Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness.
Jonathan Sykes is a professor and practitioner of plastic and reconstructive surgery at the University of California, Davis Medical Center in Sacramento. He performed a series of facial cosmetic procedures on Georgette Gilbert in February 2003.
Gilbert was unhappy with the results. She sued Sykes for malpractice and created a website relating her experiences with Dr. Sykes (including before and after photos). Her website was not simply aimed at criticizing Dr. Sykes, but also offered information and advice for those considering plastic surgery.
Dr. Sykes filed a cross-complaint in the malpractice action, alleging that the statements on the website constituted defamation, and that Gilbert's actions constituted intentional and negligent interference with economic advantage and intentional infliction of emotional distress.
Gilbert brought a motion to strike the cross-complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The district court denied the motion, finding that the Sykes had shown a probability of prevailing on his defamation claim. In January 2007, the Court of Appeals of the State of California, Third Appellate District, reversed, holding that Sykes was a limited purpose public figure and therefore had the burden of making a preliminary showing that the statements on the website were false and published with actual malice. The court found that the before-and-after photos on Gilbert's site were not misleading, and that various other statements were substantially true and not subject to a defamatory meaning. The court held further that Sykes's claims for intentional infliction of emotional distress and interference with economic advantage failed automatically due to the dismissal of his defamation claim because those claims were based entirely on Gilbert's protected speech.
5/01/2004 date is approximate for sometime in May 2004
Unable to find docket information for the lower court, although the appellate decision lists May 2004 as when Gilbert brought the malpractice suit against Sykes. TO-DO: Get more precise date; more court documents
Andrew Left published a website called StockLemon, on which he blogged about stocks that he considered "lemons." He made comments on his blog that were critical of GTX Global Corp, and GTX sued, claiming that he made defamatory statements about it in order to artificially depress the price of GTX stock so that he could short sell it for a profit. The complaint included claims for trade libel, intentional interference with prospective economic advantage, securities fraud under California law, securities fraud under federal law, and conspiracy.
Left successfully moved to strike the complaint based on California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). In May 2007, the California Court of Appeals affirmed, holding that Left's criticism of GTX on his website was an exercise of free speech, and that GTX failed to meet the heightened evidentiary showing required by the anti-SLAPP statute. It also held that Left was entitled to attorney's fees, including for the appeal.
The owner of the Chicks Sporting Goods chain, which has stores in Southern California, sued James Kuziw for defamation over content on his MySpace page. Later, Chicks Sporting Goods Inc. was added as a plaintiff, and another defendant was named. The defendants have not responded to the suit, but Chick's lawyer informed the court in April 2007 that a settlement was pending. Subsequent hearings have been postponed because the settlement documents were not yet signed.
The Barrett-Jackson Auction Company sued David Clabuesch a Michigan probate judge, and his company, ThumbCo, for breach of contract and defamation relating to actions and statements Clabuesch allegedly made concerning an antique car the company sold for him. Barrett-Jackson claims in its complaint that Clabuesch chained the car's wheels at the auction, put up a sign calling the sale void, taped a "grievance report" to the car, and posted defamatory comments on blogs, chatrooms, email lists, and websites stating that the company "quick gaveled the car" and sold it for less than it was worth. Clabuesch denies posting any comments.
4/16/07 - Clabuesch filed a counterclaim against Barrett-Jackson for breach of contract, breach of fiduciary duty, conversion, and negligence.
6/8/07 - Barrett-Jackson filed a motion to dismiss the counterclaims
1/9/2008 - Clabuesch filed a notice of settlement.
Paul McMann, a Massachusetts real estate developer, sued the anonymous operator of an Internet "gripe site" about him. The website contained a photograph of Mr. McMann, the statement that he “turned lives upside down,” and a suggestion to "be afraid, be very afraid." The website also announced that it would soon be updated with specific evidence of McMann's alleged misdealings.
After a nearly identical action was dismissed in the United States District Court for the District of Massachusetts, McMann sued the anonymous operator of the site in Arizona state court, claiming defamation (the publicity and privacy claims in his previous complaint were apparently abandoned). McMann sought to subpoena ISPs to discover the website operator's identity. In January 2007, the court quashed the subpoena and dismissed the case without prejudice. The court relied on Doe v. Cahill, 884 A.2d 451 (Del. 2005), an important case from the Delaware Supreme Court holding that the First Amendment's protection for anonymous speech requires plaintiffs in defamation actions to make a heightened factual showing (meeting a summary judgment standard) before issuance of a subpoena to discover the identity of an anonymous defendant.
Sandy Romen, a detective in the Saline County Sheriff's office sued the operator of a website, philmask.com (now defunct), that criticized the operations of the Saline County Sherriff, Phil Mask.
Romen sued over an article that originally ran in the Benton Courier and was republished on philmask.com, reporting that she had been "dismissed from the Benton Police Department after she was charged with possession of drugs with intent to deliver."
There seems to be some confusion over the name of the plaintiff (variously listed as Romeo, Romano, and Romen).
12/7/06 - Case docket lists the case as having been dismissed with prejudice.
Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website, fakelaugh.com, along with some blog commentary.
A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint, filed August 24, 2007, included counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleged that "Produce Paradise" depicted the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."
The complaint cited the brothers' "disparaging and disgusting lyrics pertaining to produce and groceries, and the store in general" and their "doing various disparaging and disgusting things to produce and groceries, and [sic] in and around the produce and grocery areas." None of the statements identified in the complaint, however, mention A&P. To support its claim that the video has injured its reputation, A&P alleged that "at least one customer," having recognized the store and Mark and Matthew as employees, complained to A&P about the video, stating that she was "disgusted and distressed by the scenes depicted in the video," and that she "would not be shopping in [A&P's] stores in the future owing to the repulsive acts depicted and performed by defendants in the Rap Video."
A&P also raised a trademark infringement and dilution claim, alleging (remarkably) that Mark and Matthew are "using the A&P logo in commerce, in connection with the promotion of their Rap Video" and that this use of its mark "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of defendants with A&P, such that a viewer of the Rap Video would surmise that A&P condoned, or sponsored or approved the use of the A&P Logo and/or the Califon A&P premises in the Rap Video." Somewhat (but only marginally) more realistically, the complaint claims that the defendants' use of the A&P logo dilutes the value of the mark.
Update: In May 2008, the Courier News reported that the parties had settled. The precise terms of the settlement are confidential, but it looks like the brothers have removed the video from the Internet.
Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website, fakelaugh.com, along with some blog commentary. You've got to hear and see this one to believe it:
A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint, filed Friday, August 24, includes counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleges that "Produce Paradise" depicts the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."
Following up on our posting yesterday about WordPress in Turkey, the MidEast Youth project has launched a petition calling on the Turkish government to invalidate the judicial decision to block the entire WordPress blog-hosting service in that country. The petition states:
Reports (here, here) indicate that WordPress.com, in its entirety, has been blocked in Turkey. People trying to visit the website get the following message: "Access to this site has been suspended in accordance with decision no: 2007/195 of T.C. Fatih 2.Civil Court of First Instance." The founding developer of WordPress, Matt Mullenweg, began writing about the situation last week on his personal blog, and he received a letter on Saturday night from a Turkish attorney representing Mr. Adnan Oktar, who apparently is a Turkish national and the author of books written under the pen name Harun Yahya. Mr. Oktar's attorney claims that another Turkish national, Edip Yuksel, started a number of WordPress blogs dedicated to defaming his client. The attorney says that he sent a number of letters complaining about the alleged defamatory statements to the WordPress legal department and apparently to Matt personally. According to the letter, he then brought the matter before a Turkish court, which granted Mr. Oktar's request to block access to WordPress.com in Turkey. The letter demands that WordPress "remove and prohibit any blogs in [its] site that contain my client's name Adnan Oktar or his pen name Harun Yahya or various combinations of these 4 names."
Kuensel Online, the electronic version of Bhutan's English-language national newspaper, reported last week that a man who posted comments on its discussion forums was convicted of criminal libel:
On July 16 the Paro district court sentenced an employee of the National Housing Development Corporation (NHDC) to one year in prison, with an option to pay thrimthue, in the first ever online defamation case in Bhutan. The thrimthue of Nu. 36,000, in lieu of one year imprisonment, has to be paid within 10 days.
Defendant Yeshey Lotay was ordered to pay compensatory damages of Nu. 36,000 each to a couple, both forest rangers, within one month of the judgment. Pema Dorji and Ugyen, both civil servants in Paro dzongkhag, had filed the case against Yeshey Lotay for defamation in a kuenselonline discussion forum in August, 2006.
According to Kuensel Online, the defendant "pleaded guilty" in his opening statement and admitted that he acted with malice and had no proof to substantiate his allegations of bribery, corruption, and misuse of power.
Although it doesn't appear that Kuensel Online or the defendant's ISP were implicated in the case, the article quotes the court as stating that regulatory authorities and Internet Service Providers share equal responsibility to regulate Internet related crime:
"The websites that solicits online discussion forums must also be equally responsible to protect from the vices of any internet related crimes and the principle of vicarious liability impugn that it is just not good enough to say that the webmaster or editors are not responsible of the content with a disclaimer clause," said the Paro drangpon.
Eugene Volokh has reposted a very useful analysis of whether homeowner's insurance policies cover libel lawsuits, entitled Blogger -- You Might Have Already Had Libel Insurance. Volokh concludes -- in my opinion, correctly -- that homeowner's insurance policies, and possibly some renter's insurance policies, generally cover libel lawsuits. While these policies don't cover punitive damages (almost all policies exclude intentional or willful conduct), they do cover compensatory damages and attorney's fees.
Seattle Post-Intelligencer: Avvo's attorney rating system draws fire. Setting up an online rating system that attempts to rank the best and worst attorneys, is kind of like dipping your toes in shark-infested waters. Sooner or later, you are bound to get bitten. That's the situation facing Avvo, the heavily funded Seattle startup that just four days ago unveiled a controversial Internet site that ranks lawyers on a scale of one ("extreme caution") to 10 ("superb").
Yesterday Massachusetts' highest court rejected the Boston Herald's motion to reconsider its decision in a defamation case brought by Judge Ernest Murphy. A month ago the Massachusetts Supreme Judicial Court had voted unanimously to affirm a $2.1 million jury verdict against the Boston Herald for its publication of a story in which it quoted Superior Court Judge Ernes
Poynter Online has a useful article up on assessing the legal risks faced by sites that publish user comments. The piece, while focused on traditional media organizations, provides some useful guidelines for anyone who runs a site that includes user submitted material.
According to attorney Robb Harvey, who is interviewed for the article,
The Boston Globe reported today that a pediatrician settled a medical malpractice case in the middle of trial when opposing counsel revealed that she had discovered the doctor's anonymous blog in which he had provided "unvarnished" commentary on the lawyers, jurors, and defense strategy of his case.
The Islamic Society of Boston has dropped its lawsuit against 16 defendants - including The Boston Herald and Fox 25-TV - for allegedly defaming the organization by linking it to terrorist groups. According to the Boston Globe:
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