It's been nearly two years since we first wrote about singer Courtney Love being sued for defamation over her Twitter messages mocking and attacking fashion designer Dawn Simorangkir. At the time, we noted that filing for defamation seemed like a pretty strong response, and it seemed like a better response would have been to either ignore the angry tweets, or to just lay out her own side of the story. However, after two years and apparently unsuccessful attempts at a settlement, the case is set to hit the court early next month, and it appears that some of Love's defense arguments will be interesting to watch.
First up, her lawyers will argue that the messages weren't defamatory. Considering she called Simorangkir a "nasty, lying, hosebag thief" with "a history of dealing cocaine" while having "lost all custody of her child" and, being guilty of "assault and burglary," one could make an argument that those statements could be seen as defamatory, if it turns out that the factual allegations are untrue. Of course, you could also argue that most people reading them wouldn't, in fact, believe that they were true, and would read them as just Courtney Love being Courtney Love and attacking someone she didn't like.
More interesting, however, is that Love's lawyers will argue that even if the messages were defamatory, there was no damage done. Simorankir is going to argue that the tweets ruined her fashion career, but that seems like it would be quite difficult to prove. Would people really believe Love's tweets on the subject to the point that Simorankir's entire fashion career was ruined? Seems like a stretch.
The most interesting (and least likely to succeed) line of defense is a sort of "Twitter made me do it" defense:
Love's attorneys have their own witnesses, including a medical expert who plans to testify that even if Love's statements were untrue, her mental state was not "subjectively malicious" enough to justify the defamation lawsuit.
That claim -- something akin to an insanity defense for social media -- suggests that Twitter was so appealing and addictive for Love that she had no appreciation for how the comments she posted would be received by others.
If that argument flies, I'd imagine that becomes the default argument any time anyone gets sued for what they say on Twitter.
In our recent post concerning the attempt by the UK to reform its ridiculous defamation laws (finally), Ben pointed out a perfect example of why those libel laws need fixing. Apparently a volunteer society focused on preserving a specific train steam engine (the 6024) was forced to sell its carefully restored steam engine thanks to a highly questionable libel suit from the society's former chair, who was ousted in a dispute. The Society's newsletter, which goes almost entirely to society members, discussed the dispute with the former chair and that guy sued claiming libel. The Society pointed out that the newsletter only went to other society members and the court initially agreed. However, the former chairman pointed out that the newsletter was also sent out to a grand total of 13 photographers whose images appeared in the newsletter, but who were not members of the society. And the court found that because those 13 people might have read the article (even though no evidence was presented suggesting they did), that the libel charge was valid. So now, the Society had to sell off the engine that it had restored just to pay for the legal costs of defending itself... because 13 people might have (but probably didn't) see the article in question.
For many years, there's been talk about how the UK really needed to fix its libel laws, which place much of the burden on the accused. This allows people and companies to often shut down fair and open debate on a subject, just by charging someone with libel. On top of that, it created a serious problem with "libel tourism," where people would be sued in the UK, even if the content originated elsewhere, to have the case heard under the stringent UK laws. For the last year or so there's been lots of talk about how the UK was really, really, really (no, really!) going to fix its libel laws, and it sounds like it might finally happen. Deputy Prime Minister Nick Clegg recently announced rather specific plans to reform the current UK libel law -- which he referred to as an "international laughing stock."
While the details will certainly matter, he did lay out some specifics of what was planned, including a statutory defense for "speaking out in the public interest," as well as clarifying "fair comment and justification" defenses. Two other specifics: (1) large companies will have to show substantial damage before they can sue individuals or non-government organizations and (2) newspapers will get special privileges when covering foreign parliaments.
These all sound like steps in the right direction, though I am worried about those last two points, in that they seem to be setting up different rules for different organizations and people. Do they really mean "newspapers" or does that include purely web-based publications as well? Why will only large companies have to show that they've suffered damages? The worry is the more specific special rules you set up for special classes, the more the law becomes about carving out things around a law, rather than creating a general law that makes sense across the board.
A bunch of folks have been sending in this story about how Greek firm Systemgraph, which is an official support partner of Apple in Greece, is apparently suing a customer who complained online about the bad experience he had with Systemgraph. Apparently, the customer, Dimitris Papadimitriadis, brought his iMac into Systemgraph to be repaired because he had noticed "dark patches" on the screen. The company said it would clean out the machine and replace the LCD. However, after Papadimitriadis got the machine back, he felt the problem had become worse, not better. The company offered to try to do the fix all over again, but the guy no longer trusted the company -- and noted that under Greek law, he's entitled to ask for a refund or a replacement for the machine. Systemgraph responded by noting that since the machine wasn't bought through them, they weren't responsible for offering a replacement machine.
I actually agree that it seems like a stretch to demand a new machine from the repair company, but I'm not familiar with the specifics of Greek consumer protection law on the subject. Even so, what happened next is pretty silly on the part of Systemgraph. After Papadimitriadis wrote about his bad experience with the company, Systemgraph sued him for defamation, demanding €200,000 for damaging its reputation. Of course, it wasn't Papadimitriadis who damaged the company's reputation -- but the company's failure to properly fix his machine. And, in the long run, it seems like suing a customer -- even a disgruntled one -- is much more likely to damage one's reputation, than any random online review.
A little over a year ago, we discussed a district court ruling that said that the site Ripoff Report (and its parent company XCentric) was not required to remove content, even though the content had been found (in a default judgment, since the defendants did not show up) to be defamatory. The court ruled that Section 230 clearly protected Ripoff Report as a service provider from being liable for user actions. While some worried that this meant that it would be possible for defamatory content to not be removable, this seemed like an overreaction, and targeted the wrong issue. The real problem was with the default judgment practice, and the idea that just because you can't find the people actually liable, some people think it's okay to blame someone else instead. That's just not right.
Last week, in an appeal on that original case, the appeals court basically ruled the same way: Ripoff Report has no requirement to remove the content judged to be defamatory, because it is not a party to the lawsuit, and thanks to Section 230 it cannot be a party to that lawsuit. However, it is notable that Ripoff Report has put additional information on that page, indicating that the content was found to be defamatory, which more or less should alleviate much of the concern. Separately, as Eric Goldman notes in the link above, the fact that it's possible that defamatory content may be online with no way to take it down probably isn't a huge concern, as the situation is unlikely to happen all that frequently. Most sites seem willing to take down such content.
Separately, as Paul Levy astutely points out in his own analysis of the case, the courts in various states have made it clear that in order to deal with that pesky First Amendment issue, there shouldn't even be injunctions against defamatory speech -- only monetary awards:
I am much less worried about the normative consequences of holding that the web host can't be enjoined, because there is another significant problem with extending either injunction to Ripoff Report. There is a hoary doctrine holding that "equity will not enjoin a libel" -- that no matter how false and hurtful a statement may be, the only proper remedy for defamation is an award of damages, not an injunction.
And, indeed, this is probably how it should be. The way to deal with such speech is more speech.
Levy's link, unfortunately, shows that some courts don't recognize this, even in states whose laws are under this maxim. Levy notes that the day after the Seventh Circuit ruled in favor of Ripoff Report in the lawsuit above, a Florida state court granted a rather hasty temporary restraining order against Ripoff Report/XCentric, in a case with some similarities. It again involved charges of defamation. Ripoff Report was sued, but removed from the lawsuit thanks to Section 230. The woman who actually wrote the comment was also sued, and eventually settled, with a promise that she would make "good faith efforts" to remove content. Ripoff Report, famously, does not remove content (though, Levy notes that's not entirely true), so it refused. The plaintiff, John Giordano, asked the court for a temporary restraining order against Ripoff Report, requiring it to remove the comments. The court gave Ripoff Report one day's notice, before holding a hearing (Ripoff Report's lawyer had to call in from Arizona), and the court then granted the restraining order. Levy, again, explains why this ruling was clearly in error:
Part of the problem with the reasoning is that it is circular -- Xcentric is being ordered to take down the posting because it failed "to comply with [the previous] order," but that order did not compel XCentric to do anything; thus there was nothing for it not to comply with. And in other respects, the reasoning is just wrong. The order expressly treats XCentric as the "publisher" of the statements in defiance of the statute's express command that a provider of interactive computer services shall not be "treated" as the publisher of content provided by another; and the courts addressing section 230 have consistently agreed that the decision whether to remove posts is part of the "publisher" function that Congress intended to leave to web hosts' discretion. Nor does the court explain how it can issue the equitable remedy of an injunction -- especially an injunction forbidding speech -- against a party that has not been held liable for the speech.
Moreover, allowing motions for injunctive relief is inconsistent with the statutory language providing an immunity from suit as well as from liability, and with one of the basic reasons why host immunity is such an essential element of the system of online freedom of speech. Even if the host is protected against damages claims, the very need to respond to motions for injunctive relief imposes the expense of litigation and thus threatens to enable the heckler's veto that animated Congress to adopt Section 230 in the first place, and to make it a part of American law so fundamental that a foreign defamation judgment cannot be enforced in the United States unless it meets section 230's requirements. And hosts are understandably chary of being enjoined, because even if it is s very specific statement that has already been held to be false that is enjoined, the host has to worry about being held in contempt if somebody later posts that same statement online.
Also curiously not addressed by the Florida court was why it was entitled to issue a prior restraint on less than a full evidentiary hearing on the merits.... [In] many jurisdictions, the old rule that "equity will not enjoin a libel" remains good law to this day. But even the jurisdictions that allow the entry of a permanent injunction against speech after the defendant has had his day in court and a jury has decided that the enjoined speech is false, consistently hold that a preliminary injunction is a prior restraint. And as the Supreme Court said in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971), in overturning a preliminary injunction against leafleting on First Amendment grounds, "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices . . . warrants use of the injunctive power of a court."
Hopefully this temporary restraining order is overturned.
The larger point remains, however. Section 230 remains not just a good, but an important law in protecting third parties from being held liable for the speech of others. The worries that it creates problems in cases such as the first one above seem overblown. Such situations are not only rare, but it seems clear that they can be dealt with by people adding additional details that explain the nature of the content in question. And, in the end, that fits best with the First Amendment. The response to "bad" speech should not be to block it, but to encourage more speech. That's the end result of Section 230, and that should be seen as a good thing.
If you're a politician -- especially one elected to the House of Representatives, taking a bit of criticism is sort of part of the job description. Back in November, the Florida Times-Union had a column by Ron Littlepage that was critical of Rep. Corrine Brown. If you read it, it's typical columnist fodder, and not all that different than you could find in plenty of other publications concerning this issue or that issue where the columnist disagreed with the politician's position. However, Rep. Brown apparently didn't like it at all, and had her lawyer threaten the newspaper, claiming the column was defamation.
First off, a politician accusing a newspaper of defamation due to a critical column is (1) unlikely to get anywhere in the courts (2) is likely a First Amendment violation and (3) is just a bad idea because all it does is call much more attention to both the critical comments and the amazingly thin skin of the politician in question.
But, if you read through the actual threat letter and the column (included at the end of this post), you realize that in this case, Rep. Brown's threats are even more ridiculous. First, the main thrust of the claim of defamation is that Rep. Brown "has delivered nothing for her minority constituents and is only feathering her own nest while in Washington." The (rather serious) problem? Littlepage's column does no such thing. Generally speaking, if you're going to accuse someone of defamation, it helps to actually use what they say, and not pretend they said something different. Specifically, rather than saying the above, Littlepage asks a question (twice):
Second, what exactly has Brown done for her minority constituents during the 17 years she's been in Congress?
Too many African-Americans continue to live in poverty. Too many African-Americans are out of work. Too many African-American youth are the perpetrators or victims of violent crime. Too many African-American students lag behind in school or drop out.
Brown promotes herself as one who brings home the pork. Her campaign slogan proclaims "Corrine Delivers!"
Besides feathering her own nest while in Washington, just exactly what has Brown delivered for her minority constituents?
At no point does he specifically state that she's delivered "nothing." He uses a rhetorical device of asking a question. Considering that the "nothing" claim would be the (weak) claim to any defamation case, the fact that he didn't actually say it looks pretty bad.
And, we're not done with how ridiculous this is yet. Beyond the questionable threat to have a politician sue a newspaper over criticism, and the claim that the columnist said something he did not, the lawyer writing the threat letter warned that it was Rep. Brown's "intent to bring an action for liable or slander." Yes, "liable." Even leaving aside the fact that "slander" is spoken words, and libel is written, so it makes no sense to include "slander," you would think a lawyer wouldn't screwup the difference between "libel" and "liable," and that if they did, someone would have caught it in proofreading.
There have been a bunch of big stories lately -- with Homeland Security's domain name seizures and the whole Wikileaks situation -- so I hadn't been paying much attention to an ongoing story down in Australia, concerning a threat by the Editor-in-Chief of The Australian Newspaper, Chris Mitchell, to sue a journalism professor, Julie Posetti, over a series of tweets she wrote at a conference trying to paraphrase what former Australian reporter Asa Wahlquist was saying on a panel.
The details are somewhat convoluted, but the link above lays them out quite carefully. Basically, there was a journalism conference, and one of the panels was discussing how the media was covering "climate change" as a story. Apparently, the general sense among everyone involved was "that climate change is real, and crucially important, and inadequately reported." Wahlquist, on the panel, noted that one of the reasons why she had resigned was that she felt pressure in what she was writing on such topics. Posetti summarized that in a series of quick tweets. As is quite typical for those live tweeting an event, she paraphrased what was being said. I do this too. It's about the only practical way to post in real time and stick with the 140 character limit. It does appear that she may have, just slightly, misheard one thing that was said by Wahlquist, and implied that Mitchell had directly influenced what Wahlquist wrote about. From a recording that later came out, it appears that Wahlquist was a little less specific, stating: "The other thing that was happening at The Australian before I left was the editor-in-chief and the editors (were?) becoming much more prescriptive and you saw that in the lead-up to the election, where you were actually being told what to write."
Posetti simplified this to state:
"Wahlquist: 'In the lead up to the election the Ed in Chief was increasingly telling me what to write.' It was prescriptive."
That's a pretty close paraphrase, but Mitchell took great exception to this (and two other tweets that really were more expressing opinions), and said that he never put pressure on Wahlquist. And here's where The Streisand Effect enters. Not too many people had seen Posetti's tweets -- or really paid too much attention to them. Until Mitchell went into the pages of his own newspaper and threatened to sue Posetti for defamation -- which was indeed followed up by a legal threat letter (pdf).
Suddenly, this off-handed paraphrase of a tweet got a lot more attention (reasonably so), especially when the editor of a major newspaper threatens to sue someone for defamation over a tweet paraphrasing what someone else said. Mitchell later claimed that Wahlquist claimed she had not said what Posetti had tweeted, but once the audio became clear, it seemed pretty clear that Posetti's tweets were pretty damn close -- and if there was that one tiny slip up, it's hardly worth a defamation lawsuit. And, really, if Mitchell has anyone to complain about, it's Wahlquist -- though, again, only if what she said was really inaccurate. Jonathan Holmes, of Austalia's ABC, summarizes the whole mess and suggests that Mitchell needs to calm down and realize that if Wahlquist said what she said, he should at least be realizing that some of his reporters felt that way, and strive to fix it, rather than threaten the messenger.
Looking back, it's really amazing how many mistakes were made here. There was overreacting to a tweet. Blaming the messenger. Calling way more attention to it than necessary. Actually carrying through with legal threats and then denying that any of the original statements of opinion could be valid. Oh, and we left out the bit where Mitchell's own paper has railed against Australian defamation law, saying that they "act to suppress free speech and enrich lawyers..." Oh, really now?
It's always impressive when you see lawyers file lawsuits which suggest they're not entirely familiar with the law. Eric Goldman points us to a lawsuit filed by a Nevada lawyer, Jonathan Goldsmith, suing Facebook and two Facebook users for defamation, due to some mean Facebook comments.
Of course, Section 230 clearly shields Facebook from the actions of its users in defamation cases. As a lawyer, aren't you supposed to be aware of the law? There are some other oddities in the lawsuit as well, such as claiming both slander and libel for the Facebook comments. Normally, slander applies to spoken comments, libel to written. Now, I recall at least one case (in the UK, not the US), where the court suggested online forums were more like slander than libel, but it still seems a bit odd to see it in this case. And, either way, he claims both slander and libel. There are a few other oddities as well, including a claim that the mean comments on Facebook caused him to "seize" advertising on the site. I'm assuming he meant "cease"?
Yet again, it seems like sometimes even when people say mean stuff about you online, which might not be true, it's better to just shrug it off than filing a lawsuit, drawing a lot more attention to the mean things... and anything else that might get attention.
You may recall that a few months back we were threatened with a libel lawsuit over some comments on a very old blog post. We get similar threats approximately once a month, almost always about someone upset about something someone else said about them in the comments. Of course, we're protected by Section 230 from liability for such comments (though, the commenters themselves are not), but another point that we've suggested to the folks complaining is that immediately filing a defamation lawsuit may not be in their best interests. First, within the comments, they are free to respond and give their side of the story. But, more importantly, the comments in question should be taken in context. Almost always, the complaint is about some totally ridiculous comment, made in the middle of a long thread, by an anonymous commenter. It's not exactly the sort of thing that anyone is likely to take seriously.
Over at Slate, Farhad Manjoo, is making a similar point, in responding to some recent threats made by companies against TripAdvisor and Yelp, over reviews that restaurants and hotels don't like. Manjoo's basic message: chill out and recognize that most people aren't stupid, and that, in context, these particular reviews are unlikely to have much of an impact, because most people are not influenced by a single outlier of a review, but the general sense in all the reviews:
When we scan reviews online, we aren't looking for gothchas--outlandish, one-off tales of awful experiences. Instead, we look for patterns. We make judgments based on the themes that emerge from many reviews, not from the crazy charges that appear in one or two. As such, there's an obvious way for businesses to improve their online standings. Rather than trying to suppress a few negative reviews, they ought to work like mad to offer the kind of service that inspires a whole bunch of positive reviews.
In other words, the one-off disgruntled person isn't likely to have much of an impact anyway, and if the overall theme of all of the reviews is so negative, then it suggests that there is a real problem that you should work on fixing.
We've recently had our own run-in with a ridiculous threat of a libel lawsuit from the UK, in what appeared to be a clear attempt to intimidate us, rather than an action with any serious legal basis. As we mentioned in that post, thankfully, the US recently passed an important and broad anti-libel tourism law that protects US websites against overreaching foreign libel claims that go against US laws, such as Section 230 safe harbors for service providers.
So, we're always interested in hearing about other similar threats, and here's a doozy that gets more ridiculous the further you read. It starts off with just such a libel tourism attempt, but then devolves into a true comedy of threats and errors, involving misaddressed threats, ridiculous claims of confidentiality and implied threats of copyright lawsuits on publishing the letters that reveal this comedy of errors. Make sure you read through the whole thing.
It starts out with a NY-based company, GDS Publishing, who was apparently upset about the complaints about its telemarketing practices found on the website 800notes.com, specifically calling out the NY-based phone number (212 area code) used by GDS. After GDS complained to Julia Forte, who runs the site, she removed the comments that violated the site's terms of service, but left plenty of the other (non-violating, but still complaining) comments up, which GDS apparently did not appreciate. It then had a UK law firm threaten to sue her in the UK under UK libel laws. Now, it is true that GDS's parent company is based in the UK, but Julia and 800notes are in the US, and thus protected by Section 230 and the libel tourism law. And, while it doesn't even matter, given 800notes' status, this was about actions by the subsidiary, which is incorporated in New York, and all of the actions and complaints concerned that NY company (using a NY phone number).
Already, this seems like a classic case of over-aggressive lawyering, perhaps from someone unaware of the SPEECH Act, or from someone who simply hoped to intimidate an American website into compliance. However, the story gets even more ridiculous. First, the lawyer in question, one Leigh Ellis of Gillhams Solicitors LLP in the UK, apparently made a typo when copying the email address of Ms. Forte from the whois page for 800notes, resulting in him sending the initial complaint to a totally different Julia Forte (who happened to be a lawyer) based in NY, rather than the 800notes Julia Forte (who happens to live in North Carolina). Oops.
After the NY lawyer Julia Forte told Ellis of his mistake, rather than recognizing that he made a mistake, Ellis appears to have both emailed the same (wrong) Julia Forte again, and interpreted the email from the NY lawyer Julia Forte to mean that the North Carolina 800notes Julia Forte was denying her association with the site -- even though the NY lawyer Julia Forte told Ellis that he had the wrong email address. So, instead of correcting the mistake and emailing the correct Julia Forte, he sent a letter to 800notes' webhost, SoftLayer Technologies (pdf), claiming that the content on 800notes was defamatory, and saying that Forte "has informed us that she is not associated with the Website," and asking SoftLayer to confirm that Ms. Forte really is the account holder, and also demanding that SoftLayer take down the content GDS doesn't like, or face defamation charges itself.
Ah, the comedy of errors. Of course, it was the wrong Julia Forte who accurately denied being associated with the website. The correct Julia Forte has no problem standing behind her site. Thankfully, SoftLayer is well aware of the legal issues involved here, and well aware of Section 230 and the SPEECH Act that protects it, as well as Julia Forte, so it passed along the letters to Forte's lawyer, Paul Levy. If only the comedy of threats and errors ended there. But, it did not...
Levy responded in great detail to Ellis (pdf), highlighting the specific legal realities of Section 230 and the SPEECH Act, as well as detailing Ellis' own mistakes in emailing the wrong person. You should read the letter. It gets better and better as it goes along (or just skip to page 3):
Comedy of threats and errors over? Not by a long shot. After receiving Levy's letter, as well as an email correspondence in which Levy noted plans to publish Ellis's original letter to SoftLayer Technologies, Ellis' firm, Gillhams tried to warn Levy that publishing the original letter would be "unlawful" (pdf). Specifically, the law firm claims that since the original letter said "NOT FOR PUBLICATION" across the top, he had no license to publish it, and since all of their emails have a boilerplate "confidentiality notice" at the bottom, it prevents publication.
Of course, such things are simply not legally binding, leading Levy to (1) question whether or not Gillhams is charging GDS Publishing by the hour and (2) highlight how Gillhams appears to have misstated its own confidentiality clause and gotten confused over who might hold any copyright (and, thus, license-rights) to the letter in question. His response is here (pdf), though I'll restate the relevant paragraphs:
My question about whether you have been charging GDS Publishing by the hour
is relevant because, in the criticism of your conduct that I am drafting for
publication, I am trying to figure out whether your misadventures in trying to send
correspondence to Forte, and your subsequent threats directed to SoftLayer,
reflect only incompetence, or rather reflect an effort to run the meter at your
client's expense. I'd be grateful, therefore, if you would respond to my question.
Finally, I note your email referring to confidentiality notices that are contained in
your emails. Even if the emails purported to forbid publication, such notices do
not override fair use. Sad to say, however, you have misstated the fine print in
your own emails. I invite you to re-read that text. The disclaimer says that the
emails "may" contain privileged or confidential information, not that they do. I see
nothing in the emails that merits treatment as either privileged or confidential in
any event. Moreover, they instruct the recipients not to disseminate the emails if
they are NOT the intended recipients. By negative implication, these notices tell
the intended recipients that they ARE free to disseminate the emails. Your office
deliberately sent the emails to me, thus effectively giving me permission to
publish them.
Your letter also states that your "clients" are reserving their rights about the
publication of your letter and emails. However, I see no reason to believe that
your clients own the copyright in your letters. The owner would be you and/or
your firm. If you choose to try to enforce the copyright by raising a claim of
infringement, you will have to do so in your own name.
As Levy notes in his blog post on the whole situation: "I invite Ellis to bring suit here in the United States and show us that he is right. Ellis is also invited to use the comment feature to reply."
