Billy Mitchell Threatens To Sue The Guinness World Record Folks For Removing His Records

from the not-how-it-works dept

Last time we wrote about Billy Mitchell -- a man who appears to be famous for playing video games and pissing people off -- he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its "Regular Show." The court was not impressed.

The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”

The court also noted that, unlike Mitchell, when Ferguson lost his video game record "the character literally explodes, unlike Plaintiff." So there's that.

Apparently, in early 2018, there was a big controversy when Twin Galaxies, who tracks video game records (including for the Guinness Book of World Records), stripped Mitchell of his various records after claiming that an investigation showed evidence that Mitchell did not follow the rules. The Guinness folks later removed Mitchell's records as well, and later included Mitchell in a section called "The Records That Never Were":

Now, a year and a half later, Mitchell had a law firm send a threat letter to both Guinness and Twin Galaxies, demanding a retraction. There's also the, um, 156-page "evidence pack." Notably, despite the legal threat letter demanding a "retraction" for "their defamatory statements made against him," nowhere in the letter does it lay out which specific statements are actually defamatory. That's kind of a key thing that you're supposed to do if you have a legitimate claim of defamation. What actual statements the letter does mention don't seem to come close to the standard for defamation. Instead, Mitchell's lawyers are nitpicking about Guinness' specific word choice. For example:

Notably, Guinness World Records then published its 2019 Gamer’s Edition Book (see Figure 1). Titled “THE RECORDS THAT NEVER WERE,” Guinness World Records specifically cites the disqualification of Billy Mitchell’s “highest score on PAC-Man and the first perfect score on PAC-Man.” Following that, Guinness stated that Mitchell’s “submitted scores were obtained while using MAME.” In this statement, not only did Guinness World Records assert that Mitchell’s records, specifically his Pac-man records, “NEVER WERE,” but its use of the generalized phrase, “submitted scores,” also asserted that all his achievements were obtained while using MAME. These statements are factually false.

Defamation has to be pretty specific. Merely using a "generalized phrase" that might imply a conclusion that is different than what you want is not defamatory. The letter also demands that every record Mitchell had be restored, and insists that only partially restoring the scores won't be enough to avoid litigation:

This request for retraction is for all of Billy Mitchell’s records; a partial retraction will not suffice. Both Twin Galaxies and Guinness World Records must retract their claims impugning Mitchell's scores publicly, so the damages done to him will finally begin to reverse. There was a press release against Billy Mitchell, and there must be a reciprocal release in his favor.

Each corporation has a 14-day deadline to review the information and issue the retraction, or we will resort to legal recourse, our final option.

But, uh, not giving you a world record is not defamatory. What would they be suing over? I don't see what kind of legal claim there might be. There are also at least some questions about the statute of limitation. The Guinness World Record people are based in NY. The Twin Galaxies boss appears to be in California -- both of which have a 1-year statute of limitations for defamation. Of course, it's possible that he could file elsewhere with a longer statute of limitations. Either way, it's difficult to see what's defamatory here, or what the actual legal claims are. We'll wait and see what is said in response and if any litigation is actually filed.

Filed Under: billy mitchell, cease and desist, cheating, defamation, opinion, records, threats, video games
Companies: guinness world records, twin galaxies

Chinese Giant Tencent Is Suing Bloggers Who Criticize The Company For 'Reputational Damage'

from the free-speech dept

It appears that the idea of SLAPP suits has moved to China. The Chinese internet giant Tencent is apparently fed up with its own users criticizing the company on its own WeChat blogging platform, and has sued a bunch of them (possibly paywalled -- here's another link for the story). The details are pretty ridiculous, even recognizing that China doesn't (by a long shot) have a history of protecting free expression. What's incredible here, of course, is that Tencent could have just shut down the accounts of the WeChatters. But, instead it's trying to completely destroy them with these lawsuits.

“It’s very weird,” said Jianfei Yan, who was faced with a Rmb1m ($140,000) defamation lawsuit from Tencent in March after writing an article about the dominance of the “super powerful” WeChat platform and its potential for data breaches. “If Tencent questioned my comments, they could [have stopped] me publishing them on WeChat . . . but they just directly appealed to the court and sued me.”

Tencent declined to comment on the cases. But in a document submitted in May after a court hearing against Jihua Ma, another of the bloggers, it said it opted against deleting the offending articles on WeChat because doing so “would further cause damage to Tencent’s reputation”.

But suing someone and trying to destroy their lives is not going to cause further damage to Tencent's reputation? How does that work? And, honestly, the lawsuits seem to be targeting fairly mild criticism or people reporting potential bugs. But it also seems most targeted at those who are unable to afford to fight back.

Xuyang Sun, the third blogger, was sued by Tencent for Rmb5m earlier this year after he pointed out that the company’s efforts to reduce children’s time spent gaming could be circumvented. “I think they just pick the soft persimmon,” he said, arguing that his critique was milder than similar attacks levelled by the state-owned People’s Daily newspaper.

And, yes, these lawsuits can ruin people's lives. As Martin Chorzempa, from the Peterson Institute, notes in a tweet, because of China's relatively new social credit system (and a lack of personal bankruptcy), losing such a case when you can't afford to pay the sums Tencent is demanding, can literally destroy your life.

Of course, now some of us are finding out that Tencent is apparently so thin skinned and unable to take even mild criticism, it's going to get people much more interested in what it is Tencent is trying to hide. How do you say "Streisand Effect" in Mandarin?

Filed Under: china, defamation, free speech, reputational damage, wechat
Companies: tencent

Devin Nunes Discovery Requests Against Twitter, A Fake Cow, And Liz Mair Show Just How Much A Fishing Expedition He's On

from the oh-come-on dept

We've written a few times now about Devin Nunes' ridiculous lawsuit against Twitter, two parody Twitter accounts, and political strategist Liz Mair. In a news interview back in April, Nunes more or less admitted that these lawsuits were fishing expeditions to reveal journalists' sources on articles about himself that he didn't like. Meanwhile, both Twitter and Mair filed motions in the case saying that a Virginia state court is the wrong venue.

The court held a hearing on those motions today, and while the judge has not ruled, the Fresno Bee's article about the hearing lists out Nunes' discovery requests, which show just how much of a fishing expedition this case is. From the Fresno Bee (which is being sued by Nunes in a separate lawsuit):

His discovery requests are extensive, and include:

• The identity of anyone Twitter has done business with in Virginia since 2014
• Any time a Twitter employee has been present in Virginia since 2014
• Any telephone calls by Twitter employees to somewhere in Virginia since 2014
• All emails and text messages of Twitter employees or any of the defendants that mention Nunes
• All information related to the parody accounts @DevinCow and @DevinNunesMom, including phone numbers and all their tweets, messages, likes and retweets
• Everyone who donated to a political fundraising group called Swamp Accountability Project, which bought radio ads against Nunes, from Jan. 1, 2018 to March 18
• Mair’s tax returns dating back to 2016 and a report of her assets and liabilities
• Any communications between Mair or her company that mention Nunes

I mean, almost any one of those is crazy. The identity of anyone Twitter has done business with in Virginia since 2014? Any time a Twitter employee has been present in Virginia? Come on. Obviously, some of those are incredibly weak attempts to show why the case deserves to be in Virginia, but that's not how any of this is supposed to work.

Hopefully the judge sees this for what it is and dumps the whole thing.

For what it's worth, the article does note that the two parody accounts, Devin Nunes' Cow (@DevinCow) and Devin Nunes' Mom (@DevinNunesMom) are both unrepresented in the case:

The parody accounts did not have legal representation, though about 20 people sat in the courtroom in support of @DevinCow, sporting cow shirts, signs, stuffed animals and, in one case, a pair of cow ears.

It's possible that Nunes hasn't even served the two parody accounts yet, which could explain why they don't have lawyers in court yet.

Either way, one hopes that the judge recognizes this case for what it is: a frivolous, speech suppressing, unconstitutional fishing expedition by an apparently hypocritical, thin-skinned Rep. Devin Nunes -- who pretends to be in favor of free speech and against frivolous lawsuits -- and throws out the case entirely.

Filed Under: california, defamation, devin nunes, devin nunes cow, devin nunes mom, discovery, fishing expedition, liz mair, nunes cow, parody, virginia
Companies: twitter

Judge Dismisses Sheriff Joe Arpaio's Defamation Lawsuit Against The New York Times

from the next-time,-bring-facts,-rather-than-a-stunt-lawyer dept

Attorney Larry Klayman is building himself quite the portfolio of high-profile losses. He's well on his way to seeing his lawsuit on behalf of Judge Roy Moore tossed by an irritated court. His lawsuit against social media companies for their banning of noted tire slash expert Laura Loomer has already been dismissed.

Well on his way to having his law license suspended, Klayman has just seen another one of his ridiculous lawsuits tossed by a federal court. [h/t Adam Steinbaugh]

This one claimed three publications -- including the New York Times -- besmirched the previously-unsullied reputation of (ex) Sheriff Joe Arpaio, preventing him from successfully running for Senator.

Reciting the litany of terrible things Arpaio had done over his career, the New York Times pointed out Arpaio is pretty much defamation-proof. Even though the Times screwed up by calling him a convicted felon rather than a convicted misdemeanant, everything else written about him was true or protected opinion.

The court points out Arpaio's Klayman-authored complaint is a skeleton partially garbed in useless invective. The decision [PDF] is concise, running only 11 pages, but it still provides enough space to completely dismantle the former sheriff's arguments.

Even with the court siding with the plaintiff at this stage of the pleadings, there's not enough in Arpaio's complaint to push this past the NYT's motion to dismiss. When you come to court, you need to bring facts. That's not exactly Klayman's strong suit.

Plaintiff’s Complaint comes nowhere close to pleading sufficient facts that plausibly establish “actual malice.” Indeed, Plaintiff pleads no facts at all. Instead, throughout his Complaint, he does no more than recite the applicable legal standard.

The court points out that copy-pasting legal definitions into a lawsuit and appending the plaintiff's name to them does not actually create actionable torts out of thin air. Nor does claiming the court cannot dismiss a lawsuit until the plaintiff thinks it's OK for the lawsuit to be dismissed.

[P]laintiff argues that the issue of malice “is a question of fact that cannot properly be resolved on a motion to dismiss.” See Pl.’s Opp’n at 10. Not so. The Supreme Court in Iqbal expressly held that the pleading of malice is subject to the “strictures of Rule 8.” 556 U.S. at 686–87. Thus, a plaintiff that “plead[s] the bare elements of his cause of action . . . [cannot] expect his complaint to survive a motion to dismiss.” Id. Courts in this District have dismissed defamation claims for failing to plead sufficient facts supporting the element of actual malice

It also points out that material better suited for heated blog posts shouldn't be used in place of actual arguments.

Plaintiff argues that actual malice can be inferred because “The New York Times’ political partisanship and liberal bias know no reasonable bounds . . .” Pl.’s Opp’n at 12. But Plaintiff offers no facts in his Complaint to support this proposition. The three news articles that he cites in his opposition brief do not demonstrate the type of animus that Plaintiff claims. See id. at 15 n.3. In any event, even if The New York Times takes positions that could be perceived as unfavorably disposed towards Plaintiff, the D.C. Circuit has observed that “[i]t would be sadly ironic for judges in our adversarial system to conclude . . . that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987). Plaintiff’s unadorned claim of animus and bias cannot save his deficient pleading.

Also: saying mean things about people is not defamation, nor is it evidence of actual malice.

Plaintiff’s objection to certain words that he considers incendiary—such as “sadist,” “medieval,” “bare-knuckled,” “disgrace,” and “true American villain”—is misplaced. They are too imprecise or subjective to be verifiably false facts.

Yep, still protected opinion -- something Arpaio might have figured out by reading the article before suing about it.

That these words appeared in a column in the Opinions section of The New York Times only underscores that point.

Because Arpaio can't show actual malice, his claims of false light fail as well. So do his claims of tortious interference for much the same reason: the plaintiff needs to show, not tell. Nothing in the lawsuit provides a basis for the interference claims, which appear to be mostly boilerplate recitation of legal standards.

This will certainly be appealed if Klayman can do it before he's disbarred. But it won't change the outcome. What it will do, however, is cost the defendants more money. The NYT filed an anti-SLAPP motion but the court rejects it, stating its earlier opinion in another defamation case, where it decided the federal court in DC cannot apply the district's anti-SLAPP law. Add this one to the pile of reasons why Congress needs to enact a federal anti-SLAPP law.

Filed Under: 1st amendment, defamation, free speech, joe arpaio, larry klayman
Companies: ny times

As Expected: Covington HS Teen's Lawsuit Against The Washington Post Is Dismissed

from the with-prejudice dept

This was not unexpected. As we easily predicted back when it was filed, Nick Sandmann -- the MAGA red hat wearing teenager from Covington Catholic High School who was briefly at the center of a viral social media Rorschach test -- has now lost his laughably bad defamation lawsuit against the Washington Post. As we pointed out, he never alleged any actual defamation, and federal Judge William Bertelsman did not seem at all pleased with Sandmann's legal arguments.

As Bertelsman notes, at this stage (the motion to dismiss stage), all he needs to do is see whether or not an actual claim has been presented: were statements of fact made about Sandmann that were defamatory. There's plenty of explanatory text before we get to the crux:

... the statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.

That's it. That's really all that matters here. The court goes into some more details to explain this, even though it's barely even necessary. However, as an example:

First, statements 1-3, 10, 13, 16, 17 are not actionable because they do not state or imply "actual, objectively verifiable facts."...

Instead, these statements contain terms such as "ugly," "swarmed," "taunting," "disrespect," "ignored," "aggressive," "physically," and "rambunctious." These are all examples of "loose, figurative," "rhetorical hyperbole" that is protected by the First Amendment because it is not "susceptible of being proved true or false."

This is the crux of basically all defamation law and why this case was going to lose from the beginning.

The above terms are also "inherently subjective," like "dirtiest"... or "squandered" and "broke," ... all of which are "not so definite or precise as to be branded as false."

There's a lot more along those lines, highlighting how you can't just take vaguely negative statements implying something and declare them defamatory. From there, it gets even worse. The judge notes that even if these were negative statements about Sandmann "there is no allegation of special damages," which dooms the case a second time. The court also calls out Sandmann's legal claims as overstating (by a lot) what the Washington Post actually did.

Finally, the article does not state that Sandmann "engaged in racist taunts." The article makes vague reference to teens and other participants "taunting" the "indigenous crowd" and them merely states that "[a] few people . . . began to chant build that wall," a political statement on an issue of public debate and often associated with party affiliation. This is not defamatory.

Even if false, attributing to an individual "membership in a political party in the United States that is a mainstream party and not at odds with the fundamental social order is not defamatory."

And thus, the case is dismissed, with prejudice.

The Court accepts Sandmann's statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and not impede or block anyone.

However, Phillips did not see it that way. He concluded that he was being "blocked" and not allowed to "retreat." He passed these conclusions on to the Post. They may have been erroneous, but, as discussed above, they are opinion protected by the First Amendment. And the Post is not liabile for publishing these opinions, for the reasons discussed in this Opinion.

We see so many of these lawsuits these days, where people insist that saying something that you don't like is somehow defamatory. That's not how it works. Of course, it would have been nice if Kentucky had an anti-SLAPP law (it has none) or if there were a federal anti-SLAPP law (there is not) to discourage this kind of frivolous, free speech chilling, lawsuit.

Filed Under: 1st amendment, convington catholic high school, defamation, free speech, nick sandmann, reporting
Companies: washington post

Laura Loomer Files Defamation Suit Against Facebook For Calling Her 'Dangerous' When Booting Her From The Platform

from the [makes-popcorn-but-not-a-whole-lot-of-it] dept

Having failed to convince a federal court that multiple social media services are engaged in a First Amendment-thwarting conspiracy against far right sideshows like Laura Loomer, Larry Klayman is back with another federal lawsuit featuring his new favorite plaintiff. It's a defamation lawsuit that attempts to portray moderation explanations by Facebook as malicious statements meant to destroy Loomer's reputation.

Perhaps the best way to explain this lawsuit is to let Larry Klayman explain it in his own words:

Today, Larry Klayman, the founder of Freedom Watch and a former federal prosecutor announced the filing of a defamation lawsuit by conservative investigative journalist Laura Loomer against Facebook. The complaint, filed in the U.S. District Court for the Southern District of Florida (Case No. 9:19-cv-80893), alleges that Facebook and its wholly owned sister company Instagram, in banning Ms. Loomer from the social media sites, maliciously defamed her by publishing that she is a "dangerous individual" and a domestic Jewish terrorist.

Seems pretty straightforward, although it's difficult to see anything anyone says about Laura Loomer damaging her reputation. Klayman's press release says he's demanding 5% of Facebook's net worth for his client -- bringing the theoretical payday to over $3 billion. Saying this is "standard" for calculating punitive damages doesn't make this a standard damages request.

But there's more. Klayman is not content to let the facts do the talking. His press release offers plenty of speculation as well. And it's not just regular speculation. It's speculation riddled with spelling and grammatical errors. Never write angry, folks.

Loomer has been a strong advocate not just for conservative causes, but also to stem the growing anti-Semitism in Congress and threat of Islamic terrorism. In this regard, she was banned by Facebook and Instagram by simply revealing the truth. Facebook and its CEO and founder Jeff Zuckerberg is a self-hating leftist Jew sympathetic of Islamic extremism. Klayman sued Zuckerberg and Facebook years ago for allegedly furthering a Palestinian Infitada calling for and which resulted in the death of Jews.

Have fun with that paragraph, commenters. It has since been corrected on Klayman's site, but those errors will live on forever at every website that publishes unaltered press releases as "news."

Anyway, the lawsuit is standard Klayman stuff, complete with an unsympathetic plaintiff. Unsympathetic plaintiffs need their rights defended and their grievances addressed, but it's tough to claim reputational damage when you're a self-sabotaging font of ignorance and bigotry.

The filing [PDF] claims Facebook defamed Loomer when it banned her from the platform. The initial statement by Facebook isn't defamatory and is merely an expression of its opinion of her dubious contributions to the public discourse.

In a statement released and published widely to the public in this district, nationally and internationally, Defendant Facebook explained their purported and false justification behind Ms. Loomer's ban:

We've always banned individuals or organizations that promote or engage in violence and hate, regardless of ideology. The process for evaluating potential violators is extensive and it is what led us to our decision to remove these accounts today.

In other words, Facebook moderators believe Laura Loomer is a promoter or perpetrator of violence and/or hate and had violated Facebook's rules once too often. Therefore, her accounts were banned. This is a statement of opinion that Klayman is attempting to portray as an unjustified and deliberate misrepresentation of Loomer and her posts.

In issuing the ban against Ms. Loomer, Defendant Facebook and its sister publication Instagram publicly designated her as “dangerous,” which publication was widely disseminated in this district, nationally and internationally.

Facebook offered more clarification on this moderation decision, which is also presented as defamatory, even though it isn't.

A spokesperson for Defendant Facebook represented and published that:

… such factors [for designating an individual as “dangerous”] include whether the person or organization has ever called for violence against individuals based on race, ethnicity, or national origin; whether the person has been identified with a hateful ideology; whether they use hate speech or slurs in their about section on their social media profiles; and whether they have had pages or groups removed from Facebook for violating hate speech rules.

While this statement appears pretty straightforward, Klayman clouds the issue by digging into Facebook's Community Standards. In doing so, Klayman attempts to put words into Facebook's mouth.

According to Defendant Facebook’s own posted Community Standards, “Dangerous Individuals and Organizations” are defined as “organizations or individuals involved in the following: Terrorist activity, Organized hate, Mass or serial murder, Human trafficking, [or] Organized violence or criminal activity.”

Ms. Loomer does not fall, or come close to falling, within any of the defined groups set forth by Defendant Facebook.

Facebook did not say Loomer was a dangerous individual as defined by the Community Standards. It only stated why it had banned her from the platform, and gave its reasons for doing so -- none of which included portraying Loomer as a violent criminal.

In defense of Loomer and to counter Facebook's appraisal of Loomer, Klayman mysteriously offers up a random tweet by his client.

In fact, Ms. Loomer uses social media to call out anti-Semitism, Islamic terrorism, political violence, and violence against homosexuals, as just one example once having tweeted:

Ilhan is pro Sharia Ilhan is pro- FGM Under Sharia homosexuals are oppressed & killed. Women are abused & forced to wear the hijab. Ilhan is anti Jewish.

Ok then. Because of this assessment and banning, Facebook has apparently done $3 billion in damage to Loomer's otherwise unsullied reputation.

Plaintiff Loomer has been severely harmed and damaged by these and other false and misleading statements by Defendant Facebook, because they subjected her to hatred, distrust, ridicule, contempt, and disgrace, and the threat of severe bodily injury or death by those who are now lead to believe that she is dangerous and a domestic terrorist against Muslims in particular. Muslims and other extremists thus are now prone to retaliate against her and her life is in mortal danger.

Plaintiff Loomer has been severely damaged by these false and misleading statements because they damaged Plaintiff Loomer’s reputation and good will and severely harmed financially in her profession and business as a conservative investigative journalist, as well as personally.

While I don't doubt that Loomer being banned from Facebook and Instagram had a negative effect on Loomer's various schemes and self-promotion, it's a stretch to say it caused $3 billion in damage to her reputation and her livelihood. The lawsuit says Loomer's been subjected to "hatred, distrust, ridicule, content, and disgrace" since Facebook booted her, but come on: Loomer was being "subjected" to all of that long before Facebook pulled the plug.

Facebook is free to make whatever moderation decisions it wants. At least that's not what's being sued over this time. But trying to construe statements accompanying moderation decisions as defamation is going to be a tough sell. It needs a good salesperson to pitch it to federal judges. Unfortunately, Larry Klayman is the kind of salesperson who tends to get uninvited long before the product demonstration can even begin.

Filed Under: content moderation, defamation, jeff zuckerberg, larry klayman, laura loomer, mark zuckerberg, section 230
Companies: facebook