In the latest of a series of recent cases where people are suing to identify anonymous folks who made immature, insulting or mean comments about them online, we have the case of Broadway actor Marty Thomas. An anonymous Twitter user, who apparently only had about 100 followers, apparently had posted a bunch of "blind item"-type Twitter messages, including accusing another Broadway actor of giving Thomas crabs. Now, of course, Thomas is suing to get Twitter to reveal who the anonymous Twitter user was. But, again, as we've noted in other cases, before this, very few people would have seen the claim, and even fewer likely would have taken it seriously. Yet, now, the story is being splashed across various NY tabloids, which seems like it only serves to call a lot more attention to the overall issue.
Back at the G20 meetings in July in Toronto, there were numerous stories of police overreacting and arresting protesters with little reason whatsoever. Perhaps the most noteworthy story that got attention was the story of "Officer Bubbles," the name given to a police officer, named Adam Josephs, who threatened to arrest a woman for assault if the bubbles she was blowing landed on him. You can see the video here:
Officer Bubbles became a bit of an internet phenomenon, and others built on it, as normally happens in internet memes. Apparently, one person made cartoon versions of Officer Bubble arresting various famous people, such as President Obama and Santa Claus. Because of that, Officer Adam Josephs has now filed a $1.2 million defamation lawsuit. The press reports were a bit unclear, with some saying he was actually suing YouTube, and others saying he was just asking YouTube to hand over the names. However, Howard Knopf links to what certainly appears to be the legal filing in question, and Josephs is suing YouTube and claiming that it's responsible for publishing the videos and comments:
While Canada (for whatever reason) does not have a Section 230-type safe harbor, protecting service providers from liability of actions of their users, this still seems misguided. It's pretty ridiculous to claim that YouTube is somehow responsible for these videos or comments. However, as you can see in the filing above, in every instance, Officer Josephs appears to accuse YouTube of "publishing or republishing" the works, thus making it liable. One would hope that Google would fight strongly over such ridiculous claims.
As you read through the lawsuit, some of the YouTube comments Josephs is suing over are pretty silly, and it's difficult to see how they're worth a lawsuit. I mean, here's one of the comments:
"true -- probably wears the sunglasses while looking at himself in the mirror!!!"
Now, that may be a false statement (though, can he really say he never looked at himself in the mirror with sunglasses?), but does it really qualify to the level of defamatory? Similarly, another of the comments he's suing over reads:
"officer bubbles probably looks at himself in the mirror a lot."
Again, is that really defamatory?
Other comments certainly appear to be mostly opinion, rather than any sort of statement of fact:
"It's a shame that the police are becoming uniformed bullies. It's bad when the local people tell them to leave their community."
and
"Nice going Officer Josephs, you are a real hero and a true testament to the sorry state of law enforcemtn here in Canada, and a fine example of the kind of policing peaceful people had to endure during the G20 farce."
Even in cases where the comments were a bit more stringent, it's hard to see how they could be seen as anything more than angry venting. The Toronto Star spoke to one of the (still anonymous) commenters who said he doesn't even remember what he wrote, but he was just angry about what he had seen. According to the lawsuit, his comment was:
"If this steroid addicted Nazi has children, they must be sooooo embarrassed."
In other words, your typical YouTube-style comment. Sure, you could argue that claiming he was "steroid-addicted" and a "Nazi" might qualify as defamation, but taken in context, would anyone reading that comment really believe that the commenter knew Officers Josephs and was actually alleging he was addicted to steroids and a Nazi, or would they assume that it was just someone upset by the way Officer Josephs acted.
In the meantime, by filing this lawsuit, about the only thing that Office Bubbles has done is call a lot more attention to his initial actions and reinforce the idea that he seems to totally overreact to rather benign situations. But, I guess, if you're going to arrest a girl for blowing bubbles in your direction, suing YouTube (for being a 3rd party platform) and suing people for mocking comments that no one actually believes probably seems to be equally intelligent.
Just a few months ago, we were writing about a report declaring "the end of libel" because many of the big US media companies were facing no current libel suits -- for the first time that people could remember. Of course, we suggested there were other factors involved, including an increase in libel suits against others, such as blogs. However, it does seem that, beyond the strong free speech protections against silly libel lawsuits, many are realizing that filing a defamation lawsuit is simply not the best response anymore. In fact, it's often easier to just get your own story out there yourself. The initial reason behind libel laws was that they were needed in a time when the press was controlled by just a few players. However, in an age where anyone can be the press, the need for libel laws actually diminishes, as there are other, better, remedies in many cases.
Unfortunately, the UK is still stuck with its incredibly antiquated libel laws that put the burden on the accused and can create significant problems for people accused in cases where the goals are clearly to silence speech someone doesn't like, rather than deal with actual defamation. That can create massive chilling effects.
And, in the meantime, it can create a rash of libel lawsuits. So just a few months removed from the (not quite accurate) news that libel is "over" in the US, comes the news that libel cases in the UK have hit a 10-year high, fueled in large part by the internet. While the internet should be seen as an alternative to libel lawsuits, instead many are now seeing comments of others as being worth a libel suit in the UK. The article quotes people pointing out that these lawsuits are "expensive and often unnecessary." Seems like even more evidence for the UK to finally getting around to fixing libel law in the UK.
One thing I've never quite understood about the UK: it has some of the most ridiculous libel laws around, that are notoriously plaintiff-friendly... and yet, its tabloids are well known for simply making stories up completely. I'm a bit confused about how those two things co-exist, but it appears to be the case. Perhaps, the answer is just that the tabloids famous for making stuff up have a decent budget set aside to pay the famed "substantial sum," any time anyone complains about a story (we once were threatened with a UK libel suit, and the solicitors mentioned "substantial sum" so many times in the letter that it felt like a code word that meant something else).
A few months ago, we wrote about how a journalist at the Daily Star apparently totally made up a story claiming that Take2 Interactive was going to create a new version of the videogame Grand Theft Auto, based on the headline-hogging story in the UK of Raoul Moat, the guy who shot three people and himself, including his ex-girlfriend, her new boyfriend and a policeman (the new boyfriend and Moat himself died). The journalist seemed to base the story on Photoshopped images that some random person had made online of such a game, which was obviously a joke. He never checked with anyone involved at Take2 or Rockstar... but did check with the grandmother of Moat's ex-girlfriend, telling her (falsely) that such a game was being created and getting her reaction. What was even more ridiculous, was that when called on it, the reporter, Jerry Lawton, went on Facebook, and started insulting everyone who pointed out that the story was clearly bogus. It took a while, but The Daily Star finally pulled the story down, and admitted "We made no attempt to check the accuracy of the story before publication..."
Apparently, after all this happened, Take2 sued for libel, and so The Daily Star has now coughed up "a substantial sum" to the company to make amends (thanks to cc for the heads up). As ridiculous as the original story was, I'm not sure Take2 really deserves "a substantial sum" for it. Most people who would actually buy a version of GTA knew that the story was false, but that's what you get with UK libel laws, I guess. As another report on this story points out: "It should be noted that the Star, owned by Richard Desmond, has a history of publishing false stories and carrying apologies afterwards." So perhaps my original inclination was correct.
A few weeks back, we wrote about how Texas real estate developer H. Walker Royall "went on a lawsuit bender," upon finding out a book by author Carla Main that was critical of some of his development projects. He not only sued the author and the publisher, but also someone who reviewed the book, the newspaper that published the review and (most ridiculous of all) an academic who wrote a blurb praising the book that went on the book's jacket. The suit against the blurb writer was tossed out for lack of jurisdiction, and for whatever reason, the newspaper and the reviewer "settled" the lawsuit (which seems unfortunate). However, the lawsuit against the book author and the publisher has continued. We argued, at the time, that this was a clear example of where better anti-SLAPP laws are needed, but seeing as there are no such laws in Texas, the case will focus on whether or not the book was defamatory.
With the trial now underway, Main's lawyers are pointing out that the book is "political and social criticism," and that Royall has not proven she got any facts wrong. Royall's response is somewhat stunning. His lawyers seem to be indicating that even if there's nothing factually wrong, the "conclusions" drawn from those facts are defamatory. In other words, there may be nothing wrong with the book, but the analysis of those facts, as a whole, is somehow defamatory. This sounds an awful lot like "well, I don't like what she said, and it makes me look bad -- even if based on fact -- and thus, it must be defamatory."
Once again, this seems like a clear SLAPP situation, where someone didn't like the speech of someone else, and filed a lawsuit. Claiming that the general "gist" of a book is defamatory without being able to show any actually false statements seems like a real stretch on defamation law.
We recently wrote about yet another (the third one we know of) ruling in France that found Google liable for what "Google Suggest" suggested. Google Suggest, of course, is the autocomplete function that tries to guess what you're searching on, based on what other people searched on after typing the same letters. Of course, more recently, that's been expanded to Google's Instant Search, where it actually shows full results as you type. We suggested that the problem here was that French courts did not understand the technology.
Journalist Mitch Wagner, who I tend to agree with more often than not, claims that we got it wrong, and that the French courts do understand the technology perfectly fine: and they still decided to side against Google (and, separately, we should mention against Google's CEO, as if he had anything to do with the suggestions in question):
But actually the French court understands what's going on. Google raised just those issues in its defense, and the court disagreed. "The court ruling took issue with that line of argument, stating that 'algorithms or software begin in the human mind before they are implemented,' and noting that Google presented no actual evidence that its search suggestions were generated solely from previous related searches, without human intervention," according to Computerworld.
He goes on to suggest that it can (sort of) be compared to a product liability case, where if you make a product that does something "bad" (such as suggest libelous search results) that it should be your responsibility:
Is it appropriate for Google to build a search engine that automatically generates results with no intervention to be sure those results aren't libelous, defamatory, or otherwise harmful?
This is a problem that goes beyond people accused of crimes. Many companies are unhappy with the results that comes up when you search on industry terms. If you make hats, and you're not in the first page of results that come up when searching the word "hats," then you're dissatisfied with Google. Does that make Google wrong? Does it matter if your hats are, in fact, better and more popular than companies with search terms ranked higher?
I'm sorry, but I don't buy it. I understand Wagner's point, but I think the French courts still don't really understand the issues. It's not a question of whether or not it's appropriate, it's a question of whether or not it's even possible. How does Google build a search engine that simply knows whether a suggestion might be considered by a court of law to be libelous? As for the different rankings, those are opinions, which should be protected speech (last we checked). If Google's results aren't good, that's an opening for another search engine. Blaming Google because you don't like how the algorithm works is still a mistake, and I don't think the French courts really recognize this at all, no matter what they say.
We recently wrote about a so-called "online reputation management" company that was getting a lot of press attention for promising to sue TripAdvisor for reviews that certain venues didn't like and believed to be defamatory. As we mentioned at the time, this felt a lot more like a publicity stunt for the company (which we won't name for that reason), while noting that, in the US at least, TripAdvisor was rightfully protected against claims of defamation on content from users, thanks to Section 230. In the UK, where the reputation management firm is based, it's not quite as clear cut.
LawandLit points us to the news that the company is ramping up the foot stomping and insisting that it really really really really will sue TripAdvisor, just you wait and see! Or, at least, that's what it comes across as from what's being said.
Perhaps more interesting, however, is that the company is now saying that it's also prepared to go after the writers of the actual reviews. While that's at least moving the liability in the right direction, it does make you wonder if such an effort will seriously backfire. I mean, a hotel that sues a customer for a bad review might not get many more bad reviews... but it might not get many more customers, either.
Eric Goldman points us to a new lawsuit filed by a law student against Google over allegedly defamatory blog posts. The student also sues the individual who made the posts, but the inclusion of Google in the lawsuit is the odd part:
As Goldman (who teaches cyberlaw) notes, perhaps this student should take a cyberlaw class, in order to better understand liability and safe harbors, such as Section 230 when it comes to defamation claims.
Earlier this year, there was certainly plenty of discussion in the political news business of the Shirley Sherrod incident, where Andrew Breitbart posted a video of Sherrod speaking, which implied she had made certain decisions on the basis of skin color. However, after Sherrod was fired from her job at the USDA, it quickly came out that the video clips of Sherrod speaking were taken totally out of context, and the message of the speech was completely the opposite of what had been implied. This quickly resulted in a scramble as pretty much everypublication in the worldcovering the storywrotearticlesquestioningwhether or not she had a legitimatecase of libel.
Of course, as with any highly politically charged legal discussion, it often appeared that those picking a side over whether or not she had a case might have been somewhat influenced by their political views on the matter. However, much of the discussion focused on what Breitbart said separately in relation to the video, rather than the video itself. Still, a recent case may bring the video back into discussion.
Michael Scott points us to the news of a recent ruling against newscaster John Stossel for allegedly posting video that was apparently taken out of context, and while a lower court protected him via California's anti-SLAPP law, an appeals court has ruled that the defamation case can move forward over the video. It doesn't mean that the defamation claim will necessarily stand, but the video edit and context apparently is seen as grounds for a potential defamation claim:
Of course, Breitbart claims he didn't edit the video in the Sherrod case, which then raises other legal questions about whether or not he's protected himself on the video part, and whether or not he can use journalist shield laws to protect the "source" who provided him the video. All in all, while I can understand the desire to push a libel case in such situations, I do wonder if it actually results in much good. At this point, it's difficult to find anyone who isn't familiar with the "full story" of what happened with the out-of-context video, so it's not about "correcting" false info that's out there. Still, this latest ruling is a reminder that if you happen to quote someone out of context, you may risk a defamation claim.
A bunch of folks have sent in variations on this story of the guy who runs an online "reputation management" company and is very publicly threatening to sue travel review site TripAdvisor under the legal theory of "group defamation." No lawsuit has actually been filed, and any such lawsuit would be a total dead end and waste of time and money for the "reputation management" firm. That's because TripAdvisor is a US company, and thus it is clearly protected from defamation lawsuits on the content written by its users by Section 230. And while this reputation management firm is in the UK, thanks to the US's new libel tourism law, any judgment in the UK would be unenforceable.
In other words, the legal threats are completely bogus. Having read through the various articles covering it, you could be forgiven for thinking that this is really just a PR campaign for the "reputation management" company, who I won't even bother to name, as it doesn't deserve any additional press coverage for threatening such a useless lawsuit.
