LegalMatch: Personal Injury

If You Wouldn't Say it in Real Life, Don't Say it Online

Once again, a person who said some things on the Internet which he almost certainly wouldn’t have said online is going to have to pay the piper. Of course, this time, he made the mistake of saying a lot of cruel and untrue things about a lawyer he apparently didn’t like very much.

A lawyer in Los Angeles has been on the receiving end of some hateful comments on Craigslist. The alleged defamer is a screenwriter who the lawyer claims to have never met. The lawyer also says he has never done business with the screenwriter, and has no idea what his quarrel with him might be.

Allegedly, the screenwriter has said some pretty hurtful things about the lawyer which, if believed, could seriously harm his reputation. And in the legal profession, a person’s reputation is extremely important, so this could very easily harm his livelihood, as well, especially when the statements go directly to the subject’s professional competence or integrity.

And in this case, the Craigslist poster wrote that the lawyer violated attorney ethics rules, broke the law, is bigoted, and is mentally ill. As far as anyone can tell, none of these statements are true. However, if someone believed any of these statements, they would be very reluctant to hire the subject of them for legal services.

This seems like a pretty clear-cut case of libel per se. Libel per se is a subcategory of defamatory statements which hurt a person’s reputation regardless of context. In general, libel per se does not require the plaintiff to prove actual economic damages in order to prevail in a lawsuit.

For example, suppose Jeff said to some friends “Bob visits and patronizes a house of prostitution every day at noon.” In just about any community in the Western world, that statement, without any additional information, would hurt Bob’s reputation, and constitute libel per se. To successfully sue Jeff, Bob wouldn’t have to show that he actually suffered any real damages.

Similarly, calling a lawyer an unethical, incompetent and bigoted criminal would hurt his personal and professional reputation, and the lawyer in this case won’t need to show that he actually suffered any tangible loss as a result of these statements. Of course, if he can prove that such losses resulted, he’ll be able to recover them.

The best (or worst, depending on who you are) part of this story is that this screenwriter probably thought he would be completely anonymous when he made those posts on Craigslist. We’ve seen time and time again that you cannot presume that you are anonymous on the Internet.

While there is some evidence that the wild frontier culture that dominated the Internet for the last 10 years is on its way out, many people still behave as if the Internet is some anarchic playground where anything goes. Whether people use the internet to engage in copyright infringement, to buy illegal drugs, or to defame people they don’t like, many people still think that, because it’s easy to do something on the internet, that somehow makes it alright.

News flash: It’s not.

In general, the exact same laws that apply to your conduct in the physical world apply online. The fact that it’s sometimes more difficult to enforce the law in cyberspace does not in any way affect the law’s legitimacy (to argue otherwise puts you in the same position as the guy who tells the cop “but, officer, EVERYONE was speeding!”).

As many people have learned, or are about to learn, all it takes to identify a person on the Internet (unless they’re taking some pretty extraordinary means to protect their privacy) is an IP address and a subpoena. If some civil or criminal wrong has been committed online, the victim can usually figure out the IP address of the computer that was used to commit that act (such as, say, posting defamatory statements on a website). An IP address is simply a number that an ISP assigns to a computer using its network. However, ISPs are usually pretty cooperative when they get a subpoena demanding that they turn over the identity of the subscriber using the offending IP address. You’re not nearly as anonymous on the Internet as you may think.

It’s not clear what this guy’s motives for defaming this lawyer were, especially if it’s true that they’ve never done business with each other, or even met. In his mind, at least, it seems that he believes that he’s working for the public good, since he filed an Anti-SLAPP motion when the lawyer filed this lawsuit. A California appeals court rejected this motion, on the grounds that the defendant couldn’t show that he was engaged in political speech, or discussing matters of public importance, a threshold inquiry in deciding an anti-SLAPP motion.

While this appears to be a pretty “garden-variety” claim for defamation, it illustrates an interesting trend: it used to be that newspapers, radio stations, and tabloids were the most common targets for defamation. However, since the advent of the Internet, individuals who decide to vent “anonymously” against someone they don’t like are increasingly finding themselves the target of these lawsuits.

The Internet has given these lawsuits a bit more urgency, however, since it’s possible (though rare, in the scheme of things) for a single person with a bit of web space to reach an audience rivaling that of any print newspaper. Furthermore, after a very short period of time, most newspapers are thrown away, with a few copies filed away in various archives, largely to collect dust. Before the Internet, it was much easier to forget something that was printed in the newspaper.

On the Internet, however, a piece of media, whether it’s an image, a video, or a sound recording, can take on a life of its own, constantly bouncing around the world, with literally millions of copies of it being made every day, each one of which can theoretically be stored forever in a place just as accessible as the day it was released.

If you’re on the receiving end of such a statement, it makes sense that you’ll want to attempt to nip it in the bud as soon as possible. While a defamation lawsuit involving statements made on the internet will do nothing to stop the statement from being re-circulated, it will allow you to recover. And if enough legitimate victims of defamation go to the effort to file these lawsuits, it might at least serve as a deterrent. 

By: Rusty Shackleford

Anti-SLAPP Law Has Its Limits: Cyber-Bullying Isn’t "Public Participation"

Here (also reported here) is a case which, I believe, shows that Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws generally work, in that they prevent abusive, meritless defamation lawsuits which aren’t meant to vindicate any right, but simply to harass and intimidate the defendant. Conversely, a good Anti-SLAPP system will still allow any plaintiff (a large corporation or otherwise) to protect their rights when they have actually been defamed, and the speech in question clearly has no social value.

In an opinion (contains profanity) released on March 15, 2010 a California appeals court held that California’s Anti-SLAPP statute (which is considered to be one of the strongest in the country), does not warrant the dismissal of a lawsuit alleging defamation, invasion of privacy, and intentional infliction of emotional distress stemming out of hateful and threatening messages left on the plaintiff’s personal website.

This makes perfect sense. When the California legislature created the Anti-SLAPP law, it was designed to protect people who actually had something important to say, such as “X Corp. is polluting the environment” or “Y Corp. engages in employment discrimination,” by preventing the subjects of those statements from using the courts to stifle their speech by burying the speakers in meritless defamation lawsuits. Essentially, to invoke the SLAPP law, the defendants have to have been speaking about a matter of real public concern.

It should be clear to just about anyone that going onto a person’s website, and flooding his guestbook with dozens of hateful, bigoted, and simply evil messages (some choice examples are reproduced in the opinion above) that really have nothing to do with anything would give rise to liability under California’s hate crime and cyber-bullying laws, as well as the common law torts of defamation and intentional infliction of emotional distress.

While the lawyers of these defendants can’t be blamed for doing everything within their power to represent their clients’ interests, I can’t help but wonder what they were thinking when they were writing their Anti-SLAPP motions for their respective clients. Could a person really believe that slurs and threats of violence, even if they were “jokes” as the defendants claimed, they clearly didn’t involve matters of public concern. Remember, SLAPP laws are designed to curtail lawsuits directed at public participation.

Furthermore, a lawsuit brought by an individual teenager and his family alleging defamation and infliction of emotional distress for hateful messages on his website doesn’t sound like the type of lawsuit that Anti-SLAPP laws are meant to curtail. We aren’t talking about a deep-pocketed corporation who is simply using the legal system to shut out competition or dissent. Rather, we’re dealing with a teenager who could very well have been traumatized by pointlessly hateful messages directed at him.

And while the victim in this case was not a large corporation, I should take this opportunity to stress that Anti-SLAPP laws are not meant to impinge upon the rights of big corporations, and wealthy individuals. If they are defamed, they have every legal right to attempt to vindicate their reputation by filing a lawsuit for libel or slander, the same as the rest of us. And if they have an advantage over the defendant because they have more money to hire more lawyers, that’s sad for the defendant, but, right or wrong, it’s the system we currently have.

What they can’t do, however, is use their massive legal departments and the giant law firms they have on retainer to bury people in paperwork and court fees, just because they said something that the corporation doesn’t like.

By: Rusty Shackleford

Model from Couple's Retreat Sues for Defamation

Life is tough for a model.  They have to wear beautiful designer clothes, get their hair and makeup done by the best in the business, and travel all around the world.  Oh yeah, and their pictures is seen by millions of people everywhere.  Normally, female models want men to like (even lust) after the pictures they take.

None of this holds true for former model Irina Krupnik who is suing the producers of the popular movie Couples Retreat for using a sexy photo of her for a scene in the movie.  Now working as a makeup artist, Krupnik feels that the use of her photo in the movie is damaging to her reputation and current career.  In all fairness to Krupnik, her picture was used as “inspiration” for a masturbation scene by one of the movies main characters.  

The $10 million suit alleges that NBC Universal and Universal Pictures soiled her wholesome image and violated her privacy with the “tawdry and shocking use of her photograph.”   She further claims that she had no idea her picture (that she had released for commercial use through stock photo agencies) would be used as an x-rated prop for unattractive males. 

There are two legal issues at odds with each other here: a defamation claim and a contractual release.  Her defamation claim is based on the argument that the use of her image creates a false impression and injures her reputation.  

The defense in this case seems to be much stronger- she released her image to be used for any and all commercial purposes which includes using it in a movie.  Although the use may not have been contemplated, I am going to go out on a limb here and say that most models would love the opportunity to have their image used in such a major motion picture.  In my opinion, I just don’t see the strength in her case, considering the fact that she released it for commercial use.  Failure to read the fine print will not be an excuse in this case!

By: Violet Petran