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

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

Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
    Anonymous Coward, Aug 14th, 2012 @ 4:33am

    I enjoyed this article... when I read it on ars yesterday. :(

    reply to this | link to this | view in thread ]

  2. icon
    Ninja (profile), Aug 14th, 2012 @ 4:36am

    You know, that must have hurt. I get this picture of my mom slapping me painfully in the butt when I was a kid for being mischievous =D

    I hope you can get it published, it should set a very important precedent.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Aug 14th, 2012 @ 5:36am

    Who the fuck is "Redmond", Eric?
    Specify, ffs. I had to read through to the filing to be sure it wasn't some kind of bizarre dig at Microsoft that I wasn't understanding.

    reply to this | link to this | view in thread ]

  4. identicon
    Mason Wheeler, Aug 14th, 2012 @ 5:42am


    Same here. That was definitely left unclear in the article.

    reply to this | link to this | view in thread ]

  5. identicon
    Andy, Aug 14th, 2012 @ 5:54am

    What is a Redmond or an RA?

    And why is the author suddenly placed within the article text?

    reply to this | link to this | view in thread ]

  6. identicon
    OC, Aug 14th, 2012 @ 6:12am


    Rodent Advisor?
    Rubber Anaconda?
    Right Arm?
    Real Aunt?


    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Aug 14th, 2012 @ 6:15am

    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.

    reply to this | link to this | view in thread ]

  8. icon
    Josh in CharlotteNC (profile), Aug 14th, 2012 @ 6:19am


    How do court opinions go unpublished? There was a ruling here, on a matter of public concern. Does California have some crazy procedure that allows cases to go unpublished?

    reply to this | link to this | view in thread ]

  9. icon
    Ehud Gavron (profile), Aug 14th, 2012 @ 6:42am

    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."


    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Aug 14th, 2012 @ 7:05am

    Re: Unpublished?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Aug 14th, 2012 @ 7:06am

    Re: Unpublished?

    Try this: hxxp://

    (replace xx with tt; the silly moderation trap won't let me post one link to wikipedia?)

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Aug 14th, 2012 @ 7:08am

    Re: Re: Unpublished?

    So you don't know either.

    reply to this | link to this | view in thread ]

  13. identicon
    _Arthur, Aug 14th, 2012 @ 7:30am

    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.

    reply to this | link to this | view in thread ]

  14. icon
    Josh in CharlotteNC (profile), Aug 14th, 2012 @ 8:45am

    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.

    reply to this | link to this | view in thread ]

  15. icon
    Mike42 (profile), Aug 14th, 2012 @ 12:34pm

    It's good to see a blog defend against a bogus lawsuit, but I do wish it wasn't the Apple fanboi-mag Gizmodo. I used to read it all the time, but the last six months have been nothing but Apple-loving and Android bashing. They used to be at least somewhat objective, now they don't even pretend.

    reply to this | link to this | view in thread ]

  16. identicon
    Dui Attorney Philadelphia, Aug 16th, 2012 @ 10:57pm

    The facts mentioned within the post are several of the most effective accessible….

    reply to this | link to this | view in thread ]

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