The Worst Legal Advice Ever, Presented By A Clueless Blogger For An Insurance Company

from the ouch dept

The internet is chock full of bad legal advice, but it's a bit odd to see it posted on a site for a large insurance company. Insurance company The Hartford* apparently has a website full of "small business" advice. This, by itself, is not a bad idea. Providing good content that people want is something that many companies should be doing. But the key here is "good content." Which brings us to the following article that's been passed around a few times among lawyers on Twitter. Officially, it's an article describing "5 Easy Ways to Get Sued Over Online Content & Social Media" written by Deb McAlister-Holland. Here's the stunning thing about it: nearly every word in the thing is dead wrong. Honestly, there's so much that's flat out wrong that we wouldn't even have the time to go through it all, unless we did basically nothing else today. So we'll just pick a few of the more ridiculous low-lights. It starts off with an unsubstantiated claim that the CFAA is the cause of "much of the rise in litigation," but then jumps right into the fire with a discussion on copyright infringement that begins with this line that is, uh, just wrong:

There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple.

Except there are many, many, many defenses against claims of infringement, from fair use to de minimis use to copyright invalidity to the statute of limitations has passed and more and more and more. A simple Google search might help. Either way, if you're unfamiliar with the concept of fair use, you shouldn't be writing about copyright.

No receipt, no written permission, no link to a Creative Commons license? You lose.

Except, that's not true. I mean, let's just look at just a few of the cases we've written about in just the past few months, where there was no receipt, no written permission and no link to a Creative Commons license -- and in all of those cases, the person or company using the content won. This is just bad legal advice.

The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you.

None of that is even close to accurate. There's an entire section of copyright law 17 USC 504 devoted to remedies for infringement that you'd think someone writing about this would have (perhaps) Googled first. First of all, there is no "automatic" remedy. The judge or the jury sets the damages within certain guidelines. Statutory damages tend to be the standard, rather than actual damages. The "value" of the material is considered almost entirely irrelevant in statutory damages (and frequently irrelevant in the rare "actual damages" cases). Treble damages are only awarded in cases of willful infringement, and is not based on "the guy who is suing you."

So, if you can, take advantage of the “ safe harbor ” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit.

At least this time McAlister-Holland actually references something associated with copyright law (the DMCA), but does so almost entirely incorrectly. Since the original setup of the piece is about "content marketer" (what the hell is that?) and writers getting sued, the DMCA safe harbors almost certainly wouldn't apply in the first place, since they're about protecting service providers (intermediaries) from infringement done by end users (such as the writer). So, while it's correct to say that the service provider can be protected via the safe harbors by removing infringing content upon notification, almost everything else is wrong. Also, the whole point of the safe harbors is that it does, in fact, stop you from having to pay damages. That's why it's a safe harbor. It has nothing to do with reducing the amount of damages. The original writer, however, may be sued either way, but the safe harbors do nothing to with the damages for that individual. Either way, the entire paragraph is a confused jumble of wrong.

Next up, McAlister-Holland suggests that people writing reviews online, such as on Yelp, are potentially opening themselves up to tortious interference claims. While it's true that angry plaintiffs in online review cases will almost always toss in a "tortious interference" claim in any lawsuit, the idea that a typical review will be tortious interference is laughable. And yes, you could get sued for just about anything, but it doesn't mean the lawsuit is legitimate. From there, she discusses defamation in a manner that is... misleading, at best. Here's a note: when discussing the specifics of a law, don't use non-legal dictionary definitions. She even brings up criminal defamation as a possibility, despite it being exceptionally rare. Besides, it's a very odd article that highlights criminal defamation but never gets into the details of the high bar associated with defaming a public figure (she only mentions that the rules vary based on public or private individuals, never explaining how or why). Also, this:

One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter.

I don't even. "Intent may (or may not) matter"? NYT v Sullivan establishes that there needs to be actual malice in posting false information about public figures. Intent very much matters, and the "mind of the reader and the outcome" matter almost not at all.

She then cites... a Canadian case to prove her point. She might want to research the (rather extreme) differences between US and Canadian defamation laws. I mean, she might as well pick on defamation laws from the UK or, hell, Saudi Arabia, if the intent is to warn you to avoid any global defamation.

The final section is on publicity rights, and again, gets an awful lot wrong:

The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.

Now, publicity rights are state-based laws, and they vary greatly by state, but I'm hard-pressed to see how any of the situations listed above have anything at all to do with any publicity rights laws. Publicity rights laws tend to be about preventing the commercial exploitation of an individual's identity -- with the most standard example being using a famous person's likeness in an advertisement without their approval, suggesting an endorsement.

So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.

So that first part has nothing to do with rights of publicity, but is a copyright issue (which you'd think she'd know given that she has a section on copyright in this very article). And while there might be some cases where you could argue that posting a photo of an identifiable person without permission might lead to a publicity rights case, it's a stretch. There's the Katerine Heigl situation, of course, but that involved a drug store tweeting a picture of her carrying a bag walking out of one of their stores (and, even then, it seemed like a huge stretch for publicity rights). Merely posting a picture of someone famous to your Facebook? Not a publicity rights issue.

There's then a paragraph that walks back what she says, suggesting it is okay to post photos of famous people if you don't suggest they endorse "you." Then there's this:

The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency.

Huh? I don't even know what that means. How are health care workers violating someone's publicity rights?

And, then suddenly, we're back into defamation. Or something:

Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience).

Anyway, after some legal folks on Twitter started discussing the article, with Ken "Popehat" White summing it up as: "STOP MAKING PEOPLE STUPIDER, ASSHOLES," McAlister-Holland claimed that the piece was "heavily edited" from something she wrote, and that The Hartford version "introduc[ed] many errors." She further claimed that it "does not represent my work." However, others like Asher Langton pointed out that the original version, since deleted from her own website was still available via Google cache and archive.org, showing the same questionable analysis of the law.

She also claims that the link is "unauthorized": Except that The Hartford's site claims it licensed it via NewsCred, a marketplace that content providers such as bloggers can use to syndicate their work. Of course, if that's false (which seems unlikely), perhaps McAlister-Holland could have a legitimate claim of copyright infringement. Wouldn't that be ironic?

Anyway, there are lots and lots of problems with the article (even beyond the ones we discussed), but the real question here is why is a credible business like The Hartford reposting such crud? Not only is it woefully inaccurate, it only seems likely to encourage frivolous litigation based on repeating the bad legal theories in such a blog, now with the "credibility" of The Hartford behind it. That just seems like a bad content strategy all around.

*Disclaimer: Last year, The Hartford briefly sponsored a few of our posts, but had no editorial control over the content of the posts. And, we think those posts were significantly better than the crap discussed above.

Filed Under: copyright, deb mcalister-holland, defamation, insurance, publicity rights, tortious interference
Companies: the hartford

Roca Labs Sues Customer For Posting A Negative Review

from the that'll-win-new-customers,-i'm-sure dept

We've been covering the saga of Roca Labs for a few days now. This is the company that claims to make an "alternative" to gastric bypass surgery in the form of some "industrial food thickening agents" that (the company claims) will fill up your stomach and make you not want to eat. These claims are not FDA reviewed and an examination of the claims by a doctor found them to be questionable (to say the least). We became aware of the company because it had sued Consumer Opinion Corp., the company that owns the site PissedConsumer.com. The issue? Roca Labs has a terms of service that offers everyone a "discount" on its product if you agree to never, ever, say anything bad about the product ever (you also have to agree to share success stories with Roca and allow them to publicize those stories). In short, the terms of service are designed to only show positive results, and gag any negative results. Roca claims that it has to do this because results may vary, and negative results could be caused by other factors. Of course, doesn't that also mean that positive results could be caused by other factors as well?

Either way, Roca Labs sued PissedConsumer on the hilarious legal theory that by offering a forum for unhappy customers to post their story, it was "tortious interference" because it encouraged people to break the terms under which people bought the product. As we noted, this legal theory is fairly laughable, and PissedConsumer's legal response makes that fairly clear as well.

However, Roca Labs and its lawyers are apparently busy. They're not just suing PissedConsumer, but they're actually suing a customer who complained to the Better Business Bureau for "breach of contract" and "defamation per se." While her filing with the BBB included some statements that might reach the level of defamation, amusingly, Roca Labs does not attempt to show that her comments were false in any way. Rather, it relies on yet another ridiculously questionable term in its terms of service, saying that if you post something negative, it will automatically be considered "defamation per se." Here's the term:

You agree that any such negative claim will constitute defamation per se

I don't think that's how defamation law works. At all. Even if this woman's comments to the BBB are defamatory (and I'm not saying they are), you can't just have someone sign a contract saying that if they do something, they'll be guilty of defamation.

Either way, all of this should make you wonder just what sort of company Roca Labs is in that it seems to not just sue its own customers for negative reviews, but to work so hard to stop negative reviews and to threaten and intimidate those who make complaints about their experience with the company.

Filed Under: contract, free speech, gastric bypass surgery, negative reviews, reviews, tortious interference
Companies: pissedconsumer, roca labs

PissedConsumer Fights Back Against Roca Labs' Attempt To Silence Customer Complaints

from the not-going-to-happen dept

We recently wrote about a very questionable lawsuit filed by, Roca Labs, a "dietary supplement" company (it apparently prefers "nutraceutical") with a claimed "alternative" to gastric bypass surgery made up of some ingredients that they claim will expand and fill up your stomach so you're not hungry. When you buy, the company "offers" a "discount" if you agree to never, ever say anything bad about the company, ever:

You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. You further agree that in an effort to prevent the publishing of libelous or slanderous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees.

There's also the flip side in that to get the discount, you also are expected to share the details of your results with the company, and they will promote them publicly (assuming they make the company look good):

You will help promote RLN and our products by sharing your weight loss success with us. You agree to like us on Facebook and follow us on Twitter. You agree that from time to time we may contact you via electronic mail or telephone to learn about your success.

You agree that we can use any and all information that you provide about your weight loss success in RLN marketing efforts.

Oh, and Roca Labs is so sure that you'll like its product that the company won't take it back. Ever. Under any circumstances. At all. You know the idea of a money back guarantee? Roca Labs doesn't do that -- even while admitting the product doesn't always work (more on that in a second). Bizarrely, Roca Labs argues that because it doesn't always work, you can't return it:

An order is considered “shipped” once a USPS tracking number has been assigned. There are NO returns once the product has been shipped. DO NOT PURCHASE any product from us unless you agree to this no return policy. Your order is your acceptance of this NO RETURN policy. Your RLN order is a special order and is non-refundable. We do not guarantee any results for the use of our product and individual results may vary. There are many factors that may prevent you from achieving your weight loss goal. Thus, our product cannot be returned

Also, while the company appears to have updated its terms and conditions, in its own filing, it included the earlier terms, which includes the claim that Roca Labs "ALWAYS WORKS." And also highlights the points made above: Either way, plenty of people have still been complaining. As we'd mentioned previously, the local Better Business Bureau gives the company an F rating, noting 73 complaints in the last three years. And, yes, PissedConsumer has a bunch of complaints as well.

Roca Labs is taking a somewhat unique view of the law that PissedConsumer is somehow "tortiously interfering" with Roca's business, by encouraging people to post reviews. In the world of Roca Labs, merely encouraging people to post reviews is tortious interference with the bogus gag clause in the company's terms of service.

PissedConsumer has now struck back with quite the opposition to Roca Lab's request for a temporary injunction. Written by lawyer Marc Randazza, it doesn't mince many words. Noting that Roca Labs really seems to want to avoid criticism, the filing includes (among other things) depositions by a doctor who looks into the ingredients in Roca Labs' product and comes away less-than-impressed, as well as the details of one of the people who filed a BBB complaint and... received a legal threat from Roca Labs in response. As the opposition filing notes, the questionable terms from Roca should already raise some questions:

A critical reader would likely presume that something is amiss upon reading the key clause in Roca Labs’ purchase terms.... “In exchange for a significant discount… customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog or write negatively about ROCA or its products in any forum.” .... However, these same terms fail to disclose the amount of this “discount” or “subsidy.” .... Roca then requires its customers to agree inter alia that they “consent to and agree to entry of an injunction… in enforcement of your violation of this term and condition,” and that the customer will then pay an elevated price for the product.... This is alongside the company’s “no refunds” and “no returns” policies, and a waiver of any chargeback rights even if the product never arrives.... Roca Labs tries to scare its customers with clauses that provide it with a unilateral right to recoup not only an elevated price for the product, but “any expenses we incur in resolving the issue”, and that if any of them make a negative comment, it will (apparently even if true) “constitute defamation per se, entitling [Roca Labs] to injunctive relief and damages.”.... The coup de grace is a section providing for a one-sided attorneys’ fees provision, if a user dares to utter a negative word in public.

As the filing questions, all of these should raise red flags about the company and its products:

Does that sound like an upstanding company that stands behind its safe and reliable product? Or does that sound like a disreputable company, producing tubs of snake oil (or snake goop, as it were), and which knows that too much truth will hurt its fly-by-night bottom line? Roca Labs is desperately trying to force a cone of silence over each and every customer that discovers that Roca Labs’ product is not only a specious remedy for their weight issues, but a potential cause of additional health problems. Plaintiff, desperate to sell as many of its tubs of goo to the public as it can before regulatory agencies come knocking does its best to bully its former customers into silence.

To support its position that Roca Labs' products are of dubious benefit and that the company is a legal bully, PissedConsumer's filing includes some interesting related declarations. First up a declaration from Dr. Thomas Parisi on the nature of Roca Labs' product and whether or not it is likely to be an effective weight loss tool. Parisi notes that Roca's offering, "which consists primarily of industrial food thickening agents," does not seem likely to live up to its claims of helping people lose weight by causing the mixture "to expand in the user's stomach, leaving her with no room or desire for anything else, thus prompting weight loss...." In fact, Dr. Parisi suggests, in actuality "it could lead to health problems in some individuals, including gastrointestinal distress. Moreover, based upon the ingredients contained in the Product, it could also cause additional unintended side effects in a large number of users, including diarrhea, bloating, intestinal discomfort, gas, constipation, intestinal blockage, dehydration, headaches, and dizziness."

Dr. Parisi goes through each named ingredient and notes why each is unlikely to aid in weight loss or why there is no evidence to suggest it aids in weight loss. In some cases, such as with Konjac, he notes that it's a Chinese laxative, and that "no competent medical physician would recommend regular use of it (or any laxative) as a treatment plan for weight loss." He further notes that with Maltodextrine, the product may be counterproductive:

Maltodextrin is often used in commercially available protein shakes and similar products. However, because it contains high-glycemic carbohydrates, intake of maltodextrin would typically be avoided in individuals trying to achieve weight loss.

Dr. Parisi also notes how typical health products rely on clinical tests and consumer feedback, and thus Roca Labs' attempts to force silence on those for whom the product doesn't work seems out of step with any trustworthy health product. He specifically notes that "it is unethical for a health care professional to take steps to hide the side effects of any mediation or treatment from a patient." (I'm guessing that "mediation" is supposed to be "medication").

Then there's the declaration from Jennifer Schaive, detailing how she was not happy with the product, sought a refund, and complained to the BBB -- only to be threatened with a lawsuit from Roca Labs. She received a letter from Sharon King, who describes herself as a paralegal for Roca Labs, and the letter has some interesting claims as well, including that "Roca Labs does everything it promises to its customers." Of course, as you read the details, you realize the company means everything it promises... in its terms concerning not providing refunds and threatening to go after you should you say something negative about the company.

Back to Randazza's response. He notes that Roca Labs is trying to get around the fact that it can't use defamation law to get an injunction by pretending that this is a different issue altogether:

Temporary injunctive relief is not available to plaintiffs seeking to suppress allegedly defamatory speech.... Presumably for that reason, Roca Labs has attempted to disguise this defamation claim as a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and tortious interference claim in order to try to side-step the clear case law that cuts against it in defamation actions. But, no matter many times you call a “dog” a “duck,” it will neither lay eggs nor quack. Styling a baseless defamation claim as something else does not shield it from First Amendment scrutiny and render palatable the most odiferous and despised remedy known to our courts – the prior restraint. This exceptional relief is impermissible under Florida law and the First Amendment.

It goes on to explain the basic's of prior restraint and how the First Amendment forbids such an injunction. And then gets to the Section 230 defense for PissedConsumer, noting that the service provider is not responsible for any speech by its users, even if that speech was defamatory. Roca Labs tries to get around Section 230 by arguing that because PissedConsumer tweets out comments based on reviews on the site, that it is not protected by 230, but that's not how other courts have ruled. Previous 230 cases have found that reposting content -- even hand selected content -- still protects the service provider.

The Pissed Consumer website only hosts third-party produced content appearing on and is neither the author nor the editor of the reviews.... Because it is a service provider, and not a publisher, Defendants are immune from liability under 47 U.S.C. § 230 (the “Communications Decency Act” or “CDA”). “The purpose of the CDA is to establish ‘federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’” ... While Plaintiff wants to hold Defendants liable as the “publisher” of the Tweets that are generated from reviews posted on , the Tweets are automatically broadcast third party statements, and are not written by the Defense.... Accordingly, even this creative argument fails as a matter of law.

“[L]awsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred by the CDA.” ... Reviews posted on Pissed Consumer are automatically disseminated on Twitter, but that does not make Defendants “publishers” under the CDA, but instead falls within the purview of immunity. Defendants’ users authored the statements. Dissemination of them does not trigger a § 230 exception. Disseminating the content to the public is not enough. “A ‘provider’ of an interactive computer service includes websites that host third-party generated content.”

The filing also takes down the claim that PissedConsumer is somehow engaged in "tortious interference" by merely asking people to post reviews. First off, for it to be tortious interference, Roca Labs would have to show that PissedConsumer was engaged in intentional and unjustified interference. It seems unlikely that anyone at PissedConsumer had any clue about the dubious gag clause pushed by Roca Labs, and even if they did, asking people to post their opinions is hardly unjustified interference.

Even if Defendants had knowledge of Roca Labs’ customers beforehand, they would have been entirely justified warn them about the questionable product and unethical business practices, (as evidenced by the gag clause of the terms and conditions). “This cause of action requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.”...

Plaintiff’s tortious interference claim swings on the notion that the Defendants “tortiously interfere[d] with Roca Lab’s customers by encouraging them to breach their customer agreement with Roca” by posting reviews on the Defendants’ website. ECF 5 at 2. While Defendants assert, infra, that this does not constitute tortious interference, neither Defendant denies that the Pissed Consumer website wishes for consumers to review products or services they have tried. But, this does not support liability, as there is no tort in allowing consumers to review products.

It goes on to note that even if Roca's questionable legal terms are somehow enforceable against customers, they can only apply to current customers, not past customers.

Even if these facts could support a tortious interference claim, a relationship with a past customer does not provide a basis for the claim.... While Roca Labs has burdensome terms and conditions, we can find nowhere among those burdens any obligation to be a repeat customer.... “The mere hope that some of its past customers may choose to buy again cannot be the basis for a tortious interference claim.” ... Therefore, Roca has no substantial likelihood of prevailing on the merits of its tortious interference claim, because the claim fails as a matter of law.

Not surprisingly, the filing also notes that Roca Lab's gag clause is almost certainly not legal in the first place:

Roca Labs complains that it put the Defendants on notice of the unconscionable contract, and on that basis claims that it compelled them to respect its outrageous (and unlawful) terms....

Roca Labs cannot use the gag clauses as the basis for seeking injunctive relief, even as it applies to its customers who wrote the reviews on the Defendants’ website, because Roca Labs has presented no legitimate business reason to support the gag clause....

Preventing customers from providing their opinion of Roca Labs’ product is not a legitimate business interest, but instead is itself a deceptive trade practice. Any act “which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer’s detriment” constitutes an unconscionable trade practice.

Finally, the filing attacks the idea that there's been a violation of Florida's unfair trade practices dispute, noting that the intent of that law seems ironically at odds with Roca Labs' attempted use of it. That is, the stated purpose of the law is to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." And, since Roca is not a customer of Pissed Consumer and thus has no standing under the law. But again, even if it could, it's pretty clear there's no violation here:

Plaintiff says that a “practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious.” ... Defendants agree. The suppression of consumer reviews, some of which warn consumers of negative health consequences, fits that description. Meanwhile, no reasonable person could contort that definition into “allowing consumers to share their experiences to the benefit of other consumers.”

Let us presume, arguendo, that Defendants are the evil conspiracy that Roca paints them to be; even reprehensible conduct is not actionable under FDUTPA absent loss or damage to a consumer.... There is no identifiable loss or damage to a consumer here, and unless Roca is a consumer of the Defendants’ services or products, it lacks standing to bring such a claim on behalf of other consumers who have no quarrel with the Defendants. Roca Labs calling this business “immoral,” is not enough to give it standing under FDUTPA19 (although it is ironic).

And that's not even getting into the fact that the law requires everything to have happened in Florida (PissedConsumer is a NY-based operation) or the fact that you have to prove damages, and Roca Labs (conveniently) doesn't even bother to present any evidence of damages.

In the end, the filing is fairly damning across the board. It seems likely that Roca Labs went through its usual paces in trying to intimidate PissedConsumer over the negative reviews, not realizing that it might have competent legal help who could actually respond to the questionable legal theories that Roca Labs was using in trying to have negative reviews blocked and censored.

Filed Under: censorship, defamation, dietary supplements, florida, gastric bypass, nutraceutical, nutritional supplements, pissed consumer, tortious interference
Companies: consumer opinion corp., pissedconsumer, roca labs

Court Overturns $60k Verdict Against Blogger Who Told The Truth

from the about-time dept

A few years ago, we wrote about a horrifying ruling in which a blogger who was sued for libel was told he had to pay $60,000, even though it was shown that what he had said was entirely truthful. It's an oft-repeated statement that truth is an absolute defense against defamation claims, but in this case, things got weird (and troubling). The ruling found that even though the statements were truthful, they represented "tortious interference" with employment. The case involved a blogger named John Hoff who blogged, truthfully, about Jerry Moore's involvement in a high-profile mortgage fraud situation. Moore had been hired by the University of Minnesota, but was apparently let go soon after Hoff's post. It seemed absolutely ridiculous that providing truthful information about someone should ever be seen as illegal, but that seemed to be the case here. The original ruling was a jury verdict and we had hoped that the court would set aside that verdict, but it chose not to, going against a rather large collection of case law (and common sense).

Thankfully, Hoff appealed, and the appeals court has now reversed the original ruling. The appeals court made the point clearly and concisely:

Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement.

The court goes into much more detail over its decision to reverse and send it back to the lower court, but it all comes back to the basics. If the content is truthful, then there's no issue:

Moore argues that Hoff is not shielded from tort liability simply because Moore could not prove the falsity of Hoff’s statement. Rather, Moore urges us to rely instead on Hoff’s motivation for making the allegedly defamatory statements. Moore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree.

When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action -- up to and including termination -- based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach.

It's good that the courts seem to have fixed the earlier decision, but it's still crazy that it even got this far.

Filed Under: defamation, jerry moore, john hoff, tortious interference, truth

Court Upholds $60,000 Ruling Against Blogger... Even Though His Statements Were True

from the scary-stuff dept

One premise that has been a key element in protecting First Amendment rights in defamation cases is the idea that "truth is an absolute defense against defamation." You can't defame someone if you tell the truth about them. And yet, courts have been eating away at this concept. A few years ago, we wrote about a troubling appeals court ruling, that seemed to suggest that if there's "actual malice," in presenting information, even if it was truthful, there could still be a legal claim. Earlier this year, we heard of a similar case, in which a jury awarded a man $60,000 in damages after a blogger posted truthful information about him that indirectly resulted in the guy losing his job.

Unfortunately, while it had the opportunity to do so, the court has refused to set aside the jury's verdict. While the straight defamation claim failed, the guy, Jerry Moore, was able to get blogger John Hoff, under a claim of "tortious interference," because of the job loss.

But, as Eugene Volokh explains, this seems to totally ignore a ton of caselaw and the simple fact that there's nothing illegal in wanting to get someone fired, and revealing truthful information about them in order to do so:

As I wrote in March, people are constitutionally entitled to speak the truth about others, even with the goal of trying to get them fired. (The tort actually requires either knowledge that such a result is practically certain or a purpose of producing such a result, but I take it that here the allegation is that Hoff wanted Moore to get fired.) The First Amendment constrains the interference with business relations tort, just as it constrains the infliction of emotional distress and other torts. See NAACP v. Claiborne Hardware Co. (1982); Blatty v. New York Times Co. (Cal. 1986) (speech constitutionally protected against a libel claim is also protected against an interference with business relations claim); Paradise Hills Assocs. (Cal. Ct. App. 1991) (same); Delloma v. Consolidated Coal Co. (7th Cir. 1993) (�permitting recovery for tortious interference based on truthful statements would seem to raise significant First Amendment problems�); Jefferson Cty. Sch. Dist. No. R-1 v. Moody�s Investor�s Services (10th Cir. 1999) (holding that interference with business relations and interference with contract claims can�t be based on expressions of opinion). The same should apply to the closely related interference with contract tort. See, e.g., Jefferson Cty. Sch. Dist.

Perhaps because of this, the Restatement (Second) of Torts § 772(a) provides that, �One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other�s contractual relation, by giving the third person ... truthful information.� See also, among many other cases, Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc. (Pa. Super. 2009) (so holding); Recio v. Evers (Neb. 2009) (likewise). Minnesota seems to have accepted § 772(a) as well, see Glass Service Co. v. State Farm Ins. Co. (Minn. Ct. App. 1995); Fox Sports Net North, LLC v. Minnesota Twins Partnership (8th Cir. 2003). But even if Minnesota courts take the opposite view as a matter of state law, such a view would be preempted by the First Amendment.

Somewhat amazingly, it appears the court ignored both of those arguments, despite them each being raised by Hoff's lawyer in the motion to put aside the jury verdict as well as during the trial itself. It appears that Hoff will appeal, and hopefully the appeals court will recognize what a troubling ruling it is when you can get in legal hot water for actually telling the truth about someone.

Filed Under: defamation, jerry moore, john hoff, tortious interference, truth