Third-Party Content

French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions.

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Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

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

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

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

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

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

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

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

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

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

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

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

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FunnyJunk, LLC vs. TheOatmeal.com

Date: 

06/02/2012

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

TheOatmeal.com, Matthew Inman

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Legal Counsel: 

Venkat Balasubramani

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

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

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

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

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    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!

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    Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

    The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

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    The IRS and User-Generated Content

    As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations.

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    Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

    Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

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    Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

    I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen.

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    Major League Baseball v. Charter Communications Inc.

    Date: 

    06/03/2010

    Threat Type: 

    Subpoena

    Party Receiving Legal Threat: 

    Charter Communications Inc.

    Type of Party: 

    Large Organization

    Type of Party: 

    Large Organization

    Court Type: 

    State

    Court Name: 

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

    Case Number: 

    107256/2010

    Publication Medium: 

    Forum

    Status: 

    Pending

    Description: 

    On June 3, 2010, Major League Baseball filed a petition for a court order requiring Internet service provider Charter Communications Inc. to disclose the names of users who posted "pornographic," and "indecent" material on MLB.com forums, Reuters reports.

    Major Legaue Baseball traced the IP addresses of the offensive posters to Charter Communications and seeks the names of the posters so that it can pursue "appropriate action" against them. MLB.com has tried and failed several times to ban the "obscene" posts, many of which involve threats of unwanted sexual acts against other forum users, and images of genitalia, according to Reuters

     

    Content Type: 

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    Threat Source: 

    Court Filings

    CMLP Notes: 

    6/9/10 9.42am: I could not track down the petition for the court order so I relied heavily on the Reuters article. MH

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    T&J Towing v. Kurtz

    Threat Type: 

    Lawsuit

    Date: 

    04/05/2010

    Party Receiving Legal Threat: 

    Justin Kurtz

    Type of Party: 

    Individual
    Organization

    Type of Party: 

    Individual

    Court Type: 

    State

    Court Name: 

    9th Circuit Court for the County of Kalamazoo

    Case Number: 

    2010-0206-NZ

    Legal Counsel: 

    Christopher B. Vreeland - Law Office of Christopher B. Vreeland; Dani K. Liblang - Liblang & Associates, P.C.

    Publication Medium: 

    Social Network

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On April 5, 2010, T&J Towing of Kalamazoo, Michigan, filed a defamation lawsuit  against Justin Kurtz, a 21-year-old student at Western Michigan University. The dispute revolves around Kurtz's creation of a Facebook page called “Kalamazoo Residents against T&J Towing.” T&J seeks $750,000 in damages and a court order that Kurtz “immediately cease and desist any further libelous and slanderous written claims” about the company.

    According to press reports, Kurtz created the page days after T&J towed his car from the parking lot of his apartment complex. On the page, Kurtz claims that T&J removed his parking permit and improperly towed his car.  As of the time of writing, the Facebook group had over 13,800 members, many of whom have posted comments about their own negative experiences with the company.

    The complaint alleges that Kurtz "has falsely and publicly claimed that Plaintiffs have towed vehicles where no violation has occurred and which claims are untrue." Cmpt. ¶ 4.  It also suggests that Kurtz is responsible for the postings of other Facebook users, alleging that Kurtz "has absolutely no way of knowing whether or not all of the written submissions to his website have any truth or validity." Id.¶ 7.

    Kurtz filed an answer on April 30, 2010 and asserted counterclaims for violations of the Michigan Consumer Protection Act and abuse of process.

    Content Type: 

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    Threat Source: 

    Court Filings

    CMLP Notes: 

    6/4 2:30pm: Here is a first try. I had trouble with the paragraph breaks in the description section. I tried rich text and html. MH

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    Illinois Court Requires Newspaper Website To Identify Pseudonymous Commenter

    A mid-level appellate court in Illinois ruled on Tuesday that the publisher of a local newspaper must reveal the identity of a pseudonymous Internet commenter.  In Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct.

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    Town of Southborough v. MySouthborough.com

    Threat Type: 

    Correspondence

    Date: 

    09/22/2009

    Party Receiving Legal Threat: 

    MySouthborough.com; Susan Fitzgerald

    Type of Party: 

    Government

    Type of Party: 

    Individual

    Legal Counsel: 

    Pro Se

    Publication Medium: 

    Blog

    Status: 

    Pending

    Description: 

    In September and October 2009, Aldo Cipriani, Town Counsel for Southborough, MA, exchanged letters with Susan Fitzgerald, publisher of MySouthborough.com, a blog dedicated to local politics. Cipriani's letters requested that Fitzgerald turn over the identity of a commenter going by the moniker "Marty" and cautioned Fitzgerald to "more closely monitor remarks made on the communication site ensuring that when individuals speak to issues they do so accurately and without false allegations of violating state law." A letter from late October also advised her to retain records of IP addresses and other information.

    According to the Boston Globe, the dispute revolves around meetings of a search committee set up to select a new police chief:

    Marty’s posts questioned whether certain search committee meetings held in executive session, behind closed doors, violated the state’s open meeting laws. The posts insinuated the committee had unfair partiality toward the police force’s interim chief, Jane Moran, during the search process. The longtime department veteran was hired for the permanent position in November. (source)

    According to MetroWest Daily News, Cipriani's September 22 letter asserted that "[c]ertain comments have been made about the citizen volunteer duly-appointed Police Chief Search Committee wrongly suggesting improprieties under state law," and asked "that you . . .  furnish the contact information for 'Marty' and/or his attorney so that we may raise our concerns directly." 

    In a September 30 response, Fitzgerald refused to turn over Marty's identity.  She later told the Globe that she considered Marty's statements expressions of opinion, noting that “I may not agree, but I believe it is the commenter’s right to say it.’’  

    The issue resurfaced in March when Selectmen Sal Giorlandino and Bonnie Phaneuf said recent comments posted under a police lieutenant story compelled them to consider legal action.  Selectman Giorlandino told the Globe: "References that say I'm not masculine enough to do my job, and another reference that involved burning Bonnie's (Phaneuf) undergarments, went over the line."

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    Collins v. Federated Publications, Inc.

    Date: 

    02/09/2009

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Purdue University; Board of Trustees of Purdue University; Purdue University Police Department; Stephen J. Akers; Lyman (Trea) R. Mitten, III; Jeanne V. Norberg; Alice M. D'Amore; Jane Does; John Does; Gary K. Evans; John K. Cox; Carrie K. Costello;

    Type of Party: 

    Individual

    Type of Party: 

    Individual
    Organization
    Large Organization

    Court Type: 

    Federal

    Court Name: 

    United States District Court for the Northern District of Indiana

    Case Number: 

    4:09-cv-12

    Legal Counsel: 

    Jan M Carroll, Kara M Kapke - Barnes & Thornburg LLP (for Federated Publications, Inc.); Christina A Wright, Trenten D Klingerman - Stuart & Branigin LLP (for Purdue, Akers, Mitten, Norberg, Evans, Cox, Costello, Davis, Wietbrock); Wayne T Szulkowski

    Publication Medium: 

    Social Network
    Website

    Relevant Documents: 

    Status: 

    Pending

    Disposition: 

    Dismissed (partial)

    Description: 

    Timothy Collins, a former student of Purdue University, sued Federated Publications, publisher of the Journal & Courier newspaper, Purdue University, university officials, and others over allegedly defamatory statements in an article published on the newspaper's website, in anonymous comments to that article, and on Facebook. 

    According to court documents, the dispute revolved around a Journal & Courier article, "Student Who Reported Mugging Charged," which stated that Collins had been charged with misdemeanor false informing in connection with the investigation of the disappearance of another Purdue student.  Comments posted to the article and on Facebook allegedly linked Collins to the disappearance.  The complaint included claims for libel, false light, intentional infliction of emotional distress, and negligent infliction of emotional distress.  

    Federated Publications moved for judgment on the pleadings, and the court granted dismissal of all claims against it.  The court found that claims based on certain statements were barred by the statute of limitations, that Collins failed to make out a claim for intentional or negligent infliction of emotional distress, that the Journal & Courier article was substantially true, and that Section 230 of the Communications Decency Act protected Federated for claims based on its users' comments.

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    Scott P. v. Craigslist, Inc.

    Date: 

    02/05/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Craigslist, Inc.; Foster Dairy Farms; Foster Poultry Farms; Michael O. Simpson; Albert Carreno; Does 1 through 100

    Type of Party: 

    Individual

    Type of Party: 

    Individual
    Organization

    Court Type: 

    State

    Court Name: 

    Superior Court of the State of California, County of San Francisco

    Case Number: 

    CGC-10-496687

    Legal Counsel: 

    Elizabeth L. McDougall, Philip A. Leider, Liling Poh - Perkins Coie LLP

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Disposition: 

    Material Removed

    Description: 

    In February 2010, Scott P., an unnamed plaintiff proceeding anonymously, filed a lawsuit against Craigslist and other defendants in California state court after his co-workers allegedly posted a series of Craiglist ads impersonating him.

    The complaint alleges that, in March 2009, co-workers posted a series of ads on the "casual encounters" section of Craigslist pretending to be Scott P. looking for gay sex. Scott P. complained to Craigslist several times asking the site to remove the ads and to prevent future ads impersonating him.  According to the complaint, Craigslist staff removed the ads and assured him that they would "take care of it," which he understood as an undertaking to prevent further harassing posts. 

    Despite these communications, a number of additional posts appeared in April 2009.  These ads gave Scott P.'s name, phone number and home address and "invit[ed] people to go to [Scott P.'s] home with friends to pick up large, heavy furniture and items for free or at very low prices." According to the complaint, approximately 50 to 60 people appeared at Scott P.'s home as a result of the ads and "entered onto his real property and demanded the free property advertised on . . . Craigslist."

    Scott P. asserted a number of claims against his co-workers and employer over the fake ads, including defamation, false light, intrusion, publication of private facts, and discrimination. With respect to Craigslist, Scott P. asserted a claim for promissory estoppel, alleging that he reasonably relied on Craiglist promise that it would prevent future fraudulent postings in his name. (This may be the first case we've seen relying on Barnes v. Yahoo! to get around Section 230 of the Communications Decency Act.) Scott P. also asserted a claim for "unfair competition" against Craigslist. 

    In March, Scott P. dismissed his employer Foster Farms from the case.

    Update:

    5/3/2010 - Craigslist filed a demurrer to the complaint.

    5/17/2010 - Scott P. filed a response

    5/25/2010 - Craigslist filed a reply

    6/2/2010 - The court held a hearing and overruled the demurrer on the promissory estoppel count, holding that the complaint "sufficiently pleaded an agreement supported by promissory estoppel." The court granted a temporary stay of discovery to allow Craigslist to file a writ of petition to the Court of Appeal. 

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    Levitt v. Yelp! Inc.

    Threat Type: 

    Lawsuit

    Date: 

    03/12/2010

    Party Receiving Legal Threat: 

    Yelp! Inc.; Does 1-100

    Type of Party: 

    Individual

    Type of Party: 

    Organization

    Court Type: 

    State

    Court Name: 

    Superior Court of the State of California, County of San Francisco

    Case Number: 

    CGC-10-497777

    Legal Counsel: 

    Michael G Rhodes - Cooley Godward Kronish LLP

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    Boris Levitt, owner of Renaissance Furniture Restoration in San Francisco, brought a class action lawsuit against Yelp! Inc. in California state court, alleging violations of California unfair competition law and negligent and intentional misrepresentation. The lawsuit came weeks after other small business owners filed similar lawsuits against Yelp in federal court in California. 

    Like the other class action complaints, Levitt's complaint alleges that Yelp runs an extortion scheme, in which Yelp! supposedly promises to positively manipulate user reviews in exchange for the purchase of advertising, and implicitly threatens to detrimentally manipulate reviews if business owners refuse. Specifically, Levitt claims that a number of positive reviews about his business disappeared days after he declined a request to purchase advertising on Yelp. The complaint also alleges that Yelp misrepresents that its reviews are unbiased, causing injury to Levitt's business.

    On March 30, 2010, Yelp removed the case to federal court, where it presumably will be consolidated with the other class action lawsuits.

    Yelp CEO Jeremy Stoppleman has repeatedly denied moving reviews around to reward advertisers and punish non-advertisers.

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    LaPausky v. Yelp! Inc.

    Threat Type: 

    Lawsuit

    Date: 

    03/03/2010

    Party Receiving Legal Threat: 

    Yelp! Inc.

    Type of Party: 

    Individual

    Type of Party: 

    Organization

    Court Type: 

    Federal

    Court Name: 

    United States District Court for the Central District of California

    Case Number: 

    2:10-cv-01578

    Legal Counsel: 

    Sarah Ruth Boot, Matthew Dean Brown, Benjamin H Kleine, Michael G Rhodes - Cooley Godward Kronish LLP

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    Christine LaPausky, owner of the D'ames Day Spa in San Diego, brought a class action lawsuit against Yelp! Inc. in California federal court, alleging violations of California unfair competition law. The lawsuit came days after another small business owner filed a similar class action complaint against Yelp

    The complaint is substantially similar to the first class action complaint and alleges an extortion scheme, in which Yelp! supposedly promises to positively manipulate user reviews in exchange for the purchase of advertising, and implicitly threatens to detrimentally manipulate reviews if business owners refuse.  Like the first complaint, this one relies heavily on press accounts detailing complaints from other businesses about the alleged extortionate behavior. 

    Yelp CEO Jeremy Stoppleman responded with a blog post calling the allegations "false and easily refuted." He added:

    These copy cat suits get filed in what is known as a "race to the courthouse," where lawyers jockey to be named the lead lawyer of the case and take the biggest share of legal fees; being among the first to file a suit increases the chance of being put in charge of the case.

    So, as I said: it's not a surprise to see another such frivolous suit. In fact, it's kind of expected.

    This doesn't change a thing however: this suit, like the other, is without merit, we will fight it aggressively and we believe we will win.

    This case presumably will be consolidated with the other class action lawsuit pending in the same district court.

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    Kehoe v. Craigslist

    Date: 

    03/01/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Craigslist, Inc.; Jane Doe

    Type of Party: 

    Individual

    Type of Party: 

    Individual
    Organization

    Court Type: 

    State

    Court Name: 

    Supreme Court of the State of New York, Queens County

    Publication Medium: 

    Forum

    Status: 

    Pending

    Disposition: 

    Material Removed

    Description: 

    Leo Kehoe, a Queens accountant, sued Craigslist, Inc. in New York state court after an anonymous individual posted ads on Craigslist calling him a "crook" and a "fraudulent scumbag." Kehoe also sued the anonymous poster. According to Gothamist, the postings have since been removed and the following were posted in their place: "Leo Kehoe is a great CPA. He charged me a lower fee than what I had payed with someone else and he did a much better job" and "Leo Kehoe: Much better than Cats. I'm going to see him again and again."  These postings have expired.

    Kehoe's lawyer told the Daily News: "Craigslist should have known the posting was false and untrue and would subject Kehoe to 'ridicule, disgrace and prejudice.'"  The claim against Craigslist will almost certainly be dismissed under Section 230 of the Communications Decency Act.

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    Pages