Citations & Sarcasm: How Gizmodo Got A Defamation Lawsuit SLAPPed Down

from the an-opinion-is-not-defamation dept

Gizmodo.com published an article, Smoke & Mirrors: The Greatest Scam in Tech, about Redmond’s venture, Peep Telephony. In addition to using the word “scam” in the title, the article had lots of denigrating things to say about Peep and about Redmond’s prior initiatives. (The opinion lays out the beefs, although some of the hot spots are apparent from a quick review of the initial article). Gizmodo subsequently published Redmond’s rebuttals. Later, Redmond apparently decided the rebuttal wasn’t enough and asked Gizmodo to remove both articles, which Gizmodo declined to do. Redmond then sued Gizmodo’s parent Gawker Media for defamation. The court dismissed the case on anti-SLAPP grounds, and that means Redmond will owe a check to Gawker for his lawsuit.

The court has no problem finding that Peep Telephony’s activities were a matter of public interest, as Peep Telephony had received some high-profile coverage from technology reporters before Gizmodo’s story, and Redmond apparently had been trying to stir up press coverage in advance of the 2011 CES conference. The court summarizes that the “Gizmodo article was a warning to a segment of the public–consumers and investors in the tech community–that Redmond’s claims about his latest technology were not credible.”

The court also says that Redmond’s beefs relate to statements of opinion, not fact. The court notes that the word “scam” as not a factual assertion (a dicey outcome), the article was written in a “casual” and “sarcastic” first-person style (“the article’s general tenor and language would give a reasonable reader the impression the authors were expressing subjective opinions, not reporting facts”), and the article used weasel words, such as “seems,” “arguably,” “looks like,” etc., to qualify key fact-like assertions.

The most interesting part of the opinion is where the court talks about the article’s “transparency.” The court says (emphasis added):

The sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources–mainly Web sites and promotional material created and maintained by Redmond and his ventures….Having ready access to the same facts as the authors, readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies….Statements are generally considered to be nonactionable opinion when the facts supporting the opinion are disclosed.

This is true, of course, but a point often lost when defamation plaintiffs are breathing fire. A properly-cited article, filled with hyperlinks to original source materials, should be extra-resistant to defamation claims–even if written with typical blogger snark. Readers can easily inspect the source materials themselves and make their own judgments about the article’s veracity. Thus, either the citations provide proper factual support for the article’s opinion, or the links should eliminate any problems with the author’s knowledge (where that matters to the prima facie defamation claim, which would have been the situation here). Either way, the defamation claim should fail, as it did here.

So this decision is a great ruling for bloggers. Unfortunately, it’s unpublished (like far too many California appellate court opinions), which limits its precedential effect. To fix this, my RA and I are planning to request that the court publish it. Even if it remains unpublished, perhaps the ultimate takeaway–that defamation claims against well-cited blog posts will be quickly dismissed by anti-SLAPP laws and lead to the plaintiff paying money to the defense–will help dissuade similar lawsuits nonetheless. Especially in a situation like this, where the potential plaintiff already had gotten an on-the-spot rebuttal, suing over a blog post like Gizmodo’s rarely makes sense.

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Companies: gawker, peep technology

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Comments on “Citations & Sarcasm: How Gizmodo Got A Defamation Lawsuit SLAPPed Down”

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16 Comments
Anonymous Coward says:

Re: What is a Redmond or an RA?

RA, I presume, is his Research Assistant. Why he thinks everyone will know what RA means is anyone’s guess. Redmond is Scott Redmond, the CEO of Peep. You’d think if he’s going to plaster this same exact article all over the web, he’d put a little more effort into clarifying things.

Ehud Gavron (profile) says:

Re: Unpublished?

Google “court published vs unpublished”.

Finding the answer took less time than asking the question.
Explaining it to you took more also.

Now you get the chance to show whether you’re a man “oops, my bad, I should have googled first” or a hicktard “How darr yaz tellz me to googalz, why I otter hitch up me buggie and come beet down yar door.”

E

Josh in CharlotteNC (profile) says:

Re: Re: Unpublished?

Yes, I can Google it, or check Wikipedia. That however doesn’t contribute anything to the discussion. Techdirt is more than a site that just posts news stories – the community discusses them. Eric frequently shows up in the comments here, and he seems to have a strong opinion on the matter, so I was hoping he would respond with context, and perhaps more info than you would find on a cursory search. And maybe others in the community had a similar question and would like to hear from Eric as well.

_Arthur (profile) says:

This reminds me of the ZER01 affair

I see some parrallels with the ZER01 affair.
-ZER01 was supposed to offer mobile internet at half the price the carriers then charged
-ZER01 was a sensation at 2009 CES (they won an award)
-ZER01 was making a lot of technically unsound claims
-ZER01 CEO’s resume was pure fantasy, and contained outrageous claims of inventions.

ZER01 didn’t sue the journalist that broke the story. The CEO claimed he would prove all his critics wrong, but the product never launched.

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