Classification Marketing Defamation: A New Type Of Online Business Libel
Originally Posted: Tuesday, December 16th, 2014 | Last Updated: Tuesday, December 16th, 2014
Dust off your deerstalker and limber that legal mind — for a fascinating libel lawsuit is afoot! Video streaming company, FilmOn, is suing high-level Web analytics/Online Marketing firm, DoubleVerify, for what can only be described as “classification marketing defamation.”
FilmOn v. DoubleVerify presents a different type of libel – one singular to online marketing analysis. Plus, the case teases a new set of legal questions regarding the intersection of new-model media distribution, digital globalization and reputational torts.
The Two Sides of This Marketing Defamation Lawsuit: Filman & DoubleVerify
The Plaintiff: Filman
A decidedly 21st century venture, FilmOn deals in all things streaming. The company offers a plethora of packages ranging from global video-on-demand services to custom branded media players. According to Business Insider, “FilmOn provides hundreds of live TV channels and on-demand programming to the web, both for free and with some content behind a subscription.”
Judging from the website, it appears FilmOn doesn’t necessarily develop content, but instead provides private-label streaming — and more. For example, a convention may use FilmOn for customized video services; or, a business may order a bespoke media player. Individual TV-streaming packages are also available. In essence, FilmOn isn’t necessarily a content creator, but instead a platform provider.
The Defendant: DoubleVerify
A high-level Web analytics firm, DoubleVerify promises clients “appropriate environments for [their] brands with real-time blocking controls.” In other words, they help you make sure your online advertisements appear in “apt” online neighborhoods.
For example, if a company is selling a family-friendly product, it probably doesn’t want to advertise on an “adult entertainment” website. DoubleVerify helps with that.
The Main Issue: Undesirable Classification
The issue anchoring FilmOn v. DoubleVerify is straightforward:
DoublVerify labeled FilmOn a “copyright violator” and “adult content distributor” in its advertising classification database.
As a result, many DoubleVerify brands opted not to have their ads appear on FilmOn’s website – which decimated the streaming company’s bottom line. After all, like many online-based businesses, Internet advertising dollars are a significant revenue stream for FilmOn.
We Are Not What You Say We Are
When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the analytics advertising firm, explained how their services worked, and cogently argued that, legally speaking, FilmOn is not a copyright violator, nor adult entertainment purveyor.
But their pleas failed; in the eyes of DoubleVerify, FilmOn remained an intellectual property infringing p-rn runner.
Unwilling to let the classification stand, the streaming media company filed a business lawsuit against the online marketing outfit.
What Makes The FilmOn v. DoubleVerify Business Defamation Lawsuit Interesting?
FilmOn v. DoubleVerify is worth mentioning because it speaks to the current state of the marketplace – the marketing-dependent state.
Think about it for a second: a giant chunk of the digital economy is fueled by marketing. If I were feeling cynical and extra get-off-my-lawn-y (which I’m not), I might remonstrate: “People used to make things that were then marketed, now we just market marketing!” Which is fine. The trend will continue the more digital we become. But the shift does present a new set of legal questions and implications.
The Shift To Big-Data Marketing: The Legal Implications
Reputation classifications will become more popular, and lawsuits like FilmOn v. DoubleVerify will become the norm. Moving forward, businesses must be diligent about monitoring online reputations — not just online, but in brand databases.
Marketing, Subjectivity and Defamation Law
As the marketing industry metastasizes, questions regarding subjectivity, as it relates to defamation law, will come to the fore. Cloud- and platform-oriented services, as opposed to content-oriented services, will present new legal quandaries in the coming years. Will Section 230 of the Communications Decency Act suffice?
Soon, courts will need to establish case law addressing “classification marketing defamation” as a separate phenomenon.
Gripe Site Cases: The Charles Schwab Defamation Lawsuit
Originally Posted: Thursday, December 4th, 2014 | Last Updated: Saturday, December 6th, 2014
We like to talk about gripe site cases — and there’s a new one to dissect.
A dissatisfied business partner, in search of recompense, accuses a mogul’s son – by way of a few DIY websites – of cavorting with a convicted killer!? Nope, it’s not a Dick Wolf special – it’s a real case involving venerated financier, Charles Schwab, Charles’ son Michael and a former dictator’s criminally notorious son, Tommy Suharto.
Former Business Partner of Nicholas Behunin
Son of Charles R. Schwab
Charles R. Schwab
Renowned Finance Mogul
Father of Michael Schwab
Alleged Real Estate Swindler
Convicted Criminal Who Spent 4 Years In Prison
Former Business Partner of Michael Schwab
Alleged “Anti-Schwab Website” Mastermind
Steiner & Libo
Counsel for Nicholas Behunin
Alleged “Anti-Schwab Website” Enabler
The Story: What Led To The Schwab Defamation Lawsuit
Our tale of online defamation woe tracks back to 2002. That year, an Indonesian court sentenced Tommy Suharto, the notorious son of Indonesian’s now-deceased second president, Suharto, to 15 years in prison. What crime? The younger Suharto hired henchmen to take out a Supreme Court judge, in broad daylight.
Suspiciously, Tommy was out of prison within four years.
Act 1: The Real Estate Deal between Schwab Son Michael & Nicholas Behunin
Sometime in 2009, son of legendary investor Charles Schwab, Michael Schwab, and businessman Nicholas Behunin shook hands on a Balinese real estate deal. The plan? Eco-friendly luxury resorts in Indonesia.
Unfortunately, the strategy went south, and the relationship ended acrimoniously.
Act 2: The Alleged Shakedown
Behunin felt Schwab and co. cheated, and he didn’t walk away quietly. Behunin demanded $25 million dollars for his troubles; Schwab refused. So, Behunin sued for the $25 million, but lost.
And it’s around this time when a handful of gripe site websites launched. Accusatory and satirical, several anti-Schwab blogs found their way online. They featured quips like “How to profit from a brutal dictator” and “Launder Money Overseas.” The so-called “suck sites” targeted Michael and Charles Schwab’s alleged relationship with Tommy Suharto – the Uday Hussein of Indonesian.
Act 3: The “Gripe Site” Defamation Lawsuit
As you may have already guessed, the Schwabs insist they’ve “never met” or engaged in any business dealings with any of the Suharto men. They also think Behunin is behind the accusatory websites. So, the First Family of investments filed a defamation of character lawsuit that is sure to go down in the annals of gripe site cases.
The lawsuit reads in part:
“The only reason to create these fraudulent websites was to besmirch the good name and reputation of Charles R. Schwab and his son Michael. Not one claim on the landing page of the site is true or correct and the guilty parties were aware of that prior to making the defamatory statements,”
“In sum, (Leonard) Steiner (Steiner & Libo and Nicholas Behunin) used the Websites as a tool for the extortion of Schwab. The Website’s clear objective was, and is, to publicly embarrass and shame Schwab and then to leverage that public embarrassment into litigation advantage in Behunin’s lawsuit against Schwab.”
“The Defendants agreed to a scheme that included providing false and defamatory information to third parties who would post articles or blogs on the internet repeating the false and defamatory statements provided to them by Defendants…creating the impression that the false statements on the websites had been independently corroborated by the third-party posters,” according the lawsuit by Michael Schwab filed by his attorney David H. Schwartz.
The Masts of Defamation: What Plaintiffs Must Prove To Win Gripe Site Cases
Defamation is more than just a negative comment or a lie. To win slander and libel lawsuits, plaintiffs must satisfy the four masts of defamation: Publication, Falsity, Harm and Negligence.
Publication: Just as it sounds. The statements under review must have been published for public consumption – either in print or digitally – or spoken in a public forum.
Falsity: As the old saying goes, it isn’t defamation if it’s true.
Harm: The statements under review must have caused financial or materially reputational harm for the plaintiff. Hurt feelings don’t cut it.
Negligence: The great equalizer in defamation suits – intent and negligence. Believe it or not, if a defendant broadcasts a bold-faced lie about you, but genuinely believed in the validity of the information and can prove proper due diligence, then 8 times out of 10 a judge won’t hold the defendant liable. In cases where the plaintiff is a public figure, they have to meet the even higher standard of “actual malice” – a legal term meaning that a person knowingly prevaricates. (To learn more about actual malice, go here.)
Truth! The Pin on Which All Defamation Lawsuits Turn
If the Lance Armstrong scandal taught us one thing, it’s that all that glitters isn’t honestly gold. And I use Armstrong as an example because he won several defamation lawsuits against detractors who reported the truth.
In slander and libel lawsuits, the winner is the party with the most convincing evidence. If defendants can prove their accusations are fair, they’ll walk away unscathed.
We’ve bookmarked this Schwab gripe site case – because it could get very interesting.
If you’d like to read more about gripe site cases, head on over here. If you’d like to speak with an online defamation lawyer about a gripe site and “suck site” legal issue of your own, get in touch here.
Business Owners’ Guide to Defamation Lesson #1: Facebook Boycott Defamation
Originally Posted: Tuesday, November 4th, 2014 | Last Updated: Tuesday, December 2nd, 2014
Facebook boycott pages have the power to decimate bottom lines. A single social media profile can severely stall cash flow. Which raises the question: What are the legal options regarding negative Facebook press? Keep reading.
Case Study: Consumers Create A “Boycott” Page on Facebook
According to company president John Dowd, Sundance Vacations had been in business for twenty-three years – largely without issue. But in the 24th year, all bytes broke loose. A disgruntled client created a “Boycott Sundance Vacations” Facebook page.
Needless to say, Sundance experienced a Titanic-sized sinking. According to Dowd, the Facebook boycott page was “the single worse [sic] thing that’s happened to [Sundance].”
Due to the sharp, steep sales decline, precipitated by the disparaging profile, the travel company had to lay off over one-hundred employees.
Sundance eventually sued Facebook for defamation but lost. The social media platform won by arguing immunity under Section 230 of the CDA.
Can Business Owners Demand That Detractors Take Down A Facebook Boycott Page? Can The Page Creators Be Sued For Defamation?
Sundance’s failed Facebook defamation suit should not be a deterrent to businesses that want to pursue Internet defamation lawsuits. It can be done, and it has been done. But to increase the likelihood of success, its best to use an attorney well-versed in online libel litigation.
Someone Created A Facebook Boycott Page About Your Business? Follow These 3 Steps.
What should you do if disgruntled customers, patients or clients air their complaints online and create Facebook boycott pages about you or your business?
First: Stay calm. Don’t snap and start railing against your detractors. It’ll just make you look:
Overly defensive (and therefore suspect).
Second: Private message the Facebook boycott page and try to resolve the issue amicably. Be accommodating, not imperious. Respectfully prostrate yourself. Ask what you can do to make things better. Don’t compromise your values, but be conciliatory — if possible.
Third: If your Facebook boycott detractors still refuse to negotiate a solution, then it’s time for legal action. Contact a Facebook defamation lawyer.
Elements of Defamation Under U.S. Law
But before you contact a lawyer, think about the validity of your case. Be honest with yourself. Are the Facebook boycotters telling the truth? Because if they are, their actions are not defamatory.
Defamation is more than just negative, disparaging talk. In order for a statement to be legally defamatory, the plaintiff must prove that:
The defendant was the party that published or spoke the contentious statement(s);
The contentious statement(s) were false, unprivileged and about the plaintiff;
The plaintiff suffered either material or reputational harm as a result of the defendant’s statement;
Remember these four defamation fundamentals if a Facebook boycott page targets your company. Remember, you will NOT win a defamation case just because someone said something negative about your operation. Negligence, harm and falsity must also be proven to emerge the winner in a defamation lawsuit.
Speak With Attorneys Who Have Dealt With Facebook Boycott Defamation
Kelly / Warner was one of the first law firms to focus on Internet-specific defamation. We have successfully counseled hundreds of businesses and individuals through all types of cyber libel litigation. An AV-rated law firm, Kelly / Warner enjoys a high success rate. We also maintain valuable connections that we are sometimes able to leverage on clients’ behalves – if appropriate.
The Month In Defamation Law: Kesha, Bag Men & More!
Originally Posted: Monday, November 3rd, 2014 | Last Updated: Saturday, December 6th, 2014
Business Defamation: October 2014
TicketNetwork.com v. Performance Arts Venue
TicketNetwork.com and The Bushnell Center for the Performing Arts were headed to trial. The latter had accused the former of:
Gaming online ticket sales to extract more money from consumers, and
Cheating venues by misrepresenting availability.
But the day before court, they reached a settlement. A confidential settlement, which stinks for us defamation lawsuit voyeurs.
Chinchilla Breeder v. PETA
Nonagenarian chinchilla breeder Lurlie Adams filed a YouTube defamation lawsuit against PETA.
Lurlie is 90 and her husband is 95.
Lurlie has been a California chinchilla breeder for over 40 years. She used to do it for fur, but had a change of heart (so she says) in the 80s and switched to pet breeding.
According to Lurlie, PETA orchestrated a deceptive interview at her farm, secretly taped it, and then spliced-and-diced the footage to make her look like an animal torturer.
Lurlie Adams is suing the animal rights group for $2 million and has declared herself, “ready for a fight.”
PETA insists Adams’ breeding stables contain a crude electrocution device that she still uses on chinchillas.
I’m not taking sides. But, mark my words: this defamation lawsuit will be greedily hogging headlines for months to come.
King of Torts off the Libel Hook
In 2009, Former Assistant U.S. Attorney Tom Dawson co-wrote a book called “King of Torts.” A true crime tome, it recounted an undercover government investigation. In the book, Dawson characterized then FBI agent Philip Halbert Neilson as “untrustworthy” and “shifty.”
So, Neilson sued for defamation of character.
The trial court sided with author and defendant Dawson, but Neilson appealed.
Welp, the appeal ruling came down this month, and Neilson lost. Once again, the court stood with Dawson, reasoning:
“Dawson supported his motion for summary judgment with affidavits from himself, Greenlee and Hailman. In these separate affidavits, each man states the reason he thought Neilson was untrustworthy. These affidavits go into detail about Neilson’s past conduct and how that conduct resulted in Dawson, Greenlee and Hailman’s lack of confidence in Neilson.”
This month, pop princess Kesha lobbed abuse allegations at her former producer, Dr. Luke.
And when Kesha dropped the abuse bomb, Luke shot back with a defamation lawsuit. He also accused Kesha and co. of illegally worming their way out of a contract.
Curiously, in his filing, Dr. Luke doesn’t list specific “false and defamatory” statements uttered by Kesha. For the time being, he’s only asserting the generality of Kesha’s “false and defamatory” nature. Interestingly, his team seems to be pushing the contract extraction angle most.
Perhaps he’s holding cards close to his chest — for now. Who knows. But if he intends to win this defamation of character case, he’s going to have to get a lot more specific.
Two doctors are duking it out in a defamation lawsuit.
Doc A accused Doc B of letting an unqualified assistant finish a heart surgery. So, Doc B filed a defamation lawsuit against Doc A, arguing “total fabrication.”
What makes this doctor-on-doctor defamation lawsuit worth mentioning? The B-plot. According to Doc B, Doc A levied the accusation in a sly attempt to wrestle away an extracurricular contract. Escandalo!
Originally Posted: Friday, October 10th, 2014 | Last Updated: Thursday, December 18th, 2014
The best defamation news and happenings for September 2014.
Jurisdiction Matters: The Case Of The British Doctor In Texas
In 1998, editors at The Lancet (a medical journal) published a controversial research paper penned by doctor-most-likely-to-be-quoted-by-Jenny-McCarthy, Dr. Andrew J. Wakefield. His conclusion: certain childhood vaccines may cause autism.
In 2011, the British Medical Journal published a paper debunking Wakefield’s research, in which the author characterized Wakefield’s work as “fraudulent” and a “fix.”
In response, Dr. Wakefield filed a libel lawsuit in Texas – his current place of residence.
But the trial judge dismissed the doctor’s libel claim over lack of jurisdiction. The bench reasoned that both parties were Brits and that the article wasn’t popular enough in Texas to affect Wakefield’s reputation.
Since then, Wakefield has been appealing up a storm. And this month, a third Texas court heard his case. Wakefield was denied, once again.
What’s a little odd about this lawsuit is that the U.K.’s defamation laws are more plaintiff-friendly than those in the United States – leaving us to wonder: why did he file stateside?
“Wild Thing” Goes For Defamation Score
Remember everybody: It’s not defamation if it’s true!
But it looks like Mitch “wild thing” Williams didn’t get the memo. The former MLB Network employee is suing Deadspin for defamation over an article about his less-than-sportsman-like conduct at a little league game.
Williams was eventually fired from his day job over the incident. So, he decided to file a wrongful termination suit against the MLB Network and an online libel suit against Deadspin.
The kink in his case is that he already apologized for his behavior at the game, which is the same as admitting he behaved as reported. And remember: it’s not defamation if it is true…..(well, most of the time).
State Farm Insurance Loses Again In 14.5M Defamation Suit
For several years, State Farm Insurance has been on the losing end of a high-profile, high-dollar defamation lawsuit. A contractor sued the insurance company over accusations of fraud after a 2006 hail storm, which resulted in an onslaught of claims.
The case went to trial, and the contractor won $14.5 million – one of the largest defamation verdicts in U.S. history.
State Farm cut the check but is still trying to get its money back. In the latest attempt, the company tried to evoke a little-known civil law that allows judges to re-order a trial in an already decided case.
But it didn’t work. The appeals panel reasoned that State Farm had the “panoply of pretrial discovery devices” at their disposal from the beginning. Just because State Farm didn’t take advantage of the discovery process then, does not mean it should be able to fix its “mistake” now.
Obviously, the contractor is thrilled with the decision, but State Farm has vowed to continue fighting the verdict.
Company Held Liable For Libel Over Employee Email
Businesses aren’t responsible for defamation over something said in an employee e-mail, right? Wrong.
This month, a judge ruled that a medical business was legally liable for an unflattering email that an employee sent out about another employee.
Now, does this ruling mean that every business is responsible for every employee email? No. But since this email had to do with work, the company must take the fall.
Defamation, On Ice
In September, Bedazzled Ice Prince Johnny Weir’s estranged husband, Victor Weir-Voronov, dragged the former Olympian into court.
During the Sochi games, infamously out-going Weir took a break from his color commentating to trash-talk his man, on-air. Accusations of disease and “sexual misconduct” fell out of Johnny’s mouth during an Olympic broadcast.
Georgetown Law grad Weir-Voronov describes Johnny’s tirade as a “crusade of defamation.”
If this case makes it inside the courtroom, it’s sure to be an HLN/CrimeTime favorite. Why? Because Johnny is notoriously flamboyant and hyperbolic, which, theoretically, may just work in his favor here, since a statement must be believable for it to be defamatory.
What Are You Hiding, Feds?
Hmmmm, what’s going on here. The U.S. Department of Justice is intervening – going so far as to exercise state secret privileges — in a private, overseas libel lawsuit between Greek mogul Victor Restis and the association United Against Nuclear Iran.
Speculation, of course, is rampant – but we’ll probably never learn the true answer. At least not anytime in the near – or medium-near – future.
Lifetime Movie Network’s Artistic License Is on Trial
There’s acceptable artistic license, and then there’s egregious artistic license — and Ms. Daun Slagle insists that the Lifetime Network producers crossed the line in one of its made-for-TV movie masterpieces.
In the 1990s, Daun was a victim of serial killer Keith Jesperson. Luckily for Ms. Slagle, she escaped death at his hands.
Lifetime Network immortalized the travesty in the late-afternoon, basic-cable hit, Happy Face Killer, in which producer’s indulged in a little artistic license when it came to Slagle’s story. In the movie, Slagle is characterized as a “prostitute whore (TM real housewife)” who performs fellatio on Jesperson in front of her baby, and then falsely reports him in a rape-extortion scheme.
My guess? Either a) Lifetime has proof that Slagle isn’t as angelic as she swears or b) a settlement will be reached soon, and Slagle will be living large from here on out.
Cole Porter, Local Politics & Online Defamation: What DOES It All Mean?
A politician who thinks AIDS is the result of man-monkey copulation is being sued for online defamation. Stacey Campfield is his name, and blogging about other officials is his game.
Back in 2008, in the heat of national elections, Tennessee state representative Campfield published a blog post accusing state house candidate Roger Byrge of having “multiple separate drug arrests.”
But Campfield got his facts wrong. Candidate Byrge was not the same person as drug user Byrge.
Unluckily for the incumbent, Campfield’s source swears he warned of the information’s murkiness.
At first, a judge dismissed the case, saying that he could “see how you could mess that up. It is what it is.” But the TN Court of Appeals did not agree, ruling that Byrge has every right to move forward with a defamation lawsuit – especially since Campfield was warned about the accusation’s truthiness.
Real Housewife Headed To Defamation Court, Courtesy of Ex-Beau
Last October, former Real Housewife of Beverly Hills, Camille Grammar, got into a physical fight with her then-boyfriend Dimitri Charalambopoulos. According to Camille, the altercation went down in a Texas hotel room soon after she had undergone cancer surgery.
When the news first hit, Camille’s rendition of events cast Dimitri as the bad guy. But he soon filed a defamation suit, insisting that Camille was spewing lies. His side of the story? Camille went housewife-crazy after seeing a text message from another woman on his phone.
Now Camille is trying to get his defamation case dismissed. Her main argument (condensed): She never actually said Dimitri’s name, so her comments weren’t defamatory. Will she win this dismissal? Probably not — but stranger things have happened.
Did The Delivery Woman Do It In The Driveway?
“Condensate from a vehicle is clear. This was definitely tinted yellow.”
That’s what one Mr. Michael Wilson said when a reporter asked him about an online defamation lawsuit filed against him by Shamrock Delivery, a FedEx contractor.
According to Wilson, several months back, a Shamrock delivery woman urinated on his driveway after delivering a package. He caught the incident on video and posted it to YouTube. It went viral – even made the news in some areas.
But the Shamrock driver insists that Wilson didn’t see pee; he saw leaked air-conditioning fluid that pooled while she was idling, trying to avoid a Rottweiler.
Drunk Driving Death Leads To Defamation Lawsuit
Augustine Bangura, a Pennsylvania resident, is suing several media outlets – including the AP, ABC, CBS and NBC — over reports of his 2013 car accident that resulted in a tragic death.
According to police, Bangura failed a field sobriety test, and the media reported so. But Bangura insists that the breathalyser must have malfunctioned because he was not under the influence at the time of his arrest. Bangura also insists that nobody read him Miranda rights.
Contrarily, law enforcement officials swear that Miranda rights were read and that Bangura’s memories are most definitely alcohol impaired.
If the police have proof that Bangura was over the legal limit, this case will be dismissed faster than a fiber connection.
The notoriously outspoken attorney is representing Mayweather’s former fiancé, Shantel Jackson, in a lawsuit against Mayweather. The accusations include assault, battery, invasion of privacy and defamation.
In terms of the libel charge, Jackson is upset that Mayweather accused her, on Facebook, of having an abortion.
Originally Posted: Wednesday, September 17th, 2014 | Last Updated: Saturday, October 4th, 2014
Must a website give up the name or email of an alleged anonymous defamer? Does the First Amendment allow for negative, anonymous online speech? Why do some judges grant subpoenas forcing ISPs to hand over identifying information, but other judges won’t?
We’ll answer these questions – and several more about defamation law in general — below.
Free Speech v. Defamation
Oftentimes, when news of an online defamation lawsuit hits headlines, assumptions are made and free speech screeds slither through the Internet like a zombie swarm – gaining force and riling emotions along the way.
Now, before you start yelling at me, let’s be clear: Of course, free speech is important! It’s THE essential component of a healthy society – 100%. We should – nay, must — be allowed to voice negative opinions about everything.
If we’re telling the truth.
The truth part is paramount. Once the honesty line is crossed, it’s no longer about free speech. Maliciously or negligently spreading lies about another person or company is immoral — and it’s also against the law. It’s called defamation (slander if spoken, libel if written) and engaging in the act can cost you – big time.
Publication or Broadcast – Private gossip between two people doesn’t qualify as defamation, but if the “news” goes public, then it may. Information transmitted via emails, blogposts, comments on social media and other websites, newspaper articles, video segments, newsletters, TV spots, public speeches, SMS and text messages can be deemed defamatory.
Identification – People and businesses can’t win defamation lawsuits if they can’t prove that they’re the parties being defamed. Sounds silly, but consider the Internet; most people use online aliases. Which raises the question: how can potential defamation plaintiffs name a defendant if they only know the alleged defamer’s “Internet handle.” (Note: It is possible to pursue a defamation lawsuit against an anonymous defamer, it just requires an additional procedural step, which we’ll get to in a few minutes.)
Falsity – In the majority of cases, a true statement isn’t considered defamatory. (Go here to read about the exceptions to the rule.) To quote Dominick Dunne: “The law is not about the truth, it’s about the evidence.” If a given statement is, indeed, true, but the plaintiff has convincing evidence to the contrary – evidence that trumps the defense’s – a plaintiff has a great shot at winning a defamation lawsuit, even if the statement in question is true.
Negligence – Perhaps the most difficult aspect for defamation plaintiffs to prove is negligence or malice. It’s also the most nuanced component, because different rules apply to different people. If you’re a “public figure,” to win a slander or libel lawsuit, you must prove that the defendant knowingly lied to cause you harm. You can’t successfully sue someone for defamation if he or she can prove proper due diligence in disseminating the information. Who qualifies as a public figure depends on jurisdiction. Generally speaking, though, famous people, elected officials, local celebrities and anybody in the news can qualify as a public figure for the purposes of a defamation lawsuit. If the plaintiff is a private figure, instead of proving actual malice, he or she only has to meet the negligence standard.
Harm – If a defamation plaintiff can’t prove harm, he or she can’t win. What constitutes harm depends on the alleged lie. It’s best to speak with an attorney to determine if your definition of “harm” meshes with the courts’ definition.
Other Legal Standards That Affect Anonymous Defamation Lawsuits
The above elements define the boundaries of United States defamation law. Below are common legal issues and standards that affect slander and libel cases. Think of the five elements above as the bowl, and these are the food that fill it.
Essentially, privilege addresses protected relationships and conversations. Most people associate “privilege” – in the legal sense – with the confidentiality assurances enjoyed by doctors and their patients or attorneys and their clients. Reporters also enjoy source privileges. Various employment relationships also confer privilege protections, as does the reporting of suspicions (i.e., properly reporting a reasonable suspicion of domestic abuse to authorities).
Many Defamation Defendants Win On Privilege Grounds
Claiming privilege is a common – and often successful — defamation defense. Board meetings, employment reviews and other supervisory mandates fall under the privilege umbrella.
That said, it is an extremely nuanced aspect of defamation law. If you’re thinking about filing a libel, trade libel or slander lawsuit, speak with an attorney about your specific situation to determine if your case could easily be defeated on privilege grounds.
A common mistake is filing a defamation lawsuit over a slightly inaccurate statement. Those types of cases are almost always defeated using the “substantial truth” defense.
Substantial Truth Examples
Let’s say that John Q. Public stole $1 million from a hedge fund, and then a financial blogger inaccurately reported that he stole $2 million. Even though the information is wrong, the fact that Johnny Q. stole money is accurate, and the exact amount doesn’t change the overall perception – or message — of the blog post.
If, however, a small inaccuracy makes a big difference to the overall impression — or message — of a blog post, John Q. Public could have a viable defamation suit.
Pure Opinion v. Mixed Opinion
The difference between “pure opinion” and “mixed opinion” is a vital distinction in defamation lawsuits.
Pure opinion is a statement based on non-secret, non-defamatory facts. For example, let’s say John Q. Public, who was found guilty of stealing $1 million from a hedge fund in 2005, is running for president in 2016. Reporter Jane X. Doe writes an opinion piece for the WSJ saying she doesn’t think that, on account of his thievery, Q. Public is a good choice for chief executive. In this scenario, John Q. Public probably wouldn’t win a defamation suit against Jane X. Doe because she published her “pure opinion” of his candidacy based on verifiable facts. It’s free speech protected by the First Amendment.
A “mixed opinion” statement is a declaration or judgment based on private, implied or unsubstantiated false facts. For example, let’s say our old buddy, John Q. Public, decides to become a plastic surgeon after being drummed out of the finance world for his $1 million hedge fund theft. Jane X. Doe goes to Q. Public for a nose job and hates the outcome. So, she goes to Yelp! and leaves a nasty review saying:
“I should have checked his record before I chose him as a doctor. John Q. Public used to work for a hedge fund and supposedly he was fired for sexual harassment!”
Since Johnny boy wasn’t fired from the hedge fund for sexual harassment, he’d have a great shot at winning a defamation lawsuit against Ms. Doe in this scenario.
Popular Defamation Defenses
What are some oft-used defamation defenses?
Defamation statute of limitations is between one and three years, depending on the jurisdiction. If you miss the deadline by just one minute, you’re out of luck — no matter how egregious the violation. In several jurisdictions, if the statement in question is on a website, the statute of limitations resets every time it’s republished.
It’s The Truth!
As the saying goes: it’s not defamation if it’s true. To be fair, this adage is only accurate 95% of the time. Truthful statements can be deemed defamatory if the facts and context of the case are just so.
It wasn’t Me
Due to the nature of the Internet, there’s been an uptick of anonymous defamation lawsuits – which correlates to an increase in the “it wasn’t me” libel defense plea. Shared IP addresses have caused havoc in many a current day defamation lawsuit.
In order to win a defamation suit, plaintiffs must prove that they’re the persons being disparaged. If defendants can prove that they weren’t “talking about you,” they’ll likely win.
I Believed My Statement Was True!
The most difficult hurdle for a defamation plaintiff is proving negligence (if the plaintiff is a private citizen), or actual malice (if the plaintiff is a public figure) on the part of the defendant.
In order to win a slander or libel lawsuit, the plaintiff must prove that the defendant either knowingly or negligently published or broadcast the statement under review. For example, if reporters get stories wrong, but prove sufficient due diligence, it’s not defamation.
Defamation plaintiffs must prove material or reputational harm to win. Businesses defamed on review websites must show that their bottom lines tanked near or on the date of publication. Individual plaintiffs usually have to provide evidence of a lost job, severe emotional harm or reputational damage.
Does The Nature Of The Internet Make Online Defamation Impossible?
What was once a playground for programming geniuses and risk-welcoming ne’er-do-wells, is now a viable, thriving, global marketplace. The Internet is the new Promised Land; a digital Dickensian street, where scammers and honest merchants are yelling, selling and gesticulating for your attention.
And only a smattering of regulations govern online conduct and business.
So, with the way the Internet is, where does defamation fall into the mix?
Prof. Lyrissa Barnett Lidsky has noted in the Duke Law Journal that the poor grammar, caterwauling, hyperbole, and frequent name-calling associated with anonymous Internet posts has created a “First Amendment doctrine” that “cannot hold John Does to the standards of … factual accuracy, because part of what gives the Internet such widespread appeal, is the fact that it allows ordinary citizens to have informational conversations about issues of public concern.”
Is Prof. Barnett Lidsky saying that information on the Internet can never be interpreted as fact? Well, yeah, she sorta/kinda is. But nearly twenty years into the Digital Age, is that still a fair assumption? Sure, hacker collectives and loose assemblies may pull a prank to make a point, but the days of “Where’d you learn that? Wikipedia. Oh, well, you can’t believe anything you read on there,” are over. We do EVERYTHING online these days. Legally speaking, are we still supposed to view the entire Internet as a sea of cynicism and misinformation?
Bad Clients Happen
What if it was you? What if an impossible-to-please client decided to spread lies about your services online? Sure, we’re all old enough to know that life isn’t fair, but “not fair” and “illegal” aren’t the same. We live in a democracy, not an anarchy – and lying about a competitor to gain a market advantage is against the law.
Believability is a big factor in libel cases. To win defamation rulings, plaintiffs must prove that a “reasonable person” would most likely perceive the information as “factual truth”– not one person’s hyperbolic, opinionated rant. This last part presents a quandary when it comes to the Internet. Because as one judge recently put it, since the Internet is “a repository of a wide range of casual emotive and imprecise speech,” users “do not attribute the same level of credence to the statements they would accord to statements made in another context.”
In other words (and of course, we’re paraphrasing here): everybody knows not to believe everything they read online because the World Wide Web is just a cauldron of opinion and nothing more.
But, as we approach the 21st century’s third decade, the “pish-posh Internet” attitude may be as misguided as former Digital Equipment Corporation CEO Ken Olson’s 1977 prediction that “there is no reason anyone would want a computer in their home.”
The Internet is no longer a novelty platform used solely for porn and the polemics of unstable people (those still exist, of course). Nowadays, we — nearly everyone — lives online. We use the Internet to shop, research, pay bills, communicate with friends and get news.
The reason traditional print media outlets are downsizing and shuttering at alarming rates is directly related to the rise of the Internet.
We no longer rely on big media for “truth.” These days, we turn to websites we trust for daily doses of news and views. And let’s be honest: we tend to trust outlets that parrot our personal views.
But in this environment, where do we draw the ondefamation line? It’s a question the courts are still trying to answer.
When Is A Judge Likely To Grant An Identity Revealing Court Order
Case law regarding identity revealing court orders is all over the map. Some judges will grant discovery subpoenas for the purposes of unearthing an accused anonymous defamer; other judges are more reticent to do so. Generally speaking, judges are more likely to force an ISP to hand over information to would-be defamation plaintiff if:
The statement at issue is a statement of fact, and the plaintiff can convincingly plead it’s inaccuracy;
The plaintiff can prove that the statement caused him or her demonstrable harm;
Defamation Cases Where A Judge Granted A Plaintiff An Identity Revealing Court Order
New York Case
Whether or not judges grant anonymous defamation discovery orders has a lot to do with their personal views of the Internet. This subjective reality was recently made crystal clear by a New York judge. In granting a court order, which forced an ISP to hand over identifying information to an anonymous defamation plaintiff, he stressed: “Maliciously spreading false statements of fact about another person or business is against the law in every corner of the United States.”
And then acquiesced:
“case law across jurisdictions supports the proposition that the forum … of an Internet message board, chat room or blog is a factor that weighs in favor of finding that a reasonable reader would not read a statement as a factual assertion…”
But then ultimately reasoned:
“[the] mere fact that a statement is made on the Internet” does not automatically render it hyperbolic.
Yelp v. Hadeed Carpet Cleaning
An anonymous online defamation case out of Virginia – Yelp, Inc. v. Hadeed Carpet Cleaning — exemplifies a case in which the plaintiff was granted a “subpoena duces tecum” forcing Yelp to reveal the names of seven anonymous posters.
In Hadeed, the judge sided with the plaintiff because he was able to satisfactorily argue, using business records, that the negative reviewers had probably never even used his carpet cleaning service. As such, the judge said that “’factual statements made to support or justify an opinion’” can be the basis of a defamation claim.
In other words, since the alleged Yelp defamers didn’t shop at Hadeed’s carpet store, the case could continue.
When Is A Judge Unlikely To Grant An Identity Revealing Court Order
When judges don’t grant identifying court orders, it sometimes has to do with personal perceptions of the Internet.
Take, for example, the decision in Nanoviricides (NANO) v. Seeking Alpha. NANO, a pharmaceutical company, tried to sue a SeekingAlpha.com user, “Pump Terminator”. According to Nano, Pump’s inaccurate post about the company caused a steep decline in its stock price. But, the judge wouldn’t grant the order. Why? Because of three main factors:
The web page on which the statement was posted had the following disclaimer in clear view: “the thoughts expressed therein were an expression of the author’s opinion. “
The judge reasoned that “the author proffered his opinion subsequent to a clear recitation of the ‘facts’ under-girding the opinion.”
The judge decided that the statement’s appearance on a public online forum automatically qualifies it as an opinion. He reasoned: “[the] fact that the article appears on an internet message board also supports a finding that the article must be an expression of the author’s opinion.”
Speak With A Defamation Attorney
We’ve covered the basics of defamation — specifically online defamation — but it’s an extremely nuanced area of law. If you’re dealing with a situation, and it’s time to speak with a lawyer about the matter, get in touch with Kelly Warner Law. We’re an AV-rated firm that has handled hundreds of anonymous and Internet and trade libel lawsuits. Our track record is excellent, and we always aim to get issues resolved as quickly as possible.
Get in touch today to being a conversation about your online defamation situation.
Prior Restraint & Online Defamation: Is It Constitutional?
Originally Posted: Wednesday, September 10th, 2014 | Last Updated: Saturday, October 4th, 2014
Both parties in a Texas defamation lawsuit are hoisting gaudy belts over their heads. The case is Kinney v. Barnes, and the issue is prior restraint as it relates to defamation remedy injunctions. And yes, The Big Lebowski plays a role.
Both Sides Claim Victory In Employment Defamation Lawsuit Kinney v. Barnes
The Electronic Frontier Foundation, in conjunction with two free speech scholars, submitted an amicus brief in response to the lower court’s Kinney v. Barnes decision.
In a blog post, the EFF expressed its delight with the appeal ruling:
“The court…not only rejected the Internet-is-different argument, it took the exact opposite position, emphasizing the role of the Internet ‘as an equalizer of speech and a gateway to amplified political discourse.’”
The court ruled that “post-trial injunctions are prior restraints” – meaning, it’s unconstitutional for a judge to forbid a reporter or blogger from permanently talking about a person, as punishment for a defamation act.
In its amicus brief, Team EFF argued that permanent injunctions should never be applied as a remedy in defamation cases because slander and libel are largely contextual, and “a statement that it is defamatory in one context may not be in another.”
The Issue of Prior Restraint As It Relates To Online Defamation Lawsuits
Robert Kinney sued his former employer, Andrew Harrison Barnes, over bribery accusations posted online. The current issue at hand is whether or not a permanent injunction (e.g., banning Barnes from mentioning Kinney online ever again) can and should be a remedy for libel. It’s a fundamental defamation law question, because the Constitution protects against “prior restraint” — laws and legal punishments that universally hinder (restrain) someone or something from voicing an opinion on a topic, person or event.
The Employment Defamation Lawsuit Must Go On
At this point, Kinney can move forward with his defamation lawsuit against Barnes. Ultimately, he hopes to collect damages and get a court order forcing Barnes to remove the proved defamatory statements from the Web.
Both sides agreed that the defamatory material should be taken down, because as an EFF spokesperson put it: defamatory content doesn’t contribute to the “marketplace of ideas.”
Tip Of The Hat: Coen Brothers
Much to the delight of the Internet – and arguably in an attempt to rack-up some Reddit karma – in the opinion, Justice Debra Lehrmann snuck in a Walter Sobchak (The Big Lebowski) quote: “For your information, the Supreme Court has roundly rejected prior restraint.”
Defamation Law: What Is The Difference Between A “Naked Link” and a “Footnote”?
Originally Posted: Tuesday, September 9th, 2014 | Last Updated: Saturday, October 4th, 2014
For what seems like since the Rat Pack headlined at the Copa Room, Casino kingpin Sheldon Adelson has been embroiled in a defamation lawsuit. From one court to the next, the Adelson libel lawsuit hops — motion by tedious motion. And now it looks like it all may come down to whether or not a “naked link” is considered a footnote, or more than a footnote.
The Reason Defamation Lawyers Are Keeping An Eye On The Adelson v/ NJDC Case: “Naked Link” Ruling
But, if you’re interested in the finer points of online defamation law, things are starting to get interesting in the Adelson case because it looks like it will turn entirely on whether or not a “naked link” is the equivalent to a traditional footnote.
Why Adelson Sued The NJDC For Defamation
Two years ago, the National Jewish Democratic Council (NJDC) – hoping to make their mark on the presidential election – published an online petition urging Mitt Romney not take campaign contributions from Adelson. The appeal painted Adelson as a morally corrupt shyster who allowed prostitution in his overseas resorts and funneled foreign money into campaign coffers.
Got Information From Another Lawsuit
Where did the NJDC get their info? An unfair termination lawsuit filed by a former Sands executive, which was linked to at the bottom of the online petition. Adelson insists the case on which the claims were culled is merit-less, thereby rendering the accusations defamatory.
District Judge: Naked Link Is A Footnote And Not Defamatory
Judge Paul Oetken was the first district court judge to hear the case; he ruled in favor of the defense. Oetken simply reasoned that the link to the Sands employment lawsuit is the “twenty-first-century equivalent of a footnote” and therefore not defamatory.
Adelson was ordered to pay attorneys’ fees for violating the state’s Anti-SLAPP law.
Appeals Court: We’ve Got Some Thinking To Do About “Naked Links” & Online Defamation
Then came the appeal.
Admittance of Antediluvian Internet Understanding
A three-judge panel presided. At the hearing, octogenarian Judge Guido Calabresi copped to his “’antediluvian’ understanding on the Internet.” Another panelist, Judge Denny Chin, also voiced confusion as to why the hyperlink is not considered “better” than a footnote.
Lawyers for Adelson asked the court to certify a pair of questions, one of which is: does a “naked hyperlink” qualify as a “footnote” for the purposes of an online defamation lawsuit, or is it more?
In an effort to convince the courts that hyperlink citations are a good thing, a lawyer from the defense urged, “In the 21st century, we want to encourage people to do what we did in this petition, which is including the hyperlink [naked link] as a valuable tool for expanding human knowledge.”
Libel & Slander Statute of Limitations: When Does The Clock Reset?
Originally Posted: Wednesday, September 3rd, 2014 | Last Updated: Thursday, December 18th, 2014
A recent defamation case out of Pennsylvania is a prime example of why it’s imperative to file a slander or libel lawsuit within the defamation statute of limitations in your jurisdiction.
News Program Used The Wrong Picture For An Alleged Criminal
On October 15, 2011, CBS affiliate KDKA-TV ran a story about the arrest of a man named Christopher William Ghrist. KDKA producers included a picture of Ghrist in the broadcast. The problem? Christopher William Ghrist wasn’t the guy that law enforcement officials picked up, Christopher Wayne Ghrist was.
Misidentified Guy Suffers Because of CBS’ Mistake & Files Defamation Lawsuit
Directly after the program had aired, the innocent Mr. Christ received over a hundred unwelcome messages, and his girlfriend wouldn’t let him near their child. He called the station and pleaded with them to fix the error, but to no avail.
It’s unclear why, but according to reports, Ghrist didn’t get around to filing a lawsuit until two years after the fact – on October 4, 2013.
Judge Dismisses Case Because Claimant Missed Defamation Statute of Limitations Cut-Off
Judging from available reports, Ghrist had a strong case. But, he didn’t file it time, as the statute of limitations for defamation in Pennsylvania is one year. Ghrist’s legal team argued that a subsequent online reference to the broadcast re-set the clock, but U.S. District Judge Mark Hornak disagreed, reasoning:
“[In] these circumstances, where the allegedly harmful publication began on or about October 15, 2011, and the content of that publication remained the same thereafter, even on the internet website, the single publication rule provides that the measuring point for counting down the one year statute of limitations also began on that date, and was not ‘refreshed’ each day thereafter that the offending story was accessible online.”
Talk To An Attorney About Your Defamation Situation
Are you dealing with a defamation situation? Are you hemming and hawing about whether or not to file? Don’t wait too long, because you may find yourself in the same situation as Ghrist. That said, every jurisdiction has different rules about when the defamation statute of limitations clocks re-set. Some only go from the date of first publication, while others allow the clock to re-set if something is republished – online or off.
Originally Posted: Friday, June 20th, 2014 | Last Updated: Friday, June 20th, 2014
Tyrion Lannister’s trial is over, but HBO’s still got a high-profile defamation lawsuit to conquer — the Mitre Sports v. HBO slander battle. Current Advantage: Mitre.
The Players In This Sports Defamation Lawsuit
Mitre Sports International
Mitre is a sports equipment manufacturer. The company is the exclusive soccer (football) ball sponsor of the English Premier League and Major League Soccer.
Home Box Office (HBO)
HBO is a cable network that produces a program called Real Sports With Bryant Gumbel.
Back In 2008, HBO Aired A Special That Didn’t Paint Mitre In The Best Light
In 2008, HBO aired a Real Sports segment featuring Mitre called “Childhood Lost.” A heart-wrenching tale, “Childhood Lost” highlighted the hardships of kid labor in India. It began:
“We start with a sobering look at a practice that is clearly illegal, and was supposedly done away with years ago, and that’s child labor.”
Later in the broadcast, the reporter (not Gumbel) lamented:
“In the slums of India, children as young as six spend their days crouched on dirt floors stitching soccer balls together.”
Kailash Satyarth – a child rights advocate – added her sobering thoughts:
“They have no childhood. They have no freedom.”
Scenes of young children, supposedly stitching soccer balls for 5 cents an hour, added to the overall misery of the TV segment.
Good on HBO for exposing Mitre! Right?
Not so fast.
Today’s TV news producers aren’t exactly beholden to the whole truth and nothing but the truth. I know, I know – it’s shocking – but some TV-news producers have been known to bend the facts for ratings. (#sarcasm)
Mitre to HBO: You Egregiously Misrepresented Us, And You Know It; Prepare For A Defamation Battle.
Needless to say, Mitre was none too pleased with HBO’s Real Sports segment. In response to the show, the soccer ball company alleged misrepresentation. It argued that:
The children shown “working” in the streets for 5 cents were not working for the company; they were helping their parents – a commonplace Indian value/tradition.
Some of the children on film were not even stitching, but instead engaging in other activities that looked like stitching.
Some of the scenes were staged.
Mitre didn’t waste time. The sports corporation quickly filed a defamation lawsuit against HBO. It accused the cable network of:
“intentionally and maliciously [perpetrating] a hoax on Mitre and the millions of viewers who watched the initial and subsequent HBO broadcasts and who have viewed the program on YouTube and other internet sites.”
Pre-Trial Litigation Information Could Help Mitre Win
It’s been six years since Mitre v. HBO kicked off. (Gigantic corporations, with in-house legal teams, tend to go at it for years; normal business defamation lawsuits wrap up much quicker.) Both parties are on the motion-and-hearing hamster wheel – trying to out-litigate each other – and during that time, interesting facts have percolated to the surface. For example:
An HBO researcher testified that she couldn’t find a kid, in the neighborhood in question, who was under the age of 14, that “could stich a football.”
Mitre presented evidence that HBO had, itself, questioned whether or not the scenes of the kids sewing soccer balls was “a product of Indian society, not necessarily an evil soccer ball company looking for balls on the cheap.”
Some of the children that appeared on the program have since said that they were “induced to pretend to stich Mitre balls on camera and that those scenes were staged.”
But WAIT! There’s Another Twist; HBO May Have a Point
So far, HBO has argued substantial truth. The Network also contends that despite the bluster, Mitre has yet to pinpoint a specific defamatory statement. Touche.
And HBO may have a valid point. Especially since they littered the TV segment with disclaimers. For example, at one point in the program, the anchor said he didn’t “believe that Mitre wants it to happen, but that the subcontractors are a different story altogether.”
Judge Says The Trial Must Go On
The disclaimers, however, was not enough to convince the judge to toss the defamation case. Instead he reasoned:
“Because there are no undisputed facts in the record that establish what statements, if any, are defamatory, this Court cannot make any determinations on this issue as a matter of law. Rather, it is for the jury to determine first what the gist of the Segment is, and second, whether any statements therein are defamatory.”
Big Company Mitre Is Not A Public Figure
Under U.S. defamation law, different rules apply to different types of plaintiffs. Normal Joes and Janes only have to prove negligence in slander and libel lawsuits. Public figures (e.g., celebrities, famous people, politicians, etc.) however, have to prove actual malice.
Actual malice is harder to prove than negligence because the plaintiff must demonstrate that the defendant knowingly lied or, at least, did an abysmal job in gathering the information.
Whether or not a plaintiff is labeled a public figure depends on several factors:
The Jurisdiction – Different states have different rules about who qualifies as a “public figure.” For example, some states say that anybody employed by the government is a public figure – including public school teachers.
Case Facts – The facts of a case can play a big role in determining whether or not an individual or business is considered a public figure for the purposes of a defamation lawsuit.
Case Law – In most circumstances, a plaintiff does not want to be deemed a “public figure” because actual malice cases are harder to win than negligence-standard slander and libel lawsuits.
Big Corporations Usually Considered Public Figures in Defamation Lawsuits – But Not In This One
Nine times out of 10, multinational corporations are considered “public figures” for the purposes of a defamation lawsuit. But Mitre’s lawyers managed to wrestle a favorable status assessment out of the judge, who assessed:
“the evidence shows that Mitre does not approach the status of being a household name or a celebrity in the community. First, Mitre has not sponsored any teams or leagues in the United States since 1999. Furthermore, Mitre’s sale and advertising of sports equipment is insufficient to make it a general purpose public figure.”
The judge also rationalized that Mitre was not a “limited-purpose” public figure because, in general, American citizens don’t feel the same way about soccer as they do baseball. As a result, “Mitre” isn’t exactly a household name in the United States – thereby disqualifying the sports company as a “public figure” for the purposes of this defamation lawsuit.
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Mitre v. HBO is not over yet – and we’ll be keeping an eye on this high profile defamation lawsuit.
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