got upset with another company, Static Control, for allegedly infringing on their territory by way of reverse engineering a chip. So, Lexmark sued Static Control for trademark infringement and Static Control sued back for false advertising and trade libel.

Competitors & Deceptive Marketing

The original plaintiff, Lexmark, was not in direct competition with the defendant, Static Control. Despite the lack of direct competition, Lexmark’s negative assertions allegedly diminished consumer demand for Static Control’s products.

Justice Scalia wrote the Lexmark judgment. In it, he essentially discards existing appellate tests related to competition and trademark cases. In their places, via Lexmark, the Supreme Court produced a new standing rule for false advertising lawsuits: civil trademark plaintiffs and defendants must be inside the same business “zone of interest” for a suit to proceed. To file a false advertising claim under the Lanham Act, the plaintiff must suffer a profit loss caused by either a) a damaged reputation or b) fewer sales as a result of consumer deception.

What Did Lexmark Change About False Advertising Law In The United States?

The Lexmark ruling means more businesses can sue for false advertising using the Lanham Act. However, jurisdictions that had previously permitted wide-ranging tests for such claims may experience a downturn in unfair competition claims.

To prevent the Lanham Act false advertising stipulations from morphing into a universal false marketing law, the Lexmark ruling specifies that some plaintiffs lack standing, including:

  • service providers, and
  • consumers.

The exclusions are not a major change to the current law. However, the proximately caused injury condition may limit the ability of some parties to sue.

Consult With A False Advertising Attorney

Are you dealing with similar legal issues dealt with in Lexmark? Kelly / Warner has successfully handled countless unfair competition and marketing claims. Not every case turns into a trial – and issues can often be resolved, quickly. If you’re interested in learning more about your false advertising legal options, get in touch with Kelly / Warner Law today.

Check out Kelly / Warner’s ratings on venerated legal review site Martindale-Hubbell here and popular professional review website AVVO.com here.*

Additional Source:
Supreme Court Changes False Advertising Law Across the Country – Eric Goldman

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Revenge Porn Update: Illinois’ New Law

revenge porn legalities
Illinois is the latest state to tackle revenge porn.

Revenge porn, defined as knowingly distributing prurient videos or photographs without consent, is on the rise – and lawmakers are moving quickly to stomp out the scourge. Many states have already moved to eradicate revenge porn from their borders – and every week a new state makes an anti-revenge porn move.

Most recently, Illinois State Representative John Bradley introduced the topic in his legislator.

Illinois’ Revenge Porn Law

The legislation, if signed into law, would make revenge porn a class three felony. The State House has already given the thumbs up; now, it’s the State Senate’s turn. If the bill becomes law, revenge porn could result in:

1) A five-year prison term, and

2) Fines of up to $150,000.

Should the revenge porn depict a minor or a person dealing with mental illness:

1) Fifteen-year prison term, and

2) Fines of up to $250,000.

Heavier charges of assault, corruption of a minor and possession of child pornography, among others, may also be levied against the person who distributed it.

Revenge Porn Extortion

Online revenge porn websites extort victims.

Here’s how it works: the site offers to take down the offending material for a few many dukets. Revenge porn site owners make a mint this way. One website owner, Kevin Bollaert, was charged with 31 separate charges after it was discovered he was charging thousands upon thousands of dollars for his revenge porn removal ‘service.’

Revenge Porn: An International Scourge

Revenge porn is quickly turning into an international issue. Both Australia and Israel have federally banned revenge porn, with one Israeli politician, Yifat Kariv, calling it ‘virtual rape.’ In November of 2013, a Brazilian teenager committed suicide when revenge porn destroyed her reputation and made her the target of bullies. Brazil is currently considering its own legislation that would ban the practice in light of the tragedy.

Secret Media = Revenge Porn

Revenge porn may seem simple on its face. Don’t share sexually explicit images with lovers and you have nothing to worry about, right? This is not always the case. Revenge porn can extend into photos and videos your partner may have taken in secret, perhaps hiding a camera in the bedroom without your knowledge before you had sex. Hidden cameras in bathrooms and thought-to-be-empty bedrooms also capture people masturbating, changing clothes or showering. This media also winds up on revenge porn sites when the relationship sours.

Get Revenge Porn Removed From The Internet

Are you grappling with a revenge porn situation? If you want to get material removed from the Web, contact us. We’ve helped many women successfully expunge revenge porn material for the Internet. Get in touch today to learn more about your revenge porn legal options.

Twitter Defamation: Turkish Officials v. Twittering Turks

Twitter defamation in Turkey
Turkish officials engaged in a Twitter defamation standoff before the country’s elections last weekend.
  • Turkish politicians shut down Twitter after leaked recordings surfaced.
  • The social media clampdown came right before Turkish elections.
  • Are Twitter quips considered defamatory in the United States?

Turkish Officials’s Twitter Defamation Takedown Campaign

Weeks before Turkish citizens cast their ballots, country officials were nursing a major online concern: social media websites.

In the days leading up to the election, a “gotcha” government bribery tape leaked via Twitter. Politicians lobbed accusations of villainy across party lines – and word on the sokak was that Prime Minister Tayyip Erdogan was the wheeling-dealing politician caught on tape.

A consummate – if not predictable — statesman, Erdogan has maintained his innocence. Basically, he’s pinning the incident on a Pro Tools aficionado with opposition sympathies.

Turkey Doesn’t Have The Best Free Speech Track Record

A free speech vanguard, Turkey is not. In fact, the country has laws outlawing government criticism. So, it came as no surprise when Turkish lawmakers ordered Twitter to remove any and all offending accounts. Turkey’s communications minister put it bluntly, explaining, “Whether it’s Twitter, Yahoo or Google, all social media companies have to obey the laws of the Turkish Republic and they will.”

Twitter: “Defamation? We Don’t Think So.”

The quip-loving company, however, didn’t immediately kowtow to Turkey’s demands. Twitter was all (and, of course we’re paraphrasing here), Slow your roll, Turkey. Our definitions of Twitter defamation are not one in the same.

Turkey: Shut ‘Em Down!

Undeterred by Twitter’s hesitance, the Turkish government blocked the site entirely.  By election time, officials had also blocked Google and YouTube, thanks to another leaked tape.

Alleged Twitter Defamation Did Not Deter Election Outcome…Or Did It?

In the end, Erdogan won the election, and we’ll never know if his party’s victory was aided by the social media shutdown. But one thing seems certain, Turkish politicians intend to keep tight control of social media platforms in an effort to curb Internet defamation.

What Are The Twitter Defamation Rules Under U.S. Law?

Is Twitter snark considered defamatory in the United States? Yes and no. Yes, under United States law, defamation is defamation – no matter if it appears in a well-respected print outlet or a shady website. However, in the past, some plaintiffs have argued that social media platforms are akin to parody and satirical magazines, and won.

Social Media Law Attorneys

Kelly / Warner is a boutique legal practice with considerable experience in international internet law and social media defamation. If you are entangled in a cross-border social media defamation spat, get in touch to learn more about your options.

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