Internet Governance & International Internet Law Case Study

online harassment Internet governance
Kelly / Warner Law Helped Crack An International Internet Harassment Case.

*Kelly / Warner was one of the U.S. firms that helped win the International Internet defamation case discussed in this post. A pioneer in Internet governance law, Kelly / Warner partners with overseas legal practices to resolve cross-border libel, harassment and unfair competition cases. If you’d like to speak with Kelly / Warner about a domestic or transnational Internet law issue, please contact us.*

A web developer may spend some time in jail over a $300 invoice.

“But how could that be!?,” you protest.

When someone opts to criminally harass a former client, instead of legally handling an invoice disagreement, they sometimes find themselves behind bars.

Web Developer Created Harassing Websites About Former Client

Web developers and clients often clash over expectations and invoice amounts. When serious conflicts arise, professionals typically seek the assistance of an attorney with Internet governance and arbitration experience.

But some web developers choose a more dastardly path: they create disparaging –often harassing – websites about former clients.

Paul Britton, of Origin Design, falls into the latter group. Because of a  £200 (~$300) invoice dispute, Britton created several websites with the express purpose of humiliating his former client, and falsely labeled his foe a pedophile.

U.K.-based Britton thought using false credentials and U.S. companies to register and pay for the domains would sufficiently mask his identity.

But Britton didn’t do his Internet law homework.

If he had, Britton would’ve known that it’s possible to force Internet service providers and websites to fork over identifying information in criminal cases. Just because you use a fake name to register and set up a website doesn’t mean the “real you” can’t be unmasked – especially in service of a lawsuit.

How Kelly / Warner Law Helped Win This International Online Defamation Lawsuit

What The UK Team Needed to Prove

Due to the severity and nature of the accusations, the plaintiff’s legal team accused Britton of online harassment — a criminal charge in the United Kingdom. As such, the lawyers had to present evidence that satisfied “beyond reasonable doubt” standards. A simple IP address would not suffice, because, technically, IP addresses only represent computers, not people.

The U.K. legal team faced another challenge: Britton had done all his digital dirty work via U.S. companies. As an overseas practice, the prosecuting firm needed to partner with state-side practices that could obtain court orders compelling the U.S. ISP’s to hand over information in service of the lawsuit.

What Kelly Warner Did To Help Win This International Internet Law Caper

Our firm, Kelly / Warner, was one of the practices that partnered with the prosecuting U.K. legal team. Since Britton used U.S.-based ISPs to carry out his online revenge scheme, the plaintiff’s lawyers had a digital discovery challenge on their hands. In order to crack the case, they needed court orders, from U.S. judges, compelling parties – like and GoDaddy – to hand over user information.

We helped get those court orders.

Once in hand, the plaintiff’s U.K. lawyers were able to craft an unimpeachable case that included telephone recordings and password evidence.

Defense Argument That Didn’t Work In This International Internet Law Case

In this case, Britton’s defense attorneys used a decidedly 21st century legal argument [Paraphrasing]:

Since Britton’s disparaging sites didn’t appear in the first few pages of SERPs (search engine result pages), no harm was done, because nobody pays attention to SERP results past page three.

Some might call this the “twinkie defense” of Internet defamation law, but the argument isn’t completely baseless. At least under U.S. law, which requires nearly all* defamation plaintiffs to prove material harm. If a defendant can successfully argue that few people saw the material in question, case law precedence demands that even though a false statement of fact was made, the lack of material damage fails to meet the required preponderance of evidence for a successful libel claim.

(*Note: This statement doesn’t account for defamation per se. Defamation per se is a classification of slander or libel in which the accusation is recognized as inherently damaging. In such cases, the plaintiff doesn’t need to prove material harm, as it is inferred. Calling someone a pedophile would undoubtedly be considered defamatory per se in most jurisdictions that recognize the standard.)

Kelly / Warner: International Internet Governance Law

Due to the mounds of evidence, Britton had no choice but to plead guilty to criminal online harassment charges. No trial needed.

Kelly / Warner has considerable experience with international online defamation litigation. Frequently, we partner with overseas firms to close cross-border cases. Our attorneys and support staff know how to maneuver for a successful court order in online defamation and harassment cases.

Contact Kelly / Warner to learn more about our digital discovery,Internet governance and Internet law litigation services.

A Difference between United States and Canadian Defamation Law

difference between united states and Canadian defamation lawIn This Post:

Canadian and U.S. Defamation Law: Polar Opposites?

What’s the difference between U.S. and Canadian defamation law?

People credit the U.S. for having the most defendant-friendly slander and libel laws in the English-speaking world, whereas Canada’s defamation laws are sometimes described as the most plaintiff-friendly.

But other differences distinguish the neighboring nations’ take on slander and libel – especially when it comes to Internet defamation.

Online Defamation Lawsuit Case Study: Suck Site Target v. Hosting Company

Canadian Andy Lehrer filed a small claims motion in Ontario against hosting company EasyDNS. Why? An adversary of Andy’s had created a disparaging website about Andy. EasyDNS happened to host the website. Even though EasyDNS had nothing to do with the creation of the “suck site,” and asked the company to take it down.

EasyDNS didn’t comply.

Instead, EasyDNS explained to Lehrer that, in this instance, without a court order, they wouldn’t take it down. After all, it’s not a hosting company’s responsibility to determine what is and isn’t libel.

So, what did Lehrer do in response to EasyDNS’ refusal? He added more “counts” to his nebulous defamation lawsuit. That’s right. Because EasyDNS posted a blog entry about the lawsuit, Lehrer is arguing that doing so is not only illegal, but punitively egregious. (For this tactic to work, there would have to be publicly withheld facts that make a huge difference in the case.)

Section 230 of the CDA: The Big Difference Between United States and Canadian Defamation Law

In the U.S., this online defamation lawsuit wouldn’t make it past round one. Why? Section 230 of the CDA.

Legalese and limited exceptions aside, Section 230 of the CDA states that website operators cannot be held responsible for libelous third-party content. To wit, Section 230 is why Facebook and GoDaddy aren’t successfully sued for every act of online defamation committed by users, on their respective platforms.

Difference Between United States and Canadian Law Means  EasyDNS Will Go To Court;Wouldn’t Happen In The U.S.

Since a Canadian court is handling this case, EasyDNS must expend time and resources explaining the obvious to a judge: EasyDNS is not the content author or editor and shouldn’t be held responsible for defamation.

To be clear: It’ll be shocking if a Canadian court sides with Andy and saddles EasyDNS with damages for not taking down the anti-Lehrer website. Canada and U.S. law books may not be doppelgangers, but it’s not North Korea above the 41st parallel. Canadians care about free speech as much as Americans.

What is different, though, is that EasyDNS has to expend significant resources to quash a clearly frivolous case. In the United States, this online defamation lawsuit wouldn’t have passed the proverbial bouncer.

Consult An Internet Defamation Lawyer

Kelly / Warner is a law firm that handles international and online defamation issues. We have assisted many a Canadian—and hosting company — with their cross-border slander and libel challenges. If you’ve got a defamation question or issue, get in touch today.

Source Article For Difference Between United States and Canadian Defamation Law

The Month In Defamation: September 2014

The best defamation news and happenings for September 2014.

Jurisdiction Matters: The Case Of The British Doctor In Texas

Doctor defamation lawsuit in Texas
A Brit in Texas isn’t having much luck with a stateside defamation lawsuit.

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

baseball defamation lawsuit
A baseball defamation lawsuit is in the works — and an anchor is in the plaintiff seat.

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

state farm defamation lawsuit
State Farm loses defamation lawsuit appeal.

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

employee email business defamation
Businesses can be held liable for libel over an 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

johnny weir defamation lawsuit
(Photo Credit: Greg Hernandez via Wikipedia) Johnny Weir is embroiled in a celebrity defamation lawsuit.

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?

U.S. Gov involved in private defamation lawsuit
The U.S. Government is involved in a private lawsuit — and its a little bit shady.

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

Lifetime Movie defamation lawsuit
A Lifetime Movie is at the center of a slander lawsuit.

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.

Slagle swears the portrayal is rubbish. So, she is suing for defamation.

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?

picture of the inside of the capitol building to represent political defamation
Another local level, political defamation lawsuit is afoot.

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

Camille Grammar Real Housewife Defamation Lawsuit
A Real Housewives Defamation Lawsuit Hit A California Court.

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.

Click here to read more about defamation laws in Pennsylvania.

Defamation Bout: Allred v. Mayweather?

Mayweather defamation lawsuit filed
Floyd Mayweather and Gloria Allred will duke it out in a defamation lawsuit.

OMG, y’all: a Gloria Allred v. Floyd Mayweather showdown is afoot!

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.

September 2014 “Libel Littles”

The Week In Defamation Law: Union v. Tea Party Libel, Google’s Autocomplete, Russia’s New Anti-Online-Free-Speech Law & More

defamation law
The Week In Defamation Law – Friday August 1 – Thursday August 7

Russian Government Is Pro LOLCats (But Just Put Another Dagger Into Free Speech’s Side)

Move over Dear Leader, Putin’s showing you up!

That’s right folks, yet another draconian Internet law has hit Russian rule books. This one – dubbed “the blogger law” – requires website operators with a daily readership of 3,000 people or more, to register their website with the Kremlin. Oh, and the new “blogger law” also outlaws online cursing.

Oleg Kozyrev, a Russian Internet personality, thinks “every blogger might face a threat of criminal prosecution” once the statute goes into effect. And Russians don’t really do grace periods when it comes to enacting Internet laws. For example, the Blogger law was announced on Monday and takes effect today, Friday.

Internet law news: Vlad Putin
Putin’s Russia enacted ANOTHER new Internet defamation law this week.

When asked by about the new, free-speech-killing law, a Russian official expressed his support of LOLCats then argued that if you’re not doing anything “wrong” you have nothing to worry about, comrade:

“If you publish pictures of cats on your blog and if you do not use obscene language or disclose state secrets, this responsibility might not arise at all even if you have a million unique visits a day.”

Will this new “online defamation law” have any effect? Will it allow Putin to take over the Internet, Dr. Evil style? When asked, Internet celebrity Anton Nossik pointed out that the Russian government already has “a rich choice of laws to come after you with,” so the “blogger law” probably won’t amount to much.

The blogger law was slapped together quickly, and, as such, is “confusing, poorly written and hard to enforce consistently.”

The youngest member of Russia’s lower house is a 29-year-old named Robert Shlegel. A member of the ruling party and Putin fanboy, Shlegel is enthusiastic about passing constrictive Internet laws; but even he admitted that the “blogger law” doesn’t make much sense and that he’s “trying to understand it” himself.

Local Politician Wins Defamation Ruling On Appeal

Texas defamation law
A local politician in Texas won a defamation appeal.

A Texas appeals court breathed new life into a defamation lawsuit involving a local politician.

School Board member Salem Abraham had previously sued – a political blog – over a mis-characterization of his demeanor and actions at a local town hall event.

The trial court first ruled that even though the blog post was “false, and without foundation,” it wasn’t defamatory because Abraham did not prove that AgendaWise bloggers acted with malice.

Abraham appealed, and a higher court agreed with him, ruling that since the case did not involve Abraham’s work as a school board member, the trial court inappropriately evoked the malice standard. The appeals court remanded the case back to trial – and Abraham will most likely have his day in court.

Excerpts from the Seventh Texas Court of Appeals Opinion

“AgendaWise’s article here said nothing about the defamed individual’s status as an elected official or his performance of any duty arising from such status.”

“[T]he defamation was not restricted to (Abraham’s) community and no evidence suggests that Abraham was known as a school board member worldwide.

“A public official retains a private life.”

The Tea Party’s Biggest Spenders Are Being Sued For Defamation

political defamation lawsuit filed
Looks like a Union v. Tea Party defamation showdown is underway in Pennsylvania.

The Koch Brother’s political action organization, Americans for Prosperity, is being sued for defamation by a member of  International Union of Operating Engineers Local 542.

The melee began in February 2013 when Americans for Prosperity held an “informational gathering” about an upcoming law that would prohibit unions from automatically taking dues payments from public employees’ paychecks.

Union member Frank Bankard, attended. And according to him, the Americans for Prosperity people screened a video that portrayed him and other Local 542 members “puncturing tires, burning a Quaker meeting house, and threatening, bullying and beating non-union businesses, a union leader claims in court.”

Bankard wants $50,000 in restitution.

It’ll be interesting to see if Americans for Prosperity settles quickly to make the case go away, or if the group will spend millions trying to out lawyer – and beat – the union in a court of law. After all, the Americans for Prosperity coffers are pretty much bottomless. Which tact will the Koch Bros choose?

Pando’s Secret Opinion

“Secret” is the new “Whisper-like” app sweeping Silicon Valley. Sarah Lacy over at Pando Daily has opinions about the funding success of the defamation-waiting-to-happen app – and it’s worth a read.

Lese Majeste Means 15 Years In The Clink For A Thai Musician

lese majeste defamation laws
Old school “lese majeste” laws mean jail time in some countries.

This one is coming to you straight from the “aren’t you glad you’re not a royal subject” files (apologies, Commonwealth readers).

A 28-year-old musician in Thailand will spend the next 15 years behind bars for voicing his negative opinion, on Facebook, about octogenarian Thai King Bhumibol Adulyadej. Yes, 15 years in the clink!

The Thai defamer was prosecuted under the country’s notoriously strict “lese majeste” laws, which forbid citizens from publishing negative opinions or accusations about the ruling monarch and his family.

Sure, we have our issues in the U.S. – but at least we don’t need to worry about spending decades in jail for social media smack talk.

Bed and Breakfast’s Attempt At Thwarting Online Defamation Backfires – Big Time!

The Internet made one New York bed and breakfast famous –nay, infamous – this week. And online defamation is to thank (or blame – depending on how you look at it).

One day, while surfing the Web, a sharp-eyed Netizen came across the website for “Union Street Guest House” located in Hudson, New York. Most curiously, the intrepid user noticed a peculiar policy posted on the inn’s website:

“A $500 fine … will be deducted from your deposit for every negative review placed on any Internet site by anyone in your party.”

“Awwwww, Hell NO!” thought our fearless Web surfer – and to the Internets s/he went, to alert the world of this B&B’s faux pas.

The people came; they saw and then proceed to conquer Union Street on the battlefields of Yelp!, TripAdvisor and other review websites.

Union Street innkeepers waved a white flag on their Facebook page in a futile attempt to broker a cease-fire. They pleaded with Team World to forgive them and explained that their anti-bad-review website policy was simply:

“…a tongue-in-cheek response to a wedding many years ago. It was meant to be taken down long ago and certainly was never enforced.”

It didn’t help. The bullets kept coming in the way of snarky online reviews and blog posts. The last time anyone checked, Union Street could not be reached for comment by phone – or email.

Hey, Hospitality Service Operators: Don’t do things like this! It never works! If someone defames you, contact a lawyer at that point. Don’t try to scare people’s free speech rights out of them by way of an unenforceable business policy. Not cool. Not smart.

A Defamation Lawsuit Fit For Reality TV / Lifetime Movie

If you’re the type of person who dabbles in Reality TV fare – Bravo style – or you’re a fan of “classic” TV programming like Dallas, you’ll probably enjoy this defamation lawsuit out of the Lone Star State. It involves a pair of millionaires, a 32-year-old step-son who doesn’t want to leave home, a recently burglarized 3-story closet and a defamation lawsuit. What DOES it all mean!?!?!

Hong Kong Businessman To Google: I’m Coming After You For Defamation

Google autocomplete defamation
Another Google Autocomplete defamation lawsuit is underway.

Hong Kong-based billionaire Albert Yeung Sau-shing, of the Emperor Group, is going after Google for an unflattering auto-complete.

When you Google Sau-shing, suggestions for “Triad” – the notorious gang – pop up.

Google moved to have the case dismissed, arguing that the Hong Kong court did not have jurisdiction over the U.S.-based search company. The court disagreed and waved through the auto-complete defamation lawsuit.

This is not the first time a foreign luminary has sued Google over its autocomplete feature. And it’s a tough spot for Google. On one hand, if the company makes the requested changes, doing so proves that Google can (and possibly does) manually manipulate search results – which is a can of trade secret worms that search executives don’t want to open in a public arena. You can almost hear the trade secret trepidation in Gerard McCoy’s (Google’s lawyer) filing. He averred:

“The entire basis of the internet will be compromised if search engines are required to audit what can be assessed by users using their search tools.”

Speak To An Online Trade Secret Lawyer

Get In Touch With A Trade Libel / Defamation Attorney

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Kelly / Warner Law handles all types of defamation and libel lawsuits.

This “Week In Defamation” update was brought to you by Kelly / Warner Law. Be sure to find us on Facebook and Twitter to keep up with future “Week In” legal summaries.

Kelly / Warner maintains a dedicated trade libel and online defamation legal practice. If you have questions that need answering, or you’re looking to consult with a libel lawyer, get in touch today.

We’ll lay out your best legal options – no bull.

Speak with a defamation lawyer today!

The SPEECH Act In Action: Canadian Innkeepers v. U.S. Blogger

The SPEECH Act lawyer
What happens in a cross-border defamation lawsuit between a Canadian and an American?

Can a Canadian sue an American, in a Canadian court, for defamation? Yes. If the Canadian wins, will the American be forced to pay damages? Because of the SPEECH Act, probably not.

Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act)

It’s a law with a long name and a big job. The Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) Act is the regulation workhorse that materially safeguards U.S. citizens’ free speech rights in foreign jurisdictions.

How does the SPEECH Act work?

The paperwork particulars are nuanced and better left for a lawyer.

But, in basic terms, the SPEECH Act works thusly:

When a ruling is handed down in an overseas court, the foreign party seeking restitution must ask a “state-side” court to force the U.S.-based “losing party” to pay up. The SPEECH Act, however, says judges can refuse to issue a court order to the U.S. party, on the grounds that the case would’ve probably turned out differently in an American court.

U.S. Defamation Laws v. Canadian Defamation Laws

Since the U.S. has the most defendant-friendly libel laws in the English-speaking world, and Canada has the most plaintiff-friendly libel laws in the same demographic, U.S. courts don’t often recognize a libel judgment, in favor of the plaintiff, handed down in a Canadian Court. (Quebec courts are sometimes exceptions to the rule.)

The Notable Exception: If the facts of the case are such that the Canadian plaintiff would have won in both a U.S. and Canadian court, then the American party will be forced to turn over the duckets.

SPEECH ACT Case Study: Blogger v. Canadian B&B Owners

Dissing Innkeepers and Politicians On

Some time ago, Mr. Doug Handshoe of Mississippi posted a missive on The focus of his prose was the former president of Jefferson Parish, Louisiana – a fallen area politician who plead guilty to theft and bribery. Handshoe compared the disgraced official with the owners of a guest house in Nova Scotia, Canada, quipping that both the politician and the innkeepers “had champagne taste on a beer budget” and “worked as a unit to grift their way through life.”

Canadian Innkeepers Sue for Online Libel

Probably perplexed about how they got dragged into the machinations of a Mississippi political melee, the owners of the Nova Scotia inn filed an online libel lawsuit against Handshoe – in a Nova Scotia court – and they won a judgment of about $430,000.

But can the Canadians collect the money?

The Canadian innkeepers petitioned a federal Mississippi court, asking it to force Handshoe to pay up. But Handshoe argued the SPEECH Act. Chief Judge Guirola agreed and ruled that Handshoe didn’t owe squat because he probably would have won the defamation lawsuit had it been tried in the United States.

The innkeepers appealed, but were once again denied, the Fifth Circuit explaining in their opinion:

A party may enforce a foreign defamation judgment in a domestic court if either (A) the law of the foreign forum . . . provides free-speech protection that is coextensive with relevant domestic law, or (B) the facts . . . are sufficient to establish a defamation claim under domestic law.

The higher court found that the Nova Scotia libel standards used to decide this case did not mesh with point (A), nor did the judges feel that the Canadian innkeepers would have won in a U.S. court, rendering point (B) unfulfilled as well.

Another blow to the Trout Point executives, they had to pay Handshoe’s legal fees.

(Case: TROUT POINT LODGE, LIMITED, a Nova Scotia Limited Company, VAUGHN PERRET, and CHARLES LEARY, Plaintiffs-Appellants)

Canadian-U.S. Defamation Litigation and Lawyers

Kelly / Warner Law has successfully handled many cross-border, Canadian-U.S. libel cases. If you are facing a foreign defamation judgment and want to exercise your SPEECH ACT rights, we can help. If you want to sue a non-U.S. citizen for defamation, we can also help. If you are being sued for defamation and need defense counsel, we do that too.

Kelly / Warner is a top-rated, full-service law firm – with an excellent track record in cases involving the SPEECH Act.

Get in touch today to begin the conversation.

Five Things You Need To Know About The “Right To Be Forgotten” Internet Law Ruling & What It Means For Online Defamation Victims

right to be forgotten ruling in EU
Will US defamation victims be able to take advantage of the new EU right to be forgotten ruling?

UPDATE: Google started accepting “right to be forgotten” removal requests. To see if you qualify, get in touch with us today!

The top European Union court announced a landmark ruling that will further the discussion about “right to be forgotten” Internet laws. We’ll explain the meat of the ruling and explore how it could affect online defamation victims.

What Is The Best Way To Get Defamatory Material Removed From The Internet?

The best way to mitigate an online defamation wound is to get the offending material removed from the website on which it sits. But, if you can’t expunge it completely, the (very close) second best option is to get the libelous info erased from search engine databases. That way, if someone pumps your name or business into Google or Yahoo! or Bing, the reputation damaging webpage won’t show up in results.

How Easy Is It To Get Libelous Content Removed From Search Engine Indexes in the United States?

How easy is it to get defamatory content removed from search engine results in the U.S.? It depends on the facts of your situation. It’s possible to get a court order compelling a  search engine to remove material, but in order to do so, one must first prove defamation.

If your lawsuit is in the beginning stages, you can sometimes get a temporary restraining order compelling website operators to remove material during the course of litigation.

How Easy Is It To get Libelous Content Removed From Search Engine Indexes in the European Union?

United States citizens may enjoy more free speech rights than our European counterparts, but their online privacy laws are a whole lot stricter than ours.

In May 2014, the European Court of Justice announced a landmark ruling regarding unflattering search engine content. In 1998, a man living in Spain suffered a reversal of fortune. He has since turned things around for the better. But when you pump his name into Google, his nearly 20-year-old house foreclosure is still front and center.

The man’s woes, though, will soon be over, because the EU Court said Google has to remove the information about his decades-old financial troubles from their index.

The Right to Be Forgotten v. The Right To Erasure

People on the “legal beat” are calling the new European online privacy stance “the right to be forgotten.” Officials in Europe, however, are taking it one step further and calling for a “right to erasure” law, which would allow individuals control over personal online information that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

Will The EU Right To Be Forgotten Ruling Affect The U.S. Tech Industry?

The EU’s right to be forgotten ruling will cost search engines money – lots of it. Why? They’ll have to implement new procedures to comply with the legal standard, as well as hire a slew of attorneys to focus on related issues.

And there is another concern – censorship. According to the Computer & Communications Industry Association, whose membership ranks include Facebook Inc., Yahoo, Google, and Microsoft, said about the EU right to be forgotten ruling:

“[It] opens the door to large scale private censorship in Europe,” adding that “our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down.”

Can U.S. Businesses ‘Take Advantage’ of the new EU Right To Be Forgotten?

Are you reading and wondering, “I wonder if I, a U.S. citizen, can somehow make the new EU ruling work for me? There is some unsightly information about me on the Web, and I’d really like it gone.”

Unfortunately, the answer isn’t simple and depends on whether or not you have any ties to Europe.

If you’re curious if you qualify to take action under the new European “right to be forgotten” standard, contact Kelly / Warner. We’ve successfully handled countless online defamation removal cases. We can help you, too.

Get in touch today to learn more about your legal options regarding the right to be forgotten laws.

International Defamation Update: Communist Country Edition

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 legal blog waters to learn what 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: Turkish Officials v. Twittering Turks

Twitter defamation in Turkey
Turkish officials had an all-out standoff with Twitter and other social media websites before the country’s elections last weekend.
  • Turkish politicians cried Twitter defamation and shut down the social media site after leaked recordings surfaced via the social media network
  • Social media clampdown came right before Turkish elections
  • Are Twitter quips considered defamatory in the United States?
  • Twitter defamation lawyer contact information

Turkish Officials Were On A Twitter Defamation Warpath

Weeks before Turkish citizens cast their ballots, country officials had only one 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 on the tapes.

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 Track Record When IT Comes To Online Free Speech

A vanguard in transparent governing, Turkey, is not. In fact, it’s illegal to publically trash-talk government officials there. So, it came as no surprise when Turkish lawmakers ordered Twitter to remove any offending accounts – NOW! 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, did not immediately kow-town to Turkey’s demands. Twitter was all (and, of course we’re paraphrasing here), “Slow your roll, Turkey. Our definition of Twitter defamation and your definition 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.  Plus, by the time the elections came around, officials had also blocked Google property, YouTube, thanks to another leaked upper-cabinet meeting tape.

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

In the end, Erdogan’s side won the election. Whether or not his party’s victory was aided by the social media shutdown in the weeks leading up to the election, we will never know. But one thing seems certain, Turkish politicians intend to keep tight control of social media platforms in an effort to curb Internet and Twitter 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 newspaper or online. However, in the past, some plaintiffs have argued that social media platforms are akin to parody and satirical magazines, and won. (See Courtney Love’s latest WTF!? Twitter defamation win).

Twitter Defamation Law Firm

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

Qihoo v. Tencent Anti-Trust: The Final Showdown Underway

China’s first Internet law anti-trust case is underway!

An epic Internet law case is currently making headlines in China. Qihoo 360 Technology Co. Ltd (“Qihoo”) is suing Tencent, the world’s 3rd largest Internet company behind Amazon and Google. The legal question up for debate is whether or not Tencent is an illegal monopoly engaging in unfair practices. Yep, it’s like the Google antitrust saga – Eastern Hemisphere edition.

About Tencent

Arguably the Google of China, Tencent has its tentacles in nearly every facet of Internet business. Valued at US$101B in 2013, the ISP handles approximately 90% of the country’s instant messaging traffic. The company’s mascot — a squat penguin with a red scarf — is as ubiquitous in China as the Nike swoosh is in the United States.

2010: The Qihoo/Tencent Rivalry Origins

In September 2010 Qihoo launched legal proceedings against Tencent for allegedly invading users’ privacy via QQ Doctor – a Tencent security packet for the company’s popular QQ IM service. Qihoo insists Tencent used QQ Doctor to scan and monitor the personally identifiable information of users.

Speculation abounded, however, about Qihoo’s motivation in filing the original lawsuit, for the company was scheduled to release a competing security package – Koukou Guard – in October 2010. The marketing materials for Koukou promised to speed up QQ IM and offer better privacy. The timing of the lawsuit and the release of the product had cynics thinking the lawsuit was simply a marketing effort for the new product.

Subsequently, on November 3, 2010, Tencent announced it would shut down its popular instant messaging app on any computer running Quihoo’s security package. Tencent swore the shut downs were only a matter of protecting users’ rights and privacy.

From that point, it was pretty much on between Tencent and Qihoo. Things got so heated the Ministry of Industry and Information Technology censured both sides to curb the antics.

Upon release of Koukou Guard, however, Tencent released a provacative statement averring that Qihoo’s new security product would break Tencent products. Qihoo says it lost $135M thanks to the statement.

2012: Let The Qihoo/Tencent Battle Continue!

About Qihoo 360

Founded in 2005, Qihoo is another Chinese Internet Service Provider with a Web browser and several mobile apps in its portfolio. As you might imagine, Qihoo and Tencent are fierce competitors.

Fast Forward to November 2012. Despite the ministry censure, Qihoo once again filed suit against Tencent. This time around Qihoo argued that Tencent abused its dominant market position with the Koukou-related announcement. Unfortunately for Qihoo, in March 2013, the Guangdong High People’s Court rejected Qihoo’s case.

Undeterred, Qihoo decided to take the issue to the Supreme People’s Court. At the beginning of this month, both sides made arguments. Now, the Supreme People’s justices must deliberate and ultimately rule on the definition of “Internet Marketplace.”

One of The First Big Monopoly Lawsuits Since China’s 2008 Anti-Monopoly Law

The Qihoo versus Tencent showdown is significant not only for its impact on Internet law, but because it is one of the first major anti-monopoly cases to be heard since China passed its 2008 anti-trust law. As such, the case is expected to set precedence.

A law Professor at Peking University explained to the press that Chinese anti-trust law considers 3 elements:

  1. Whether or not an entity is unfairly blocking competitors;
  2. Whether or not government intervention is a factor;
  3. Whether or not barriers to entry of a given industry are low.

A widely followed case in the People’s Republic, many folks want the court to hold a public hearing to solicit opinions about Tencent’s alleged dominant market position. As you might imagine, smaller Internet companies in China are dying to weigh in on the issue.

If this case resolves like the Google monopoly investigation, Tencent will get a slap on the wrist and a stern warning to watch itself. If the Supreme People’s Court sides with Qihoo, perhaps Chinese technology companies will start seeking greener pastures to grow.

UK Online Defamation Notice and Takedown Rules

The UK online defamation notice and takedown rules have arrived!

Well folks, we’re on the precipice of a whole new UK defamation law. Parliamentarian Lords and Commoners bestowed their approval, and have since been drafting guidelines.

Online, political borders are constantly crossed. As such, people everywhere have been speculating about how the notice and takedown system will work under the new UK libel statute.

And finally, the wait is over. Below is a “just the facts” rundown of the UK online defamation notice and takedown procedure. We’ll leave judgment for another day.

A Super Brief Summary of the Website Operator Defense in the 2013 UK Defamation Law

Section 5 of the 2013 UK defamation law outlines a defense for website operators similar to safe harbor protections afforded under United States Section 230 of the Communications Decency Act.

The UK Section 5 defense can be defeated if:

  1. The website operator can’t show who posted the offending statement; or
  2. The website operator fails to follow the notice and takedown procedures.

Below is a step-by-step outline of the UK online defamation notice and takedown procedure. Bookmark it for reference.

Step One of the UK Online Defamation Notice and Takedown Procedure: Sending A Complaint & Notifying The Poster

A takedown complainant must include the following information:

  1. Name and email address;
  2. Statement in question and why its defamatory;
  3. Explanation of the meaning the claimant derives from statement;
  4. Explanation of the exact unsupported false statements of fact or opinion;
  5. Where statement is posted;
  6. Explanation of why the claimant can’t contact the poster directly;
  7. Statement of whether or not the claimant consents to his or her name and email being released to the poster.

Dealing With An Incomplete Complaint Notice

If a website operator receives an inaccurate or incomplete notice of complaint, he or she must still treat it like a valid notice. Additionally, website operators only have 48 hours to inform the complainant that his or her notice is insufficient and why.

Defense Busting Opportunity: Failed To Respond In A Timely Manner

If the complainant eventually wants to mount a defense against a website operator for not complying with the notice and takedown system, the complainant must prove the website operator didn’t respond in a sufficient amount of time.

Step Two of the UK Online Defamation Notice and Takedown Procedure: Website Operator Alerts Poster of the Complaint

Operators have 48 business hours to inform posters of a complaint. However, courts have the authority to say whether or not a notification was executed in a relevant time frame.

If the website operator can’t contact the poster, he or she must remove the material in question. Additionally, the operator must notify the complainant within 48 hours that the material was removed on account of not being able to reach the poster.

If the poster can be reached, the operator has 48 hours to:

  1. Alert the poster by sending a modified version of the notice, which redacts the name and email of the complainant if the complaint indicated that they did not want to be known to the poster.
  2. Inform poster of the 5-day deadline for response and warn of removal if he or she doesn’t reply. The website operator must also explain that the poster has two options:
    • Consent to removal; or
    • Object to removal, in which case the poster must provide a name and postal address, regardless of whether or not he or she consents to having their contact information passed on to the complainant.
  3. Write a statement indicating that he or she will not reveal the poster’s contact information unless the poster consented to do so or court ordered.
  4. Send the complainant a written acknowledgement explaining:
    • If the statement was taken down;
    • How the complaint was communicated to the poster
Defense Busting Opportunity: Failed To Collect Poster’s Contact Information

Perhaps the most dubious aspect of the UK online defamation takedown and notice system is the user contact requirement. If a website operator does not maintain proper records, so to speak, the “bad books” become grounds for invalidating the operator’s defense.

Step Two of the UK Online Defamation Notice and Takedown Procedure: Poster Tells Website Operator To Keep or Remove Statement

Posters have until midnight at the end of the day specified in the notification to respond, “which must be the 5th day after the notification is sent.” The five-day period does include weekend and bank holidays.

When contacted by a website operator, the original poster has three options:

  1. Ignore;
  2. Instruct the website operator to remove the offending statement;
  3. Instruct the website operator to keep the statement up.

If the poster ignores the notice, the website operator must remove the material. If the poster instructs the website operator not to remove the statement, but refuses to reveal his or her contact information to the website operator, then the website operator must remove the material.

Step Three of the UK Online Defamation Notice and Takedown Procedure: Website Operator Analyzes Poster Response and Notifies Claimant

If the poster doesn’t provide the proper information, or “the operator believes [the information provided] is obviously false,” the operator must take down statements and notify the claimant within 48 hours.

If the poster agrees to take down statements, but the claimant wants to pursue action, the claimant must apply for a court order to get the poster’s contact information from the website operator. The website operator is required to have the information on hand, but they are not required to hand it over unless a court so orders.

If the poster says, “keep it up,” then the operator must hand over the poster’s contact information if he or she consented to its release. If the poster refuses to reveal their identity to the claimant, the claimant must obtain a court order if he or she wants to pursue the matter.

Step Four of the UK Online Defamation Notice and Takedown Procedure: Actions For Repeat Offenders

If the same poster makes similar comments on the same website repeatedly, and one round of takedown request has already occurred, then the website operator must remove the comments – regardless of whether or not a formal complaint is sent – within 48 hours.

If all goes according to plan, under the new UK defamation law, the longest a potentially defamatory statement can remain online is nine days.