Internet Defamation
Australian Defamation Case Illustrates Life Without the CDA
I have frequently written here on the pros and cons of the Communications Decency Act (“CDA”). Without it, no website could permit comments, but by the same token it allows unscrupulous website operators to encourage defamatory postings, and then use those postings to extort payments from the victims.
Because of the latter reality, many have suggested to me that they would like to see the CDA abolished. But a case out of Australia demonstrates just how ridiculous things get without the CDA.
Those Australians are people of few words, so I had to read a number of news accounts to piece together what had occurred. A blogger by the name of Marieke Hardy apparently picked up an anonymous on-line bully. For undisclosed reasons, Hardy decided that she had determined the identity of her mystery bully, so she posted the following comment on Twitter:
“I name and shame my ‘anonymous’ internet bully. Liberating business! Join me.”
The “tweet” then provided a link back to her blog, and there on the blog she identified Joshua Meggitt as the bully. Problem was, Meggitt was not the bully.
Meggitt sued for defamation. Hardy settled with him, allegedly for around $15,000. But Meggitt wants more. Meggitt is suing Twitter for defamation for the tweet by Hardy.
Do you see how absurd things quickly become without the CDA? If Twitter is responsible for every comment, then to avoid defamation it would have to put a delay on all comments, and hire thousands of employees to review the comments. As each comment passed in front of the reviewer, he or she would need to make a quick decision about whether that comment could possibly be defamatory, and only then clear it for publication.
I want you to imagine that scenario. You are one of the Twitter reviewers. Thankfully Twitter limits each tweet to 140 characters, so there is not much to review, but you must apply your best judgment to each comment to see if anyone could be offended. So up pops the following:
“That J-Lo. She be crazy.”
Do you hit the approve or disapprove button? Was the “crazy” comment meant in a good or bad sense? Even if the person making the comment meant only that the singer Jennifer Lopez is crazy good, if you approve the comment then every person in the world who goes by the name J-Lo could potentially sue for defamation, claiming that the post accuses them of having mental problems.
But the dispute between Hardy and Meggitt takes the scenario to an even more absurd level. Applying those facts to our hypothetical, what you really received was:
“That J-Lo. http://tinyurl.com/48y28m7″
What do you do with THAT?! Twitter requires you to review and approve or deny 120 tweets per hour. To keep your job you only have less than 30 seconds to make a decision. You quickly click on the link to see why J-Lo is crazy, and you are confronted with a four and a half minute video! Do you have to watch the entire video to make sure it contains nothing defamatory? You don’t have time for that. REJECTED!
And here, all the tweeter wanted to do was pass along a great video by J-Lo.
Under the best possible circumstances, Twitter would be relegated to approving only the most milk toast comments with no possible defamatory implication. In reality though, Twitter could not possibly exist if it could be held liable for every comment posted.
To all of you who just responded with a resounding, “Who cares about Twitter?”, that’s not really the point. I’m talking big picture here.
It will be very interesting to see how the courts in Australia handle this case.
Anonymous Blogger Turns Case International, and Results in Anti-SLAPP Motion
An international defamation action has ended up here in California. Out of the UK, Tyneside councillors (that’s the way they spell it over there) are very upset that an anonymous blogger who calls himself “Mr. Monkey” has been defaming them.
The council has backed a three-year hunt to discover the identity of Mr. Monkey, with the legal fees now exceeding six figures. So far, since they did not retain Morris & Stone, the attempts to uncover the identity of Mr. Monkey have been unsuccessful.
Enter Coun Ahmed Khan, a councillor from a rival political party. The four plaintiff councillors successfully moved to have Khan’s personal computer records disclosed, because they apparently suspected him of being Mr. Monkey. Khan denies that he is the primate in question, but has cried “enough is enough,” and wants to put an end to the search.
To that end, he brought what I can only characterize as an offensive anti-SLAPP motion (not offensive as in crude, but as in the opposite of defensive). He intervened in the San Mateo Superior Court action and filed an anti-SLAPP motion, asserting that even though he is not Mr. Monkey, the comments of Mr. Monkey are protected and the action should therefore be dismissed.
Motion DENIED. Indeed, the court found the motion to be so frivolous that it awarded attorney fees of £40,000 to the plaintiffs. (I once obtained a judgment in Los Angeles Superior Court in British pounds. It’s worth it just to see the court clerks try to figure out how to enter it into the system and calculate interest and the like.)
Khan has now appealed the denial of his anti-SLAPP motion and the award of attorney fees.
How to Fight Back Against Online Defamation
Always striving not to reinvent the wheel, I keep my eyes open for articles that do a good job of explaining basic legal concepts. In that regard, I receve many calls from prospective clients who don’t yet know the fundamentals of pursuing an online defamation claim. Many times, the callers want to sue Google since it is Google’s search engine that is revealing the sites that are posting the defamatory comments. That is not possible (although we have had pretty good luck getting Google to cooperate in taking down blogs on their own service and in one instance Google agreed to stop indexing a particular magazine, but that is rare).
The following article [reprinted with permission] provides a brief outline of how to attack online defamation. If you happen to be in New Jersey, contact the author for any action you need to pursue or defend. If you’re hear in California, or the action needs to be brought in California, then call Morris & Stone at (714) 954-0700.
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Individuals now have the freedom to inexpensively and easily share everything from their art to their opinions online. However, the ease and anonymity associated with posting information on the Internet, comes at the cost of providing a perfect avenue for those seeking to abuse the system. So what happens when, for instance, an opinionated Internet rant goes too far? What if a video stream broadcast damages the reputation of someone featured in it? More importantly, do the victims of these scenarios have any rights under the law, or are they at the mercy of the author or poster?
Fortunately for victims, the law of defamation has been evolving in order to accommodate the legal ills associated with online publication. However, many people still fail to avail themselves of these legal protections because they are unclear about to which rights and remedies they are entitled. Therefore, individuals wishing to protect their rights and reputations must understand how the law of defamation applies to online activity. Defamation is defined as the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. The two subcategories of defamation are libel and slander. Libel requires that defamation be committed in a printed forum, while slander requires that the defaming words be spoken aloud.
Online publications are subject to the law of libel; online video posts are subject to the law of slander. If a party believes that defamation may have occurred because of the idea(s) presented in an online writing, he or she can successfully sue the author for libel by showing: that the defamatory statement was published, that it refers to the victim, that it is false, and that the victim’s reputation has been harmed by the writing. A party who feels victimized by video content can sue for slander under the same legal standard as is applied to libel. Victims of defamation can recover both actual damages and punitive damages.
Still, it is important to keep in mind the following caveats with regard to defamation law as it applies to the Internet. If the author of a defamatory statement is anonymous, a victim can request (through court proceedings) that the wrongdoer’s identity be revealed. Also, in the event that the victim of defamation is a public figure, actual malice must be proven (in addition to the aforementioned elements). Finally, although the authors of misinformation can be held liable for defamation, blog owners generally bear no responsibility for the comments posted to their site by third parties. Thus, it is evident that the law of defamation, although limited in its applicability to the Internet can still offer numerous protections and remedies against those wishing to cause undue damage to the reputations of others.
Melody Kulesza is an associate with Pepper Law Group, LLC, a law firm based in Somerville, New Jersey which provides strategic advice and sophisticated legal services to businesses, entrepreneurs, and entertainers in the areas of technology law, intellectual property, Internet law, entertainment law, business formation and general business counsel, and privacy and security law. More information on the firm can be found at http://www.informationlaw.com or by telephone at 908.698.0330.
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