Tag Archives: First Amendment

The Speech Act: Rules Regarding Americans Busted For Defamation In Canada

the speech act
The Speech Act Means That Americans May Not Have To Pay Damages In A Canadian Defamation Ruling

Canada and the United States are the closest of allies – the Laverne and Shirley of geo-political friendships. But despite the congenial relationship (and the fact that a US defamation ruling is usually recognized in Canada), if a Canadian person or company wins a defamation lawsuit against an American citizen or US-based company, in a Canadian court, the ruling may not be recognized by an American court. Why? It all has to do with the First Amendment, actual malice and a U.S. bill that was passed in 2010 called the Speech Act.

A Quick Primer on United States Defamation Law

US Defamation LawsU.S. defamation law is considered to be the most defendant-friendly in the English-speaking world. Due to the First Amendment and mountains of case law, opinion is not considered defamatory in the United States.

Moreover, in the United States, if the plaintiff is a public figure, then the standard of actual malice must be met – meaning the plaintiff must prove that the defendant knowingly spoke or published material he or she knew to be false, or distributed the material with reckless disregard for the truth.

U.S. defamation law is considered to be the most defendant-friendly in the English-speaking world.

A Quick Primer on Canadian Defamation Law

Canadian Defamation LawsThe opposite of the U.S., Canada is considered to have the most plaintiff-friendly libel and slander laws. Provincial defamation law in French-influenced Quebec are similar to United States statutes, but the rest of the provinces base their defamation laws on English Common Law.

Traditionally, from a plaintiff’s perspective, common law defamation statutes are more lenient than U.S. defamation statutes. For example, those bringing a slander or libel suit in a Canadian court do not have to prove actual malice. Furthermore, under Canadian statutes, opinion is often considered defamatory since any material which “lowers the esteem of the subject” can be ruled defamatory.

Canada is considered to have the most plaintiff-friendly libel and slander laws in the English-speaking world.

The SPEECH Act: US Citizens Don’t Have To Pay Canadian Defamation Damages

defamation international Canada and USIf there was ever any confusion as to whether or not U.S. citizens have to pay damages awarded in Canadian defamation trials, the SPEECH Act eradicated those uncertainties.

Verbosely named the Securing the Protection of our Enduring and Established Constitutional Heritage Act, the bill basically renders foreign defamation judgments against U.S. entities, which are handed down in jurisdictions with incompatible First Amendment protections, unenforceable in the United States.

So, for example, if you’re an American, who resides in the States, and you’re found liable in a Canadian court for defamation, in most cases, you don’t have to pay any pecuniary penalties.

If you’re interested in reading more about other defamation laws from around the world, check out the Kelly / Warner International Defamation Law Database. If you want to speak with an attorney well-versed in the SPEECH Act, get in touch today.

Facebook Argues A “Like” Is Free Speech

Facebook comes to the rescue of a deputy sheriff in Virgina who was fired over a Facebook “like.” The social media company argues that likes should be protected speech under the First Amendment.

Several months ago, a Virginia judge ruled against a deputy sheriff who said he was fired for Facebook “liking” his boss’ election opponent. The judge in the case declared that clicking a “like” button does not constitute “speech,” as nothing was actually spoken.

Plaintiff Daniel Ray Carter appealed the ruling. And now, Facebook is supporting the once deputy sheriff by way of an amicus brief arguing that a “like” is the 21st century version of a political bumper sticker.

Main points from the Facebook brief:

  1. When a user likes something on Facebook, a picture of the “liked” thing, and usually some accompanying text, appear on the user’s profile. As such, when Carter liked Adams’ Facebook page, the words “Jim Adams for Hampton Sheriff” and a picture of Jim appeared on Carter’s page – much like a “vote for” lawn sign. Conversely, Carter’s name and photo appeared on the campaign’s Facebook page in a list of people who supported Adams, further proving that he was a political supporter of the sheriff’s opponent.
  2. Symbolic speech, like arm bands and flag burning, are considered free speech; therefore, Facebook “likes” should also qualify.
  3. “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”

Also, deposed co-workers said they knew Carter would be “out of there” when news broke of his support for Adams.

Facebook’s brief is comprehensive and includes lots of supporting case law, from Givhan v. Western Line Consol School District (1979) to Adams v. Trustee of the University of North Carolina-Wilmington (2011). The social media company’s argument is cogent and most likely will go a long way in getting the current ruling over turned.

In addition to Facebook, The American Civil Liberties Union also filed a brief in support of Carter.

This is a case to keep an eye on. To stay abreast of the latest, sign up for our Internet law newsletter today.

The Legalities Of Teacher Blogging: Munroe v. Central Bucks School District

teacher blogging
What happens when a public school teacher has a blog that talks about their students? Is it illegal? Will the teacher lose their job?

Teacher blogging is becoming more popular, but is it legally dangerous for educators to indulge in the act?

Part of our societal contract is to provide a public education system. And in said system, we tend to favor affable teachers who understand — and enjoy working with — young people. As such, where does our allegiance land when a public educator maintains a semi-anonymous blog, wherein they disparage students, parents and school administrators? Does free speech win out over the arguable well-being of the targeted students?

Natalie Munroe, an eleventh grade English teacher in Pennsylvania, found out her community’s answer to that conundrum last month. She was fired.

But Munroe is fighting back in the form of a $5,000,000 federal lawsuit which essentially asks:

  1. Is free speech more important than a student’s right to a positive, unbiased and encouraging teacher?
  2. Are teachers legally obligated to refrain from blogging about students?
  3. Do educators have a moral obligation not to disparage students online?

Teacher Natalie Munroe’s Blog: Catalyst for the First Amendment Lawsuit

The fracas started over Munroe’s blog entitled “Where are we going, and why are we in this Handbasket?” Munroe’s lawsuit maintains the blog was “anonymous” even though it included pictures of the teacher. She also blogged under the name, Natalie M. – a pen-name that doesn’t do much to obfuscate her real name, Natalie Munroe. Nevertheless, Munroe insists it was meant to be a private blog, which only her friends and family were invited to follow. It was, however, publicly indexed; as such, even if  people weren’t invited to follow, it could be found via a search engine.

Like many blogs, Munroe’s was often used as an outlet to vent her daily frustrations. Being a high school teacher, those frustrations included her students, parents and superiors. At times she stuck to fairly innocuous quips about her students and called them “out  of control;” at other times, she arguably went for the jugular and opted for phrases like “dunderheads,” “frightfully dim” and “utterly loathsome.”  Munroe once declared that one of her students was “a complete and utter jerk in all ways.” Natalie M. also lamented about “canned report card responses” and wished that she could put “dresses like a streetwalker” on a few of her students’ quarterly grade analyses.

Teacher Blogging: Munroe v. Central Bucks School District

Word got out that “Handbasket” was the work of Natalie Munroe and within a few months she got her walking papers. The tenured teacher believes her blog is to blame for the firing, while school officials insist it has more to do with “poor performance.”

Munroe filed a “First Amendment Retaliation case” on June 21, 2012 in federal court  alleging her firing violated her first amendment rights. Named defendants include the Central Bucks School District, the superintendent and the principal of her school. Munroe is asking for reinstatement, back pay and front pay, in addition to punitive damages related to civil rights violations, emotional distress and reputation damage – a package totaling $5 million dollars.

Public Education v. The Internet: Striking the Right Jurisdictional Balance When It Comes To Teacher Blogging

Munroe’s case is intriguing because of the questions it raises about the intersection of public education, digital technology and the law. As the world we live in becomes more digitized, what legislative and societal rules should be adapted to ensure both personal freedoms and a healthy learning environment for the “next generation”?

Should teachers be censured for lambasting their students online? If a teacher is going to maintain a blog about their students, should statutes exist to ensure it’s not publicly searchable — for student privacy right reasons? Do parents have the right to demand that a demeaning teacher be removed? If so, where is the law-line drawn?

Blogging teachers aren’t the only issue involving Internet law and the public school system. In fact, many states are in the process of examining cyber bullying legislation and deciding whether or not schools can enact punishments for cyber harassment that occurs off campus.

The more we integrate the Internet into our lives, the more gray-area Internet law implications will arise. Moreover, it’s likely these issues will involve ethical questions that may force a robust public discourse about online free speech and how it relates to students’ rights versus teacher bloggers.

Proposed New York Internet Protection Act Threatens Anonymous Free Speech In The State

Is NY’s Internet Protection Act Another Misguided Cyberbully Legislation Attempt?

New York Internet Protection Act - Cyberbullying Not to be outdone by their cyberbully law-drafting counterparts in Arizona, New York legislators penned a doozy of a cyberbully bill — the Internet Protection Act (IPA).

In a state well known for its forthright citizens, if passed, the Internet Protection Act would not only make it illegal to anonymously harass classmates online (a noble cause), but it would also be illegal to post anonymous disparaging diatribes about state politicians or local businesses (a shady cause).

How New York’s Internet Protection Act (IPA) Would Work

Originally authored by New York District 10 Assemblyman Jim Conte, the primary goal of the Internet Protection Act is to combat cyberbullying. But like other bills promoted as cyberbullying legislation, the IPA goes too far in attempting to rectify the problem.

In short, New York’s proposed Internet Protection Act outlines a process wherein those who are bullied (and presumably defamed) online can take action to remove the material. The bill, however, only applies to anonymous comments.

As currently written, the IPA would allow victims to contact a site where offensive material is posted and demand that the person making the comment attach their name to the statement. If the original poster doesn’t comply, the website, under the IPA, would be forced to remove the content.

Online Business Reviews and Political Rants Would Also Be Curbed Under New York’s Internet Protection Act

But Conte’s bill doesn’t stop at cyberbullying. In addition to its underage-stalking aspect, the IPA also includes language that aims to protect elected officials from “mean spirited and baseless political attacks.”  An arguably thought provoking addition considering that Conte was quoted as attributing New York’s near Republican sweep in the 2010 elections to the fact that the party had “had no scandals and [were] getting the job done.”  Though, the public can’t know about any scandals if none are broached – and the first step in silencing critics is enacting semi-Draconian Internet conduct laws. (Both Parties are equally guilty.)

In addition to cyberbullying and safeguards for politicians, business owners will be pleased to learn that the IPA also aims to stamp out online trade libel. If passed, the IPA will afford business owners the same “name reveal” protections as online bullying victims. Supporters of the bill argue this measure will help ensure that only real customers – not competitors – are the only people posting Internet evaluations.

What Constitutional Scholars And Internet Lawyers Are Saying About NY’s Proposed Internet Protection Act: “Hey New York, Remember Your American History!”

Kevin Bankston – an attorney with the Center for Democracy and Technology – said it best when he dubbed New York’s proposed Internet conduct law “a heckler’s veto.” Many reporters, like David Kravets at Wired, reminded the “Federalist Papers” may never have been distributed, and thus our beloved Constitution never ratified, if laws existed against anonymous speech in our nation’s nascent days.

If passed, the Internet Protection Act would apply to the websites of newspapers based in New York; which means two of the most circulated dailies in the world – the New York Times and The Wall Street Journal – would be subject to this law. An ironic point when you consider the fact that a Supreme Court case involving the New York Times (New York Times, Inc. v. Sullivan) is widely regarded as one of the most important defamation rulings in our nation’s history (it’s the one that made actual malice a standard in defamation lawsuits involving public figures and elected officials).

In short, if gaveled into law, New York’s Internet Protect Action would come dangerously close to infringing on individuals’ free speech rights.

Libel Tourism: Is It Almost Done For Good?

While we publicly grapple with online privacy and intellectual property legal issues on this side of the pond, our English-speaking brethren on the other side are engaged in a hot debate over defamation law and libel tourism. Donning a very distinguished name, if passed, the Lord Lester of Herne Hill’s draft defamation bill will significantly alter libel and slander laws in England and Wales.

Journalists will have more freedom to publish parody and “irreverent criticism” without fear of a costly defamation lawsuit; “convenience test” standards will be stricter, thus making it harder for wealthy entities to file claims for little cause; and perhaps of most import to US citizens, the proposed bill with most likely eradicate UK libel tourism.

What Is Libel Tourism?

Some people shop for jewelry and others for jurisdictions. The act of filing a defamation lawsuit in a dominion with the most favorable laws is known as libel tourism. Over the years, London has earned a reputation for being very defamation-claimant-friendly. The result is an increase in costly legal battles, which tax payers end up covering, that involve individuals with extremely tenuous links to the UK.

The Duke of Brunswick Rule: Why London Is The Libel Tourism Capitol Of The World

We’ve established what libel tourism is, and we’ve established that England and Wales are popular spots for libel tourism; so now the obvious question is: why is the UK such a popular spot for libel tourism?

The root of the phenomenon can be traced back to The Duke of Brunswick.

One day, way back – we’re talking 17th century back – an exceptionally paranoid German Duke, recently exiled to France due to an peasant rebellion in his region, sent a servant to England to purchase a newspaper the nobleman suspected of having published material that could hurt his reputation.

Turns out Brunswick’s hunch was on-point; the Duke subsequently won his libel claim in a British court and was awarded pecuniary damages. The most important aspect of the famous defamation case, though, was its establishment of the precedence that every purchase of a newspaper constitutes a new act of libel.

In the Internet age, the Duke of Brunswick rule translates to one view of a web page.

But Is Libel Tourism Really A Problem?

There’s little theoretical doubt that London is where you go to get your tourism libel on, but the actual number of foreign lawsuits that make it in front of a high court or jury is on the decline. In fact, according to Joint Committee on Draft Defamation Bill, there hasn’t been such a case in two years.

While very few libel tourism classes have been heard by the UK’s high court as of late, the mere threat of a potentially costly London-based defamation suit dissuades foreign media outlets and others from publishing stories in the first place.

In the defamation draft bill comments, the committee acknowledged the “exaggerated” number of libel tourism lawsuits in their nation, but also averred that the courts “could benefit from more robust” judicial powers with regards to defamation law when it comes to dismissing cases that have little to do with a UK resident or entity.

Moreover, the committee also points out that while there are very few jurisdictionally questionable lawsuits that make it far in their system, the mere threat of being pulled into a London defamation court is damaging to international free speech. In other words, a blogger in Canada may be hesitant to publish something about a Saudi businessman for fear of being hauled into a London court because their blog page was viewed in the UK. (Yes, a scenario very close to that has actually happened and the claimant won!)

The US SPEECH Act

One of the reasons parliamentarians are keen to reform defamation standards is because other countries are beginning to pass laws that render UK Legislation impotent. One of those nullifying nations is the United States.

Unimpressed with how the Duke of Brunswick rule was “chilling” free speech in America and around the world, the Federal government enacted the Securing the Protection of our Enduring and Established Constitutional Heritage – or SPEECH Act – in 2010. Its purpose is to prevent foreign slander and libel rulings that don’t pass a First Amendment sniff test from being enforceable in the United States.

The libel tourism is only a small part of UK defamation reforms. The island nation also seeks to codify stricter rules concerning fair comment and editorial freedom – moves that could open up a bold new era of British parody and free speech.

Jan Brewer’s Veto Pen: Which Way Will It Wag On Arizona House Bill 2549?

Arizona House Bill 2549 - CyberbullyingToday, Arizona Governor, Jan Brewer, vetoed Arizona House Bill 2729 — a piece of legislation concerning firearm freedoms. Being an Internet law firm, though, we’re more curious to see if Gov. Brewer will use the same veto power on Arizona House Bill 2549.

A few weeks ago, the Arizona Legislature angered First Amendment advocates and freedom-loving netizens. Copper State officials poked the “hive mind” by passing Arizona House Bill 2549 – an Act intended to thwart cyberbullying and stalking, has instead caused consternation in free speech circles.

Arizona House Bill 2549 Basics

When you divorce Arizona’s new Internet law from legal analysis, its administrative purpose is to update section 13-2916 of the Arizona Revised Statutes – the state’s long-standing telephone harassment law.

A one-and-a-half-paged piece of legislation, all 2549 does is redact the words “telephone” from the statute and replaces it with “any Electronic or digital device.”

Sounds simple enough, right? After all, everyone agrees that laws need to catch up to our new-fangled communication tools, correct?

Well, not everything is as simple as it seems.

The Language of Arizona House Bill 2549: Harmless or A First Amendment Threat?

Though the ostensible intent of 2549 is noble, the problem with the bill is its lack of definitions. While the updates address the outdated “telephone language,” the surrounding verbiage remains unchanged, and the result is causing a few raised eye-brows amongst legal eagles.

The excerpt attracting attention:
“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”

The Internet is the last bastion of free speech…and if there’s one universal online mantra, it’s “what’s crude and lewd for you, may not be crude and lewd for me.” Hence, the concern over Arizona’s new Internet Conduct Law.

Arizona House Bill 2549 also says that “disturbing the peace, quiet or right of privacy of any person at the place where the…Communications were received” is a class 1 misdemeanor; it makes threatening online stalking a class 5 felony and online death threats a class 8 felony.

Arizona’s new Internet Protection Law also defines “immediate family members” as any person who regularly resides with the person in the household within the past six months. A measure undoubtedly included to allow parents to bring charges, on behalf of their children, against cyberbullies.

Proponents Say Speech Is Protected In Arizona Bill 2549

But are the free speech advocates screaming fire when there’s little cause for concern? Advocates of the bill point out that 2549 explicitly states: “’constitutionally protected activity or other activity authorized by the law’ cannot be prosecuted under this statute.”

That said, when it comes to drafting laws, little wiggle room exists. When you change “telephone” to “electronic communications” without definition, the scope of the act widens and falls dangerously close to infringing on personal freedoms. Before, if you were using the telephone to harass someone your target was a specific person. With the Internet, there’s a greater chance that bystanders could view it and be offended. As such, the statute should focus more on the intent, as opposed to the action. The language of the bill should be tweaked to include language surrounding the concept of “harassment.”

For those interested in law redundancies, take note that Arizona already has a computer harassment statute on the books – A.R.S. 13-2921 – which makes illegal “a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.” Makes one wonder: Do we really need two online harassment laws?

The Future Of Cyberbullying Legislation

When asked, state representative and co-sponsor of 2549, Steve Farley, said the intention of the bill was to protect stalking and cyber bully victims. Justin Patchin, co-director of the Cyberbullying Research Center, elaborated by explaining he was a “defender of the Constitution like anyone else, but the First Amendment doesn’t give you the right to harass and terrorize someone.”

The clamor surrounding Arizona Bill 2549 has prompted officials to pull-back and tweak the language. When the updated version is released, we’ll see if they listened to objections and incorporated the necessary changes.

And most importantly, we’ll see if Gov. Brewer’s veto pen will get some more exercise.

Crystal Cox Defamation Lawsuit: Blogger Denied Journalistic Protection And Rights

A judge presiding over the well-publicized Oregon defamation lawsuit involving Crystal Cox recently ruled against the self-styled, self-published investigative blogger. Cox was ordered to pay $2.5 million in damages and the decision has stirred online First Amendment crusaders.

The Crystal Cox Defamation Lawsuit Background

A self-described investigative blogger and whistle blower, Crystal Cox is a real estate agent by day and Internet vigilante by night. Among her cadre of websites was obsidianfinancialsucks.com, an outlet Ms. Cox used to accuse Kevin Padrick — one of Obsidian’s founding executives — of fraud, misappropriation of funds, lie telling, and a litany of other unscrupulous actions. Cox even insinuated Padrick may have hired an assassin to silence her.

As a result of her online accusations, Mr. Padrick decided to sue for defamation. He maintained his company lost considerable business thanks to Ms. Cox’s allegedly misleading statements. Padrick explained that the Internet was awash with Cox’s disparaging claims — a digital reality which damaged him financially.

Defamation Pro Se Trial

In court, representing herself “pro se,” Cox argued her blog posts were journalistic, of “pubic concern,” and that the Oregon retraction laws should apply to her situation (retraction laws allow journalists to correct or retract defamatory statements in lieu of compensatory damages.). Cox also characterized herself as a “whistle blower” exposing the unscrupulous practices in the finance world.

The Definition of Journalist When It Comes To Online Defamation Lawsuits

Judge, Marco A. Hernandez, however, rejected the assertion that Cox was a journalist.
By applying Oregon law, Hernandez ruled Cox could not be treated as a journalist since:

  • She did not have a formal education in journalism
  • She did not hold proof of affiliation with a recognized news entity
  • She arguably didn’t adhere to journalistic standards such as editing and fact checking
  • She did not keep notes of conversations and interviews conducted
  • She could not produce evidence that she had a mutual understanding or an agreement between the defendant and his or her sources
  • She did not contact the grieved party, before publishing, to get both sides of the story

Offering SEO Services Sunk Cox

In addition to the legal Oregon defamation elements noted above, perhaps the most damning piece of evidence against Cox was an email, presented as evidence by the defense, wherein Cox offered Padrick online reputation management services for $2,500 a month.

In the eyes of the court, the email helped in disqualifying Cox for journalistic immunity. After all, the offending email framed Cox as someone who was actively looking to profit off her statements, and thanks to the presence of the email, the defense could argue that Cox was essentially holding Padrick’s business reputation hostage.

The Right Defamation Decision…But At What Cost

Based on the above defamation definition elements — and the fact that Cox couldn’t prove wrongdoing on the part of Mr. Padrick — it’s no surprise that Obsidian and it’s executive emerged victorious.

That being said, many are concerned about the unintended First Amendment ramifications this decision may have on Internet bloggers in the future. Many wonder how well bloggers, who work for online magazines or news organizations, fit into the qualifying factors listed by Hernandez. For instance, not every blogger working for a news organization has a a journalism degree.

The defamation lawsuit of Crystal Cox is sure to play a role in future blogger defamation lawsuits; it’s established legal precedence that is certain to be tested and challenged in the coming years.

Anonymous Defamation: Website Users Reviewed in Appeals Court

anonymous defamationA court case in Indiana has raises an intriguing First Amendment question as it relates to anonymous defamation. In this case, a potentially libelous comment was left by an anonymous user on the Star website. The comment suggested that Jeffrey Miller, the former head of Junior Achievement of Central Indiana, and several of his colleagues had misappropriated funds into their own bank accounts. This comment was posted by a user with the handle “DownWithTheColts.” Now Miller et al. want to sue, but they have no idea who “DownWithTheColts” is.

Although the Star may be able to find identifying information about this individual via his or her IP address (Internet Protocol Address), the publication refused to provide it, citing anonymous speech rights under the First Amendment.

This case calls into question the ability of laws originally created for offline situations to govern or apply to online situations. For example, the judges made an analogy between a website’s comment forum and a physical bulletin board that may exist in a public location. Whether this is a sound analogy, and whether the same laws can govern both situations, is one of the anonymous defamation issues at hand.

Since this case occurred in Indiana, the court must adhere to the state’s “Shield Law.” The Indiana shield law protects a journalistic publication or entity from revealing the identity of its sources. It applies narrowly to professional journalists and traditional media. If the Shield Law applies in this case, it would mean the court cannot legally require Star to provide information regarding the identity of the anonymous commentator. However, whether this law applies at all is one of the matters under review. Is Star’s website an entity covered by the Shield Law, or does the law only apply to print media? And if Shield does apply, is an anonymous comment considered a source?

To that extent, the fact is that Star did not publish information that was based on the information provided by anonymous commentator, DownWithTheColts. Therefore, the individual was not a source to any journalistic ends. Logically, it follows that the Indiana Shield Law does not apply in this case.

Additionally, Star has the ability to moderate comments that are published on the website, which may mean a comment could be considered as an extension to the original article.

The other primary issue in this case is whether or not the comment posted by DownWithTheColts was defamatory. Since constitutional free speech rights don’t apply in cases of defamation, the judges have to agree that the statement was, in fact, defamatory. It also follows that the statement must be proven to be false, since a factual statement is not defamatory.

Upon further review, the judges concluded that the anonymous comment was defamatory. However, Miller also needs to prove it was false. Without this proof, it’s not possible to move forward with a defamation claim. Further, there needs to be some evidence of malice, in regards to the intent of the individual who posted the comment. Since the individual’s identity is not known, it’s not possible to prove whether the intent was malicious. Since proving malice is not possible in this case, the judges modified the requirements so that this detail would not be required in order for Miller to satisfy the requirements and obtain the commentator’s identity.

This case has been sent back to the trial court in order to determine whether all of the necessary requiremenents have been met under the stipulations of the state and federal constitutions. If so, Miller will be able to proceed in finding DownWithTheColts’ identity and Star may have to furnish the IP address and other details of this individual.

The Privacy Tort of False Light Explained By An Internet Lawyer In Plain English

false lightBelieve it or not, The United States Constitution doesn’t mention “privacy” once; but that doesn’t mean invasion of privacy isn’t protected. After all, the fourth amendment guards against unreasonable search and seizures, and the ninth ensures that rights not explicitly mentioned in the Constitution are also protected. As such, many states have False Light invasion of privacy laws on the books.

As a private citizen, you have a right to protect yourself from unflattering and unwanted publicity. The legal concept is known as “False Light.” And as we collectively continue to travel down this Internet-obsessed road we’re on, expect to see more false light lawsuits hitting the courts.

What Is False Light?

False light is a privacy tort often confused with defamation. In fact, some jurisdictions think the two are so similar they’re lumped together in the eyes of the law. The premise behind false light is that private citizens have the right to “protect themselves from publicity, which puts them in a ‘false light.’”
To satisfy false light claims in the eyes of the court, most state statutes demand that:

  • There exists a Publication of false light material by defendant, either online or off, against plaintiff;
  • Actual Malice was involved; and
  • The published material would be considered “highly offensive or embarrassing” to a “reasonable person.”

The Difference Between False Light and Defamation

As stated previously, false light and defamation are very similar. The main difference is that false light statues address damage to one’s dignity, whereas defamation is more about one’s reputation. In other words, false light deals with the impression created; defamation, on the other hand, deals with truth and falsity.

For a person to be lose a false light lawsuit, the plaintiff must prove the defendant acted in “reckless disregard,” however, a false light plaintiff does not have to show evidence of actual harm, unlike in defamation cases.

False Light Jurisdiction

False light is primarily a state-based law.

Interestingly enough, though, due to the Ninth and Fourth Amendments of the U.S. Constitution, some states deem false light protections as a constitutionally protected right and therefore outside of limitation statutes.

Common False Light Defenses

What are some common defenses for false light charges? Most people argue free speech rights and/or newsworthiness. Most false light laws exempt “newsworthy” information from persecution. As such, many a false light litigation centers around what is and is not considered newsworthy – a definition that is only sure to become murkier as citizen journalism and social networking continue to grow.

Notable False Light Cases

Jose Solano, Jr. brought a false light privacy claim again Playgirl magazine after the publication placed his picture on the cover, surrounded by headlines that seemed to suggest that Solano would appear naked in the edition. At first, he won his claim, but the decision was reversed as the appeals court ruled that Solano was a temporary public figure and that the magazine was newsworthy.

While Larry Flynt may have famously won his defamation trial against Rev. Jerry Falwell, he wasn’t as lucky with Jeanie Barton. Barton had an aquatic act that featured a swimming pig and Flynt’s magazine, Chic, published a photo of the act along side some copy only the mind of Larry Flynt could come up with. Sine the photo was a true representation of Barton’s pig act, defamation charges could not be brought, but she was awarded a false light ruling since the “essence” of the piece made the act seem sexually deviant.

In Zeron v. Diamond Broadcasting, a Seattle-based film maker sued an Oklahoma radio station after receiving threatening calls after the hosts of a morning radio program erroneously broadcast Zeron’s phone number and urged listeners to call it and give Zeron a piece of their mind.

You see, it was a few days after the Oklahoma City bombings back in 1995; someone had created an anonymous AOL account using the screen name ZZ03 and used it to promote offensive products about the horrific incident; the person who created the account used Zeron’s phone number. Zeron asked AOL to remove the material and they refused. To make a long story short, once Zeron was able to reach the station and explain the mix-up, they made an on-air correction and announcement, but not before Zeron was inundated with nasty phone calls.

Zeron did not end up winning the false light case, as he failed to prove that the station had acted with a “high degree of awareness to the claims falsity.”

Contact A False Light Lawyer

Do you feel someone has maliciously used your name or likeness in a “highly embarrassing” manner – either online or off? If so and you’d like to consult with a lawyer well-versed in false light litigation, contact Aaron Kelly.

Why Is Wikipedia Down Today? Blame SOPA

On January 18, 2012, thousands of folks settled into their desks for the day, only to find out that many popular websites weren’t working. Even Google had a special message on their homepage. And it all had to do with the Stop Online Piracy Act, a.k.a., SOPA.

The Internet didn’t break that day. It was anti-SOPA day — and many high-profile websites “went dark” for 24 hours to protest against the far-reaching online intellectual property bill that was swiftly making its way through the government.

Like most political issues, there were two sides to the SOPA story — those that fiercely defended the measures, and those who fiercely opposed them. But unlike many political issues, SOPA was not a fight being fought along party lines. Instead, it broke down to Internet businesses, Constitutional watchdogs, the public, and a group of elected officials, against the Motion Picture Association of America, a few other elected officials and a smattering of special interest groups. The first group felt that SOPA threatened Free Speech, and, if passed, would have ushered in an era of online censorship, while the second group felt the bill was necessary to protect American jobs and intellectual property.

Eventually, lawmakers pulled the proposal and that was the end of SOPA. That said, officials are still hard at working trying to craft an online intellectual property law.

The SOPA, Rotten Tomatoes Analysis

SOPA views from opinion makers around the Net. A tomato represents an anti-SOPA standpoint, and the splats…well…you know what the Splats mean.

SOPA opinion
“If you want an Internet where human rights, free speech and the rule of law are not subordinated to the entertainment industry’s profits, I hope you’ll join us…”
-Cory Doctorow of Boing Boing
SOPA opinion
“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.”
-The White House
SOPA opinion
“We oppose the passage of the SOPA bill as currently drafted, hundreds of millions of customers rely on our services every day so we don’t plan to shut those down to express our view.”
-Microsoft on SOPA

 

SOPA opinion
“While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet…”
– Chief Technology Officer of the U.S.
SOPA opinion
“There isn’t one technology company or venture capitalist who supports these bills…
This bill reverses the policy that has been in place since the beginning of the Web, that Internet companies shouldn’t be liable, nor should they be required to police or snoop on their users.”
-Markham Erickson, executive director of NetCoalition, to ABC News
SOPA opinion
“An ‘Internet blackout’ would obviously be both drastic and unprecedented. We hope that the Senate will cancel its scheduled vote on PIPA so that we can get back to working with members on how to address the concerns raised by the MPAA [Motion Picture Association of America] and others without threatening our nation’s security or future innovation and jobs.”
-NetCoalition official statement

 

SOPA opinion
“This is going to be wow, I hope Wikipedia will melt phone systems in Washington on Wednesday. Tell everyone you know!”
“I think it would be better burn them down and start over,[t]he entire approach is philosophically wrongheaded. I think you should follow the money … don’t place the burden on the innocent third-parties on the Internet, [c]ensorship is never going to be the right answer.”
-Jimmy Wales, Wikipedia Founder
SOPA opinion
“More than 2.2 million hard-working, middle-class people in all 50 states depend on the entertainment industry for their jobs and many millions more work in other industries that rely on intellectual property. For all these workers and their families, online content and counterfeiting by these foreign sites mean declining incomes, lost jobs and reduced health and retirement benefits.”
-Michael O’Leary of the Motion Picture Association of America
SOPA opinion
“Like many businesses, entrepreneurs and Web users, we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet…[s]o tomorrow we will be joining many other tech companies to highlight this issue on our US home page.”
-Google spokeswoman

 

SOPA opinion
Former senator Chris Dodd, who now chairs the Motion Picture Association of America, called the blackout a “gimmick” and called for  supporters to “stop the hyperbole and PR stunts and engage in meaningful efforts to combat piracy.”
SOPA opinion
“We are not adjusting the consumer experience on our properties tomorrow, but we will be helping to drive awareness of key issues around these bills to our users…
-Tekedra Mawakana, AOL
SOPA opinion
This publicity stunt does a disservice to its users by promoting fear instead of facts…Perhaps during the blackout, Internet users can look elsewhere for an accurate definition of online piracy.”
-Lamar Smith, SOPA sponsor

Illinois Appeals Court Protects Anonymous Poster In Internet Defamation Lawsuit

Online Defamation Lawyer
Illinois court weighs in on anonymous speech in Internet defamation lawsuits.

Back in 2009, an Internet defamation fracas began in Illinois. A truly 21st century legal standoff, the cyber libel lawsuit of Stone v. Hipcheck16 involved a local election, one politically-minded parent and the arguably bawdy smack-talk of at least one teen-aged blogger.

The case was watched by many for its Internet privacy implications. And sure enough, the decision of the Illinois appeal’s court has further cemented the state’s legal standing when it comes to online anonymous speech.

How The Internet Defamation Lawsuit Began: Internet Smack Talk

It was 2009, and thanks to the Buffalo Grove Village local elections, things were heating up on the Daily Herald’s message board. Thus was the political climate when two posters, “Uncle W” and “Hipcheck16,” became embroiled in an online debate.

After some online back-and-forth, Hipcheck16 correctly guessed that Uncle W was Jed, son of Buffalo Grove Village candidate, Lisa Stone. After admitting his identity, Uncle W/Jed challenged Hipcheck16 to a face-to-face political debate, to which Hipcheck16 answered:

“Thanks for the invitation to visit you…but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the Internet over to your house – have you done it before, or do they usually invite you to the house?”

Hardy, har, har. A not so clever, albeit typical, Internet message board response – right? Well, Jed’s mom wasn’t able to shake off what she interpreted as an assertion by Hipcheck16 that her son “solicited men for sex on the Internet” and decided to file an Internet defamation lawsuit on her Jed’s behalf.

The Internet Defamation Lawsuit Trial Court Ruling

In an effort to unmask Hipcheck16, Lisa Stone filed for a pre-suit subpoena which asked that Comcast, Hipcheck16’s Internet service provider, reveal Hipcheck16’s true identity. But someone at Comcast was aware of proper protocol, and instead of just handing over the information to the Stones, they alerted Hipcheck16 of the information request along with an explanation of every citizen’s right to fight these types of subpoenas. Hipcheck16 opted to fight the request on First Amendment grounds.

During the first trial court go-round, Cook County Circuit Court judge, Jeffrey Lawrence, ordered that Hipcheck16’s identity be turned over to Stone for purposes of pursuing an Internet defamation lawsuit. That being said, while the judge ostensibly ruled in Stone’s favor, he also stayed the order, thus allowing the appellate court time to consider the important Free Speech issue. In addition, the trial court also ordered Stone to identify, in particularity, Hipcheck16’s defamatory statements.

Appeals Court Ruling

When the case hit the appellate court bench, they first ordered Stone to outline why, exactly, she needed to uncover Hipcheck16’s identity; moreover, the court asked that she provide a cogent argument as to the validity of her legal Internet defamation claim — both requests qualify as fairly normal procedural fair.

To paraphrase, over the course of the appeal’s court proceedings, Stone’s side revealed that the exact claim of defamation is based on the allegation that Hipcheck16 insinuated Jed solicited sex from men on the Internet. Stephen Tyma, Stone’s lawyer, argued that First Amendment rights were important, but such protection should not be given in instances where “sexual insinuations about children” were involved.

For their part, the court put forth a four-part standard for determining whether or not the name of an anonymous individual should be revealed for purposes of proceeding with an Internet defamation lawsuit. These standards being:

(1)    Verification; Must be verified (signed by party);

(2)    Detail facts that support a defamation cause for action;

(3)    Plaintiff can only seek identifying information relevant to the matter at hand; and

(4)    (a)Unnamed person must be the liable entity that will be responsible for damages if found guilty

OR

(b)Party requesting identity must prove that they would survive a motion for summary judgment – not just a motion to dismiss.

The Final Verdict:  Who Won This Internet Defamation Lawsuit

In the end, Stone rested her son’s case and Hipcheck16 emerged victorious in this Internet defamation lawsuit. What factors led to Hipcheck16’s win?

First and foremost, Hipcheck16 never flat-out said, “Jed solicits men for sex on the Internet.” Instead, s/he asked a question, “…have you done it before, or do they usually invite you to the house?”  Intrinsic in the legal definition of defamation is the premise of a “false statement” – the operative word being statement. So Stone’s assertion that Hipcheck16’s interrogative was defamatory fell short on the defamation definition front.

Secondly, defamation law incorporates context. Essentially, when deciding on defamation lawsuits, judges will consider whether or not a reasonable person would actually believe the statement(s) in question. (This idea is a central aspect of the now infamous Hustler Magazine v. Falwell defamation lawsuit.) Upon reviewing the facts of this Internet defamation case, officials decided that the “tenor” of the conversation would lead most people to assume that the two parties involved only knew each other from the Internet and therefore had no real knowledge of each other’s’ lifestyle – another factor hurting the defamation claim.

Thirdly, U.S. legal precedent asserts that if an allegedly defamatory statement can be innocently construed, then it should be. In this case, Hipcheck16 could have argued that when making the statement, s/he was genuinely talking about inviting men over to the house to discuss politics, not sex.

At the end of the day, Stone et al did not have a strong Internet defamation case to begin with; but nonetheless, the lawsuit helped in cementing Illinois legal precedent with regards to anonymous Internet speech standards.

A Brief History of US Defamation Law: 1970s – Internet Age

US defamation law history**This is the second article in our mini-series on the history of US defamation law. If you missed the first part, click here.**

In the 1970s, US defamation law continued to mold itself to changing societal norms. And today, because of the Internet, libel and defamation legislation is, once again, taking center legal-stage.

The Supreme Court Clears up the Difference between an Opinion and Defamation

Elmer Gertz was a well-respected, civil rights attorney. Famous, too. He’d represented Nathan Loeb (of Leopold and Loeb fame) and also played a part in Henry Miller’s Tropic of Cancer obscenity trial.

In 1968, the notoriously radical John Birch Society publicly labeled Gertz a communist sympathizer. As one would expect, attorney Gertz filed a libel suit. And after 14 years of trials and appeals, Elmer prevailed. Moreover, the decision in his case set case law precedence.

In Gertz, the Supreme Court established:

“Under the First Amendment, there is no such thing as a false idea.”

In other words, you can’t cry defamation if the offending statements are a matter of opinion.

In the end, Gertz was awarded $500,000 and promptly boarded a cruise around the world with his wife. At nearly every port, Mr. and Mrs. Gertz sent “wish you were here” postcards to the John Birch offices.

Hustler Magazine, Inc. v. Falwell

History of US Defamation: Falwell v. FlyntIf you’ve never seen The People vs. Larry Flynt, queue it on Netflix. A riveting film, it details one of the most important cases in the history of US defamation law — the First Amendment feud between Hustler Magazine founder Larry Flynt and televangelist Jerry Falwell.

A cartoon anchored the Falwell v. Flynt turned Flynt v. Falwell legal saga: A depiction of Falwell, his mother, and an outhouse — the parody appeared in Hustler Magazine. Outraged, Falwell sued the publication for defamation — and won. An appeals court, however, overturned the decision, and then the Supreme Court of the United States upheld that:

  1. Public figures, who sue for defamation, cannot collect damages for emotional distress. (This is not the same for privacy citizens); and
  2. The cartoon in question was not libelous because most people would recognize it as a parody and therefore not reasonably believable.

Attempting to Tame the Internet

The defamation status quo prevailed for decades; then, like the Borg, the Internet crashed into our lives. When America first “plugged in,” the so-called “Information Superhighway” was something akin to the Wild West. As zombo.com reminded us: “online, the infinite was possible” and rules were few and far between.

One of the first cases to tackle the emerging legal arena of Internet defamation law was Stratton Oakmont, Inc. v. Prodigy Services Co. The plaintiffs, Stratton Oakmont (Yes! It is the same Stratton Oakmont depicted in The Wolf of Wall Street), went after Prodigy over smack-talk on Prodigy’s financial forum. Stratton Oakmont lawyers argued that under common law defamation standards, Prodigy should be considered the publisher of the comments and therefore held liable.

It’s hard to believe today — now that we know what we know about Stratton Oakmont — but in 1995, Prodigy was found guilty of defamation.

The case birthed a backlash; free speech advocates and Internet pioneers rightly argued that the Stratton v. Prodigy ruling couldn’t stand. If it did, the Internet would not be able to grow into a bustling hub of international e-commerce.

Ultimately, politicians agreed with the backlash, and the case was effectively nullified by  the 1996 Communications Decency Act, which essentially absolves search engines and webmasters of defamation liability over user comments.

What Will Be The Next Chapter In The History of US Defamation Law?

As we continue to push technological fronteirs, expect to see the nation’s libel and defamation laws change — right alongside the Web.

For more information on Internet defamation, go here.

To read the first “History of US Defamation” blog post, go here.

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