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Psychiatrist Bitterly Drops Defamation Lawsuit Against Redditors

from the EVEN-THOUGH-I-AM-100%-IN-THE-RIGHT,-I-AM-WALKING-AWAY-ANGRILY dept

Dr. Douglas Berger, an American psychiatrist offering services to ex-pats in Japan, recently sued a bunch of Redditors for telling other Redditors to steer clear of his services. Berger's lawsuit was exhaustive, covering several months of disparaging comments delivered by Redditors, but much of what Berger considered libel fell under the category of "protected opinion."

Berger's ultimate goal appeared to be a revamp of his Google search results. Sitting ahead of multiple URLs linked to Berger and his Japanese business (many which appear to be owned by Berger himself) were links to multiple Reddit threads with unhelpful (for Berger anyway…) titles like "Stay away from 'psychiatrist' Doug Berger." In these threads, Berger was accused of everything from a lack of attentiveness during sessions to harassment to dodging income taxes.

It wasn't pretty, but Berger's lawsuit was even uglier. Berger wanted a court to unmask multiple anonymous Redditors, while offering up little more than his opinions about opinions. While there were a few marginally-actionable statements listed in the lawsuit, Berger targeted every Redditor who'd ever said anything less than favorable about him.

The Redditors put together a fundraising page for legal fees and secured the help of Marc Randazza. The good news is most of this is now unnecessary.

After realizing what the defendants knew from the beginning - that he had absolutely no standing to sue anonymous internet commenters in Florida - Dr. Douglas Berger, who is not currently licensed to practice medicine in any US state, has withdrawn his lawsuit.

While the group are disappointed that the court system was not given a proper chance to reject Dr. Berger's SLAPP tactics, they are grateful to the Randazza Legal Firm for their counsel and hard work on the case.

The group's final legal bills are not expected to exceed $5000, and the goal of this campaign has been updated to reflect that. Any amount donated above the $5000 goal will be donated to TELL JP.

Berger's dismissal [PDF] -- without prejudice, unfortunately -- is short, but it's anything but sweet. It only runs two paragraphs but each word is coated with the grit of Dr. Berger's tooth enamel.

Pursuant to Florida Rule of Civil Procedure 1.420, Plaintiffs Douglas Berger and Meguro Counseling Center (collectively "Plaintiffs") voluntarily dismisses all claims against Defendant John Doe and Nominal/Relief Defendant Reddit Inc. without prejudice, each party bearing its own costs and fees.

Plaintiffs' dismissal is submitted after preliminary discovery has raised questions about the proper jurisdiction to litigate the acerbic, irrational, and highly defamatory statements which have been published about him on the Internet. This dismissal does not reflect in any way upon the merits of Plaintiffs' undoubtfully legitimate claims under applicable law, his likelihood of success upon the merits, or the compensable damages for which he will seek recovery upon his re-filing.

Whew. That's a read. So, there are questions about jurisdiction, what with Berger living in Japan and the Redditors living… wherever. Tacked to the end is a threat to refile, as if the jurisdictional questions will somehow resolve themselves without Berger finding out where these Redditors reside. It could be Berger is planning to take his complaint to the Japanese judicial system (as noted by a commenter here and apparently stated by Berger himself) where it might be easier to win, but far more difficult to find people to win against. Japanese law treats defamation differently, allowing factual statements that harm someone's reputation to be treated as defamatory.

Good to know the truth is always a defense, right? Well, in Japanese libel and slander cases, the truth won't necessarily help you. Instead, it all comes down to reputation. [...] Even if a published statement is 100% true, it can still be considered defamatory if it irrevocably hurts the subject's reputation and oftentimes the question of truth doesn't really enter the equation. For example, in 2012 a Japanese man discovered that when he put his name into the Google search bar, it autocompleted results that implied he had a criminal record, and this man argued these autocomplete search results were severely damaging his reputation. Some sources strongly implied this man really did have a criminal past, others said that he was innocent. But it didn't really matter either way—the Japanese court ordered Google to remove the autocomplete terms, which they did.

On the other hand, discovery will be a bit more difficult.

Compared to the United States, which employs one of the most extensive discovery systems in the world, Japan’s rules governing the collection of evidence seem woefully inadequate. Modeled after German civil procedure rules, most evidence production in Japan takes place at trial. Authority and control over the gathering of evidentiary facts is vested in the court, with the judge assuming the primary responsibility for taking and receiving evidence. Japanese attorneys have no real power to compel the production of evidence or to elicit testimony from either adverse parties or third parties, and must therefore rely on voluntary cooperation or seek intervention by the court. This is in stark contrast to U.S. discovery, which is conducted mostly by the parties themselves with only minimal court supervision.

If Berger can't unmask Redditors prior to filing, it's going to be more difficult for him to pursue them in Japan. The Japanese system aligns with Berger's take on what is or isn't defamation, but a lack of defendants makes pursuing this overseas a dead end. Reddit has no offices in Japan so the court would have to ignore jurisdictional limits to compel production of identifying info, possibly leaving him without a defendant to sue.

For the moment, the case is dormant. Randazza will likely jump back in if needed, but Berger may be realizing suing users of an influential social sharing site has only made more unflattering links appear in his vanity searches.


Reader Comments

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  • identicon
    Anonymous Coward, 24 Jan 2018 @ 4:03am

    Take him off the grill, this berger got burned beyond saving.

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

  • identicon
    Anonymous Coward, 24 Jan 2018 @ 4:50am

    His own worse enemy

    I wonder how many lawyers told him to shut up and work on his own reputation. Luckily round one has brought his horrible practice to the notice of people who might otherwise see him without being aware of how aweful he actually is. When your livelyhood depends on your reputation, bolstering your critics with actual proof of how bad you are is not a good thing. He can't win even if people did disparage him based on his reactions. He is his own worse enemy.

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

  • identicon
    Anonymous Coward, 24 Jan 2018 @ 5:53am

    Japan's judicial system is so terrible, Capcom made a video game franchise about it.

    Just not terrible enough to sue entities that don't live or base themselves in Japan.

    Of course, expect out_of_the_blue to start screeching about "common law" again, because he's too oblivious to realize the measures he demands could easily have him outed if Techdirt wished (or a sufficiently harassed reader).

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

  • identicon
    Wendy Cockcroft, 24 Jan 2018 @ 5:55am

    So Doug Berger's case is a nothing-burger...

    I'll see myself out.

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

  • identicon
    Chuck, 24 Jan 2018 @ 6:24am

    How Japan's Legal System Works

    All this talk about truth being a defense and discovery at trial...you people know nothing about how Japan's legal system works!

    All you have to do is shout "OBJECTION!" as loudly as possible then get lucky when you pick one of 3 ways to discredit the witness (who is mostly likely a furry woodland creature, because those are totally valid witnesses in Japan.)

    Note: As an actual paralegal I believe I am legally required to state this is not how this actually works. Still, sometimes I feel like Phoenix Wright's version of justice would be a serious improvement over our own...

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

  • icon
    discordian_eris (profile), 24 Jan 2018 @ 6:26am

    Well, this brouhaha is the 2nd and 3rd results from Google and the number one hit from Bing.

    Barbra is smirking from her Malibu house.

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

  • identicon
    Gaijin Hunter, 24 Jan 2018 @ 6:59am

    That filthy foreigner doesn't have any rights to be in Japan or operate a business here. It doesn't even have any human rights.

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

  • icon
    JustMe (profile), 24 Jan 2018 @ 7:18am

    Conflicted about Marc Randazza

    I understand that protecting the First Amendment is a powerful and worthy goal and it is OK to champion the cases of those with whom we disagree, but one is also allowed to select clients from the 'not a Nazi' segment of society (short of court appointed representation). I think we can all agree that Andrew Anglin falls closer to the 'is probably a Nazi' side of things and a smart guy like Mr. Randazza Esq. ought to be able to find more worthy work.


    http://www.staradvertiser.com/2017/12/28/breaking-news/judge-wont-tolerate-game-playing-by-neo- nazi-site-founder/

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

    • icon
      GristleMissile (profile), 24 Jan 2018 @ 7:43am

      Re: Conflicted about Marc Randazza

      Free speech is for everyone, no exceptions, even people that probably don't deserve the title of people.

      If you can somehow teach a rat to talk, it deserves free speech too, because the ability to think and speak at all automagically qualifies one for the right to do so freely.

      NO EXCEPTIONS.

      (and before some ass chimes in that this isn't an argument; that's right, this isn't an argument, this is an assertion. Far wiser people than me have already made the case for free speech, and their arguments have been proven correct by the passage of history. Deal with it.)

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

    • identicon
      Thad, 24 Jan 2018 @ 9:12am

      Re: Conflicted about Marc Randazza

      There are plenty of reasons to dislike Marc Randazza. That he defends assholes' right to free speech is not one of them.

      There's no "unless they're a nazi" exception to the First Amendment. If you don't believe in nazis' right to free speech, then you don't believe in free speech. Supporting free speech means supporting odious, offensive, disgusting speech by odious, offensive, disgusting human beings.

      We don't need the First Amendment to protect uncontroversial speech. Uncontroversial speech doesn't need protecting; it's uncontroversial. The entire purpose of freedom of speech is to protect speech that makes people angry, hurt, offended, or otherwise uncomfortable.

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

      • identicon
        Jordan Chandler, 24 Jan 2018 @ 10:24am

        Re: Re: Conflicted about Marc Randazza

        His client is harassing people. People are upset at Marc for defending an asshole doing illegal things, not for inherently being a Nazi. Do you see the difference?

        Would you be ok being harassed by the followers of a Nazi?

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

        • identicon
          Thad, 24 Jan 2018 @ 10:41am

          Re: Re: Re: Conflicted about Marc Randazza

          People are upset at Marc for defending an asshole doing illegal things, not for inherently being a Nazi.

          Just to refresh your memory, here's the post I was responding to:

          I understand that protecting the First Amendment is a powerful and worthy goal and it is OK to champion the cases of those with whom we disagree, but one is also allowed to select clients from the 'not a Nazi' segment of society (short of court appointed representation). I think we can all agree that Andrew Anglin falls closer to the 'is probably a Nazi' side of things and a smart guy like Mr. Randazza Esq. ought to be able to find more worthy work.

          "People" may be "upset at Marc for defending an asshole doing illegal things, not for inherently being a Nazi", but the post I was responding to was clearly upset with him for defending a nazi.

          Would you be ok being harassed by the followers of a Nazi?

          I wouldn't be okay being harassed by anybody, Jordan. The word in that sentence that describes an illegal act is "harassed", not "Nazi".

          Do you see the difference?

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

          • identicon
            Jordan Chandler, 24 Jan 2018 @ 10:51am

            Re: Re: Re: Re: Conflicted about Marc Randazza

            Yes thanks for the clarification. I can't help but agree with you regarding the freedom of speech, it's all speech, not just speech I agree with. But I honestly don't think people like Randazza forward justice, the human race, or the first amendment defense by defending this particular individual.

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

            • identicon
              Thad, 24 Jan 2018 @ 12:19pm

              Re: Re: Re: Re: Re: Conflicted about Marc Randazza

              It's a tough call. Nobody (including Randazza) is denying that Anglin's a shitty person. But the legal questions here are above my pay grade.

              Randazza's expressed concern about this setting a chilling precedent. He may be right. I think it's quite clear that Anglin was encouraging harassment, but the question of what extent he's legally liable for that harassment is one I'm not prepared to answer. Ruling that somebody can't use a popular social media presence to encourage harassment seems like a no-brainer, but as far as setting a precedent, it could have some serious negative consequences.

              I'm sure there are people who get harassed by Techdirt readers when Techdirt reports negatively on them, and the writers at Techdirt certainly know that any kind of negative reporting on anybody will be an excuse for shittier elements of the Internet to do shitty things. That doesn't, and shouldn't, make Techdirt writers liable for the actions of some of their more unpleasant readers.

              Obviously the key difference here is that Techdirt doesn't explicitly encourage readers to "troll flood" or whatever the hell expression Anglin used. A narrow legal ruling that says explicitly encouraging a "troll flood" is harassment would be a good result, IMO, though it seems to me that it would only catch the dumbest of harassers up, and merely encourage the smarter ones to use more veiled language and maintain plausible deniability.

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

      • identicon
        Jordan Chandler, 24 Jan 2018 @ 10:30am

        Re: Re: Conflicted about Marc Randazza

        Montana real estate agent Tanya Gersh sued Anglin in April, accusing him of orchestrating an anti-Semitic internet trolling campaign that terrorized her family amid her dispute with the mother of a leading white nationalist. Months passed before Anglin’s lawyers formally responded to the suit, arguing the First Amendment protects his posts calling for a “troll storm” against Gersh.

        I'm missing the breach of his first amendment rights here
        If he wanted justice he'd show up

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 9:32am

      Re: Conflicted about Marc Randazza

      "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." H.L.Menken

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

  • icon
    GristleMissile (profile), 24 Jan 2018 @ 7:34am

    >but each word is coated with the grit of Dr. Berger's tooth enamel.

    Not only is that some of the most evocative and entertaining language I've read today, but it's also highly accurate. You can feel the hate and impotent rage dripping out of every word in that dismissal. Fuck that slapp happy bastard right in his wallet.

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

  • icon
    James Burkhardt (profile), 24 Jan 2018 @ 8:44am

    Must make Manhunts hard...

    The idea that the truth is defamatory must make manhunts hard.

    Newscaster: Local Police are looking for Mr. JapaneseName, who is wanted after video evidence shows him raping and murdering and underage girl.

    <Lawyer walks in on shot>

    Newscaster: Whats this?

    <Lawyer hands a manila envelope>

    Lawyer: You are being sued for defaming Mr. JapaneseName. We demand you cease and desist assisting the police in Defaming my client by asserting thew facts of the videotaped crime and the fact that police are seeking him.

    <Second Lawyer walks in>

    Second Lawyer: Yeah, you are getting sued also. The very act of talking about the lawsuit defames my client.

    First Lawyer: This is going to be a problem

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

    • identicon
      Thad, 24 Jan 2018 @ 9:14am

      Re: Must make Manhunts hard...

      The idea that the truth is defamatory must make manhunts hard.

      My understanding from Persona 4 is that manhunts in Japan are conducted just like they are in America: by a group of meddling kids and their annoying mascot.

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 12:11pm

      Re: Must make Manhunts hard...

      That's a cop-out!

      ...wait, wrong office. I thought this was the office of old Flying Circus references.

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

  • icon
    Mason Wheeler (profile), 24 Jan 2018 @ 9:00am

    Japanese law treats defamation differently, allowing factual statements that harm someone's reputation to be treated as defamatory.

    That's simply nuts.

    This is exactly equivalent to saying that a person who actually did do bad things has a legal right to a good reputation, which has to be the most insane thing to ever come out of Japan, anime included!

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

    • icon
      orbitalinsertion (profile), 24 Jan 2018 @ 9:30am

      Re:

      You will also be happy to know, then, that almost anyone brought before a court on criminal charges is convicted. Even the saiban-in reform experiment is highly controversial from what i have seen.

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

    • icon
      JoeCool (profile), 24 Jan 2018 @ 9:34am

      Re:

      That's even worse than the UK, where truth IS a defense, but the defendant is forced to PROVE the statements are completely true.

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

      • identicon
        Jordan Chandler, 24 Jan 2018 @ 10:25am

        Re: Re:

        I'm shocked many large companies bother after the McLibel case

        https://en.wikipedia.org/wiki/McLibel_case

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

      • identicon
        carlb, 25 Jan 2018 @ 6:25am

        medieval knights and libel chill

        Libel and defamation law has a very long and dubious history. In the UK system (and others which derive from it) the original law was intended to allow knights and other "noble" or privileged classes to silence legitimate criticism for things they did do. Certainly there's been some democratisation since the days of feudalism and medieval knights with little accountability to anyone, but the laws have been slow to keep up with progress and the vestiges of historical oppression live on. It isn't by some unfortunate modern accident of process that these laws are chilling legitimate speech and valid complaints, that's what they were originally intended to do in an era before free democracy. Now as then, they favour the rich and privileged as only the rich can fully afford the cost of frivolous litigation to shut down free speech with libel chill. Reverse onus and the rest of the abuses have lived beyond their best-before date for far too long.

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


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