Defamation

Texas Bill Would Allow Publishers to Correct or Retract Content to Avoid Damages

Texas State Representative Todd Hunter, R-Corpus Christi, has proposed a "retraction statute" that, if passed, will protect journalists both online and offline and promote truth and efficiency both in and out of court.

Jurisdiction: 

Subject Area: 

Duffy v. Godfread

Threat Type: 

Lawsuit

Date: 

02/19/2013

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Illinois Circuit Court, Cook County; United States District Court for the Northern District of Illinois

Case Number: 

No. 13-L-1656 (Cook County); No. 1:13-cv-1569 (N.D. Ill.)

Legal Counsel: 

Erin Kathryn Russell, The Russell Firm; Jason E. Sweet, Booth Sweet LLP

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

This action is closely linked to two other threats in the database: Prenda Law v. Godfread and Steele v. Godfread. Several of the related filings can be found in the database entry for Prenda Law v. Godfread.

Plaintiff Paul Duffy is an attorney affiliated with a law firm (Prenda Law, Inc.) that has been representing clients in numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to the firm, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by the firm has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these copyright proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 15, 2013, Duffy sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Illinois Circuit Court for Cook County. This follows a nearly-identical lawsuit filed by Prenda Law against the same defendants for the same claims in the Illinois Circuit Court for St. Clair County, and was shortly followed by a high similar lawsuit by John Steele in Florida Circuit Court for the Eleventh Judicial Circuit. All three complaints alleges that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the Northern District of Illinois, Southern District of Illinois, and the Southern District of Florida, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action.

Update:

On March 7, 2013, the website dietrolldie.com reported that a subpoena had been issued on February 25, 2013 by the plaintiff in the closely related case Prenda Law v. Godfread to Automattic, Inc., the owner of Wordpress.com, seeking all IP addresses that accessed that website and fightcopyrighttrolls.com. Both websites extensively criticize Prenda Law and its litigation methods, and appear to be the host of many of the comments alleged to be defamatory in Prenda Law's complaint. The subpoena seeks the IP addresses of all machines that accessed the two websites from January 1, 2011 through present. The subpoena had a return date of March 4, 2013. 

On March 21, 2013, Godfread and Cooper filed an answer and counterclaims. In addition to denying the claims asserted by Duffy, defendants claimed a series of affirmative defenses, including truth, litigation privilege, a bar on the claim based on Minnesota's anti-SLAPP statute, and the doctrine of unclean hands, based on Duffy's use of defendant Cooper's name in litigation. The defendants also asserted counterclaims, seeking a declaratory judgment of immunity from suit based on Minnesota's anti-SLAPP law, noting the threats of suit made both in communications to the defendants and in the two other defamation filings. The pleading also asserts claims of civil conspiracy and breach of privacy, and seeks to pierce the corporate veil of AF Holdings LLC, Ingenuity 13 LLC, and Prenda Law, Inc.

On April 11, 2013, Duffy filed a motion to strike the affirmative defenses and dismiss the counterclaims. The motion alleges that the counterclaims do not assert facts related to Paul Duffy personally, but instead are based on actions of non-parties John Steele and Prenda Law, Inc. The motion also alleges that the affirmative defenses lack any factual allegations.

On April  16, 2013, Godfread and Cooper filed a motion to dismiss pursuant to Minnesota's anti-SLAPP act. The motion argues that under Illinois conflict-of-laws analysis the Minnesota anti-SLAPP is appropriately applied against the Illinois defamation claim, as Minnesota's interest in the anti-SLAPP is to protect Minnesota speakers.

On April 23, 2013, the court issued a scheduling order staying discovery pending resolution of the anti-SLAPP motion. According to the order, responsive pleadings to the pending motions are due May 15, 2013, with replies due May 29th and argument scheduled for August 14, 2013.

On May 14, 2013, Cooper and Godfread filed an opposition to Duffy's motion to dismiss the counterclaims and motion to strike the affirmative defenses. Defendants argue that Duffy is precluded from further litigating the merits of the defendant's counterclaims following a widely-reported case in the United States District Court for the Central District of California, where a judge made a judicial finding that AF Holdings and Ingenuity 13 were created "for the sole purpose of litigating copyright-infringement lawsuits," and that Prenda Law's principals "stole the identity of Alan Cooper," and "fraudulently signed the copyright assignment . . . using Alan Cooper's signature." The court in that case sanctioned Prenda Law and its principals, including Duffy, following their invocation of the Fifth Amendment to questions concerning their business practices. The defendants further argued that the counterclaims satisfy the pleading standard under Bell Atlantic v. Twombly by giving the plaintiff fair notice of the claims against it, and that striking the affirmative defenses under FRCP 12(f) is inappropriate as the pleading standards of Twombly have not been applied to affirmative defenses. 

On May 15, 2013, plaintiff Prenda Law filed a motion in opposition of the motion to dismiss under Minnesota's anti-SLAPP statute. Plaintiff argues that the Minnesota statute does not apply to the action because there is no evidence that the statements were made in Minnesota. Prenda Law also argues that Illinois choice-of-law provisions should prevent application of the Minnesota statute, that application of the anti-SLAPP statute fails on the merits, and that federal courts should not be applying this statute, as it is largely procedural under the Erie doctrine. The defendants replied to this motion on May 28, 2013.

Following the transfer of venue in Prenda Law v. Godfread to the United States District Court for the Northern District of Illinois, the defendants filed a motion to reassign and consolidate these two cases on June 13, 2013. In a minute order on June 28th, the court noted that the plaintiff did not object to the motion to consolidate, and the court consolidated the two actions accordingly.

On August 14, 2013, the court filed an order denying Godfread and Cooper's motion to dismiss under the Minnesota anti-SLAPP, denying Duffy's motion to strike the affirmative defenses, and granting Duffy's motion to dismiss Godfread and Cooper's counterclaims (but allowing those claims to be refiled). Although the court found that Illinois's choice of law provisions dictated that application of Minnesota's anti-SLAPP law was proper in this case, the statute did not apply because the statements at issue were not shown to be directed toward public participation. The court also rejected Godfread and Cooper's counterclaims due to being largely directed toward Prenda Law's actions, instead of those personally done by Duffy, but allowed the defendants to refile amended counterclaims.

Content Type: 

Jurisdiction: 

Subject Area: 

Steele v. Godfread

Threat Type: 

Lawsuit

Date: 

02/24/2013

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Florida Circuit Court, 11th Judicial Circuit (Miami-Dade County); United States District Court for the Southern District of Florida

Case Number: 

No. 13-6608CA (Miami-Dade County); No. 1:13-cv-20744 (S.D. Fla.)

Legal Counsel: 

Bradford A. Patrick

Publication Medium: 

Blog
Email
Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

This action is closely linked to two other threats in the database: Prenda Law v. Godfread and Duffy v. Godfread. All related filings can be found in the database entry for Prenda Law v. Godfread.

Plaintiff John Steele is an attorney affiliated with a law firm (Prenda Law, Inc.) that has been representing clients in numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to Prenda Law, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by Prenda Law has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 24, 2013, Steele sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Florida Circuit Court for the 11th judicial circuit. Nearly identical complaints were filed by Prenda Law attorney Paul Duffy in the Illinois Circuit Court for Cook County and by Prenda Law in the Illinois Circuit Court for St. Clair county. All three complaints allege that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the the Southern District of Florida, the Southern District of Illinois, and the Northern District of Illinois, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action. The two Illinois actions are still pending. Further updates on those cases can be found at Prenda Law v. Godfread and Duffy v. Godfread.

Content Type: 

Jurisdiction: 

Subject Area: 

Prenda Law v. Godfread

Threat Type: 

Lawsuit

Date: 

02/12/2013

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, DieTrollDie.com, FightCopyrightTrolls.com, and John Does

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
State

Court Name: 

Illinois Circuit Court, St. Clair County; United States District Court for the Southern District of Illinois; United States District Court for the Northern District of Illinois

Case Number: 

No. 13-L-75 (St. Clair County Ill.); No. 3:13-cv-207 (S.D. Ill.); 2-13-mc-30 (miscellaneous related action in United States District Court for the District of Arizona); 1:13-cv-04341 (N.D. Ill)

Legal Counsel: 

Erin Kathryn Russell, The Russell Firm (for defendants Godfread and Cooper); Jason E. Sweet, Booth Sweet LLP (for defendants Godfread and Cooper); Charles Lee Mudd Jr. (for defendants DieTrollDie.com and FightCopyrightTrolls.com); Kurt Opshal, Mitche

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

This action is closely linked to two other threats in the database: Steele v. Godfread and Duffy v. Godfread.

Plaintiff Prenda Law is a law firm that has brought numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to Prenda Law, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by Prenda Law has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 12, 2013 Prenda Law Firm, Inc. sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Illinois Circuit Court for St. Clair County. Nearly identical complaints were filed by Prenda Law attorney Paul Duffy in the Illinois Circuit Court for Cook County and by John Steele in Florida Circuit Court for the Eleventh Judicial Circuit. All three complaints allege that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the Southern District of Illinois, Northern District of Illinois, and the Southern District of Florida, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action. The two Illinois actions are still pending.

Update:

On March 7, 2013, the website dietrolldie.com reported that a subpoena had been issued on February 25, 2013 by the plaintiff to Automattic, Inc., the owner of Wordpress.com, seeking all IP addresses that accessed that website and fightcopyrighttrolls.com. Both websites extensively criticize Prenda Law and its litigation methods, and appear to be the host of many of the comments alleged to be defamatory in Prenda Law's complaint. The subpoena seeks the IP addresses of all machines that accessed the two websites from January 1, 2011 through present. The subpoena had a return date of March 4, 2013.

On March 21, 2013, Godfread and Cooper filed an answer and counterclaims. In the pleading the defendants claimed a series of affirmative defenses, including truth, litigation privilege, a bar on the claim based on Minnesota's anti-SLAPP statute, and the doctrine of unclean hands, based on Prenda Law's use of defendant Cooper's name in litigation. The defendants also asserted counterclaims, seeking a declaratory judgment of immunity from suit based on Minnesota's anti-SLAPP law, noting the threats of suit made both in communications to the defendants and in the two other defamation filings. The pleading also asserts claims of civil conspiracy and breach of privacy, and seeks to pierce the corporate veil of AF Holdings LLC, Ingenuity 13 LLC, and plaintiff Prenda Law.

On March 26, 2013, defendants filed a motion to dismiss or transfer venue to the United States District Court for the Northern District of Illinois, noting in their accompanying motion that no activity of the defendants occurred in the Southern District and the plaintiff is located in Chicago, in the Northern District.

On April 10, 2013,  plaintiff Prenda Law, Inc, now joined by a second plaintiff, Alpha Law Firm LLC, filed a motion to remand the case back to state court for lack of subject matter jurisdiction. The inclusion of Alpha Law Firm is apparently justified through an amended complaint that was filed in state court shortly before the remand, but for which the state docket includes no mention of a grant of leave to file an amended complaint pursuant to 735 ILCS 5/2-616. The motion argues a lack of diversity between the parties, due to Alpha Law being a Minnesota entity.

On April 11, 2013, Prenda Law filed a motion to strike the affirmative defenses and dismiss the counterclaims. The motion alleges that the counterclaims largely surround non-party John Steele. The motion also alleges that the affirmative defenses lack any factual allegations.

On April 16, 2013, Charles Lee Mudd Jr. appeared as an attorney for two of the yet-unidentified John Doe defendants, the websites DieTrollDie.com and FightCopyrightTrolls.com. Also on April 16th, Godfread and Cooper filed a motion to dismiss pursuant to Minnesota's anti-SLAPP act. The motion argues that under Illinois conflict-of-laws analysis the Minnesota anti-SLAPP is appropriately applied against the Illinois defamation claim, as Minnesota's interest in the anti-SLAPP is to protect Minnesota speakers.

On April 17, 2013,  attorneys for DieTrollDie.com filed a motion to quash in a miscellaneous case filed in the United States District Court for the District of Arizona. The motion to quash concerns a second subpoena issued on Feburary 27, 2013, to non-party WildWest Domains. The subpoena sought the contact information for the owner of DieTrollDie.com. The motion argues that the improper court issued the subpoena under Illinois law, and that the comments are protected anonymous speech and the identities of the commenters should be protected from disclosure under the Dendrite/Cahill lines of cases, as the District of Arizona had done previously in Best Western Int'l v. Doe. (A proposed memorandum in support of the motion was denied as redundant of the motion itself, while the original oversized motion was allowed.) On April 18, 2013, and again on May 7, 2013, the court ordered plaintiff Prenda Law to file a corporate disclosure statement. The docket reflects no record of response by Prenda Law. On  May 15, 2013, DieTrollDie.com filed a notice of non-opposition to the motion to quash, noting that Prenda Law had not served an answering memorandum. On May 16, the court issued an order quashing the subpoena.

On May 10, 2013, Cooper and Godfread filed an opposition to Prenda Law's motion to dismiss the counterclaim and motion to strike the affirmative defenses. Defendants argue that plaintiffs are precluded from further litigating the merits of the defendant's counterclaims following a widely-reported case in the United States District Court for the Central District of California, where a judge made a judicial finding that AF Holdings and Ingenuity 13 were created "for the sole purpose of litigating copyright-infringement lawsuits," and that Prenda Law's principals "stole the identity of Alan Cooper," and "fraudulently signed the copyright assignment . . . using Alan Cooper's signature." The court in that case sanctioned Prenda Law and its principals following their invocation of the Fifth Amendment to questions concerning their business practices. The defendants further argued that the counterclaims satisfy the pleading standard under Bell Atlantic v. Twombly by giving the plaintiff fair notice of the claims against it, and that striking the affirmative defenses under FRCP 12(f) is inappropriate as the pleading standards of Twombly have not been applied to affirmative defenses.

Also on May 10, 2013, defendants Cooper and Godfread filed a motion opposing plaintiff's motion to remand the case back to state court. The motion argues that plaintiff made a material misrepresentation in its motion to remand by claiming the original complaint was amended to add Minnesota plaintiff Alpha Law Firm, thus breaking the court's diversity jurisdiction. The defendants argue that the amended complaint was invalid because it was filed in violation of Illinois rules, which require leave of the court to amend a complaint after service of the complaint on defendants. In support of this, the defendants attach an affidavit of the St. Clair County Clerk that accepted the amended complaint, noting that the attorney for Prenda Law filing the amended complaint claimed that the defendants had not been served with the original complaint, and that was the reason the court accepted the complaint with motion for leave. The defendants claim that this was a knowing misrepresentation, as service had been made in fact and that a principal of Prenda Law called Godfread shortly after service, but before the amended complaint was filed. Defendants further argue that the motion to remand was filed too late, under 28 U.S.C. § 1447.

On May 20, 2013, plaintiff Prenda Law filed a motion in opposition of the motion to dismiss under Minnesota's anti-SLAPP statute. Plaintiff argues that the Minnesota statute does not apply to the action because there is no evidence that the statements were made in Minnesota. Prenda Law also argues that Illinois choice-of-law provisions should prevent application of the Minnesota statute, that application of the anti-SLAPP statute fails on the merits, and that federal courts should not be applying this statute, as it is largely procedural under the Erie doctrine. The defendants replied to this motion on May 28th.

On June 6, 2013, the court granted the defendants' March 26th motion to transfer venue and denied the motion to remand to state court, transferring the case to the United States District Court for the Northern District of Illinois. The court found that the motion to dismiss for improper venue under rule 12(b)(3) of the Federal Rules of Civil Procedure was waived due to prior responsive pleading, but treated Prenda's failure to respond to the motion for transfer of venue as admission that a different venue was proper. The court also noted the "virtually identical" action Duffy v. Godfread, already in the Northern District. 

In Duffy v. Godfread, the defendants filed a motion to reassign and consolidate these two cases pursuant to the Northern District of Illinois's Local Rule 40.4, which allows for reassignment of a case to a Judge dealing with a case concerning the same transaction or occurrence. In a minute order on June 28, 2013, the court noted that the plaintiff did not object to the motion to consolidate, and the court consolidated the two actions accordingly.

On August 12, 2013, Prenda Law filed a renewed motion to remand, again alleging that Alpha Law Firm was properly joined in the case, and thus broke diversity.

Content Type: 

Jurisdiction: 

Subject Area: 

DMLP UPDATE: The DMLP Asks the Sixth Circuit to Safeguard Crowdsourced Research and Data-based Journalism

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

Jurisdiction: 

Subject Area: 

Content Type: 

Iowa Retains Media/Non-Media Distinction, Leaving Bloggers Vulnerable

I've already written several posts about the overblown predictions that a ruling involving an Oregon blogger (now on appeal) would have dire consequences for bloggers in that state.

Jurisdiction: 

Subject Area: 

Haywood v. St. Michael’s College

Date: 

07/24/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

St. Michael's College, Christopher Hardy, Logan Spillane

Type of Party: 

Individual

Type of Party: 

Individual
School

Court Type: 

Federal

Court Name: 

United States District Court for the District of Vermont

Case Number: 

2:12-cv-00164

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Jeffrey J. Nolan and W. Scott Fewell (Dinse, Knapp & McAndrew) (for Saint Michael’s College), William B. Towle (Ward & Babb) (for defendants Spillane and Hardy)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In January 2012, a professor at St. Michael's College posted a profile of John D. Haywood, a candidate for President of the United States in the New Hampshire Democratic primary, to a college-owned website. His students, Logan R. Spillane and Christopher Hardy, had written the profile of Haywood to fulfill a requirement for a journalism class. In preparing to write the article, the students had spoken to Haywood on the phone, interviewed several of his associates in his home state of North Carolina, and read his campaign website.

On July 24, 2012, Haywood filed a pro se lawsuit for libel against St. Michael's College, Spillane, and Hardy, alleging that the profile of his candidacy contained false statements about his policy positions, and that this profile injured his reputation and reduced his chances of winning the election. He identified sixteen allegedly false statements, including that Haywood had offered "a solution to global warming which is to spray particles into the atmosphere as a way to reflect the sun's heat back into space, which, in his opinion, would cool the earth." Haywood denied that he ever claimed to have the solution to global warming. Instead, he identified particle insertion as "one of the most promising areas for research" into how to cool the planet.

Haywood also claimed that the students' efforts to contact his associates in North Carolina for comment were evidence of malice, because Haywood was trying to keep his candidacy a secret from his associates. The students' actions harmed him, he asserted, because they informed his friends and family, many of whom are Republicans, that he was running for president in a Democratic primary.

Haywood sought $120,202.15 to fully reimburse his advertising costs, an additional $1,000,000 in damages for the reputational injury he suffered in his community, and $50,000,000 in punitive damages.

The students and the college filed special motions to strike under Vermont's state anti-SLAPP statute, 12 V.S.A. § 1041. Both the students and the college argued that the lawsuit fell within the statute's scope, as "a suit arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech." 12 V.S.A. § 1041(a). The students' brief argued that that the fact that Haywood was running as a Democrat in New Hampshire is both undisputed and public, and therefore should not form the basis of a libel claim, and that the other claims of falsity were "quibbles and nitpicks." Both briefs argued that the suit was an improper attempt by the plaintiff to prevent the description of his policy stances in a manner he did not approve and asked the court to dismiss the libel claims and award costs and reasonable attorney's fees for all work associated with litigating the claims.

Haywood filed a response opposing the special motions to strike, arguing that it was the defendants who had had violated his First Amendment rights. Specifically, he claimed that the defendants infringed his right to expression by publishing a profile which may have led to "untold multitudes" not to read his webpage. Haywood further stated that the defendants had "no right to appeal an interlocutory order dismissing the motion under 12 V.S.A. section 1041 (g) as the federal courts of appeal are governed by the Interlocutory Appeals Act."

The college replied to Haywood's response, noting that the motion to strike "is not an appeal and § 1041(g) is not relevant at this time." However, the college argued that, "to the extent Plaintiff is arguing that 12 V.S.A. § 1041 is a state statute that incorporates aspects of state procedure, the District Court for the District of Vermont has already ruled that this is no bar to bringing an anti-SLAPP motion to strike in federal court," citing to Bible & Gospel Trust. 1:07-CV-17, 2008 WL 5245644 (D. Vt. Dec. 12, 2008).

On Sept. 26, 2012, St. Michael's college filed a motion to dismiss. The motion argued for the application of North Carolina defamation law, because the alleged defamation constituted an "aggregate communication," as it was published online, and Haywood was domiciled in North Carolina at the time of publication. The college further argued that, as a matter of law, the profile was not libel per se under North Carolina law, because all of the disputed statements, when considered on their face, and without reference to the context surrounding the publication, were simple descriptions of policy positions which did not subject Haywood to ridicule or disgrace.

The college also argued that, even if Vermont or New Hampshire law applied, the defendants' statements would not be defamatory, because they would not tend to lower the plaintiff in the esteem of a respectable group of people.

Finally, the college argued that Haywood is a public figure and therefore must show that the defendants acted with actual malice, knowing the statement was false or acting with reckless disregard for the truth. Haywood could not show actual malice, it argued, because the complaint contained nothing more than "naked assertions " that did not constitute even a "bare factual showing that the Defendant purposefully acted without concern for the truth."

The students also filed a motion to dismiss, which the college joined. The students' motion noted that the only evidence of actual malice cited in Haywood's brief was an allegation that the students interviewed his associates in North Carolina "for one purpose only: pressuring the Plaintiff from continuing his campaign." The students argued that these interviews were not evidence of malice, but were part of standard journalistic practice. The students also argued that the complaint did not allege injury for which damages could be awarded, arguing that "[i]t is not a reasonable inference nor reasonably foreseeable nor a proximate cause that a St. Mike's freshman journalism class assignment actually derailed a fringe candidate's campaign to unseat an incumbent President."

Following Haywood's filing of an amended complaint, which further addressed the embarrassment allegedly caused by the statements at issue, both the students and the college renewed their motions to dismiss and their motions to strike.

Haywood responded to the renewed motions, reiterating his prior arguments and alleging that the special motions to strike were frivolous and intended to delay and that costs should be awarded if he was required to travel to a hearing on the Motion to Strike.

On December 14, 2012, after supplemental briefing on the anti-SLAPP provision, the court issued an opinion and order granting the defendants' renewed motions to dismiss the amended complaint for failure to state a claim and defendants' special motions to strike under Vermont's anti-SLAPP statute. The Court awarded the defendants costs and reasonable attorney's fees.

In evaluating the 12(b)(6) motions to dismiss, the court ruled that Vermont law indicated that the law of the state where the plaintiff was domiciled controlled. However, it noted that special damages can occur in more than one jurisdiction. It therefore ruled that Haywood could seek damages for the loss of the election under New Hampshire law, and for his reputational injury under North Carolina law. However, the court determined that Haywood's claim must be dismissed under either North Carolina or New Hampshire law.

The court held that Haywood failed to state a libel claim because: (1) his claim did not satisfy the elements of libel under North Carolina law; (2) his claim did not establish the state of mind or injury elements of a libel claim under New Hampshire law; and (3) his claim did not establish that the profile was written or published with actual malice.

The court held that the profile was not libel under North Carolina law because it did not impugn the plaintiff's character, finding that the policy positions described in the profile were, in many cases, "simply a hair's breadth away from Plaintiff's true position," and not "so outlandish" that they would expose him to public hatred, contempt, or ridicule. The court also found that Haywood had not identified any contextual elements that would alter a reader's understanding of the profile and provided "no factual underpinnings to his conclusory allegation that the student Defendants intended to defame Plaintiff." Rather, the court found that the "students had a contrary motive, as they submitted the Profile in fulfillment of an assignment in journalism, a profession that relies on factually accurate reporting. They had nothing to gain, and a grade to lose, by writing falsehoods." Finally, the court concluded that "[d]amages are particularly "speculative and uncertain" in this case, given that Plaintiff lost the election by a significant vote ratio (more than 116 to 1)." Aycock v. Padgett, 516 S.E.2d 907, 910 (N.C. Ct. App. 1999) ("[t]he notion that the loss of an election constitutes special damages for which a court may grant relief is far too speculative and uncertain to entertain.").

The court also held that the profile was not libel under New Hampshire law, because New Hampshire law requires the plaintiff to demonstrate an injury to his reputation, and the only reputational injury Haywood alleged was that his friends and family discovered that he was running as a Democrat.

The court also found that Haywood failed to satisfy his burden to prove the students' state of mind. A New Hampshire plaintiff can only recover compensatory damages if he shows the defendants were negligent, and Haywood did not allege negligence. The court likewise found that Haywood could not meet the heightened standard for defamation that applies to public figures under the First Amendment. The court noted that, as a person running for the highest public office in the country, Haywood was a public figure for purposes of defamation law and needed to establish by clear and convincing evidence that a defamatory falsehood was made with actual malice. His allegations that the students contacted his associates to pressure him into ceasing his campaign did not rise above a speculative level, as there was "no immediately apparent reason why the student Defendants would have such a motivation." The court concluded that Haywood was conflating the actual malice standard with malice in the colloquial sense and overlooking the fact that the reckless disregard standard is subjective and requires an assessment of the defendant's actual state of mind.

The court then turned to the motions to strike under Vermont's anti-SLAPP law. The court noted that some federal courts have decided that state anti-SLAPP provisions conflict with the Federal Rules of Civil Procedure and have therefore declined to apply them in federal court. However, the District Court followed the District of Vermont's earlier holding in Bible & Gospel Trust that there is no direct conflict between the Vermont anti-SLAPP statute and the Federal Rules, and that "the state interest outweighs any federal interest."

In evaluating the merits of the anti-SLAPP motions, the court looked primarily to California precedent interpreting an analogous anti-SLAPP provision, because the Vermont Supreme Court had not interpreted the Vermont anti-SLAPP statute.

The court concluded that the defendants met their threshold burden of proving that their conduct is protected by the anti-SLAPP statute because (1) the profile was published in a public forum, and (2) the publication was in furtherance of the students' right to free speech and involved speech concerning a public issue. Citing CA law, the court found that "[a]n Internet website that is accessible to the general public ...is a public forum." Cole v. Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1121 (Cal. App. 2d 2012).

The court also found that "it is clear that the writing of the profile was an exercise of the students' freedom of speech." It noted that California courts have identified three categories of speech concerning a public issue: (1) the subject of the statement precipitating the claim was a person or entity in the public eye; (2) the statement precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest." Wilbanks, 121 Cal. App. 4th at 898.22. The students' speech concerned a public issue under all three definitions: (1) as a candidate for President, Haywood was in the public eye; (2) Haywood's candidacy had the potential to affect large numbers of people; and (3) the election (and each issue addressed in the profile) was a topic of widespread public interest.

Finding the Plaintiff's burden satisfied, the court then considered whether the plaintiff could prove that: (1) the defendant's exercise of his or her right to freedom of speech was devoid of any reasonable factual support and any arguable basis in law; and (2) the defendant's acts caused actual injury to the plaintiff. The court found that Haywood failed to make that showing.

The statements in the profile had reasonable factual support, according to the court, because they were quite similar to the statements on Haywood's campaign website. The court further found that defendants' speech had a "decidedly firm basis in law" because, as it ruled in granting the defendants' motions to dismiss, Haywood's claim was not legally sufficient. Finally, court found that the actual injury Haywood alleged was "highly speculative, considering that he lost the primary by an overwhelming margin; the Profile was published only on the St. Michael's College website; and Plaintiff's alleged reputational injury derived primarily from a true statement contained in the Profile."

Finally, the court held that the defendants were entitled to the entirety of their attorney's fees and costs, not just those relating to the litigation of the anti-SLAPP motions. The court's analysis of Vermont law governing other fee shifting provisions led him to conclude that the Vermont courts would interpret the fee-shifting clause broadly. The court held that the legal work on the various motions was "inextricably linked," and "severance of the work ... is untenable." Finally, the court held that this interpretation of the fee shifting provision advanced "the policy of the anti-SLAPP statute, as it guarantees that costly litigation will not chill protected expression."

Haywood filed a notice of appeal pro se on Jan. 2, 2013.

Content Type: 

Jurisdiction: 

Subject Area: 

Saltsman v. Goddard

Date: 

10/25/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Alexandria Goddard aka "Prinnie" and anonymous Doe defendants

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

The Court of Common Pleas, Jefferson County, Ohio

Case Number: 

12-CV-00544

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Thomas G. Haren, Jeffrey M. Nye, Marc J. Randazza (Goddard), Scott T. Greenwood (Anonymous commenters), Francesca T. Carinci (Marian Waguespack)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In August 2012, two football players from Steubenville High School were arrested and charged with the rape of a 16-year-old girl. Classmates circulated Twitter posts, videos, and photographs indicating that the players may have carried the girl, unconscious, from party to party and sexually assaulted her while others watched. A police investigation uncovered pictures of the girl, naked and apparently unconscious, from partygoers' phones.

Cody Saltsman, a football player who was not indicted, tweeted a picture of the girl looking unresponsive as two boys carry her by her wrists and ankles. He also tweeted comments about the girl, including the phrases "whore status," "sloppy," and "I have no sympathy for whores."

Alexandria Goddard, a blogger who writes under the pseudonym "Prinnie" at prinniefied.com, wrote a series of blog posts on the case. She posted screen shots of related Twitter posts and photos. She also suggested that a number of unindicted individuals had participated in the rape, including Cody Saltsman. In response to a comment on her blog reading "students by day ... gang rape participants by night," Goddard wrote, "Cody Saltsman [is] playing tonight. Reno, SHAME ON YOU." She also wrote that his fellow football players should "roll on their pal Cody Manson" and "[p]erhaps when scumbag is finally arrested I will post a picture of him for his mother that says ‘How do you like your scumbag son now?' ... Tell Cody not to feel too bad, he is not the lone asshole in all this."

A number of commenters on the blog also posted about Saltsman, including statements that he was there when the rape was occurring, that he was the "mastermind" behind the crime, that he had previously stated he would "ruin that bitch," and that he had sent the victim's father the picture of her being carried by her wrists and ankles with text reading "look at your whore daughter now." Other commenters made comments including: "[g]et CS and his posy [sic] off the field and problem solved"; "Cody needs to suffr some consequences too!"; and, in response to the question "[w]hat is [the Saltsman's] business because I never want to spend money there," the statement "CS father owns Fort Steuben Plumbing/Maintenance."

On October 25, 2012, Saltsman and his parents, James and Johna Saltsman, filed a complaint against Goddard, fifteen anonymous commenters identified by screen names and Internet Protocol (IP) addresses (including those who made the above statements), and ten additional John Doe defendants. Saltsman sued for defamation and intentional infliction of emotional distress, and sought injunctive relief, compensatory damages in excess of $25,000, and punitive damages. The complaint was amended on November 19, 2012 to add claims for false light and spoliation of evidence.

Saltsman's attorneys obtained the IP addresses for each anonymous commenter from HostGator, the Internet Service Provider (ISP) for the "prinnified" blog, which apparently turned over the IP addresses without providing notice to the commenters or to Goddard. On November 16, the plaintiffs moved for authorization to conduct discovery from each anonymous commenter's ISP in order to obtain the commenters' identities.

Goddard's counsel objected to Plaintiffs' motion for authorization to conduct discovery to obtain the identities of the anonymous defendants, asserting that the First Amendment right to speak anonymously barred such discovery.

In a supplemental memo supporting the motion for authority to conduct discovery, Saltsman disputed that the First Amendment protected the identities of the authors, urged the court to act quickly in order to prevent the ISPs from deleting relevant information, and argued that Goddard had no standing to object on behalf of the Does.

Acknowledging that there were no published Ohio decisions on point, Saltsman directed the court to the often-followed test laid out in Dendrite Int'l Inc. v. Doe No. 3. 775 A.2d 756 (N.J. Super. A.D. 2001). Under Dendrite, courts allow plaintiffs to conduct discovery on anonymous online posters' identities when plaintiffs (1) attempt to notify defendants that their identities are being sought and explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show that, on balance and in context, the plaintiff's right to identify the speaker in order to redress alleged wrongs outweighs the First Amendment right to anonymous speech. Saltsman asserted that he met all of these elements, particularly focusing on the fifth element, the balancing of rights. Because the First Amendment does not protect false assertions of fact, he argued, the defendants had no right to anonymous speech in this context.

Goddard filed a Memorandum in Opposition to the motion on November 21, and a supplemental Memorandum in Opposition on November 26. Plaintiffs' responded with a second supplemental memorandum in support of their motion on November 28.

The Court filed an order on November 29, granting the plaintiffs' motion. The court authorized the relevant ISPs to release personally identifiable information associated with the IP addresses identified in the complaint. The court required that notice of the discovery be given to the anonymous commenters and that the commenters be given fourteen days after the notice to file motions to quash.

On December 14, the American Civil Liberties Union of Ohio stated in a press release that they had offered to represent a number of the "John Doe" defendants. ACLU Volunteer Attorney Scott Greenwood stated, "[w]e believe the real goal of this lawsuit is to discover the identity of anonymous online commenters so that they, and future commenters will be intimidated and discouraged from voicing their opinions. This is just an updated form of a classic Strategic Lawsuit Against Public Participation (SLAPP) which is typically used to silence speech that is protected under the First Amendment."

Plaintiffs reached a settlement with Goddard and the anonymous commenters and voluntarily dismissed the case with prejudice on December 27, 2012. With one exception (defendant Waguespack), the identities of the commenters were not disclosed. No money was exchanged, and Goddard did not retract any statements or agree to stop covering the case. Goddard did write on her blog that she "never had any evidence of [Cody Saltsman's] direct involvement" in the events of the night and agreed to give him space on her blog to present his side of the story.

The "prinnified" blog also ran the following statement from Cody Saltsman: "I deeply regret my actions on the night of August 11, 2012. While I wasn't at the home where the alleged assault took place, there is no doubt that I was wrong to post that picture from an earlier party and tweet those awful comments. ... At no time did my family mean to stop anyone from expressing themselves online - we only wanted to correct what we believed were misstatements that appeared on Ms. Goddard's blog. "

Jurisdiction: 

Subject Area: 

Content Type: 

Dietz Development LLC v. Perez

Date: 

10/31/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jane Perez

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Fairfax County Circuit Court, Virginia

Case Number: 

2012-16249

Legal Counsel: 

James T. Bacon, Allred, Bacon, Halfhill & Young P.C.; Rebecca Glenberg, ACLU of Virginia; Paul Alan Levy, Public Citizen Litigation Group

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Dietz Development is a construction contractor based in Washington, DC. According to the complaint, Jane Perez, a high school classmate of Dietz Development owner Christopher Dietz, hired Dietz Development to do work on Perez's home. Disagreements arose over the nature of the work, which resulted in a lawsuit over unpaid invoices in July 2011. The lawsuit was dismissed after Dietz failed to timely file a bill of particulars (a more specified factual statement following a complaint) under Virginia court rules.

According to the complaint, on January 31, 2012, Perez posted a critical review of Dietz Development on Angie's List, including the following statements:

  •  "Dietz Development LLC was to perform: painting, refinish floors, electrical, plumbing and handyman work. I was instead left with damage to my home and work that had to be reaccomplished for thousands more than originally estimated."
  • "My home was damaged; the 'work' had to be re-accomplished;"
  • "I won on summary judgment (meaning that the case had no merit)."
  • "he invoiced me for work not even performed and also sued me for work not even performed"
  • "This is after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key."

Perez also posted substantially similar material on Yelp.com on February 6, 2012. On May 11, 2012, Perez filed similar statements with the Virginia Department of Professional and Occupational Regulation (DPOR).

On August 13, 2012, Perez posted further statements on Yelp.com regarding Dietz Development, including that the company "is not legitimate in lacking BBB Accreditation." On August 27, 2012, Perez posted again on Yelp.com, stating that Dietz had received sanctions from the DPOR and that "the Consumer Protection Agency and the Office of the Attorney General are also good sources who stated that Dietz has been sued by another client for 'unfinished work'."

Dietz Development filed a complaint in the Fairfax County Circuit Court in Virginia on October 31, 2012, alleging defamation based on the statements above and seeking $750,000 in damages and an injunction removing the statements from these websites and preventing Perez from making similar statements in the future. Dietz denies all of the statements made above, and claims that (1) the invoices and lawsuit focused only on work that had been completed, (2) that he had returned the key immediately following termination of their relationship, (3) the Better Business Bureau has given Dietz Development an A+ ranking, (4) no sanctions were imposed by the DPOR, and (5) that Dietz has not been sued by other clients. 

Also on October 31, 2012, Dietz filed a motion for preliminary injucntion, arguing that an injunction should be issued here because the statements are defamatory per se, Dietz Development cannot "direct marketing at those who see" the material posted by Perez, and this information will cause the plaintiffs future monetary harm. Dietz conceded that "this would to a small extent reduce [Perez's] freedom of expression until there is a final hearing," but argued that Perez "has no financial interest in this speech, and she would not be prevented from pursuing any work opportunity or ongoing business concern." Dietz argued that an injunction favors the public interest because "[t]he public interest is met in the preservation of truthful communications and presentation of accurate information in making consumer choices."

Perez filed an answer on November 19, 2012. On December 4, 2012,  Perez filed an opposition to the preliminary injunction. The opposition claimed that the suit filed against Perez is a "SLAPP" suit, and argued that an injunction should not be issued because the reviews are currently not accessible to a usual web search (because Perez removed the Yelp review and the Angie's List review is only viewable behind a paywall), issuing an injunction would harm Perez's right to free speech, and the statements are either true or published without the requisite degree of fault. Perez also stated that she intended to introduce evidence showing that Dietz was investigated and sanctioned by the DPOR, and that lawsuits and Attorney General investigations had been filed in the District of Columbia against Dietz Development.

On December 5, 2012, the court issued a brief order granting the preliminary injunction in part. The court ordered:

(1.) The Defendant shall remove any post that refers to the "loss of jewelry;" and

(2.) The Defendant shall modify any post that refers to "...'Summary Judgment' (meaning that the case had no merit)" to "...'Summary Judgment' (meaning the case was dismissed with prejudice in my favor)"; and

(3.) For any future publication, the Defendants shall comply with paragraphs (1) and (2) above. 

Update:

On December 17, 2012, Perez filed a motion for reconsideration of the preliminary injunction, arguing that such an injunction constitutes a prior restraint.

On December 26, 2012, while the motion for reconsideration was pending, Perez filed a petition for review with the Supreme Court of Virginia under Virginia Code § 8.01-626. The petition argues that the injunction was an impermissible prior restraint, and violated principles of equity because injuries due to libel are considered to have an adequate remedy in monetary damages.

On December 28, 2012, the Supreme Court of Virginia issued a summary reversal of the injunction, finding both that the injunction failed to state the duration of the injunction under Virginia Code § 8.01-624, and that "the Preliminary Injunction was not justified and that the respondents have an adequate remedy at law."

Content Type: 

CMLP Notes: 

AFS did first draft 12/14/12 first update 12/17/12 and second update 1/2/13

Jurisdiction: 

Subject Area: 

The Thankless Task of the Political Fact-Checker

One overarching theme of the 2012 election season was a struggle with truth. Both campaigns were accused of serial falsehoods, and continuing to spread incorrect information after the truth was reported.

Jurisdiction: 

Subject Area: 

Directory Assistants, Inc. v. SuperMedia, LLC

Threat Type: 

Lawsuit

Date: 

08/26/2011

Party Receiving Legal Threat: 

SuperMedia, LLC, Alejandro Caro, Steven Sapaugh, Scott Duffy

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Virginia

Case Number: 

2:11-cv-480

Legal Counsel: 

Robert W. McFarland, Erin Q. Ashcroft (McGuireWoods LLP)

Publication Medium: 

Email
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On August 26, 2011, Directory Assistants, Inc., a Connecticut-based advertising consulting agency, filed a complaint in the U.S. District Court for the Eastern District of Virginia against advertising company SuperMedia, LLC, and three of its employees. The claims, which sound in defamation and tortious interference with business expectations, arose out of SuperMedia's alleged compilation and distribution of hyperlinks to material online that was defamatory of Directory Assistants.

The complaint alleges that defendant Caro compiled a list of links to material on various websites about Directory Assistants, including damaging statements on the websites Ripoff Report and Scam Informer, and then forwarded these links by e-mail to defendant Sapaugh. Sapaugh, in turn, was alleged to have forwarded the list internally at SuperMedia by-email along with the following comments:

Teams- we heard about these guys, they've been here before and all they do is hurt the client.
we do anything the client wants and we don't charge for it- we sell on value, not fear!
once the client signs with DA, DA collects for 2 or 3 years on the
savings.
don't let this happen, so review and be aware
Steve

Defendant Duffy was alleged to have received this list from Sapaugh and to have forwarded it to a potential customer of Directory Assistants; Directory Assistants also generally claimed that SuperMedia continued to forward these links to other potential customers.

The defendants moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. With respect to jurisdiction, SuperMedia argued in its memorandum in support of the motion that Directory Assistants was invoking the diversity jurisdiction of the federal courts, but had failed to plead sufficient facts to establish diversity because SuperMedia was a limited liability company. As such, SuperMedia claimed that Directory Assistants would need to allege the residency of each of its members rather than the location of SuperMedia.

Substantively, the defendants argued that Directory Assistants' claims were barred by 47 U.S.C. § 230, because as "users of an interactive computer service" (i.e., RipOff Report and Scam Informer) they could not be held liable for publishing links to information posted by other users of those websites.

Alternatively, the defendants argued with respect to the plaintiff's defamation claim that: (1) Caro's alleged e-mail to Sapaugh and Sapaugh's alleged distribution of Caro's list within SuperMedia would not constitute "publication" of defamatory material under Virginia law, because it was a privileged distribution within a corporate entity to those having a duty and interest in the subject matter; (2) the distribution of hyperlinks is neither a defamatory "statement" for defamation purposes nor the "publication" of such a statement; (3) the underlying statements on the linked websites were statements of opinion; and (4) the complaint failed to allege knowledge of falsity or negligence on the part of the defendants.

With respect to the tortious interference claim, the defendants argued that Directory Assistants had failed to plead: (1) that defendants interfered with a business expectancy through improper means, because of the insufficiency of the plaintiff's defamation claim; (2) that plaintiff had a valid business expectancy in its relationship with any particular potential customer; or (3) that defendants knew of such an expectancy, if one did exist.

Directory Assistants opposed the motion to dismiss, arguing first that it would be inappropriate to resolve the defendants' Section 230 defense on a motion to dismiss, because discovery might establish that the websites at issue were not "interactive computer services" or that Caro obtained the information he shared from some other third party. In either case, the plaintiff argued, Caro would not be a "user of an interactive computer service" entitled to the protection of Section 230. Directory Assistants also argued that its claims were not limited to material on the linked websites, and that there was evidence of other communications between SuperMedia and Directory Assistants' potential customers whose content Directory Assistants should be allowed to investigate through discovery.

With respect to the sufficiency of its defamation claim under Virginia law, Directory Assistants argued that another court (the U.S. Bankruptcy Court for the Southern District of Texas) had found publication of a defamatory statement through distribution of an e-mail with links to false material, and that (as discussed above) the defamation claim was not limited to the linked material. The plaintiff further argued that ruling on SuperMedia's assertion of a qualified privilege for intra-corporate distribution of material was premature, because the privilege is an affirmative defense under Virginia law and could be overcome by a showing of malice on the part of the distributor. Directory Assistants responded to the defendants' argument that the statements at issue were opinions by claiming that they gave rise to inferences of defamatory fact, and by asserting that it was likely that there had been other communications by SuperMedia to customers of which the plaintiff was not currently aware. Finally, Directory Assistants argued that the facts which it pleaded were sufficient to support an inference of actual malice or negligence.

On its interference claim, Directory Assistants argued that (1) its allegations of defamation sufficed as an allegation of interference by improper means, (2) it was sufficient to allege a "business expectation" that the individual contacted by defendant Duffy was identified as a "prospective customer," and (3) the knowledge requirement of the claim was satisfied by alleging that SuperMedia was aware that Directory Assistants did business in Virginia.

The defendants filed a reply brief, in which (among other issues) they argued that allowing Directory Assistants the opportunity to take discovery on the Section 230 issue would be inappropriate where the plaintiff's allegations were insufficient, and cited other courts that had granted motions to dismiss where a Section 230 defense was established on the face of the complaint. The defendants also distinguished the case authority cited by Directory Assistants for the principle that forwarding links could be actionable, on the basis that the earlier decision had not considered the effect of Section 230. Other cases citing Section 230, the defendants claimed, reached the opposite result.

The district court granted the defendants' motion to dismiss on May 30, 2012. Finding that Section 230 "protects users equally as it does providers," the court held that "a user of an interactive computer service who finds and forwards via e-mail that content posted online in an interactive computer service by others is immune from liability." The court further held that the websites to which the SuperMedia e-mails provided links were "interactive computer services," and that the defendants "were users in that they put RipOffReport and other websites into action or service, and availed themselves of and utilized these websites by compiling their posts by copying links to commentary posted on them."

As such, the court held that it "unfortunately" was required to dismiss Directory Assistants' claims, while noting that Section 230's protections are "clearly subject to tremendous abuse," and stating its "serious misgivings about [the Fourth] Circuit's broad interpretation of § 230 immunity." The court did not reach the parties' other arguments, finding that the plaintiff's failure to overcome Section 230 rendered the other issues moot.

Jurisdiction: 

Subject Area: 

Amici Line Up In Appeal of "Blogger Not a Journalist" Ruling

A federal judge's ruling that a blogger was not covered by Oregon's reporters' shield law is being appealed to the Ninth Circuit, and is getting some amicus support from media organizations. But the appeal -- and the amici -- are not addressing the main issue that led to an online uproar over the trial judge's initial decision.

Jurisdiction: 

Subject Area: 

Seaton v. TripAdvisor, LLC

Threat Type: 

Lawsuit

Date: 

10/11/2011

Party Receiving Legal Threat: 

TripAdvisor LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal
State

Court Name: 

Circuit Court for Sevier County, Tennessee (state); U.S. District Court for the Eastern District of Tennessee (federal)

Case Number: 

2011-0676-I (state); 3:11-cv-00549 (federal district court); 12-6122 (federal appellate court)

Legal Counsel: 

S. Russell Headrick, Meghan H. Morgan (Baker, Donelson, Bearman, Caldwell & Berkowitz); James Rosenfeld, Samuel Bayard (Davis, Wright, Tremaine LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

In January 2011, TripAdvisor, operator of the travel review website http://www.tripadvisor.com, published a list entitled "Dirtiest Hotels, as reported by travelers on TripAdvisor," which purported to be a list of the dirtiest hotels in the United States. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, topped the list. The feature included a user-provided picture of a ripped bedspread and a quote from a user report - "There was dirt at least ½" thick in the bathtub which was filled with lots of dark hair." It also noted that "87% of reviewers do not recommend this hotel."

In an accompanying press release, titled "TripAdvisor Lifts the Lid on America's Dirtiest Hotels: Top 10 U.S. Grime-Scenes Revealed, According to Traveler Cleanliness Ratings," TripAdvisor wrote, "true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels." The press release also contained the slogan "world's most trusted travel advice." The press release also stated, "If you are looking for a hotel with chewing tobacco spit oozing down the halls and corridors; spiders actively making webs in every corner of your room; carpeting so greasy and dirty you wouldn't want to sit your luggage down - let alone walk around barefoot ..... by all means stay at the Grand Resort."

The list and the accompanying press release stated that the list was based on traveler ratings for cleanliness posted on the site. According company policy, available on its website, while TripAdvisor "dedicate[s] significant time and resources" to detecting fraud, and screens reviews to ensure they meet posting guidelines, it does not verify or fact check reviews.

On Oct. 11, 2011, after TripAdvisor produced a list naming his hotel the dirtiest hotel in America, Kenneth M. Seaton sued the travel site for defamation and false light in Tennessee state court, asking for five million dollars in compensatory damages and five million dollars in punitive damages and demanding a jury trial.

In his complaint, the plaintiff alleged that TripAdvisor had defamed his business with "unsubstantiated rumors and grossly distorted ratings and misleading statements," and that TripAdvisor used a rating system that is "flawed and inconsistent" and "overstates the level of trust that can be placed in" TripAdvisor's review of the hotel.

TripAdvisor removed the case to the U.S. District Court for the Eastern District of Tennessee and filed a motion to dismiss for failure to state a claim on Jan. 6, 2012. Seaton filed a response to the motion on March 31, 2012. TripAdvisor filed a reply brief on May 14, 2012.

On August 22, 2012, the court granted the motion to dismiss. The court treated the plaintiff's complaint as raising claims for defamation and false light, but disposed of the claims together, focusing its discussion on the defamation claim. It did not address the parties' arguments under the Communications Decency Act.

According to the court, the central question the case presented was whether a reasonable person could understand the language in question as an assertion of fact or as a mere hyperbolic opinion or rhetorical exaggeration. It cited to Milkovich v. Lorain Journal Co. for the proposition that "expressions of ‘opinion' may often imply an assertion of objective fact," and therefore "can give rise to a defamation claim when they imply an assertion of fact or when the opinion is based upon erroneous information." 497 U.S. 1, 18 (1990).

However, the court ultimately concluded that TripAdvisor's "Dirtiest Hotels" list is "clearly unverifiable rhetorical hyperbole," and that a reasonable person "would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact."

According to the court, a reasonable person could not believe that TripAdvisor's list and press release reflected anything more than "the opinions of TripAdvisor's millions of online users, and the article was therefore not ... a statement of opinion that it intended readers to believe was based on facts."

Finally, the court noted that TripAdvisor's method of compiling the list based on unverified online user reviews "is a poor evaluative metric," but held that, "it is not a system sufficiently erroneous so as to be labeled ‘defamatory' under the legal meaning of the term."

On September 21, 2012, Seaton filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit.

Update:

On January 4, 2013, Seaton filed his brief before the Sixth Circuit. Seaton argued that the stated reliability and accuracy of TripAdvisor's list made the statements objectively verifiable, and thus capable of being found to be actionable defamation. Seaton further argued that TripAdvisor used a flawed methodology to reach its conclusion, and that Section 230 did not shield TripAdvisor against liability because the alleged defamation comes from statements made by TripAdvisor directly.

On February 20, 2013, TripAdvisor filed its appellee brief urging affirmance of the district court's opinion. TripAdvisor argued that a top-10 list is inherently subjective, as it necessarily includes editorial judgments, and therefore cannot be objectively verified. TripAdvisor further noted that its own list was based on sliding-scale rankings by its users, which also include inherently subjective considerations.

On February 27, 2013, the Digital Media Law Project (DMLP, the operator of this website) filed a brief as an amicus curiae. The DMLP argued that TripAdvisor's statements were protected under Tennessee law and the First Amendment as an opinion based on disclosed facts. The DMLP also argued that finding liability for TripAdvisor could jeopardize the many crowdsourced research efforts conducted in both journalism and academia.

Oral argument before the Sixth Circuit was held on July 30, 2013, and on August 28, 2013, the Court of Appeals issued a decision affirming the district court's dismissal of the case and its denial of leave to amend the complaint. The Sixth Circuit ruled that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."

Content Type: 

Jurisdiction: 

Subject Area: 

Defamation, Italian Style

Being a journalist in Italy may have occupational hazards, but having to go to prison in your own country because of an article you wrote should not be one of them. However, Italy, a founding Member of both the Council of Europe and the European Union, still punishes defamation through the medium of the press (diffamazione a mezzo stampa) by a prison term.

Jurisdiction: 

Subject Area: 

Content Type: 

Defamation Case Attacks Google Autocomplete Results

Google searches employ two features: autocomplete and Google instant. These work together to complete your search terms and to automatically load search results while you're typing.

Jurisdiction: 

Subject Area: 

Content Type: 

Garcia v. Nakoula

Date: 

09/18/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

Content Type: 

CMLP Notes: 

AFS created post and edits through 1/3/12

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Subject Area: 

Justice Delayed But Not Denied – Appellate Court Overturns $60K Verdict Against Blogger for Posting “Not False” Information

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." – Winston Churchill

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Other Falsity-Based Legal Claims

As discussed elsewhere in this guide, there are substantial privileges and defenses available to defendants in defamation actions. The First Amendment and related state law doctrines that protect speech often present insurmountable obstacles for defamation plaintiffs. In response, plaintiffs often attempt to evade rather than overcome these obstacles by relabeling their defamation claims as another form of legal claim.

Filler, et al. v. Walker, et al.

Threat Type: 

Lawsuit

Date: 

05/31/2011

Party Receiving Legal Threat: 

Susan Walker; Does 1-25

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California: County of Los Angeles, Central District

Case Number: 

BC462605

Verdict or Settlement Amount: 

$50,259.60

Legal Counsel: 

Niloo Savis

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Dr. Aaron Filler filed a complaint against former patient Susan Walker in Los Angeles Superior Court on May 31, 2011. In his complaint, Filler alleged defamation and interference with prospective economic advantage in response to Walker's review of Dr. Filler on a physician rating site. 

On August 24, 2011, Walker filed a motion to strike based on California Code of Civil Procedure §§ 425.16 and 45, California's anti-SLAPP statute. Walker's motion argues that Walker is shielded from liability as the "dissemination of consumer information about medical care is a vital ‘public issue' and the internet is a ‘public forum,' and that Dr. Filler is a public figure subject to the burden of proving actual malice. Filler filed an opposition to this motion on September 16, 2011, also requesting leave to amend the complaint to plead more specific factual allegations to establish actual malice. Walker replied to Filler's opposition on September 22, 2011.

After a hearing on April 19, 2011, Walker's motion to strike was granted. In the order filed on May 8, 2012, Judge Elizabeth White held that Filler's claims arose from Walker's act of free speech in connection with a public issue under CCP § 425.16 and that Filler did not establish a probability of prevailing on these claims. In accordance with this order, Judge White later ordered Filler to pay $50,259.65 to Walker for attorneys' fees and costs. 

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FunnyJunk, LLC vs. TheOatmeal.com

Date: 

06/02/2012

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

TheOatmeal.com, Matthew Inman

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Legal Counsel: 

Venkat Balasubramani

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On June 2, 2012, attorney Charles Carreon sent a letter on behalf of FunnyJunk, LLC ("FunnyJunk") to Matthew Inman, creator of TheOatmeal.com, which threatened legal action on the basis of a May 2011 blog post by Inman titled "What should I do about FunnyJunk.com?".

In the post, Inman stated that he had discovered a number of his comics displayed without permission or attribution on FunnyJunk, and that he contacted FunnyJunk by email in an attempt to have them removed from the site. He claimed that FunnyJunk took down the images that were identified in the email, but that FunnyJunk had since "practically stolen [his] entire website and mirrored it on FunnyJunk." The post included screen shots of Inman's comics on FunnyJunk.com, and links to FunnyJunk image boards containing his work (as well as that of other artists that Inman alleged had been republished without permission).  

A few days later, Inman posted an update that indicated FunnyJunk had removed some, but not all, of the content at issue.

The June 2 letter from FunnyJunk included a copy of Inman's original post, and alleged that statements made therein constituted a false accusation of willful copyright infringement. Thus, it stated, Inman "exposed [himself] to a lawsuit for defamation per se, in which damages are presumed." The letter also alleged that Inman had engaged in false advertising in violation of the Lanham Act. It concluded by demanding the immediate removal of all mentions of FunnyJunk from TheOatmeal.com and the payment of $20,000.

On June 11, 2012, Inman formally responded to the June 2 letter through his attorney, Venkat Balasubramani. The response letter denied FunnyJunk's claims that the original post was defamatory and constituted a violation of the Lanham Act. The response letter pointed out that FunnyJunk did not appear to have filed a notice of designation naming an agent as required of service providers who seek to rely on the Digital Milennium Copyright Act, placing FunnyJunk in a position where it might be held responsible for third-party infringements. 

On June 12, 2012, Inman issued an informal response to the letter in a post entitled "FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages," published on TheOatmeal.com. Inman included an annotated copy of the June 2 letter, and proposed that he would raise $20,000 in donations and donate the money to two charitable organizations: the National Wildlife Federation, and the American Cancer Society. A link was provided to the fundraising website Indiegogo.com. 

On June 15, 2012, Carreon filed a lawsuit in his own name against Inman, Indiegogo, Inc., the American Cancer Society, the National Wildlife Federation and 100 anonymous Internet users for their role in the fundraising effort. As of July 20, 2012, no further action appears to have been taken by FunnyJunk. 

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