Publication of Private Facts

Naffe v. Frey

Date: 

10/02/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Patrick Frey; Christi Frey; Steve Cooley; County of Los Angeles

Type of Party: 

Individual

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

U.S. District Court for the Central District of California; U.S. Court of Appeals for the Ninth Circuit

Case Number: 

CV 12-8443-GW (District Court); No. 13-55666 (Court of Appeals)

Legal Counsel: 

Kenneth P. White; Paul B. Beach

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Nadia Naffe accused a colleague of sexual assault and filed a criminal harassment complaint. John Patrick Frey, a Deputy District Attorney in Los Angeles County, raised questions about plaintiff's allegations on his blog and Twitter account which he maintained in his personal capacity. Naffe sued Frey, his wife, the former District Attorney for Los Angeles County and Los Angeles County under the theory that the defendant was acting in his official capacity as Deputy District Attorney while writing on his private blog, and that his actions violated her First Amendment and due process rights.

In a complaint filed in the U.S. District Court for the Central District of California, Naffe asserted the following causes of action:

1. violations of 42 U.S.C. § 1983
2. public disclosure invasion of privacy
3. false light invasion of privacy
4. defamation
5. intentional infliction of emotional distress
6. negligence
7. negligent supervision

Naffe subsequently filed a First Amended Complaint naming only Frey and the County as defendant. Frey moved to dismiss the First Amended Complaint, both for failure to state a claim (as to counts 1-6) and for a lack of subject matter jurisdiction over the state law claims (counts 2-7); the County filed its own motion to dismiss and also joined Frey's motions. Frey also filed a special motion to dismiss the state law claims under California's anti-SLAPP law. Naffe opposed all four motions.

In a tentative ruling (later confirmed), the district court found that it did not have independent subject matter jurisdiction over Naffe's state law claims because she had not sufficiently demonstrated a claim for relief exceeding the sum of $75,000. Accordingly, the court focused on whether Naffe had properly asserted a claim under 42 U.S.C. § 1983.

The court held that to state a claim under Section 1983, Naffe was required to allege facts sufficient to show that Frey's action related in some meaningful way either to his governmental status or to the performance of his duties, but found that Naffe had merely offered allegations that were conclusory or speculative. The court further held that merely "mentioning the fact that [Frey] [wa]s a deputy district attorney or prosecutor... does not transform everything he says on his blog or on Twitter into state action." Accordingly, the court dismissed Naffe's Section 1983 claim without leave to amend and dismissed her state law claims without prejudice. The court did not address the merits of Frey's anti-SLAPP motion.

Naffe appealed the ruling to the United States Court of Appeals for the Ninth Circuit. In her appellate brief, Naffe focused on a comment Frey had made on his twitter account, in which he states: "@NadiaNaffe My first task is learning what criminal statutes, if any, you have admitted violating." Naffe interprets this tweet to be a threat by a state prosecutor to investigate her for alleged criminal violations and offers it as evidence that her allegations are not merely speculative. Frey, in his appellee's brief, responded that such musings could not be deemed an official act, and that the factual context proves that the comment had nothing to do with anything over which a Los Angeles County Deputy District Attorney such as Frey could have jurisdiction.

The Digital Media Law Project ("DMLP") filed an amicus brief in support of Frey arguing that there are over 20 million Americans working for the government and that, even when those individuals speak on matters that relate to government activity, their ability to speak in their personal capacities must be preserved in order to ensure that these individuals' valuable viewpoints are part of public discussion.

Content Type: 

Jurisdiction: 

Subject Area: 

The Government Responds to the DMLP Amicus Brief in United States v. Auernheimer

On Friday, the Department of Justice filed its appellee brief before the U.S. Court of Appeals for the Third Circuit in United States v. Auernheimer.

Jurisdiction: 

Subject Area: 

Content Type: 

Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit.

Jurisdiction: 

Subject Area: 

Content Type: 

Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

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: 

Subject Area: 

CMLP Notes: 

AFS created post and edits through 1/3/12

Jurisdiction: 

Publication of Private Facts in Missouri

Missouri was one of the first states to recognize a legal claim for the publication of private facts. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). For the most part, the law in Missouri is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Missouri law that are different from the general description.

ANNOUNCEMENT: Panel and Fundraiser for "Without My Consent"

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

Subject Area: 

Jurisdiction: 

Hoang v. Amazon.com, Inc.

Date: 

10/13/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com, Inc., IMDb.com, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Western District of Washington at Seattle

Case Number: 

2:11-CV-01709-MJP

Legal Counsel: 

Ashley A. Locke, Breena Michelle Roos, Charles Christian Sipos, Elizabeth L. McDougall-Tural

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Junie Hoang, the stage name of Asian actress Huong Huang, filed an anonymous "Jane Doe" complaint in the Western District of Washington against the Internet Movie Database website, IMDb.com, and its parent company, Amazon.com, on October 13, 2011.

Hoang, who lives in Texas, has been a user of IMDb.com since 2003 and a subscriber to IMDbPro since 2008. She was using the services to help her connect with casting directors and to obtain acting roles. She did not put her age in her profile, but alleges that IMDb.com included it at a later point in time. She alleges that IMDb.com "took the personal information she provided during the subscription process [from her credit card] and added it to her online profile without her authorization." She also alleges that IMDb.com "scour[ed] public records" to discover her date of birth. She asked for her birthdate to be taken down, but IMDb.com has refused.

Hoang alleges that revealing her true name and age on IMDb.com has harmed her career because "in the entertainment industry, youth is king." Hoang was 40 years old at the time of filing. In addition, she alleges a "double-whammy effect" because she cannot get "forty-year-old roles" because she looks younger than she is and cannot portray the role of a forty-year-old woman.

In her complaint, Hoang alleges four causes of action:

  1. Breach of contract (of IMDbPro's Subscriber Agreement and incorporated Privacy Policy);  
  2. Fraud;
  3. Violation of Washington Privacy Act, RCW 9.73.030; and
  4. Violation of Washington Consumer Protection Act, RCW 19.86.

She included Amazon.com in her complaint because she alleges that the company "aided and abetted IMDb's wrongful conduct," and was aware of IMDb's procedures of cross-referencing credit card information with public records to gather as much information as possible about each subscriber. She sought an injunction to remove her personal information from IMDb, as well as $75,000 in comensatory damages, $1 million in punitive damages, and an award of costs and fees.

On November 9, 2011, defendants responded with two Motions to Dismiss: one pursuant to Rule 12(b)(6), failure to state a claim; and another pursuant to Rule 10(a), arguing that "Jane Doe" should not be able to proceed anyonymously. On the Rule 12(b)(6) motion, Amazon and IMDb argued that the display of the birthdate was "an accurate fact," and that Doe's claims about IMDb's practices were "pure speculation." The defendants also noted that even if Doe's claims were true, "plaintiff consented to such use of information when she subscribed to the IMDbPro service." 

On November 28, 2011, plaintiff filed oppositions to defendant's Rule 12 (b)(6) motion and Rule 10(a) motion, and simultaneously filed a cross-motion to proceed anonymously due to the "unique circumstances" in the case. Plaintiff argued that she should be allowed to proceed anonymously because disclosure of her identity would subject her to "severe retaliation, harassment and ridicule," including retaliation by defendants, who she claims "have a reputation of striking back at consumers who complain about their unauthorized publication of personal information." 

Defendants filed replies in support of their motions on December 2, 2011. They argued in regards to the 12(b)(6) motion that the plaintiff had failed to meet her burden of specific factual allegations sufficent to state a claim, and that each of her causes of action fail independently. In their reply pursuant to the 10(a) motion, defendants argued that plaintiff's arguments did not justify anonymity in this case, while also denying that they had ever "retaliated against [p]laintiff (or anyone else) for complaining regarding its practices." Amazon also claimed that "embarrassment does not meet the strict standards for anonymity." 

On December 23, 2011, the Washington district court judge in Seattle granted the defendant's motion to dismiss on Rule 10(a) grounds.  The court said "the injury [plaintiff] fears is not severe enough to justify permitting her to proceed anonymously. " The judge granted leave to "Jane Doe" to amend her complaint by adding her real name within 14 days of the order. 

On January 6, 2012, "Jane Doe" filed an amended complaint using her real name, Huong Huang.

On March 30, 2012, a federal district court judge ruled on the Rule 12(b)(6) Motion to Dismiss. Taking plaintiff's factual allegations as true, the court granted in part and denied in part defendants' motion.

  1. Breach of Contract. The court held that Huang's breach of contract claim was sufficient to survive the motion to dismiss stage. Plaintiff alleged an existence of a contractual duty and a breach of that duty. The court said the "plain language of the contract does not permit defendants unfettered use of the personal information that Plaintiff provided for the purposes of processing payment."
  2. Fraud. In regards to the fraud claim, the court held that Huang's claim failed because it did not meet the high standard of specificity requirements of Rule 9(b). This claim was dismissed with leave to amend with "the requisite standard of particularity."
  3. Washington's Privacy Act. Plaintiff's privacy claim also failed because it misapplied the Washington statute. The information was not "private" and was not "intercepted" or "recorded" by defendants, as required by the statute.  This claim was dismissed with prejudice.
  4. Washington's Consumer Protection Act. The Consumer Protection Act claim was also allowed to survive at the motion to dismiss stage. The court found that "defendants' alleged practices" could affect millions of people if plaintiff's allegations of IMDb.com's unfair and deceptive practices are true. 

On April 25, 2012, Huang filed a Second Amended Complaint (SAC), addressing the specificity in her fraud claim. In her SAC, Huang argues that defendants were engaged in data-mining, and that they "materially misrepresent...the safety, security and purposes for which they gather and use the personal and credit card information of consumers who subscribe to IMDbPro." She claims she would not have shared her credit card information if she knew the defendants would use "such information for other purposes." (The plaintiff and defendants disagree as to which documents represent the operative agreements in this matter.) Huang also adds a new claim about Amazon.com. She alleges that she purchased products from Amazon.com prior to subscribing to IMDbPro and  that "Amazon.com misrepresented in the Privacy agreement available on its website the terms on which Amazon.com would share her user information with IMDb.com."

After Huang filed her second amended complaint, defendants filed another Motion to Dismiss pursuant to Rules 12(b)(6) and 9(b) on May 9, 2012. In it, defendants argue that plaintiff's new claim about Amazon.com's Privacy Notice is a "thinly veiled attempt to keep Amazon.com in this lawsuit." Defendants also argue that plaintiff's SAC "comingles" defendants and fails to distinguish between Amazon.com and IMDb.com, as required for a state claim for fraud. They claim that plaintiff still does not specify "which statements are false, which statements IMDB.com knew were false and intended plaintiff to rely on, and which statements she had a right to rely on."  

Huang filed an opposition to the Motion on May 21, 2012, and defendants replied to the opposition on May 25, 2012.

On June 1, 2012, Huang filed a Motion for Relief from Trial Deadlines and to Continue Trial Dealines alleging defendants did not file substantial answers to her complaint and/or raise substantial defenses. The plaintiff also claims both parties have been "embroiled" in discovery disputes because Amazon claims to be exempt from full discovery. Defendants filed an Opposition to that motion on June 13, 2012, alleging that plaintiff was delaying her own responses to discovery and had failed to respond to efforts to negotiate a "mutally acceptable protective order." On June 15, 2012, Huang filed a Reply in support of her Motion for Relief from Trial Deadlines and to Continue Trial Date.  

The plaintiff and defendants asked the Court to enter a Stipulated Protective Order regarding discovery on June 28, 2012. 

 

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Subject Area: 

Jurisdiction: 

From Accident Photos to the White House: Contesting Photo Use in Newspaper Merchandise Sales

Take a moment to explore your daily newspaper's webpage. You'll likely find recent articles and archives, video materials, job postings, classifieds, sidebars with advertisements, various forms of social media integration, and, most surprisingly (or perhaps not, considering the financial challenges journalism faces), a store.

Jurisdiction: 

Subject Area: 

Content Type: 

Publication of Private Facts in Arizona

It is not clear whether Arizona recognizes a claim for publication of private facts.  Although the Court of Appeals of Arizona discussed possible elements of a publication of private facts claim in Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243 (Ariz. App. 1986), the Court noted that Arizona precedent regarding the existence of such a claim was not settled.  Id. at 1246 n. 3; see also Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 669 (Ariz. App. 1969) (noting that Arizona "possibly" recognizes a claim for publication of private facts).

When Art Imitates Life: Suing for Defamation in Fiction

CMLP received an email from a novelist asking us how far she can take the advice, "write what you know." Would she risk being sued for libel if she based a character in her fictional work on a person she knows and dislikes in real life? Could she be held accountable if her fictional work were actually semi-autobiographical and described not only her own real-life actions, but also those taken by others?

Subject Area: 

Content Type: 

Lee v. Young, Black, and Fabulous

Date: 

03/05/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Natasha Eubanks; Young, Black, and Fabulous, LLC

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of Fulton County, State of Georgia

Case Number: 

2010cv182439

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

In March 2010, Latosha Lee sued celebrity gossip blog Young, Black, and Fabulous and its author in Georgia state court.  The complaint alleges that blogger Natasha Eubanks defamed Lee by calling her "Shaq's stripper mistress," when in fact she has never worked as a stripper.  The complaint also alleges that the blog invaded her privacy by publishing copies of personal emails and photographs "obtained illegally and as a result of unauthorized access to the personal email account of the recipient."  In addition, the complaint includes a copyright infringement claim for unauthorized distribution of three photographs taken by Lee. 

Content Type: 

Jurisdiction: 

Subject Area: 

The Catsouras Photos: Will a Family's Privacy Interest Impede Press Access?

The tragic story of Nikki Catsouras continues. I considered not giving yet more attention to the horrific accident photos she is now most known for, but the case still elicits a great deal of emotion and for that very reason it's important to address the law that is being decided in California. 

Subject Area: 

Jurisdiction: 

Florida v. Brayshaw

Threat Type: 

Criminal Charge

Date: 

05/01/2008

Party Receiving Legal Threat: 

Robert A. Brayshaw

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Legal Counsel: 

James Green

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Enforced

Description: 

Florida state authorities charged Robert Brayshaw with a misdemeanor for violating Fla. Stat. § 843.17 after he anonymously posted the name, address, and telephone number of a Tallahassee Police Department officer on RateMyCop.com.  Section 843.17 prohibits publication of a law enforcement officer's residential address or telephone number with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties.  The Tallahassee police obtained Brayshaw's identity after subpoenaing records from RateMyCop.com and Brayshaw's ISP, according to Wired.

Prosecutors voluntarily dropped the charges on December 9 and then refiled 10 days later, according to an article on RateMyCop.com. The state court judge ultimately dismissed the charges with prejudice for failure to comply with Florida's speedy trial requirements. Brayshaw then filed a complaint in federal court in Florida, seeking a declaration that Section 843.17 violates the First Amendment. According to Brayshaw's complaint, the police officer's name and address are publicly available on the Leon County Clerk of Court's website.  On April 30, 2010, Judge Smoak issued a decision striking down Section 843.17 as unconstitutional under the First and Fourteenth Amendments.

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [10/23/2009]

EK - updating [11/13/2009]; also look at related entry State of Florida v. Ratemycop.com

Priority: 

1-High

Jurisdiction: 

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Minkin; David Lat; Dead Horse Media, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In October 2009, Donald Marvin Jones, a law professor at the University of Miami School of Law, sued David Lat and David Minkin, editor and publisher of the popular law gossip blog Above the Law (ATL), as well as ATL's parent company, Dead Horse Media. The complaint seeks $22 million in damages and an injunction "enjoining Abovethelaw to remove all articles and posts concerning Professor Jones."

The lawsuit revolves around a series of posts ATL published after Jones was arrested in 2007 on suspicion of trying to solicit sex from a prostitute. In these posts, ATL made fun of Jones—calling him "The Nutty Professor"—and posted a screenshot of the "incident report" for his arrest.  In one post, Lat published a photo/graphic mash-up collage forwarded to him by a reader that—according to the complaint—"depict[ed] Professor Jones as a drug dealer and a pimp or both."  The graphic featured one photograph of Jones superimposed on a $20 bill and another talking up a group of prostitutes. 

According to the National Law Journal, Jones pleaded not guilty to the solicitation charge, and the authorities later dismissed the charge and expunged it from Jones' record.

Jones' complaint alleges that ATL infringed his copyright by publishing the mash-up collage because a photo in it was "stolen from the UM website without permission." There is no allegation that Jones, as opposed to the University, owns the copyright in the photo or that the photo is registered with the copyright office. Jones also alleges that publication of the collage casts him in a false light by portraying him as a "dope dealer, pimp, and criminal."

Finally, the complaint alleges that ATL invaded his privacy and cast him in a false light by publishing the "incident report" despite dismissal and expungement of the solicitation charges.  Jones' claim that ATL made "private records public" is complicated by Fla. Stat. § 119.105, which provides that "[p]olice reports are public records except as otherwise made exempt or confidential," and says that, even in the case of exempt or confidential police reports, "[t]his section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information."

On November 4, 2009, after much criticism of the lawsuit in the legal blogosphere, Professor Jones voluntarily dismissed the action.

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Subject Area: 

Jurisdiction: 

City of Kirkland v. Sheehan

Date: 

03/27/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

William Sheehan; Roberta Sheehan; Aaron Rosenstein

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of Washington, County of King

Case Number: 

01-2-09513-7 SEA

Legal Counsel: 

Elena Luisa Garella

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued
Material Removed

Description: 

City officials in Kirkland, Washington sued William Sheehan and other defendants for publishing personal information about Kirkland police officers on his website, www.justicefiles.org. The website, which was critical of law enforcement, contained substantive political argument but also the names, addresses, dates of birth, telephone numbers and social security numbers of law enforcement personnel and their spouses. The City alleged that the website invaded the privacy of its officers and sought an injunction prohibiting publication of this personal information.

The Washington state court granted in part and denied in part the City's motion for an injunction. It distinguished information with a substantive communicative purpose from personal information that protects an individual's identity and assets.  The court refused to enjoin the dissemination of the names, addresses, dates of birth and telephone numbers of the law enforcement personnel, reasoning that absent a credible threat of harm, the First Amendment protects the dissemination of information that promotes political discussion. The court enjoined the dissemination of social security numbers, however, because the government has a compelling interest in protecting this unique identifying information.   

Later, Sheehan and his wife filed a third-party complaint against Yahoo!, Infospace, Inc., RWN Corporation, d/b/a Data-trac.com, and US Search.com, Inc., claiming a right to contribution or indemnity because these companies originally published or sold the "personal" information upon which the City's lawsuit was based.  The CMLP has not been able to determine what happened after this point in the proceeding.  Sheehan's website is no longer online. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

In June 2001, Defendant Sheehan and Plaintiffs brought claims against third parties, Yahoo, Infospace, Inc., RWN Corporation and US Search.com, Inc. http://www.politechbot.com/kirkland/defense.yahoo.motion.0601.html

-edited by MW

 

Jurisdiction: 

First Amendment Protects TechCrunch's Publication of (Some) Hacked Twitter Documents

There's an interesting debate afoot about TechCrunch's decision to publish selected documents it received from someone who hacked into the email accounts of Twitter CEO Evan Williams and other Twitter employees.

Subject Area: 

Ricobene v. JP Morgan Chase

Threat Type: 

Lawsuit

Date: 

04/13/2009

Party Receiving Legal Threat: 

JP Morgan Chase Bank; Universal Tracing Services, Inc.

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Circuit Court of Cook County, Illinois

Case Number: 

2009-L-004397

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

James Ricobene filed suit against JP Morgan Chase and collection agency Universal Tracing Services (UTS) after a UTS employee allegedly posted a message on Ricobene's daughter's MySpace page threatening legal action if he did not surrender his 2007 Mercedes GL450, which he apparently used as collateral to secure a loan from Chase. 

According to Ricobene's complaint, the message posted on Gina Ricobene's MySpace page read as follows:

We have been retained by, JPMorgan Chase Bank, to locate and repossess their missing collateral a 2007 Mercedes GL 450. Please contact our office immediately so we can discuss the peaceful recovery of the collateral. Failure to contact me will result in further action against your father James Ricobene. Legal options range from having a replevin order served on you or even worse reporting the collateral as stolen to local authorities in Illinois under the A.R.S. act 18-5-504. Failure to comply with this notice of surrender is a class 5 felony and carries a maximum penalty of imprisonment for two years plus all applicable surcharges. You must contact the writer within 5 days to prevent this action from taking place. You can contact me directly at 800-667-7704 ext 222 or directly at 604-267-1581 ext. 222

Awaiting your immediate response.

Chris Flanagan
Senior investigator

Complaint ¶ 6.  Ricobene's complaint points out that refusing to return collateral without a court order is not a crime in Illinois, and that "there is no such thing as a 'class 5 felony' in Illinois." Complaint ¶¶ 11, 13. It also alleges that friends and family members saw the message on MySpace, causing Ricobene humiliation, embarassment, and emotional distress.

Ricobene's complaint includes claims of libel, false light invasion of privacy, and consumer fraud.  According to Chicago Breaking News, his daughter Gina has also filed suit, claiming invasion of privacy and consumer fraud.

According to  On Point News, UTS denies having an employee by the name stated in the post and claims that "no employee 'has ever posted anything on anyone's MySpace page."  Its website, however, boasts that "Universal tracing prides itself in using the latest technology and resources to track down and locate the hardest to find missing persons, and debtors." (emphasis in original)

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06/29/2009 - LB editing

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Crime Online May Mean More Time

In Hawaii, a 22-year-old former hospital worker was recently sentenced to one year in jail, five years probation and 200 hours of community service on a felony charge of "unauthorized computer access to confidential records" (apparently under Haw. Rev. Stat.

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