On February 8th, 2005, Georgia Community Support and Solutions (GCSS), a non-profit organization that provides assistance to disabled adults and their families, filed a lawsuit against Shirley Berryhill for defamation and tortious interference with business relations over statements she made on a website for families of disabled adults and in emails to employees of the Atlanta Journal-Constitution and the Georgia Department of Human Resources.

According to court documents, GCSS placed Ms. Berryhill's mentally handicapped son with providers of personal care. Subsequently, Ms. Berryhill allegedly made statements in web postings and emails asserting that her son was suffering from poor treatment and care. GCSS sent Berryhill a cease-and-desist letter regarding the statements (see our database entry) and, after Berryhill refused to retract and apologize for the statements she made, the organization filed suit in Georgia state court.

Ms. Berryhill filed a motion to strike the complaint pursuant to Georgia's anti-SLAPP statute (GA. Code Ann. § 9-11-11.1(b), and the trial court granted the motion. The court concluded that Berryhill's statements satisfied the threshold requirement of the anti-SLAPP statute because they were made in furtherance of her right to free speech about an issue of public concern.

The Georgia Court of Appeals reversed the trial court's decision, ruling that the anti-SLAPP statute only protects statements made in connection with  official government proceedings. The Georgia Supreme Court affirmed the appellate court's decision, concluding that Ms. Berryhill's speech and acts did not fall within the scope of Georgia's anti-SLAPP statute.

The American Civil Liberties Union of Georgia, the Georgia First Amendment Foundation, and the Atlanta Press Club filed an amicus brief in support of Ms. Berryhill.

We have not determined what happened in the litigation following the Georgia Supreme Court's 2006 decision.

On June 20, 2008, counsel for Bernard Malik sent a cease-and-desist letter via email to the administrator of ScamFraudAlert.com, a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices. The letter asserted that a forum user going by "justiceismine" posted false and defamatory statements about Mr. Malik and his organization, International Open University, on ScamFraudAlert.com (see the letter for details). It demanded that ScamFraudAlert.com remove the allegedly defamatory posts and provide "identifying details, including but not limited to the e-mail address and login IP addresses for 'justiceismine' so that Mr. Malik can take further legal actions."

The letter also claimed that ScamFraudAlert.com is not entitled to the protection of section 230 of the Communications Decency Act because it "solicit[s] and encourage[s]" defamatory posts from users and subscribers, citing as support the Ninth Circuit's decision in Fair Housing Council v. Roommate.com, LLC. This is an unconventional reading of the Roommate.com case. Counsel also claimed that the letter itself is copyrighted and advised ScamFraudAlert.com not to publish it.  The letter elaborated:

Contrary to the opinion of some Internet bloggers, the Federal Courts that have ruled on the issue, as recently as November of 2007, have held that an attorney's cease and desist letter is protected by copyright laws. Any unauthorized publication of this letter will potentially expose you to substantial damages for copyright infringement. 

The November 2007 case referenced in the letter,  In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.COM, LLC, 2007 WL 4335441 (D. Idaho Dec. 7, 2007), sparked a flurry of online debate on the topic of the copyrightability of cease-and-desist letters. While the Dozier Law Firm and others (including apparently counsel for Mr. Malik) view the case as establishing copyright protection for cease-and-desist letters, the case only touched on the narrow question of whether the C&D in that case was sufficiently original to be protected by copyright, and the court expressly stated that it would "not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena." Most importantly, the court did not address the strong argument that publishing a cease-and-desist letter for purposes of documenting it and commenting on it is fair use.

The administrator and Mr. Malik's lawyer exchanged additional emails without coming to agreement about the disputed content. As of July 7, 2008, no further action has transpired.

Update:

7/15/08 - Counsel for Malik sent a DMCA takedown notice to ScamFraudAlert's web host, NationalNet, Inc., claiming that posting email communications between counsel and ScamFraudAlert infringed Mr. Malik's copyrights.

Tucson Greyhound Park (TGP) filed a defamation suit against blogger Karyn Zoldan after she criticized its treatment of racing dogs. TGP took issue with Zoldan's postings on End Tucson Greyhound Racing, including statements that tens of thousands of dogs had died at the park during its sixty-year history, that one dog was "ruthlessly euthanized," and that the park had not been paying its taxes, according to court documents. TGP named a number of other individuals and organizations as defendants, alleging that they were associated with Zoldan and the disputed content.

In the suit, TGP filed an application for a temporary restraining order and a preliminary injunction against the defendants. The park sought to have the disputed content removed and to prevent the defendants from criticizing the park. Zoldan told CMLP in an email that the court denied the request for a temporary restraining order following a hearing on January 18, 2008 and denied the request for a preliminary injunction following a hearing in late February.

Update:

5/16/08 -TGP withdrew its claims agains Greyhound Protection League.

8/20/08 - TGP dropped the lawsuit against The Greyhound Welfare Foundation.

8/28/08 - The Arizona Star reported that TGP had dropped the lawsuit against Zoldan after the parties reached a non-monetary settlement. 

Linda Ramsey and Erin Knox, Ramsey's daughter, sued Cindie Harman for stalking in North Carolina state court after Harman wrote on her blog, Bonifide, that Knox was a "bully" and "the reason kids hate to go to school," according to Ramsey's complaint filed August 27, 2007. 

In the complaint, Ramsey sought a temporary civil no-contact order to protect Knox from Harman, which the trial court granted. The court also ordered Harman to refrain from posting any comments about Knox and her family during the trial.  In her defense, Harman argued that her comments were free speech protected under the First Amendment and section 230 of the Communications Decency Act ("CDA 230").  The trial court ultimately ruled that Harman had harassed Knox and Ramsey as defined under North Carolina's General Statutes, section 50C-1(6) and (7), and made the no-contact order permanent. 

Harman appealed, and the North Carolina Court of Appeals overturned the lower court's decision on June 17, 2008.  The appeals court ruled that Ramsey failed to show evidence that the posts were intended to cause or actually did cause Knox substantial emotional distress. Without that proof, the court said, a civil no-contact order should not be granted.  The court did not address Harman's First Amendment and CDA 230 arguments.

On April 14, 2008, the Rockland County District Attorney's Office issued a grand jury subpoena to The Journal News, a daily newspaper distributed in New York and Southern Connecticut that operates LoHud.com, a website providing an online version of the newspaper as well as community forums that post reader comments regarding news, opinion, and subjects of public interest. The subpoena requested that The Journal News provide subscriber information for a user who had posted to one of LoHud's forums using a pseudonymous screen name. To maintain grand jury secrecy, the court documents did not reveal the screen name or the reason that the information was sought.

The Journal News moved to quash the subpoena before a Rockland County court. Relying on Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), the newspaper argued that the court should require the District Attorney to make a heightened showing of need and demonstrate an evidentiary basis for requesting the information in order to overcome First Amendment protection for anonymous speech. The court denied the motion to quash, ruling that it could could dispose of the case without adopting the Dendrite standard because the District Attorney had made a heightened showing of need through in camera testimony. 

The court directed The Journal News to comply with the subpoena by May 28, 2008.

On June 18, 2008, a lawyer for Mynutritionstore.com, a provider of "science based Nutraceuticals" and "turnkey Internet business opportunit[ies]," sent an email to Julia Forte in which he threatened to sue her over user comments on the website she runs, 800notes.com, that hosts a forum for the discussion of telemarketers.

According to an email and follow up demand letter from its counsel, Mynutritionstore.com asserted that comments on the site defamed the company and its owners and stated "all we want are the references to mynutritionstore.com, Jim Stepanian, Nicole Stepanian and their number (888) 712-3888 filtered from your site."

After Forte responded that she was immune from liability under section 230 of the Communications Decency Act (CDA 230), which protects interactive website operators from liability for the comments of their users, Mynutritionstore.com responded that unless Forte removed the user comments, it would seek injunctive relief and sue her "as a necessary party to the complaint. Unfortunately, you will likely need an attorney and will likely have to pay to defend yourself – if it comes to that."

In a response letter to Mynutritionstore.com's lawyer Thomas Georgianna, Paul Alan Levy, who represents Forte, warned that bringing her into the suit for the purpose of running up her costs, even though she cannot be held liable, would constitute an abuse of process and likely result in an award of fees under the California anti-SLAPP statute.

In February 2000, AnswerThink, a business and technology consulting firm, sued 12 John Does for defamation in Florida federal court. The John Does had posted criticism of the company in a Yahoo! forum dedicated to AnswerThink.

John Doe 3 answered AnswerThink's complaint anonymously in March 2000. Meanwhile, AnswerThink subpoenaed Yahoo! to uncover the identity of Doe 3. Without contacting Doe 3, Yahoo! complied, revealing that Doe 3 was in fact Gregory P. Hackett, an employee of AnswerThink. AnswerThink subsequently fired Hackett and launched a second case against him, this time for breach of contract. See AnswerThink Consulting Group v. Hackett for more information.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in August 2000.

In February 1998, Bally Total Fitness sued Andrew Faber, a former Bally customer who created a website entitled BallySucks (now defunct), which was dedicated to collecting complaints about Bally's health club business and included modified versions of Bally's trademarks with the word "sucks" across them.  The complaint alleged trademark infringement, trademark dilution, and unfair competition.

Bally moved for a temporary restraining order against Faber to force him to take down the website, but the court denied Bally's motion in April 1998. In October 1998, Bally moved for summary judgment on its claims. The court again rejected the motion, and instead ordered Faber to bring a motion for summary judgment. Faber so moved, and the court granted the motion in December 1998.

The court found that Faber's "Bally sucks" site promoted separate, distinct "goods" from Bally's services and would not confuse reasonable consumers. Further, the court said that even if the two "goods" had been related, the trademark infringement balancing test from AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979) weighed heavily in favor of Faber.

Following the grant of summary judgment, Bally appealed to the Ninth Circuit Court of Appeals. However, on June 13, 2000, the appeal was dismissed by stipulation of the parties.

Allegheney Energy ("AE") sued a John Doe who posted anonymous criticism of the company that included racial epithets on a Yahoo! Finance forum dedicated to AE.  Because the anonymous author included statements in his posts indicating that he was a long-time AE employee, AE claimed  breach of fiduciary duty and breach of duty of loyalty in its filing in Pennsylvania state court.

After filing the suit on October 16, 2003, AE subpoenaed Yahoo! to reveal Doe's identity. Yahoo! sent notification of its receipt of the subpoena to Doe, whose real name turned out to be Cliff Swiger, and revealed Swiger's identity to AE.  Swiger claimed he never received the notification.  On November 25, AE filed a motion to dismiss the suit against John Doe (Swiger).

AE subsequently fired Swiger for his postings on the Yahoo! forum. Swiger then filed a lawsuit against AE for abuse of process, wrongful use of civil proceedings, intrusion of seclusion, and publication of private facts. See Allegheney Energy v. Swiger for more information.

In May 2007, the Turtle Mountain Band of Chippewa Indians banished Robert Port from the tribe's lands for publishing an article, "The Appalling State of North Dakota Indian Reservations," on the Dakota Beacon website and on his own blog, Say Anything Blog.  The banishment order also alleged that comment threads on the Say Anything Blog included "anti-Indian and anti-reservation comments," including that "reservation peoples are living on the Government's 'welfare tit.'"  The order also purported to require the Dakota Beacon and its editor, Steve Cates, to publicly retract the article.