UK Law Firm Sets Up Special Team To Hunt Down Anonymous Commenters

from the free-speech-is-for-suckers dept

Stephanie Migot writes in to let us know how UK law firm Wragge & Co has decided to set up a special "cyber tracing" team, whose job it will be to scour the internet for anyone making negative anonymous comments about any of their clients and then take action. Of course, the law firm says it's really looking for people leaking confidential information (such as disgruntled employees), but, as you probably know, defamation laws in the UK are significantly more draconian than those elsewhere. Thus, the line is a lot more blurry, and will almost certainly lead to these sorts of activities targeting mere criticism and complaints, rather than true defamation. The unfortunate end result is a series of chilling effects on any concept of free speech.

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Law Students Suing Law Students Ends In Settlement

from the precedent-missing dept

We've covered the lawsuit over comments on the site AutoAdmit for the past couple years. The quick summary is that AutoAdmit is an online forum for law school students where, like many online forums, sometimes the conversations get pretty mean. Two female Yale law students sued the site and a bunch of anonymous commenters, after they posted some mean things about them. There's no denying that the comments were pretty obnoxious, though it's not clear that, given the context, anyone took them seriously. The women claimed that they had trouble getting jobs because of the comments, but there was little evidence to support that either. Still, you had a bunch of law students angry with each other, so of course lawsuits were filed -- some very badly (such as against one of the guys who helped run the site and was clearly protected from liability).

Some were hoping that this lawsuit would create new rules concerning online defamation or other "mean" content online. For example, there's been a push for a DMCA-style "takedown" system that would require sites to take down such content. However, in this case, it looks like no precedent will be set at all, as the parties have all settled and the terms of the settlement are confidential (found via Thomas O'Toole).

The issue is a tough one, certainly. It's no fun to be on the receiving end of such speech -- but should it be illegal or should there be an automatic takedown system on such content? That seems extreme and questionable when it comes to the First Amendment issue. In the end, I think the context of the content remains important -- and content in such a forum, where it was pretty obviously ridiculous, is the sort of thing that's better left ignored, rather than filing a lawsuit over it.

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Sucks Site Lawsuits Move To Include Facebook As Well

from the really? dept

We've covered how it's a dumb idea for companies to sue so-called "sucks sites," (sites that complain about a company). First, plaintiffs in such lawsuits almost never win. The trademark claims almost always fail. No one is confusing the sucks site with the company they complain about. Second, just bringing such a lawsuit tends to call significantly more attention to the complaints against the company (the ever popular "Streisand Effect"). And yet... they still keep on coming. The latest one has a bit of a twist, though. Rather than suing the owner of a website, the organization is suing the guy who set up a complaint group on Facebook. Other than that, though, the scenarios are basically the same. In this case, a beauty school student set up a Facebook group to complain about things happening at the school, and the school sued for both the use of the logo (trademark infringement) and on claims that many of the posts to the group were defamatory.

The trademark claim hopefully gets tossed aside quickly. No one's going to confuse the group for being a part of the school, and it's difficult to see how they'll make a claim that the use was "in commerce." The defamation claim really depends on what was said... but if it was said by other students, then it's difficult to see how the student who started the group can be held liable for them. Besides, some courts at least have noted that online forums are the equivalent of a bunch of friends talking over drinks, and the speech should naturally be taken less seriously. One hopes that the judge in this case recognizes the nature of basic online conversations as well.

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Cash4Gold Drops Lawsuit Against Consumerist... Still Suing Whistleblowers

from the dear-streisand... dept

It looks like the folks over at Cash4Gold have finally realized that it wasn't a particularly smart move to sue Consumerist for reporting on various allegations made against Cash4Gold. The company has dropped that part of the lawsuit, though it continues to sue the ex-employees it accuses of both defamation and "publishing any more confidential, proprietary information" (and, note, they don't say which info was defamatory or which was confidential and proprietary). Consumerist makes it very clear that this wasn't a settlement. They didn't ask to be dropped from the case or agree to anything. One would guess that somewhere down the line a lawyer explained to Cash4Gold that its likelihood of winning such a case was about as close to zero as you could imagine...

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Patent Troll Tracker Case Settled... So When Can Frenkel Start Blogging Again?

from the pretty-pretty-please... dept

We'd already noted that it seemed like an uphill battle for the lawyers in Eastern Texas to prove defamation claims against the "Patent Troll Tracker" Rick Frenkel, and last night the judge chose the high bar of an "actual malice" standard to determine if Frenkel was guilty of defamation. With such a high standard, it seemed exceedingly unlikely that the plaintiffs could win a case, so perhaps it's no surprise that the two sides agreed to settle the case before it went to the jury. While no one knows the details of the settlement, Frenkel and Cisco issued an "apology," and I'd guess not much more, if anything.

But, really, all that's besides the point. The real question is whether or not this means Frenkel will start blogging again. Some of his statements in the past (and having to go through this entire ridiculous process) suggest that he may not blog again. However, I'm hopeful that he'll get back to it, though obviously not anonymously any more. His work in highlighting some of the more nefarious actions of patent system abusers is still sorely missed.

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Canadian Appeals Court Says Linking To A Site Is Not Defamation

from the phew dept

Way back in 2007, we wrote about a Canadian business man/politician, Wayne Crookes, who was suing a bunch of websites, including Google, Yahoo, MySpace and Wikipedia, because he was upset about what some people had posted about him on those sites, claiming it was defamatory. We found it odd that he was suing these companies, rather than the individuals who supposedly posted defamatory material (oddly, many of the stories that he claimed were defamatory were about him supposedly filing defamation lawsuits!). In some cases, it reached ridiculous levels, such as the fact that the same guy also sued Jon Newton, the operator of P2Pnet.net for merely linking to text that Crookes considered defamatory.

It was troubling enough to sue a company that was hosting a conversation where someone may have said something defamatory, but to take it to another level, where someone merely linking to the actual text as a part of reporting on it was also accused of defamation could have a serious chilling effect on free speech and open communications in Canada. Luckily, last year, a Canadian court found that merely linking to potentially defamatory content is not defamatory. Apparently that ruling was appealed... and the appeals court has agreed that linking to defamatory content is not, itself, defamatory. This is a big win for free expression in Canada. The case could still be appealed, and some are noting that the appeals court ruling still had some problems. There was a dissenting judge who seemed to think that because people may have clicked on the link, just putting up a link was the equivalent of publishing the content on the other side of the link (yikes!). That last link also discusses some other serious problems with libel law in Canada (similar in some ways to the problems in the UK), which is in desperate need of a modern update.

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Jeremy Piven Sends Cease & Desist To Stop Play From Mocking Him

from the is-your-ego-that-fragile? dept

I've been a fan of the actor Jeremy Piven for years, but apparently he's a bit quick on the legal trigger. His lawyers have sent a cease-and-desist letter to a playhouse that has been showing a mocking play called "The Piven Monologues." Apparently, Piven had pulled out of a planned gig on Broadway in a revival of David Mamet's excellent play "Speed the Plow" (a role that Piven would be great in, actually). Piven claimed he couldn't do it because of "mercury poisoning" from eating too much sushi -- an odd excuse to be sure. Mamet supposedly was heard to comment: "My understanding is that he is leaving show business to pursue a career as a thermometer," leading some playwrights to put together a quick play more or less mocking and parodying the whole situation. Piven's lawyers are claiming that it's defamatory, but it's difficult to see how anyone would take anything in such a play seriously, as it's obviously a spoof. But, in these days of aggressive litigation and people thinking they get to control every use of their own brand or name, is it any surprise that Piven would lawyer up?

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UK Libel Laws, Scientific Criticism, Chilling Effects, Bloggers And The Streisand Effect

from the enough-for-you? dept

Well, here's a story that's got a bunch of different points worth highlighting. Back in July, Ben Goldacre wrote up an excellent article on the libel lawsuit against Simon Singh by the British Chiropractic Association (BCA), highlighting how a bunch of bloggers, rather than reporters, were doing much of the work exposing the BCA's questionable tactics. Why weren't those intrepid "only we can do investigative reporting" journalists taking on the issue? This week, the NY Times has an article by Olivia Judson explaining why: they're scared to death of being sued ,as well, thanks to draconian UK libel laws.

The background is that Singh, a well respected PhD. in physics, who has written a bunch of top selling "popular science" books, wrote an article for the Guardian, where he complained about some of the claims made by the BCA concerning what chiropractic care could help cure, noting that there was little (if any) evidence to support some of their claims. In response, the BCA has sued, and to date, the case has not gone well. It's already tough, because the UK laws greatly favor those who claim defamation (which is why there are worries about defamation tourism claims being made in the UK). Singh has had to spend quite a lot of money defending himself, and an early court ruling focused on the use of the word "bogus," which Singh clearly meant in the colloquial way, as meaning his opinion that there was no evidence in support of the claims. However, the court interpreted it to mean a factual statement accusing the BCA of deliberate dishonesty.

The case is still ongoing, but Judson highlights that many reporters are feeling the chilling effects, and are purposely avoiding certain scientific stories, for fear that their writing will lead them to a similar lawsuit. Both Judson and Goldacre note what a dangerous situation this is for basic scientific criticism, whereby it's a part of the process to question evidence and conclusions. In fact, it's good for everyone, because it leads to a more detailed exploration of the actual facts to come to a reasonable conclusion. But throwing libel law into the middle of that certainly has pretty massive chilling effects.

Except... for a bunch of bloggers who are more upset about those chilling effects than they are afraid of a libel charge. Goldacre covers how this group of "amateurs" have not only been picking apart (in great detail) certain claims by the BCA, they've also been able to pressure chiropractors to change some of their claims and start defending themselves on these issues. On top of that, they're helping to shine a lot more light on the whole situation, effectively using the "Streisand Effect" to call attention to the idea that the BCA is working to stifle criticism.

The whole story is quite fascinating for all of these reasons. There is a real problem with UK libel laws that needs to be dealt with. The chilling effects on reporting and scientific criticism -- especially in cases where people's health may actually be at stake -- are rather sickening. But, it's also illustrative of how an interested group of "amateurs" can certainly band together and take on a project, even in places where reporters fear to tread.

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Trying To Apply Rules Designed For Publications To... Coffee Cans?

from the tricky-laws dept

One of the common problems that we run into all the time is seeing courts trying to apply laws that were meant for a specific scenario to a totally different scenario. Take, for example, the question of the use of a photo on a coffee can. Let's say the photo is "infringing" on some right that was originally created to deal with publications such as newspapers or magazines. How do you figure out when the coffee can was "published"? Or is it even "published" at all? And is it republished every time a new can is sold? That's an issue faced by the California court system, as it struggles to figure out what counts as publication with a coffee can. It seems the courts agree that the coffee can is covered by a "single-publication" rule, meaning that if the image on the can is infringing or defamatory, it only counts as a single publication. But, where it's still struggling is on the date of publication issue. That's because, in this particular case, there's a statute of limitations of two years from the date of publication. But is that just when the first coffee can was sold? Or is the date of publication a running tally, so long as the cans keep being sold? And then, suddenly, you wonder: wait, why are we so concerned about infringement on a coffee can?

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Cash4Gold Sues Consumerist, Complaints Board Over Reports On Cash4Gold Practices

from the how-much-for-that-gold-Streisand-Effect? dept

Earlier this year, we wrote how odd it was that the company Cash4Gold (made famous by its cheesy late night commercials) was threatening to sue bloggers for defamation for merely repeating and linking to a Consumerist article that quoted a former Cash4Gold employee about allegedly underhanded tactics used by the company. The defamation threat was odd for a variety of reasons. First, Cash4Gold itself was talking about these same allegations on its own website (which is actually the best way to deal with them: respond to them, rather than trying to silence them). Second, going the legal route only guaranteed much more attention to the issue and questions surrounding Cash4Gold's activities. Third, it made little sense to threaten someone who was merely summarizing what others were saying.

While Cash4Gold apparently backed off such threats, it did go forward and get an injunction against the former employee to stop her from "publishing any more confidential, proprietary information, and any defamatory information on the internet." I like how it mixes in confidential, proprietary and defamatory information -- so now we don't know which the original reports were. Were they defamatory lies? Or were they just confidential, proprietary information?

Either way, with that injunction, the company contacted Complaints Board -- the site where the employee originally put forth the allegations -- and Consumerist, who also posted on the allegations, and demanded they remove the posts. Of course, with no legal order, both sites refused to do so. In response, Cash4Gold has now sued both sites, once again guaranteeing that much more media attention is paid to alleged claims of underhanded business practices by the company.

Of course, rather than backing down, Consumerist is fighting this and has posted a lengthy and detailed article reviewing the original claims, backing many of them up with additional reporting details and pointing out that this is an ongoing news story that it believes it has every right to write about. Once again, though, we're left wondering why Cash4Gold would do this. All it's doing is drawing that much more attention to the claims against it.

The Citizen Media Law Project post above details two additional factoids about how Cash4Gold's lawyers are trying to get around the rather obvious (it seems) Section 230 safe harbors that almost certainly protect Complaint Board. First, they claim that because Complaint Board edited the title of the post, they're no longer just a service provider, but "created, developed and published." That seems like a long shot. Perhaps more likely to succeed is a reference to the recent Barnes ruling, where Section 230 was tossed out the window after the company promised to delete the content in question (and then didn't). Of course, it's not clear if Complaint Board did, in fact, promise that, but Cash4Gold claims that it did.

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Our Litigious Society: Woman Sues Daughter-in-Law Comedian Over Jokes

from the no-laughing-matter? dept

In-law jokes are a pretty standard staple of the standup comedy business. They can be pretty funny too... even if the concept is a bit dated. But, apparently, they're not so funny to the in-laws of comedian Sunda Croonquist. ChurchHatesTucker alerts us to the news that Croonquist's mother-in-law and sister-in-law are suing the comedian for cracking rather typical "in-law" jokes, which, apparently the in-laws didn't find to be all that funny. They're suing for defamation, even though you have to wonder if anyone actually takes such jokes seriously. I mean, it's a comedian. Of course the jokes are either made up or exaggerated for comedic effect. Still, probably makes for a frosty family gathering.

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Is A Blogger Strike The Best Way To Fight Back Against Laws Designed To Quiet Bloggers?

from the doesn't-seem-like-it dept

Last month, we wrote about a proposed law in Italy that would likely have serious chilling effects on bloggers and other independent online producers, by setting up fines for not pulling down content if someone accuses the site of defamation (not upon a court verdict, just upon accusation). In response, bloggers throughout Italy went on a "blog strike" to protest the proposed law. However, CitMediaLaw points us to a blog post raising the question of how a blog strike accomplishes that goal? If anything it would seem to do the opposite. By silencing themselves, and not talking about the issues, it keeps those issues out of the discussion for whatever period of time. Instead of silencing, why not do what the bloggers do best and talk about the problems of the law so that many more people are aware of them?

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Sued Over Twitter Message? Can You Defame Someone In 140 Characters Or Less?

from the sue-first,-ask-questions-later dept

Tom writes in to alert us that a woman in Chicago has been sued for defamation by the company that manages her apartment over a Twitter message. The message she put on Twitter read:

"Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay."

And, rather than address a concern of one of their residents, the company brought out the lawyers, and sued for over $50,000. A little investigation reveals that the woman had all of 20 followers, which makes you question just how much actual damage was done by this message.

Still, for my money, the best single paragraph/statement about Horizon Group Management has to be the following one, in the Chicago Sun-Times, quoting Jeffrey Michael, speaking for Horizon Group (and a member of the family that runs it):

"We're a sue first, ask questions later kind of an organization," he said, noting that the company manages 1,500 apartments in Chicago and has a good reputation it wants to preserve.

I'm curious as to how being a "sue first, ask questions later kind of organization" meshes with having "a good reputation it wants to preserve." I'd argue that (1) suing a tenant of a meaningless tweet (and drawing much more attention to the complaint) and (2) claiming that you're a "sue first, ask questions later kind of organization" in the national media are going to do a hell of a lot more damage to any "good reputation" (if it existed in the first place) than some random woman with 20 followers bitching about mold in her apartment.

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Italy Proposes Law To Force Bloggers To Take Down Content Claimed To Be 'Defamatory'

from the silencing-dissent dept

We've noticed in the past that there have been an awful lot of questionable anti-internet laws proposed in Italy over the past few years, and it appears that's not ending any time soon. The latest, as pointed out by CitMediaLaw is a proposed new law that would potentially fine bloggers as much as $18,000 if they do not remove content called defamatory within in a short period of time. Note that this is not content that a lawsuit finds to be defamatory, but merely content that someone declares to be defamatory. In other words, it's a great way to force bloggers to delete any content someone doesn't like. As the article notes, with so much of the mainstream media in the country owned by the Prime Minister himself, having alternative outlets for news and information is important -- but this bill would put serious chilling effects on those alternative outlets. In response, a bunch of bloggers have apparently gone on "strike" and refused to post content one day to protest the proposed law.

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Google Not Liable For 'Defamatory' Search Result Snippets In The UK

from the good-ruling dept

For many years there have been legal disputes over the way that Google shows a short "snippet" of a page in its search results. Some have charged that the results themselves may be libelous. In fact, in a bizarre recent Dutch court ruling, the site that such a snippet linked to was found liable, even though the problem was the way Google's algorithm constructed the snippet. So... of course, there are lawsuits against Google for its snippets as well. However, some good news out of the UK, as a court has found that Google should not be liable for search result snippets even if the content of the snippet is defamatory. The judge seems to clearly recognize that Google is just a search engine, and blaming it as if it were the publisher of such content makes no sense at all.

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Palin Threats To News Organizations Seem Misguided

from the why-would-you-do-that dept

I'm hoping the comments here don't turn into a political snowball fight that does no one any good. Personally, I don't care much about "politics" or political parties, and there are few things I could care less about than why Sarah Palin resigned from her job as Governor of Alaska. However, what does interest me is the news that apparently her lawyers sent a letter threatening to sue the press for writing anything defamatory about Palin, specifically mentioning some of the speculation found on various blogs about why she suddenly quit. It's difficult to understand the thinking behind sending such a letter. People will speculate -- it's what they do, and it's perfectly legal. Defamation is declaring something that's patently false as fact, and I don't see any mainstream news sources doing that. But, speculating on the reasons why it might have happened isn't defamation. Even worse, as Jay Rosen notes, in sending such a threatening letter, Palin's lawyers have just "legitimized the story." Now the press has even more to cover, in that they can simply report on the legal threat, and explain the "speculative" stories behind it. Pre-threatening the press not to report on some speculation found on blogs seems like a sure-fire way to get coverage of that story you're trying to suppress.

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Congress Looks To Extend Safe Harbors To Service Providers Hit By Foreign Rulings

from the good-news! dept

We've often talked about the importance of service provider "safe harbors" found in the CDA and the DMCA. To be honest, these safe harbor laws shouldn't be necessary at all, since it should be common sense that the user of a service is liable for his or her actions rather than the service provider. In practice, however, we've learned that common sense isn't so common -- and it's not unusual for individuals (and sometimes judges and politicians) to blame service providers. Thus, safe harbors are key to bringing common sense to the law. However, we've definitely seen that such common sense is often totally lacking in foreign countries that have no recognition at all concerning the separation between a service provider and a user. Witness, for example, LVMH's victory over eBay in France, or the fact that Google execs are facing criminal charges in Italy over a video of kids attacking a disabled boy that was uploaded to its site (and quickly removed).

It appears that US politicians have finally realized this is a problem. While it doesn't appear to be a blanket safe harbor, it appears that Congress is currently considering a bill that would allow US companies to ignore foreign rulings in defamation cases against service providers, where the issue is actually the action of a user. While limited to just defamation cases (for now), this is important, especially since so many other countries have more draconian defamation laws that lead to "defamation tourism" as people try to find the most favorable countries in which to file a defamation lawsuit. Making it so that the US won't recognize those rulings will help protect US companies from bogus and misguided defamation suits around the world.

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Orlando Police Chief Threatens Critical Blogger, Saying Truth Isn't A Defense

from the oh-really? dept

We've seen plenty of government officials get upset about various things critics have said about them, and Tim writes in to let us know that down in Orlando, Florida, the local police chief is threatening to sue a web critic who put up a site highlighting how the chief had her gun stolen from her car, and then that news was kept secret for a while. While there are some complications here (the site the blogger is using is the chief's name, ValDemings.com, for example), it's hard to see how there's any defamation here at all, despite the Chief's claims. She does claim that he portrayed the situation in "false light," but as the article notes, the Florida Supreme Court recently ruled that "false light isn't a legitimate cause of action and has the potential to chill free speech."

But what may be most scary is the following quote from Demings' attorney:

"Truth is not always a defense. I hope he [Harris] gets himself a really good lawyer."

While it's true that some have been trying to push the boundaries of libel law to get rid of "truth" as an absolute defense, that troubles most people, and it's hardly common. Of course, in the meantime, in trying to shut up this blogger, Demings seems to be doing a great job kicking up a lot of attention about the fact she lost her gun...

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Court Fines Blogger $1.8 Million Over Defamation... Despite Many Questions

from the this-is-not-good dept

We recently posted a link to a libel guide for bloggers, recognizing that many bloggers don't realize their comments are subject to defamation laws. That said, however, it's still quite rare to find a blogger found guilty of libel in court. Mark writes in to alert us to one such case that raises a number of very troubling questions: a court in South Carolina awarded a $1.8 million libel judgment against a blogger, despite questions about whether the guy in question actually wrote the blog post. The court ruled in summary judgment, which really should only occur if the facts are not in question -- but they are very much in question. The guy who was accused claims he didn't write the content (even if he agrees with it). The blog itself appears to be a semi-anonymous group blog, so there's no clear indication that the guy being fined actually wrote the content. You would think that this fact, alone, would preclude a summary judgment and require a trial. There were also issues with actually making sure that the guy was given proper notice about the lawsuit and the court proceedings, so he was not present at some of the hearings. As the link above notes, this ruling is quite chilling if you write a blog.

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Woman Sues Google Over Dead Blogger's Allegedly Defamatory Comments

from the have-fun-with-this-one dept

We've seen all sorts of arguments by folks who felt defamed to get around Section 230 safe harbors that say a service provider isn't liable for the content created by a user -- but this is a first: a woman is suing Google, claiming that the safe harbors don't apply, because the allegedly defamatory content comes from a blogger who is now deceased, and thus she cannot go after him to get him to remove the content. Thus, she claims, her only choice is to sue Google. As Eric Goldman points out in the link above, it's not clear this is true at all. The guy's assets clearly passed on to someone -- so someone must own the rights to the blogpost, whether they know it or not. It's difficult to see how a court would find Google liable, no matter what. However, as Goldman also notes, it would seem that there would be many more effective ways to have this content disappear if it was really an issue.

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