False Light

Legal Threats Database Preview: Internet Solutions v. Marshall

Tomorrow we officially launch our Legal Threats Database, a catalog of the growing number of lawsuits, cease-and-desist letters, and other legal challenges faced by those engaging in online speech. As many of our readers are no doubt aware, the individual threat entries have been available for some time, but starting tomorrow users will be able to view the entire database and search the entries using a number of fields, including location, legal claim, publication medium, and content type.

Jurisdiction: 

Content Type: 

Subject Area: 

Summary Judgment Granted in BidZirk v. Smith

I blogged about Orthomom's victory on Friday. Here's another big win for a blogger recently. Last Monday, the United States District Court for the District of South Carolina granted summary judgment to Philip Smith in the lawsuit brought against him by BidZirk, LLC, Daniel Schmidt, and Jill Patterson.

Jurisdiction: 

Content Type: 

Subject Area: 

Jankovic v. International Crisis Group

Date: 

07/15/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Milan Jankovic (aka Philip Zepter); Fieldpoint B.V.; United Business Activities Holding

Party Receiving Legal Threat: 

International Crisis Group; James Lyon

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia; United States Court of Appeals for the D.C. Circuit

Case Number: 

1:04 CV 01198 (RBW); No. 06-7095

Legal Counsel: 

Amy L. Neuhardt , Jonathan L. Greenblatt, Cynthia P. Abelow

Publication Medium: 

Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Milan Jankovic, aka Philip Zepter, along with two of his businesses, Fieldpoint B.V. and United Business Activities Holding, filed suit against International Crisis Group (ICG), claiming defamation, false light invasion of privacy, and tortious interference with business expectancy. Non-profit ICG publishes newsletters, reports, and other documents aimed at influencing policymakers worldwide, apparently focusing on the prevention of armed conflict. Zepter's claims arose from ICG documents -- two reports and an e-mail -- that accused Zepter and his business ventures of improper ties to deceased Serbian president Slobodan Milosevic.

On May 1, 2006, the district court dismissed plaintiffs' claims as to the e-mail and one of the reports (“Report 141”) because the statute of limitations had run. It dismissed the claims involving the other document (“Report 145”) as to Zepter's businesses because the report did not concern them and as to Zepter himself because the disputed statements were not defamatory as a matter of law. Plaintiffs amended their complaint to remove ICG employee James Lyon, who had sent the disputed e-mail, after the District Court found that Lyon's presence in the case destroyed diversity for the purposes of jurisdiction.

On July 24, 2007, the United States Court of Appeals upheld the district court's finding that the case in its original form failed due to lack of jurisdiction over Lyons. It also upheld the dismissal of all claims relating to the e-mail and Report 141 due to the statute of limitations, as well as Zepter's businesses' claims arising from Report 145.

However, the Court of Appeals held that Zepter had established a prima facie defamation case regarding certain statements in Report 145. The opinion discussed three disputed portions of Report 145 separately. It affirmed the dismissal of the claims as to the first portion, which had implicated another Zepter venture -- Zepta Banka -- but not Zepter himself. Due to the size and scope of Zepter's business enterprises, spanning more than 50 countries on five continents, the court found that statements regarding Zepta Banka did not concern Zepter.

According to the court, the second statement in Report 145 could give the impression that Zepter was a “crony” of Milosevic and thus was sufficient to establish a prima facie case of defamation. Though the Court of Appeals did not discuss them, it revived plaintiffs' false light and tortious interference claims as to the second statement in Report 145.

The Court of Appeals affirmed the dismissal of the claims regarding the third statement in Report 145 because the statement referred to a former Zepter employee rather than Zepter himself.

The net result was that all claims against ICG were dismissed except for those involving the second statement from Report 145, which were remanded to the district court. ICG raised a number of defenses not reached by the district court or on appeal -- Opinion and Fair Comment Protection, the Fair Report Privilege, the Neutral-Reportage Doctrine -- which will be considered in the lower court.

Update:

7/24/2007 - Case remanded to district court.

5/13/2008 - ICG filed memorandum supporting its motion to dismiss first amended complaint.

5/23/2008 - Jankovic filed memorandum in opposition to ICG's motion to dismiss.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status updated on 6/5/2008 (AAB)

Shamblin v. Martinez

Date: 

11/06/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Gwen Shamblin; Kent Smith; Regina Smith; 64 Other Members of the Remnant Fellowship Church

Party Receiving Legal Threat: 

Anonymous Blogger; Rafael Martinez

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of Williamson County, Tennessee

Case Number: 

No. 6648

Legal Counsel: 

G. Philip Anderson

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Withdrawn

Description: 

An anonymous blogger made critical statements about Gwen Shamblin, leader of the Remnant Fellowship church, and about the group's beliefs and practices. One of the statements implied that two Remnant Fellowship members who were indicted for beating their eight-year old son to death had relied on advice from "Remnant leadership." Other statements detailed the prices paid by Shamblin for properties she owned. The anonymous blogger also allegedly posted photographs of the children of Remnant Fellowship members, family photos, names and ages of children, and members' home addresses.

Sixty-seven members of the group, including Shamblin, filed a lawsuit against the anonymous blogger in Tennessee state court, claiming defamation and false light invasion of privacy. The plaintiffs also named Reverend Rafael Martinez, who runs a website dedicated to warning the public about cults, in the complaint. Martinez maintains that he had no connection whatsoever to the anonymous blogger. The complaint alleges that Martinez defamed the plaintiffs by making statements that the church's practices were "dangerous and destructive" and indicating that church doctrine advocated "extreme fasting" and "extreme discipline for children," including spankings and whippings.

Martinez moved to dismiss the claim against him in January 2007. The court granted his motion in April 2007, but granted the plaintiffs permission to amend the complaint. Rather than amending, the plaintiffs voluntarily withdrew the lawsuit.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

 

 

AutoAdmit

Date: 

06/08/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

John Doe I; John Doe II

Party Receiving Legal Threat: 

Anthony Ciolli; Mathew C. Ryan; Ryan C. Mariner; Individuals whose true names are unknown

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

District of Connecticut

Case Number: 

3:07CV00909

Legal Counsel: 

Marc Randazza (Ciolli); Charles E. Vermette, Jr.; Daniel J. Hoppe, Jr.; Orlando P. Ojeda, Jr.; W. Anthony Collins, Jr. (A horse walks into a bar); John R. Williams (AK47); Joseph G. Fortner, Jr.; Susan J. O'Donnell (Matthew C. Ryan, aka ".D")

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)
Subpoena Enforced

Description: 

Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually explicit, and threatening comments posted about them on the forum. In addition to making numerous derogatory and sexually explicit statements about the two students, pseudonymous users of the site created another website, t14talent: The Most Appealing Women @ Top Law Schools (now defunct), and posted photographs of one of the students without her permission. (Although the complaint is not entirely clear on this point, the student claims copyright ownership in these photographs in addition to publicity rights, indicating that she may have been the creator of the photos and posted them online.)

According to the complaint, the two students complained about the forum postings to the AutoAdmit staff, but AutoAdmit did not remove the material. Ciolli disputes that he had any authority to remove the offensive postings.

In June 2007, the two students sued in federal court in Connecticut, asserting claims of defamation, copyright infringement, unauthorized appropriation of name and likeness, unreasonable publicity given to another's life, false light invasion of privacy, and other torts. Soon after filing, they moved to proceed anonymously, and the court granted that request.

In August 2007, the plaintiffs moved to modify the court's scheduling order in order to give them time to investigate the identity of the pseudonymous defendants and to amend their complaint. The court granted the initial request and two subsequent requests for thirty-day extensions, the last of which was requested on October 4. According to a tip posted on David Lat's Above the Law blog, it is unlikely that the court will grant a fourth extension, so an amended complaint may be forthcoming relatively soon.

Update:

11/8/07 - Plaintiffs filed an amended complaint dropping Ciolli from the lawsuit.

1/24/08 - Plaintiffs filed a motion for expedited discovery seeking to uncover the identities of the pseudonymous posters listed in the complaint.

1/29/08 - Court granted motion for expedited discovery.

2/22/08 - Pseudonymous defendant "AK47" moved to quash the subpoena directed at AT&T requesting information about his identity.

3/2/08 - Plaintiffs deposed former defendant Anthony Ciolli, at which Ciolli acknowledged that his AOL Instant Messenger username is "AnthonyCiolli."

3/4/08 - Former defendant Anthony Ciolli filed a lawsuit in Pennsylvania state court against the plaintiffs, their lawyers, and other defendants for wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness.

3/18/08 - Plaintiffs issued a subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" and related information about the account, including "other user names and login IDs and/or Internet Protocol ("IP") addresses associated with the IM username 'AnthonyCiolli.'"

4/7/08 - Ciolli filed a motion to quash the AOL subpoena in federal district court in Virginia.

06/13/08 - The court denied AK47's motion to quash the subpoena seeking his identity from AT&T.

08/05/08 - Plaintiffs filed an amended complaint that names Mathew C. Ryan (previously known by username ":D") as a defendant. Legal Satyricon "can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor."

8/13/08 - Defendant "a horse walks into a bar", a.k.a Ryan Mariner filed a motion to dismiss, arguing that the plaintiff's have stated no cause of action against him and that they have failed to prosecute the action against him despite offers to accept service made through counsel. 

9/10/08 - Plaintiffs filed papers in opposition to Mariner's motion to dismiss.

9/19/08 - The United States District Court for the Western District of Virginia held that the plaintiffs' subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" was facially invalid because it was issued from the wrong court.  The court determined that it should have issued from the United States District Court for the Eastern District of Virginia. Because the court concluded that it lacked jurisdiction, it did not reach the merits of Anthony Ciolli's motion to quash

10/26/08 - Plaintiffs filed a notice of settlement and request for dismissal against defendant "Whamo."

3/31/09 - Pennsylvania federal court largely denied the defendants' motion to dismiss Anthony Ciolli's complaint in Ciolli v. Iravani, but gave defendants leave to renew their motion after jurisdictional discovery.  The court also struck certain allegations from the complaint relating to settlement negotiations in the Connecticut lawsuit. 

4/30/09 - Connecticut federal court denies Matthew Ryan's motion to dismiss. 

5/21/09 - Matthew Ryan files his answer to the second amended complaint in Connecticut federal court.

9/29/09 - Plaintiffs filed a Notice of Settlement and Request for Dismissal of Action Against Defendant ":D", A.K.A. Matthew C. Ryan

10/16/09 - Plaintiffs filed a Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice by Doe 1, Doe 2

10/23/09 - Court dismissed case

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

TO DO: Monitor

Updated 6/16/09 - CMF

Updated checked on 08/05/2008. {MCS}

BidZirk LLC v. Smith

Date: 

01/10/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

BidZirk LLC; Daniel Schmidt; Jill Patterson

Party Receiving Legal Threat: 

Philip Russ Smith

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of South Carolina

Case Number: 

6:06CV00109

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

BidZirk, LLC is a reseller of items on eBay. Philip Smith contacted the company and engaged it to sell certain items on his behalf. Unhappy with the prices that he received, Smith published a four-part blog posting entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story." In the post, Smith depicted his negative experience with BidZirk and his interactions with the company's president, Daniel Schmidt. In the course of this discussion, Smith reproduced BidZirk's logo and made snarky comments about it. He also discussed more generally the positive and negative aspects of using an eBay listing company, such as BidZirk, and provided a checklist for readers to consult in deciding whether to do so. Additionally, he linked to an article on another website that discussed Schmidt and Patterson's upcoming wedding and contained a photograph of them.

Bidzirk, Schmidt and Patterson sued Smith in federal court in South Carolina in early 2006. The complaint included claims for violations of the Lanham Act (BidZirk), defamation (Schmidt), and "invasion of privacy" (Schmidt and Patterson). The "invasion of privacy" claim originally appeared to be a claim for misappropriation of name and likeness, but the plaintiffs adopted a "false light" theory in briefs opposing summary judgment.

BidZirk moved for a preliminary injunction barring Smith's use of its trademark and the district court denied the motion. The district court adopted the Report and Recommendations of the magistrate judge, which concluded that Smith's blog post fit the statutory exemption to trademark dilution for "news reporting or news commentary." See BidZirk v. Smith, No. 6:06-00109 (D. S.C. Apr. 10, 2006) ; see also 15 U.S.C. § 1125(c)(4)(C). BidZirk appealed, and the Fourth Circuit affirmed the district court.

Update:

9/26/2007 - Smith filed a motion for summary judgment.

10/22/2007 - The district court granted summary judgment to Smith, reaffirming that Smith was entitled to the statutory exemption for "new reporting and news commentary." It also sanctioned the plaintiffs' counsel $1000 for filing and refusing to withdraw a "lis pendis" on Smith's condo.

2/19/2008 - Smith filed a letter request for a hearing regarding sanctions. Court denied the request.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

to-do: create threat entry for the letter threat (see complaint para. 12);

 

McMann v. Doe 1

Date: 

10/06/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Paul McMann

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

1:06-CV-11825

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

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 announced that it would soon be updated with specific evidence of McMann's alleged misdealings. McMann claimed that the unknown party operating the website violated his statutory and common law right of privacy, infringed his common-law copyright, and committed defamation. McMann sought to subpoena ISPs to discover the identity of the website operator.

The United States District Court for the District of Massachusetts held that it lacked subject matter jurisdiction because McMann asserted only state-law claims and did not identify the citizenship of the anonymous defendant. The court observed that diversity of citizenship between McMann and the ISPs that he sought to subpoena could not bestow subject-matter jurisdiction on the court. The court stated in the alternative that it would dismiss the underlying case for failure to state a claim. Relying on Doe v. Cahill, 884 A.2d 451 (Del.2005), an important case from the Delaware Supreme Court, the court opined that First Amendment protections for anonymous speech requires courts to impose a heightened preliminary burden on plaintiffs seeking to discover the identity of anonymous posters.

The court concluded that McMann could not meet this heightened burden because his complaint failed to even state a claim upon which relief could be granted. Specifically, the court held that the unknown website operator's publishing of a description of McMann's business activity and distributing a publicly available photograph did not impinge McMann's statutory right of privacy as a matter of law. It also found that McMann could not recover for misappropriation of his likeness because the website operator had not used his photograph for a commercial use, but rather for purposes of criticism. The court also held that Massachusetts does not recognize a common law cause of action for false light invasion of privacy, and that McMann's common law copyright claim was preempted by federal copyright law. Finally, the court indicated that McMann's defamation claim was fatally flawed because the statements at issue were non-actionable personal opinions that could not be proven true or false. McMann v. Doe, 460 F.Supp.2d 259 (D.Mass. 2006).

McMann later filed a nearly identical suit in Arizona.

Jurisdiction: 

Content Type: 

Subject Area: 

St. George Corrective Vision v. Kantis

Date: 

09/12/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

St. George Corrective Vision; Nicholas Caro

Party Receiving Legal Threat: 

Dean Andrew Kantis

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of Cook County, Illinois

Case Number: 

2005-L-009942

Legal Counsel: 

Leahy Eisenberg & Fraenke

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Dean Kantis published critical statements about St. George Corrective Vision and his opthamologist Nicholas Caro on his website, Life After Lasik.

In September 2005, St. George and Caro sued Kantis for defamation and false light invasion of privacy, claiming, among other things, that Kantis defamed them by stating that Caro had used an "illegal laser" to perform his laser eye surgery and that Caro was a "butcher" and a "one stop chop shop doctor." The lawsuit requests compensatory and punitive damages and an injunction.

Update:

4/21/06 - Kantis filed a motion to dismiss.

7/13/06 - Court issued Agreed Order to dismiss the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Fisher & Phillips v. Does

Date: 

06/29/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Fisher & Phillips, LLC

Party Receiving Legal Threat: 

John Doe(s) 1-5

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:05CV01719

Legal Counsel: 

None

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In June 2005, Fisher & Phillips LLP, an Atlanta employment law firm, sued 5 anonymous bloggers for defamation, false light invasion of privacy, and interference with business and contractual relations. The complaint did not identify the allegedly defamatory statements with any specificity and did not name the websites on which they appeared.

After failing to identify or serve the defendants, Fisher & Phillips voluntarily dismissed the suit without prejudice in November 2005.

Jurisdiction: 

Content Type: 

Subject Area: 

Steinbuch v. Cutler

Date: 

05/16/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Robert Steinbuch

Party Receiving Legal Threat: 

Jessica Cutler; Ana Marie Cox

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia

Case Number: 

1:05CV00970

Legal Counsel: 

John Ates, Matthew Billips (Defendant Cutler - previous attorneys terminated); Charles R. Both, Laura Rose Handman, Amber L. Husbands, James Rosenfeld (Defendant Cox)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

For two weeks in May 2004, Jessica Cutler, a blogger and aide to Ohio Senator Michael DeWine, posted details of her sex life on her blog, The Washingtonienne (now defunct), including her relationship with Robert Steinbuch (using his initials, "RS"), Senator DeWine's counsel on the Senate Judiciary Committee.

Cutler's blog posts contained many intimate details about her relationship with RS, including mentioning that their initial date did not include intercourse, but that he "[h]as a great ass" and "likes spanking. (Both giving and receiving.)"  During the next twelve days, Cutler continued to disclose intimate details about their sexual encounters both to her friends and to readers of her blog.

On May 18, 2004, Anna Marie Cox posted a link from her popular Washington gossip blog, Wonkette, to Cutler's blog, which at the time had only a small number of readers. After that, Cutler's blog received widespread attention in the media and blogosphere.  After Cutler became aware of this, she discontinued her blogging activities and shut down the site.

Although Cutler didn't name "RS" on her blog, she posted personal information about him, such as the fact that he was Jewish, was a Senate staff lawyer, had a twin, and owned a home in Bethesda, Maryland.  This information was sufficient for others in the blogosphere to guess that RS was Steinbuch.  In fact, Cutler had blogged about her affairs with six other men as well, including a Georgetown lawyer who paid her $400 for sex, a staffer in Senator Lieberman's office, and the Chief of Staff at a government agency who had been appointed by President Bush.   All of which created a frenzy to identify the men she had blogged about.

In May 2005, Steinbuch sued Cutler in federal court for publication of private facts, false light invasion of privacy, and intentional infliction of emotional distress.  In his complaint, he wrote that "[n]o reasonable person would want the intimate physical, verbal, emotional, and psychological details of his or her sexual life . . . exposed . . . on the Internet for all the world to read. It is one thing to be manipulated and used by a lover, it is another thing to be cruelly exposed to the world." Steinbuch also contended that some of the information Cutler published was untrue and that her blog presented him in a falase and defamatory light.

In July 2005, Cutler filed a motion to dismiss, arguing that (1) Steinbuch ratified the disclosure of details about their sexual relationship in office discussions (and that her blog was simply an extension of that discussion); (2) Steinbuch had no reasonable expectation of privacy in a 12-day "sexual tryst"; (3) disclosure on a personal blog, without more, is not publicity and is little more than "writing on a bathroom wall"; (4) Steinbuch had waived any privacy expectations by joining in or allowing office gossip about the intimate details of their encounters; and (5) Cutler had a First Amendment right - and that it was newsworthy for her - to share her personal viewpoints about the pressing public issue of "the interplay between sex and power in the Nation's capital."

In his opposition to her motion, Steinbuch rejected Cutler's legal arguments and asserted that she had sought "widespread publication" of the intimate facts of their relationship and "deliberately declined to password-protect her blog, making it publicly available to anybody on the Internet."  He also alleged that Cutler sought publicity for her blog when she hyperlinked her personal blog to Wonkette.

On April 5, 2006, the Court denied Cutler's motion to dismiss without a written opinion.

In October 2006, Steinbuch added Anna Marie Cox as a defendant in his First Amended Complaint.  Cox moved to dismiss on January 26, 2007, arguing, inter alia, that she was immune under section 230 of the Communications Decency Act.  The court dismissed the claims against Cox in May 2007.

Update:

5/30/06 - Steinbuch filed a complaint in the Eastern District of Arkansas (4:06-cv-00620-WRW) against Cutler, Hyperion Books, Disney Publishing Worldwide, HBO, and Time Warner.

6/1/07 - D.C. court stayed the case following Cutler's filing of  Chapter 7 bankruptcy in the United States Bankruptcy Court in the Northern District of New York.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/9/2008, no new information. (AAB)

Pages

Subscribe to RSS - False Light