Defamation

Ingraham v. Gray

Date: 

08/18/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Madeline B. Gray d/b/a NickerNews.net

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Maine Superior Court

Case Number: 

BELSC-CV-10-41

Legal Counsel: 

Preti, Flaherty, Beliveau & Pachios LLP

Publication Medium: 

Blog

Relevant Documents: 

Description: 

In August 2010, married couple Alexis and Brett Ingraham sued blogger Madeline Gray for defamation based on statements posted on Gray's website (NickerNews.net) and distributed via flyers. The Ingrahams' alleged that in a series of blog posts in 2010, Gray accused them of neglecting and abusing the horses at their farm, and that these statements were false and harmful to the Ingrahams' reputations, social standing, and profession.

Gray moved to dismiss the complaint on the grounds that the Ingrahams were being prosecuted by the Kennebec (Maine) County District Attorney for animal cruelty, attaching the State's complaints listing seven counts of animal cruelty. Gray argued that in light of the State's case, the Ingrahams had failed to assert sufficient facts to support their claim. The court rejected Gray's argument, asserting that the pending criminal action was not sufficient to "defeat the adequacy of [the Ingrahams'] allegations."

The Bangor Daily News reported in June 2011 that the Ingrahams had been convicted of six misdemeanor counts of animal cruelty. Subsequently, Gray moved for summary judgment in the defamation case based on a theory of collateral estoppel. According to Gray's Motion for Summary Judgment, "a criminal conviction conclusively establishes all facts essential to the conviction and is preclusive in favor of a third party in a subsequent civil action." The Ingrahams opposed the motion, arguing that the statements at issue in the case were broader than the issues in the criminal action, and that the nature of their guilty pleas in the criminal action was such that they were not precluded from arguing that the underlying factual allegations in that action were false.

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Jurisdiction: 

Pan Am Systems v. Hardenberg

Date: 

09/06/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chalmers Hardenberg, C.M. Hardenberg, P.A., Atlantic Northeast Rails & Ports

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Maine

Case Number: 

2:11-cv-00339-NT

Legal Counsel: 

Preti Flaherty Beliveau & Pachios, LLP

Publication Medium: 

Print
Other

Relevant Documents: 

Description: 

In September 2011, Pan Am Systems, Inc. (a railway transportation company), its subsidiary Springfield Terminal Railway Co., and its former President and CEO David Fink sued Atlantic Northeast Rails & Ports (ANRP) for defamation and false light. The complaint also named Chalmers Hardenberg as owner, editor, and publisher of ANRP and C.M. Hardenberg, P.A., as an owner and principal of ANRP. The complaint alleged that the defendants distributed false and defamatory information about the plaintiffs through newsletters and e-bulletins. Among the information cited in the complaint were discussions of Pan Am's service and reliability, a Springfield Terminal derailment, and David Fink's removal from Pan Am.

Defendants subsequently filed a motion to dismiss for failure to state a claim, arguing, among other things, that as to the defamation claim: (1) the statements were true; (2) all of the plaintiffs were public figures, and there were insufficient allegations to support a claim of actual malice; (3) there were insufficient allegations of negligence; (4) some of the challenged statements were non-actionable opinion; and (5) some of the statements were protected by the fair report privilege. With respect to the false light claim, defendants argued that the statements were not "highly offensive," as required for such a claim, that corporations are not entitled to bring false light claims in Maine, and that the complaint did not adequately plead fault.

Plaintiffs opposed the motion to dismiss claiming, among other things, that: they had pleaded the existence of false statements of fact; it was inappropriate to resolve conditional privileges on a motion to dismiss; the existence of actual malice was a factual matter to be resolved after discovery; the plaintiffs were, in any event, private figures; and the defendants' statements did not involve matters of public concern, such that a claim for presumed damages could proceed without a showing of actual malice. Plaintiffs also argued that the individual plaintiff, Fink, had adequately pleaded a false light claim.

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Why Blogs Can't Be Trusted, or: 'Statements Made Here Are Not Likely Provable Assertions of Fact'

The refrain that bloggers can't be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn't be too quick to celebrate.

Jurisdiction: 

Subject Area: 

Content Type: 

Obsidian Finance Group v. Cox

Date: 

01/14/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Crystal Cox

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Oregon

Case Number: 

CV-11-57-HZ

Verdict or Settlement Amount: 

$2,500,000.00

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Verdict (plaintiff)

Description: 

On January 14, 2011, Obsidian Finance Group, LLC, and Obsidian Senior Principal Kevin Padrick filed a defamation suit in Oregon federal court against blogger Crystal Cox. The complaint alleged that Cox had written a number of false and defamatory statements on her website, obsidianfincancesucks.com, and on "other websites." The statements quoted in the complaint involve "tax fraud," "fraud against the government," "hir[ing] a hitman," and other statements.

Obsidian moved for partial summary judgment, arguing that Cox's statements on her blog constituted defamation as a matter of law. Obsidian argued that because Cox had "no evidence to support the truth of any of her statements," the judge should grant summary judgment as to the question of liability, leaving the question of damages for trial. Padrick also filed a declaration denying the truthfulness of Cox's statements, and included copies of Cox's blog posts.

On May 4, 2011 Cox answered Obsidian's complaint, filed an opposition to Obsidian's motion for summary judgment, and made a number of counterclaims. Her counterclaims alleged conspiracy, harassment, and defamation.

After Obsidian and Cox traded another round of briefs on the summary judgment motion, and after Obsidian answered Cox's counterclaims, the judge ruled against Obsidian on the summary judgment question. The opinion focused on the fact that Cox's contested posts were "replete with scattershot, hyperbolic accusations," and that the "broad context" of the posts (including the name of the blog) meant that Cox's assertions were "less likely to be viewed as statements of fact." The judge also announced his intention to, sua sponte, grant summary judgment in favor of Cox. He then gave Obsidian two weeks to file a brief in opposition of this new summary judgment ruling.

Obsidian then filed an opposing brief; Cox did not respond. The judge then granted summary judgment for Cox as to all but one blog post. The judge wrote that "blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact." He again found that the blogs' incendiary titles would cause readers to "view [the posts] with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts." The judge cited blogs' "setting and format," which create a "looser, more relaxed communication style" less likely to be seen as factual. Furthermore, the judge found that the "general tenor" of Cox's posts suggested that she had a "personal vendetta" against Obsidian, which "undermine[d] the reader's expectations" that Cox's assertions were factual.

The judge also described Cox's language – "a fanciful diatribe" – as undercutting a reader's expectation of factual information. And while certain statements from Cox's post could, in isolation, be seen as arguably factual, when "the content and context of the surrounding statements are considered," they would not be understood as assertions of fact.

The judge did deny summary judgment as to one post Cox made on another website, bankruptcycorruption.com. He found that because the post was removed from the less factual context of obsidianfinancesucks.com, read more like a "factual narrative," and contained some "fairly specific allegations," it would be possible for a fact-finder to read the post as asserting facts.

Obsidian then moved for summary judgment on Cox's counterclaims, and Cox filed a memorandum in support of her claims.

On October 14, 2011, Obsidian moved for sanctions against Cox, arguing that she had not been cooperating in discovery. 

UPDATES:

November 2, 2011: the district court allowed attorneys fees but denied further sanctions against Cox, and ordered Cox to comply with discovery requests. On November 9, Obsidian filed a motion to compel, requesting answers to multiple interrogatories and discovery requests. Cox objected, relying upon, inter alia, Oregon's right of retraction statute (O.R.S. § 31.215) and Oregon's media shield law (O.R.S. §§ 44.510–44.540). In a verbal order on November 28 the judge denied application of the right of retraction and shield law. 

November 29, 2011: The case went to a one-day trial. The jury in the case found for the plaintiff Obsidian for $1,000,000, and for Kevin Padrick for $1,500,000. The jury instructions for the case make no mention of a negligence or other fault requirement for defamation in Oregon, specifically stating that the defendant's knowledge of the statement's truth or falsity was irrelevant to the determination.

November 30: In a written order, the district court judge clarified his oral ruling from November 28. The judge noted that Oregon's right of retraction law applies only to statements made in print or broadcast media, and does not apply to Internet blogs. As for Oregon's media shield law, the court found that the law only applies to a person "conected with … any medium of communication to the public," and that the statute defines "medium of communication" as "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." The court declined to include blogs as part of that definition, and noted that even if it did, O.R.S. 44.530(3) states that the provisions of the shield law "do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."

As for the substantive claim of defamation, the court rejected several First Amendment claims made by Cox. The court found that Obsidian and Padrick were not public figures as defined in New York Times v. Sullivan, that the jury did not have to find that Cox was negligent when publishing her statements under Gertz v. Robert Welch, Inc. because Cox is not a "media" defendant, and that the statements Cox made were not on a matter of public concern.

January 4, 2012: Cox filed a Motion for a New Trial and in the Alternative for Remittitur. The Motion argued that, for three separate reasons, the Court should grant a new trial. First, Cox argued that even if plaintiffs were treated as private figures, under Gertz the jury should have been instructed that she could be held liable for proven compensatory damages only if the jury found negligence, and for presumed damages only if the jury found actual malice. Second, Cox argued that because Kevin Padrick was a court-appointed bankruptcy trustee, he should be treated as a public official with respect to his duties. Third, she argued that a new trial or remittitur is required because the evidence presented did not support a finding of $2.5 million in damages.

January 11, 2012: Electronic Frontier Foundation ("EFF"), a non-profit digital rights organization, filed an amicus brief in support of Cox's Motion for a New Trial. In its brief, EFF supported Cox's arguments that the court should have instructed the jury to apply a negligence standard in order to find her liable for defamation, and that the damage award lacked evidentiary support. Additionally, EFF urged the court to reconsider its finding that Cox was not a "media" defendant. EFF argued that Oregon's retraction statute should be interpreted to include Internet publishers, because "Internet publication is no different ... than the broad publication methods identified in the statute." EFF also argued that Cox should be protected under Oregon's shield law, because she was "engaged in a medium of communication to the public."  EFF maintained that the court, in ruling against Cox on both issues, created an "unnecessarily hostile" environment for Internet speech.

January 30, 2012: Plaintiffs opposed Cox's motion for a new trial. Plaintiffs argue that any objection over the jury instruction is waived by a failure to timely object to the motion under FRCP Rule 51. Plaintiffs further argue that the minimum-fault rule in Gertz should not apply to this case, and that Oregon's shield law and retraction statute are inapplicable.

March 27, 2012: The district court denied Cox's motion for a new trial. The court first rejected Cox's argument that Padrick should be considered a "special purpose" public official. According to the court, private bankruptcy trustees do not qualify as public officials of any sort. The court also ruled that the "matter of public concern" category was not so broad as to encompass Cox's allegations.

The court next rejected Cox's argument, based on Gertz and other cases, that defamation defendants can only be held liable for compensatory damages if the jury finds negligence. After an extended discussion of Supreme Court case law, the district court concluded that "the question of what standard of liability to apply to a private plaintiff who sues a non-media defendant over allegedly defamatory statements made on a private issue, remains unanswered" as a matter of constitutional law. While the Supreme Court has repeatedly stated that media defendants receive no more First Amendment protection than other defendants, the district court stated that the Supreme Court has not yet "squarely held" that negligence is required in cases like Cox's.

After briefly disposing of EFF's arguments under Oregon's retraction statute and shield law, the district court also ruled that "the evidence supports the damages awarded to each of the plaintiffs," and denied Cox's motion on this ground as well.

March 30, 2012: Cox filed her notice of appeal to the 9th Circuit Court of Appeals.

April 24, 2012: Plaintiffs filed a notice of appeal. They appealed (1) the district court's order denying their motion for partial summary judgment and giving notice that it intends to grant summary judgment for the defendant, (2) the court's supplemental opinion denying their supplemental motion for summary judgment as to blog posts not previously submitted and granting summary judgment for the defendant with respect to all but one blog post, and, (3) the court's oral ruling ordering that their expert witness could not testify to the influence on buyers of derogatory statements appearing in a search engine results page.

October 10, 2012: Crystal Cox filed her opening brief. Cox argued, among other things, that she is entitled to a new trial because the district court gave faulty jury instructions on the fault standards applicable to her claim.

First, Cox asserted that Gertz applies to all public speakers, regardless of whether they are members of the institutional press. Therefore, she argued, even if the plaintiffs are private figures, the jury should have been required to find that she acted negligently in order to hold her liable for damages, and, in order to find her liable for presumed damages, the jury should have had to find that she acted with actual malice.

She further argued that her speech was on a matter of public concern, because allegations that a person is involved in crime generally constitute speech on matters of public concern, particularly allegations of fraud within a government program. She distinguished Dun & Bradstreet v. Greenmoss Builders, Inc. on the basis that her speech was (1) not solely in her interest or that of her specific business audience, (2) available to the public at large, (3) not solely motivated by desire for profit, and (4) not objectively verifiable.

She also argued that allegations of tax fraud by a court-appointed bankruptcy trustee do not lose their public concern status even if they deal with an incident that has not yet been a matter of public discussion. She argued that, as a matter of policy, it is unwise to grant lower protection to speakers unearthing a single instance of misconduct than to those covering a broader national problem or large-scale issue after particular misconduct is discovered. She notes that the absence of an existing controversy may be relevant to whether the plaintiff is a public figure, but not to whether the speech is on a matter of public concern.

Cox relied on dictum in Newcombe v. Adolf Coors Co. to argue that the Ninth Circuit has found Gertz to require a showing of negligence even in private concern cases, and therefore, even if she is found to have spoken on a matter of purely private concern and the plaintiffs are found to be private figures, the court should have instructed the jury that she was only liable if she was negligent.

With respect to the plaintiffs' status as private or public figures, Cox argued that a court-appointed bankruptcy trustee should be treated akin to a public official with regard to the performance of his duties, and that, under New York Times v. Sullivan, the district court therefore should have instructed the jury that the plaintiffs had to prove actual malice. She cited to several state court cases finding that when a court-appointee has government-delegated duties affecting citizens' money or property, those holding such positions should be considered public officials with regard to the performance of their duties. She further argued that that the protections of Sullivan apply to her, regardless of whether she was a member of the institutional media, citing several Supreme Court cases that have applied the case to non-media speakers.

October 17, 2012: The Reporters Committee for Freedom of the Press filed an amicus curiae brief in support of reversal. The Committee noted that the distinction between media and non-media defendants in private-figure libel suits creates heightened interest in broadly defining the term "news media."

Although the Supreme Court has interpreted Gertz to prohibit strict liability in state defamation laws only when the laws are applied to speech on matters of public concern, the Committee argued that it is unresolved whether Gertz is limited to media defendants and that several states do not apply Gertz to nonmedia defendants. This distinction, the Committee argued, makes the definition of "media defendant" critically important in libel cases.

As such, the Committee urged the court to interpret the term "media defendant" broadly enough to include any content provider who has the intent, when gathering information, to disseminate it to the public.

The Committee stated that the Supreme Court has long recognized that the definition of "press" does not depend on the medium of distribution and that many courts, including the Ninth Circuit, have held that testimonial privilege applies to individuals engaged in the practice of compiling information for public dissemination, regardless of their membership in the traditional press. According to the Committee, in the same way that an author's function, not the medium of publication, triggers a shield law's protection, an author's function should determine whether he or she could be classified as a member of the media entitled to the protections afforded by Gertz.

Finally, the Committee argued that courts must apply a broad definition of whether speech is in the public interest for purposes of establishing the standard of fault in libel cases. The Committee examined a number of Supreme Court and Ninth Circuit cases that demonstrate that, when evaluating speech's public nature, courts interpret public concern broadly and look to the "point" of speech by evaluating factors like the target audience and the speaker's motivation. In this case, the Committee argued that, by narrowly focusing its public concern analysis on speech that exposes public corruption, the lower court failed to comply with the broad principles outlined by the Ninth Circuit and the Supreme Court. Therefore, the Committee recommended that the Ninth Circuit reverse the lower court's ruling and remand for a more thorough assessment of whether Cox meets the public concern test under the proper constitutional standards.

October 17, 2012: SCOTUSblog filed an amicus curiae brief in support of neither party. SCOTUSblog stated that, while it takes no position on the merits of the dispute, it filed a brief to illustrate how the criteria for liability applied by the district court could generate incorrect results in the case of a blog that provides a public service and should receive First Amendment protections

The brief notes that SCOTUSblog could be subject to allegations of libel and defamation like those asserted in this case, because it publishes strongly worded critiques that may offend their subjects.

Moreover, SCOTUSblog asserted that it could not satisfy several of the criteria articulated by the district court, leaving it vulnerable to an adverse decision in a defamation case: only one of the blog's contributors has any training in journalism, the blog does not have media credentials or proof of affiliation with any recognized news entity, it does not as a general rule do any fact-checking, and it does not maintain notes of conversations, interviews, or research. Given that the court did not specify how many characteristics the defendant would need to posses to qualify for First Amendment protections afforded to "media," the blog expressed concern that it would not qualify. This risk of liability would, it argued, have a chilling effect on the content the blog posts, which will result in less complete coverage of the Supreme Court.

SCOTUSblog therefore requested that the Ninth Circuit establish that non-traditional news sources that provide a useful public service by gathering, analyzing, and disseminating information receive the same First Amendment protections afforded to traditional news sources, even if they cannot make the showings the district court outlined in this case.

December 7, 2012: The plaintiffs filed their response brief and cross-appeal. According to Obsidian and Padrick, Cox failed to preserve objections to the jury instructions at trial. The plaintiffs further argued that the trial court did not commit a plain error that warranted reversal despite Cox's failure to object, because "First Amendment protection of false speech [is] the exception, not the rule." Any error that did occur was harmless, plaintiffs claimed, because "Cox's undisputed conduct establishes negligence and a reckless disregard for the truth or falsity of [her] statements."

On cross-appeal, plaintiffs argued that the district court erred in finding that certain of Cox's blog posts were non-actionable opinion and granting Cox summary judgment on those blog posts. Plaintiffs noted that these posts, which purported to be "Truthfully Posted," asserted that the plaintiffs had committed numerous crimes, including fraud, bribery, money laundering, and possibly hiring a hit man. According to the plaintiffs, "[t]here is nothing figurative or hyperbolic about these accusations," and it "is not necessarily a reasonable assumption" that "reasonable readers will view blogs as inherently less reliable than other sources of information." Thus, they argued, the trial court should have left the question of whether these posts contained opinions to the jury.

February 4, 2013: Cox replied, arguing that, even under plain error review, the judgment below must be reversed because: Gertz applies to all public speakers; Cox spoke on matters of public concern; Gertz applies even to speech on matters of private concern; and Padrick was a public official for purposes of the Sullivan analysis. She also asserted these arguments were preserved for review because the trial court was "aware of Cox's position that she was entitled to First Amendment protections" and had rejected her objection earlier in the trial. Additionally, Cox argued that the district court correctly held that the other blog posts at issue were not libelous. Cox conceded that Internet speech "is not categorically immune from defamation liability," but, based on the context of the statements at issue, Cox claimed, "even the statements that might in isolation seem like factual assertions would be seen by reasonable readers as opinions."

January 17, 2014: The Ninth Circuit issued its opinion. The court held that "liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."

The court, reviewing the judgment de novo, concluded that Gertz's protection for defendants in private defamation actions is not limited to institutional media defendants; the court held that a "First Amendment distinction between the institutional press and other speakers is unworkable" and constitutional protections cannot turn on the identity of the speaker-regardless of whether "the defendant was a trained journalist, formerly affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story." The court noted that the Supreme Court has "repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers," and that every other circuit to consider the question has found that Gertz applied broadly to non-institutional speakers.

The court did not decide whether Gertz is limited to speech involving matters of public concern, because it found that Cox's statements addressed such issues. The court stated that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern," and the allegations in this case "raised questions about whether [defendants] were failing to protect the defrauded investors because they were in league with their original clients." This allegation was not merely a matter of private concern because it was not "solely in the individual interest of the speaker and its specific business audience," was published at large, and was not "like advertising" and therefore "unlikely to be deterred by incidental state regulation."

The court refused to apply Sullivan's actual malice standard, however, holding that bankruptcy trustees are not "tantamount to public officials."

On the plaintiffs' cross-appeal, the court affirmed the district court's grant of summary judgment on the other blog posts at issue in the original suit. The court found that the "general tenor of Cox's blog posts negates the impression that she was asserting objective facts," and that the name of the website-obsidianfinancesucks.com-"leads ‘the reader of the statements [to be] predisposed to view [the blog posts] with a certain amount of skepticism.'" The court also relied on the fact that Cox's stream of consciousness-like sentences indicated that they were expressions of "feelings rather than assertions of fact." Cox's "consistent use of extreme language," including her assertion that one of the plaintiffs had hired a hit man to kill her, also weighed in favor of finding that the blog posts did not assert facts. Finally, the court held that the statements at issue were not "sufficiently factual to be proved true or false" because they were published on a "non-professional website containing consistently hyperbolic language."

The court remanded the case to the district court to conduct a new trial on the single post still at issue in compliance with Gertz, stating that the district court must instruct the jury that it cannot find Cox liable for defamation unless it finds that she acted negligently and that it cannot award presumed damages unless it finds that Cox acted with actual malice.

Content Type: 

Jurisdiction: 

Threat Source: 

Blog Post

Subject Area: 

Darm v. Craig

Threat Type: 

Lawsuit

Date: 

07/01/2011

Party Receiving Legal Threat: 

Tiffany Craig

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Multnomah County Circuit Court, Oregon

Case Number: 

1107-08823

Legal Counsel: 

Linda Williams

Publication Medium: 

Social Network

Status: 

Pending

Description: 

In July 2011, medical spa doctor Jerrold "Jerry" Darm sued blogger Tiffany Craig for defamation in Multnomah County Circuit Court in Oregon.  Darm alleged that Craig defamed him when she wrote about a 2001 disciplinary order against the doctor from the Oregon Board of Medical Examiners. 

Craig wrote on June 30, 2011, on her blog that Darm was reprimanded for demanding sex from a patient, and that Darm was required to have a chaperone when examining adult female patients.  The order in fact states that Darm touched and kissed the patient, from which the patient inferred Darm was seeking sex. The order did require the presence of a chaperone for Darm's treatment of adult female patients.  Craig did not mention that the order against Darm was lifted in 2009.

According to OregonLive.com, Craig moved in August to dismiss Darm's lawsuit under Oregon's anti-SLAPP laws.  Craig argued that "'the gist' of the blog entry is true and the statements, in context with a provided hyperlink to state medical board records, were opinions based on those facts." Craig also argued that Darm, as a prominent local doctor, is a public figure.  Darm argued that because he never treated Craig, his record is not a matter of public interest.

OregonLive.com also reports that the court ruled in September that the case is a matter of public interest, and that Twitter is a public forum.  A hearing is set for Oct. 20, when Darm will have to present a viable defamation claim.

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Priority: 

1-High

Admission Consultants, Inc. v. McGraw Hill Publishing Co.

Date: 

08/22/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

McGraw Hill Publishing Co.; McGraw Hill News Bureaus

Type of Party: 

Organization

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

New York Supreme Court

Case Number: 

Index No. 111503/07

Legal Counsel: 

No appearance

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Admission Consultants, Inc. petitioned the New York Supreme Court to order McGraw Hill, publishers of the BusinessWeek "B-School" forums, to disclose the registration information of several BusinessWeek forum posters.  The posters allegedly defamed Admission Consultants in their posts.

On October 3, 2007, the New York Supreme Court ordered the disclosure of the posters' identities.  McGraw Hill disclosed the required information.  Two of the forum users had registered using Google's Gmail service, leading Admission Consultants to seek the identities of those users in a separate action.

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Priority: 

2-Normal

CMLP Notes: 

Source: Paul Levy of Public Citizen, via Phil Malone

Jurisdiction: 

Threat Source: 

Public Citizen

$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment

One of the first things I learned as a journalist, and later again as a media lawyer, was that under the First Amendment the "truth" could not be subject to a viable defamation claim. True statements are simply constitutionally immune and plaintiffs cannot sidestep all of the common law and constitutional protections for true speech through creative pleadings that would merely re-label defamation as another cause of action.

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Zen and the Constitutionality of Twitter 'Cyberstalking'

If you thought a spat between Buddhists couldn't devolve into a federal cyberstalking case of dubious constitutionality, consider the following.

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Snyder v. Creative Loafing, Inc.

Threat Type: 

Lawsuit

Date: 

11/24/2010

Party Receiving Legal Threat: 

Atalaya Capital Management LP, Creative Loafing, Inc., CL Washington Inc. (d/b/a Washington City Paper), Dave McKenna

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Media Company

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

2011 CA 003168 B

Legal Counsel: 

Baker & Hostetler, LLP (for Defendant Dave McKenna); Levine Sullivan Koch & Schulz, LLP (for defendant CL Washington); David M. Snyder P.A. (for defendant CL Washington)

Publication Medium: 

Blog
Print

Relevant Documents: 

Status: 

Pending

Description: 

On November 19, 2010, the Washington City Paper published "The Cranky Redskins Fan's Guide to Dan Snyder." The article levied a wide array of complaints about Snyder, owner of the Washington Redskins NFL franchise since 1999. The complaints largely concerned his management of the team, as well as his control of several other business ventures.

On November 24, 2010, Washington Redskins General Counsel David Donovan wrote a letter on behalf of Dan Snyder to Atalaya Capital Management, an investment company that, according to the letter, purchased the City Paper out of bankruptcy in 2009. The letter alleges that the City Paper article, and its inclusion of a photograph of Snyder with drawn-in devil horns, goatee, and uni-brow, were anti-Semitic and that the allegations made regarding Snyder and his wife in the article were false and defamatory. The letter also suggests that the statements regarding Snyder may have been published at the direction of Atalaya Capital, which competes with RedZone Capital (an entity which Snyder co-founded).

On December 7, 2010, attorneys for Atalaya Capital responded to Snyder's letter, rejecting the assertion that Atalaya had control over the content of Washington City Paper, disputing the factual allegations made in the letter, and asserting City Paper's First Amendment right to criticize Snyder under Hustler Magazine v. Falwell.

On February 2, 2011, Snyder filed suit in the New York Supreme Court for New York County against Atalaya Capital, its portfolio company Creative Loafing, Inc., and 10 "John Doe" defendants. Snyder alleged that four statements made in the article were defamatory, and sought relief in excess of $2 million

On April 26, 2011, Snyder discontinued his action in New York and filed a second the complaint in the Superior Court of the District of Columbia, this time against Creative Loafing, Inc., Washington City Paper, and Dave McKenna, the author of the article.

Using DC's recently enacted anti-SLAPP law, the defendants brought a special motion to dismiss on June 17, 2011. The defendants argue that D.C. Code § 16-5502 protects the statements as they are "an act in furtherance of the right of advocacy on issues of public interest" and that Snyder will not be "likely to succeed on the merits" of his claims.

According to the Blog of LegalTimes, Snyder filed a memorandum in opposition to the motion to dismiss on August 1, 2011, in which he argues that the anti-SLAPP law in question is in violation of the Home Rule Act, the federal law which delegates some congressional control of the District of Columbia to the DC local government. On August 30, 2011, the District of Columbia intervened in the case for the limited purpose of defending the validity of the anti-SLAPP law.

Oral argument for the motion to dismiss is currently scheduled for October 14, 2011.

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ISP Gets Identity-Seeking Subpoena Vacated

Clapping by TheGiantVermin, on Flickr From the credit-where-credit's-due department (with the requisite hat-tip to David Ardia's Twitter account):

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Subject Area: 

Content Type: 

Sherrod v. Breitbart

Date: 

02/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Andrew Breitbart, Larry O'Connor, John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

000157 11

Legal Counsel: 

Baker & Hostetler LLP (for Defendant O'Connor); Katten Muchin Rosenman LLP (for Defendant Breitbart)

Publication Medium: 

Blog
Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand, arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) and under the D.C. Anti-SLAPP Act. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply in further support of her motion to remand. On June 3, the defendants filed replies in support of both motions to dismiss.

Jurisdiction: 

Subject Area: 

Content Type: 

Unpublished

Whatever Shall We Do With Real Defamation and Section 230?

At the risk of becoming the guy who only takes shots at Section 230, I'm going to flag what seems to me to be a small, albeit important, problem -- what happens when a legitmately defamed plaintiff can't get offending online content removed. It's small because it comes up only in very specific, rare circumstances; it's important because it cuts to the core of what we're trying to accomplish with Section 230 in the first place.

Subject Area: 

S.C. v. TheDirty

Date: 

05/20/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

TheDirty, David S. Gingras

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Missouri

Case Number: 

4:11-cv-00392-DW

Legal Counsel: 

David S. Gingras

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On April 14, 2011, plaintiff "S.C." sued TheDirty, a gossip web site that advertises itself as the "first ever reality blogger," and Nik Richie, owner of the web site, for posting allegedly defamatory comments submitted by a third party. According to the complaint, the comments accused the plaintiff, who works at a church, of having an illicit relationship with the poster's boyfriend, and requests $900,000 in damages for defamation, public disclosure of private facts, false light invasion of privacy, and intentional infliction of emotional distress.The plaintiff claims she has suffered reputational harm in her community and her job as a result of the posting.  The plaintiff also filed a motion to seal the case, but the motion was denied.

The defendants answered the complaint on May17, 2011.

On May 20, 2011, the plaintiff's attorney sent an e-mail to the defendants' attorney stating an intent to add him as a defendant after the defendants' attorney apparently posted the plaintiff's original demand letter online with attachments, thus, in the words of plaintiff's counsel, "perpetuating this defamation."  The e-mail also indicated a belief that the defense attorney had become a witness with a conflict of interest in representing TheDirty and Nik Richie.

On July 8, 2011, the plaintiff filed a motion to amend her complaint to include additional counts of intentional infliction of emotional distress and public disclosure of private facts after defendant Nik Richie  posted a copy of the court's order denying the plaintiff's motion to seal on his website. The post included a comment, "now it's game on," and gave readers an opportunity to comment on the matter.

The proposed amended complaint does not include a claim against the defendants' attorney. The defendants have not yet responded to the motion to amend and no ruling on the motion has been issued.

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Content Type: 

Façonnable USA Corp. v. John Does 1-10

Threat Type: 

Lawsuit

Date: 

04/07/2011

Party Receiving Legal Threat: 

John Doe Wikipedia Editors & ISP Skybeam, Inc.

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Colorado

Case Number: 

1:11-cv-00941-CMA -BNB

Legal Counsel: 

Paul Alan Levy & Michael H. Page of the Public Citizen Litigation Group, and John Seiver of Davis Wright Tremaine LLP (for Skybeam)

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (total)
Withdrawn

Description: 

On April 7, 2011, clothing company Façonnable filed suit in Colorado federal court against a set of John Doe defendants.  According to the complaint, around March 1, 2011, one or more anonymous individuals edited the Wikipedia entries of Façonnable and its parent company M1 Group. The edits discussed "purported" ties between M1 and Hezbollah. (A preserved copy of the Façonnable page is included among the court documents.) The complaint alleges trade libel, violations of Colorado's Consumer Protection Act (for false representations of Façonnable's goods/activities), and federal Lanham Act violations--specifically, that the Wikipedia editors falsely described Façonnable's goods/activities, constituting "acts of infringement."

Façonnable also alleges that the IP addresses of the anonymous Wikipedia editor(s) are associated with Colorado ISP Skybeam, Inc. and that on March 4, 2011, Façonnable emailed (scroll down) Skybeam requesting the identities of the anonymous editors. Skybeam declined to provide the information without a proper summons.  In response, simultaneously with the filing of the complaint, Façonnable moved for expedited discovery to subpoena Skybeam for the editors' identities.

On April 8, 2011, the case was referred to a magistrate judge, and on April 18, the magistrate granted Façonnable's motion for expedited discovery. A few days prior, Façonnable had contacted Skybeam to request that the Wikipedia editors' identifying information be preserved. Once its motion was granted, Façonnable subpoenaed Skybeam for that information; Skybeam then responded with a letter objecting to the subpoena. On April 29 Skybeam moved for a modification of the discovery order, arguing that the magistrate judge applied too lenient a standard in granting discovery by failing to account for the editors' First Amendment anonymous speech rights. Façonnable opposed the motion.

On May 24 the magistrate judge denied Skybeam's motion. Expressing concern that Façonnable would have "no ability to vindicate its rights," the magistrate held that the subpoena was a "content neutral" oversight of online speech, and thus the subpoena satisfied a "heightened sensitivity" to the editors' First Amendment rights. The magistrate ordered Skybeam to comply with the subpoena by June 3.

On June 1, Skybeam filed objections to the magistrate's decision with the district court, and moved to stay the order to comply with the subpoena. On June 2, the district court judge granted the stay. Skybeam's memo accompanying its objection expands on the First Amendment concerns in the case (and the need for strict scrutiny in deciding whether or not to enforce the subpoena), discusses the viability of Façonnable's federal Lanham Act claims, and argues for a more stringent five-step test before revealing anonymous speakers' identities.

On June 27, Façonnable filed an unopposed motion for an extension to reply to Skybeam's objections.

Update:

On July 18th, Façonnable filed a notice of voluntary dismissal with prejudice. According to news reports and subsequent court documents, the company reached a settlement with the John Doe defendant.

On July 22, Skybeam moved to vacate the magistrate judge's order to reveal the Doe identities. Skybeam argued that, although the apparent settlement had mooted the question of the propriety of the magistrate's order, Skybeam was entitled to have the order vacated to avoid setting precedent. Skybeam's motion includes some information about the possible terms of the settlement, stating that on July 11, Façonnable offered to dismiss the case, if the John Doe's attorney "would make certain representations on behalf of the Doe . . . including that Doe was not one of the plaintiff's competitors." (The actual settlement terms have not been made public.)

On July 27, the District Court Judge granted Skybeam's motion to vacate, which was unopposed.

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Subject Area: 

Jurisdiction: 

Threat Source: 

Blog Post

Dan Snyder Gets a Taste of D.C.'s New Anti-SLAPP Law

We've previously mentioned Washington Redskins owner Dan Snyder's lawsuit against the Washington City Paper.

Jurisdiction: 

Subject Area: 

Rakofsky v. The Internet

Date: 

05/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Over 70 Named Parties; Newspapers, Journalists, Bloggers, and other Individuals

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Media Company

Court Type: 

State

Court Name: 

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

Case Number: 

105573-2011

Legal Counsel: 

Eric Turkewitz of the Turkewitz Law Firm, also a defendant, and Marc J. Randazza of the Randazza Legal Group (for at least 16 individuals comprising 35 named defendants); Chetan A. Patil and Kevin T. Baine of Williams & Connolly, L.L.P. (for the Wash

Publication Medium: 

Blog
Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

In March 2011, Joseph Rakofsky represented a defendant in a murder trial in Washington, D.C. According to court filings, on April 1 he withdrew as counsel, leading to a mistrial, at which time the presiding judge made a number of unflattering statements about Mr. Rakofsky's performance at trial. The Washington Post originally reported on the mistrial. Other publications, like the Washington City Paper, soon followed. From there, Mr. Rakofsky's story spread throughout the legal blogosphere, drawing comment from dozens of bloggers.

On May 11, Mr. Rakofsky filed suit in New York state court against the Post, the City Paper, and many bloggers who had written about him. At issue is the way Mr. Rakofsky's removal from the murder trial has been characterized: In his complaint, Mr. Rakofsky maintains that he left the murder trial by his own motion. Media coverage, like the Post article, focused on the judge's comments about Mr. Rakofsky's command of legal procedures, the fact that Mr. Rakofsky stated in court that he had never before tried a case, and an alleged email from Mr. Rakofsky to an investigator instructing the investigator to "trick" a witness into changing her testimony. The Post quotes the judge as telling Mr. Rakofsky that his trial performance was "below what any reasonable person would expect in a murder trial." A transcript of the judge's comments is now available. The bloggers sued by Mr. Rakofsky generally describe him as "too incompetent to handle the case," or otherwise suggest that the mistrial was due to Mr. Rakofsky's "inexperience."

Mr. Rakofsky initially sued 74 parties; the complaint often names both individual bloggers and their associated businesses. (For example, the complaint names both "The Law Offices of Michael T. Doudna" and "Michael T. Doudna, individually.")

The initial complaint contains two causes of action: (1) defamation, and (2) violations of sections 50 and 51 of the New York Civil Rights Law, alleging that defendants used Mr. Rakofsky's name and picture for commercial purposes without his consent.

On May 16, Mr. Rakofsky amended his complaint to add a count of intentional infliction of emotional distress and a count of interference with Mr. Rakofsky's contracts with other clients. The number of defendant parties also rose to 75.

As of June 1, 2011, some defendants apparently had not yet been served. 

On June 3, New York attorney Eric Turkewitz and Nevada attorney Marc Randazza, representing approximately 30 of the named defendants (including Mr. Turkewitz himself), motioned for a time extention for all defendants, to help organize what the motion calls "the oncoming blizzard of paperwork" as various defendants respond to the complaint. Mr. Turkewitz also submitted an affidavit in which he discussed the background of the case and the legal issues involved.

On June 4, New York attorney David Brickman, representing defendants Maxwell Kennerly and Mr. Kennerly's law firm The Beasley Firm, filed a motion to dismiss. The accompanying memorandum argues that Mr. Kennerly's blog post is a combination of opinion and fair reporting of court proceedings; thus, according to the memo, the case should be dismissed.

One June 13, Mr. Brickman, also representing Mirriam Seddiq and Jameson Koehler, filed two more motions to dismiss. The motions are mostly identical to Mr. Kennerly's motion.

Update:

6/13/2011 - Rakofsky's attorney, Richard Borzouye, files notice that on July 1 he will move to withdraw from the case. On the same day, acting pro se, Rakofsky files a memo opposing the pro hac admission of Marc Randazza.

6/15/2011 - Defendant Mace Yampolsky answers the complaint and asserts affirmative defenses including, inter alia, that the court lacks personal jurisdiction, that the complaint fails to state a claim for which relief can be granted, and that Rakofsky's lawsuit is frivolous. Yampolsky also seeks sanctions and attorneys' fees.

6/17/2011 - Marc Randazza and Eric Turkewitz file “reply affidavits” in support of Randazza's pro hac admission; the "affidavits" discuss communication between Rakofsky, Borzouye, and the defense.

6/22/2011 - Reuters and its reporter Daniel Slater file notice of a motion to dismiss. The motion and accompanying memo discuss the merits of the defamation and misappropriation claims.

On the same day, Eric Turkewitz files an affidavit, partially opposing Richard Borzouye's motion to withdraw as Rakofsky's attorney. Turkewitz expresses concern with the corporate plaintiff's impending lack of counsel.

6/24/2011 - Defendant Michael Doudna files notice of a motion to dismiss for lack of personal jurisdiction; the motion also seeks sanctions against Rakofsky for bringing a "frivolous" lawsuit in "bad faith." Harmony Kenney, who operated Doudna's website, files a supporting affidavit.

7/20/2011 - The Washington Post, its reporter Keith Alexander, and its researcher Jennifer Jenkins, move to dismiss. The motion discusses both substantive issues (including that the Post article is protected by the fair report privilege) and jurisdictional issues (long-arm jurisdiction over Alexander and Jenkins).

7/21/2011 - Georgia attorney Jeanne O'Halleran files a motion to dismiss, and an accompanying affidavit. The memorandum in support of the motion argues, inter alia, a lack of personal jurisdiction and that O’Halleran’s statements were a fair and accurate report, and asks for sanctions. The filings include a copy of the D.C. murder-trial transcript from the day before the mistrial, and a copy of the investigator's "motion" that raised ethical issues.

On the same day, the Washington City Paper and its associated defendants file a motion to dismiss on similar grounds, along with affidavits from its reporter, publisher, and parent company VP/CFO. The City Paper and O'Halleran are both represented by Davis Wright Tremaine.

7/22/2011 - The trial court grants Richard Borzouye's motion to withdraw as Rakofsky's attorney. The court stays proceedings until September 14, to allow Rakofsky to find a new attorney.

6/28/2012 - The court (Hagler, J.) holds a hearing on the pending motions to dismiss and on a motion by Rakofsky to submit a second amended complaint. The defendants, through selected representatives among defense counsel, and the plaintiffs, represented by a new attorney (Matthew Goldsmith, Esq.), argue the application to Rakofsky's claims of the fair report privilege, the republication privilege (for those defendants who republished an original account in the Washington Post), 47 U.S.C. § 230 (for one defendant who operates an online forum), Rakofsky's status as a public figure, and assorted jurisdictional issues. Plaintiffs' counsel also argue that new claims that they have proposed to add to the case are not duplicative of their defamation claim. At the end of the hearing, Judge Hagler took the motions under advisement, but stated to plaintiffs' counsel:

...Right now there's a very high standard to hold a newspaper liable for -- pardon the pun -- for libel, l-i-b-e-l. ... I don't see how you make that burden. And what I suggest is, is that you seriously speak to your client about withdrawing all these claims. And at the end of the day, I'm going to make a decision. I don't think it's going to be -- based upon this argument, and I'm not making a ruling now, it doesn't look like it's going to be in your favor.

(Transcript p. 91, ll. 10-20).

7/1/2012 - Rakofsky, in a letter to the court over his own name, argues that his proposed claim for negligence in his second amended complaint is not duplicative of his defamation claim.

1/2/2013 - After a six month period in which plaintiffs did not withdraw their claims as urged by the court at the June 28, 2012 hearing, the defendants represented by the Turkewitz Law Firm and Randazza Legal Group file a motion for sanctions against plaintiffs and attorney Goldsmith for vexatious conduct and frivolous claims.

 4/29/2013 - The court consolidated all pending motions and issued an order addressing these motions. The court dismissed claims for lack of personal jurisdiction against the defendants that so moved, finding that Rakofsky did not establish that the defendants engaged in any purposeful activity and minimum contacts in New York, such that New York's long-arm jurisdiction statute would apply. The court also granted the motions to dismiss on the defamation claim substantively, finding that the defendants' statements regarding the mistrial were not defamatory, the allegations of incompetence and substance of the allegations of bad ethical behavior were protected by New York's fair report privilege, and all other statements were either opinions based on disclosed facts or pure opinion. The parties that republished or summarized the Washington Post story were also found to have a valid wire service republication defense.

The court also dismissed the intentional infliction of emotional distress claim, finding no showing of the requisite "extreme and outrageous conduct," and the intentional interference with contract claim, finding that claim inadequately  pleaded. The court dismissed the misappropriation of name or likeness claims under N.Y. Civil Law §§ 50-51, finding this reporting under the "newsworthiness" exception to those claims.

The court denied Rakofsky's leave to amend the petition to add claims of injurious falsehood, prima facie tort, and negligence, finding the injurious falsehood and negligence claims duplicative, and finding that Rakofsky will be unable to to plead special damages for the prima facie tort.

The court also denied without prejudice Rakofsky's motions to discontinue the action against eight of the defendants, and for default judgment against seven of the plaintiffs, because Rakofsky did not adequately identify the parties at issue. As to the motion for default, the court advised Rakofsky to consider "if it is appropriate to seek this relief again based on the rulings herein." The court declined to issue sanctions sought by both sides.

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British Libel Reform - Now With Real Proposed Legislation!

I've been writing about impending British libel reform for almost two years now, putting a post together every time something happens to bring the United Kingdom closer to fixing its quite-literally-backwards defamation laws.  "Ooo, the High Court has tossed a textbook libel tourism case," I cheered in November 2009.  "Aah, the justice minister has publicly endorsed libel reform," I

Jurisdiction: 

Subject Area: 

Rajagopal v. Does

Threat Type: 

Lawsuit

Date: 

10/22/2010

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Henrico Circuit Court, Virginia

Case Number: 

CL 10-3014

Legal Counsel: 

Michael H. Page, Paul A. Levy, Public Citizen Litigation Group; Rebecca K. Glenberg, ACLU of Virginia

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Usha Rajagopal, a plastic surgeon in San Francisco, sued ten John Does for defamation and various business torts in Virginia state court.  The claims stem from reviews of Rajagopal posted by the defendants on Google.com. Rajagopal also subpoenaed Google to determine the identities of five of the Does.

One of the Does, Cannoli38, moved to quash the subpoena.  He argued that because he and the other Does have a First Amendment right to speak anonymously, Rajagopal must make a five-part showing that satisfies the Dendrite standard to identify the Does.  Cannoli38 argued that Rajagopal did not give the Does noticed as required by Dendrite, nor did she provide any evidence supporting her claims against the Does.

Cannoli38 alleged that the Does' reviews consisted solely of opinion statements, which are protected by the First Amendment, and restatements of an article from SFWeekly, a San Francisco news site, that posted a story about Rajagopal's advertising practices and allegations brought against her by the California Medical Board.  Cannoli38 argued that the balance of the equities weighed against Rajagopal.

Cannoli38 also called upon Rajagopal and her attorney to be sanctioned, as he argued the lawsuit is meritless, has no ties to Virginia, and was meant to be an end run around California's anti-SLAPP law, which would likely prevent Rajagopal from pursuing the case in her home state.

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