Cyberbullying

Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

Dan Booth (Booth Sweet LLP), Zachary C. Kleinsasser, Michael J. Grygiel (Greenberg Traurig, LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

  • no statements attributed to Newman could sustain a defamation claim;
  • the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
  • on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
  •  "there is no such thing" as common-law copyright infringement;
  • Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
  • on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
  • punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

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Subject Area: 

@Parody or @Crime? AZ Bill May Blur the Line

Arizona State Representative Michelle Ugenti (R-Scottsdale) introduced Arizona House Bill 2004 in December, which would amend Arizona’s criminal code and make it a class 5 felony to impersonate somebody online, including, specifically, on a social networking site. A class 5 felony carries in Arizona a presumptive sentence of a year and a half imprisonment. Rep.

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Jurisdiction: 

Charles Carreon v. Matthew Inman, et al.

Date: 

06/15/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Matthew Inman, Indiegogo, Inc., National Wildlife Federation, American Cancer Society, and Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

3:2012-cv-03112

Legal Counsel: 

Attorney Venkat Balasubramani (for Defendant Inman); Attorney Sarah T. Grilli (for Defendant American Cancer Society); Attorney Richard L. Grossman (for Defendant American Cancer Society); Attorney Mark Allan Lemley (for Defendant Indiegogo, Inc.); C

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Charles Carreon is an attorney, who was retained by FunnyJunk, LLC, on matters related to the website FunnyJunk.com. On June 2, 2012, Carreon sent a letter on behalf of FunnyJunk to Matthew Inman, creator of TheOatmeal.com, which threatened legal action and demanded $20,000 on the basis of a blog post. For more information about this correspondence, see FunnyJunk, LLC vs. TheOatmeal.com.

On June 12, 2012, Inman posted an informal response to the June 2 letter on TheOatmeal.com. The post, inter alia, announced that Inman planned to raise $20,000 in donations, and that he would donate the money to the National Wildlife Federation and the American Cancer Society. A link at the bottom of the post directed readers to a page on Indiegogo.com, a fundraising website. By its conclusion, the fundraising effort generated $220,024. 

On June 15, 2012, Carreon filed a lawsuit against Inman, Indiegogo, Inc., the National Wildlife Federation, the American Cancer Society, and 100 anonymous Internet users based on the fundraising effort and other events allegedly caused by Inman. 

According to Carreon's initial complaint, he suffered a number of online attacks as a result of Inman's actions, including an attempt to reset the password to his website, and the creation of a Twitter account with the handle @Charles_Carreon. 

Carreon alleged several causes of action including trademark infringement, unfair competition, impersonation, and incitement to commit cybervandalism. Carreon also alleged that Inman and Indiegogo, Inc. had failed to file forms required by Cal. Gov. Code §§ 12580, et seq. and Cal. B&P Code §§ 17510, et seq., and were thereby conducting the fundraising effort unlawfully. Carreon further sought to impose a trust on the proceeds of the fundraising effort. 

Carreon alleged that the tweets published by an unknown user from the @Charles_Carreon account were a violation of the trademark he holds on his name, and that the attempt to reset the password to his website constituted a trespass to chattels. He claimed that Inman had incited cybervandalism through the fundraising campaign and other postings. 

On June 18, 2012, an anonymous individual registered the username "Modelista" on Ars Technica and commented on an Ars Technica post that he or she ran the @Charles_Carreon Twitter account. 

On June 25, 2012, Carreon filed an amended complaint. In the amended complaint, Carreon named California State Attorney General Kamala Harris as a party to the case to facilitate judgment on his claim for imposition of a trust. Carreon also named "Modelista" as the Doe defendant responsible for the @Charles_Carreon Twitter account.

On June 30, 2012, Carreon filed a motion for a temporary restraining order in an effort to prevent the disbursement of the funds generated by the fundraiser to Inman or any other entity, as well as a memorandum in support of the motion.  

On July 1, 2012, Indiegogo, Inc. filed an opposition to the motion stating that funds had been disbursed to the American Cancer Society and the National Wildlife Fund by check on June 29, 2012 and that this rendered Carreon's motion for a temporary restraining order moot.  

On July 2, 2012, the court entered an order requiring that Inman file proof of the delivery of the checks to the two charities. 

On July 3, 2012, Carreon filed a notice of voluntary dismissal.  

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Jurisdiction: 

ANNOUNCEMENT: Panel and Fundraiser for "Without My Consent"

We would like to congratulate Without My Consent on its one-year anniversary, and announce an exciting event in celebration!

Subject Area: 

Jurisdiction: 

An Ounce of Prevention: Protecting yourself against online retaliation

Last week I discussed recent news stories highlighting the dangers of online retaliation. At worst, this form of retaliation chills speech and threatens critical reporting.

Subject Area: 

Content Type: 

Logging In and Lashing Out: 'Crowdsourced retaliation' presents new challenges to journalists

Critics have always run the risk of retaliation. They have not, however, always run the risk of having their personal phone number micro-blogged to over 115,000 people in a split second.

Subject Area: 

Finkel v. Facebook: Court Rejects Defamation Claim Against Facebook Premised on "Ownership" of User Content

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

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Jurisdiction: 

Showing Cyberbullying No Mercy in the Show Me State

On the broad grade-school spectrum of the bullies and the bullied, I tended to fall closer to the bullied side of things.  Fortunately, I quickly proved taller than average — thus harder to intimidate — and smarter than average — thus more useful as a source for homework help than as a target for abuse — so the bullies moved on to other targets.  Still, although not subjected to it much myself, I got to see a fair amount of bullying in my youth.

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Jurisdiction: 

Thompson v. Facebook

Threat Type: 

Lawsuit

Date: 

09/29/2009

Party Receiving Legal Threat: 

Facebook, Inc.

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:09-cv-22927-KMM

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

Disbarred Florida attorney and critic of the video game industry Jack Thompson, proceeding pro se, filed a complaint against Facebook, Inc. in the U.S. District Court for the Southern District of Florida on September 29, 2009.  The Complaint asserts three counts against Facebook for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Negligent Supervision based on Facebook's failure to remove certain postings advocating violence against Mr. Thompson.  The lawsuit seeks compensatory damages "in excess of ten million dollars and punitive damages in excess of thirty million dollars" for each count.

The Complaint alleges that on August 26, 2009 Thompson "was made aware of various Facebook 'Groups' operating at the Internet social networking site known as Facebook which were advocating physical harm be visited upon plaintiff."  (Compl. ¶ 5)  The complained-of statements included the following:

  • "I will pay $50 to anyone who punches Jack Thompson in the face" (Compl. ¶ 17);
  • "Jack Thompson should be removed from the populace" (Compl. ¶ 18);
  • "Jack Thompson should be smacked across the face with an Atari 2600" (Compl. ¶ 19);
  • "How much would a coat out of Jack Thompson's forskin [sic] go for on eBay?" (Compl. ¶ 19); and
  • "screw the Atari 2600 where did i [sic] put my brick..." (Compl. ¶ 20).

The Complaint alleges that Thompson faxed various requests to Facebook's CEO seeking the removal of these posts, but that the postings remain visible as of the time of the lawsuit. (Compl. ¶¶ 6-8)

Content Type: 

Subject Area: 

CMLP Notes: 

KAI 

 

 

Thompson is suing Facebook for not taking down groups and postings about him.  Thompson was formerly involved in lawsuits attempting to ban Grand Theft Auto.

Priority: 

1-High

Jurisdiction: 

Judge Issues Opinion Overturning Lori Drew's Conviction

As originally reported by Orin Kerr at The Volokh Conspiracy, a federal district judge in California issued an opinion on Friday overturning the jury verdict finding Lori Drew guilty of a misdemeanor violation of the Computer Fraud

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Drew (Tentatively) Acquitted in MySpace Suicide Case

A federal judge yesterday tentatively acquitted Lori Drew, the Missouri woman convicted for her involvement in a MySpace “cyberbullying” hoax that allegedly resulted in a young girl’s suicide.  If it sticks, the acquittal will help reverse the momentous change in online liability that Drew’s earlier guilty verdict threatened to set in motion.

Subject Area: 

Jurisdiction: 

Duffin v. Does

Threat Type: 

Lawsuit

Date: 

03/01/2009

Party Receiving Legal Threat: 

John Does; MySpace, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Los Angeles

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Material Removed
Settled (partial)
Withdrawn

Description: 

Cyd Duffin, principal of Colony High School in Palmer, Alaska sued MySpace, Inc. and John Doe defendants for defamation and invasion of privacy over the posting of a fake MySpace profile, which falsely depicted her "as a drug-using racist with a sexually transmitted disease who insults disabled students and likes books about pornography, anarchy and the Ku Klux Klan," according to the Anchorage Daily News.  The Anchorage Daily News also reported that Duffin dismissed MySpace from the case after the company agreed to cooperate by turning over records related to the creation of the fake profile.  

UPDATE:

7/14/2009 - Duffin dismissed the suit after two students confessed to authoring the fake profile. Though the two students were punished, Duffin did not disclose the severity of their punishment.

Subject Area: 

Content Type: 

Priority: 

1-High

Threat Source: 

RSS

CMLP Notes: 

Source: Anchorage Daily News

checked 6/18/09; no new info - CMF

UPDATED 7/16/09 AVM added information on dismissal

Jurisdiction: 

Gillespie v. Marlowe

Date: 

09/16/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mike Marlowe; American Online; Bob Charpentier

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

State

Court Name: 

Medina County Court of Common Pleas (Ohio)

Case Number: 

05CIV1255

Verdict or Settlement Amount: 

$221.80

Legal Counsel: 

Bob Charpentier (Pro Se); Michael S. Gordon (for AOL)

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Default Judgment
Dismissed (partial)

Description: 

George Gillespie of Ohio filed suit on September 16, 2005 against two chat room users who allegedly humiliated him in AOL chat discussions.  The defendants, Bob Charpentier and Mike Marlowe, lived in Oregon and Alabama respectively at the time the suit was filed. Gillespie also sued AOL for allowing the alleged harassment to occur.

According to Law.com, Gillespie alleged that the chat room participants "acted in an outrageous manner, which they knew or should have known would cause serious emotional distress to the plaintiff . . .  The Defendants' conduct was so extreme and contemptible as to go beyond all possible bounds of decency."  Gillespie also alleged that Charpentier and Marlowe intruded into his "private affairs" and claimed that Marlowe  drove from Alabama to Ohio to photograph his home (for posting on the web) and/or to file a change of address form with the local post office in order to disrupt his mail.  Marlowe denied traveling to Ohio.

On January 30, 2006, AOL moved to dismiss the suit or stay it for improper venue. Judge Christopher J. Collier dismissed the suit against AOL on February 14, 2006, but the grounds for dismissal are unclear. Charpentier, acting pro se, filed a response and sought to reserve the right to file a $125,000 countersuit against Gillespie.  Following an oral hearing, the court dismissed Charpentier from the suit.  The case docket indicates that the court entered a default judgment against Mike Marlowe on April 28, 2006 in the amount of $221.80.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Docket information for this case (and possibly other related cases?) is available at: http://www.co.medina.oh.us/medct_epublicnodr/pages/search.aspx.  Search for George Gillespie's name.

Source: Law.com

 

Jurisdiction: 

Finkel v. Facebook

Date: 

02/16/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Facebook, Inc.; Michael Dauber; Jeffrey Schwartz; Melinda Danowitz; Leah Herz; Richard Dauber; Amy Schwartz; Elliott Schwartz; Martin Danowitz; Bari Danowitz; Alan Herz; Ellen Herz

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, County of New York

Case Number: 

102578-2009

Legal Counsel: 

Lisa T. Simpson and Aaron G.R. Rubin - Orrick, Herrington & Sutcliffe LLP (for Facebook); Lina C. Rossillo - Morris Duffy Alonso & Faley (for Elliot, Jeffrey, and Amy Schwartz)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Teenager Denise Finkel sued four of her former high school classmates, their parents, and Facebook after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

The complaint alleges that statements appearing on the private Facebook group asserted or implied that she "was a woman of dubious morals, dubious sexual character, having engaged in bestiality, an 'IV drug user' as well as having contracted the H.I.V. virus and AIDS." Cmplt. ¶ 23.  The postings are attached as an exhibit to the complaint.

The complaint alleges that Facebook should be held liable for publishing the defamatory matter, explaining that it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Id. ¶ 28.  

The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.

Update:

9/15/09 - Court granted Facebook's motion to dismiss, finding that Facebook is immune from liability under Section 230 of the CDA.  Court rejects plaintiff's argument that Facebook's Terms of Use which grant it an "ownership interest" in the allegedy defamatory content makes Section 230 inapplicable.

 7/22/10 - After removal to state court, state judge dismissed the remaining claims, writing that, "Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other" (slip op. at 7).

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: Newsday

  • Supreme Court Records On-Line Library - Docket for Finkel v. Facebook (search for Index Number 102578-2009)  THIS DOCKET SEARCH IS NOT CURRENTLY PULLING UP ANYTHING -- NEED TO CHECK AND RE-POST WHEN IT IS WORKING.
  • CR- Searching by Plaintiff=Finkel works.  The case number is correct, but the search doesn't pull up the case
  • avm 6/10/09 - pulled up case fine, uploaded motions to dismiss and attorney info, no rulings yet

 

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Federal Appeals Court Examines Two MySpace Student Speech Cases

The Wall Street Journal Law Blog and the Legal Intelligencer report that the Third Circuit Court of Appeals has before it two appeals testing the limits of school authority to punish student speech on the Internet.  The two cases have remarkably similar facts, but the trial courts that decided them came to completely opposite conclusions

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