Okay, look. We've really tried to ignore Chuck Johnson. It's pretty obvious that he's the kind of guy who does a bunch of the stuff that he does to get more attention. We've never covered his various hilarious legal threats, though you can see a bunch of them nicely cataloged at this website. If you're not aware, you can do some Google searches, but suffice it to say that he plays a "journalist" on the internet, and he's somewhat infamous for the various stunts he pulls, combined with his penchant for threatening people with libel, as well as for many of his biggest stories being, well... ridiculous. A few weeks ago he threw something of a public tantrum because Twitter kicked him off its service. He had a lawyer in Missouri, John Burns, send a ridiculous threat letter to Twitter, based on an interpretation of the law that might be described as "crazy" by some and... "wrong" by many others.
But, now, by all accounts, it appears that Johnson has actually filed a defamation lawsuit in Missouri against Gawker (who is currently fighting a big (and much more important) lawsuit concerning the Hulk Hogan sex tape excerpt that it published). The lawsuit is equally as nutty as most things associated with Chuck Johnson, but go ahead and read it. The one thing that's important to note is that there hasn't, yet, been confirmation that it's actually been filed, but at the very least someone put work into it.
By all public appearances, the only reasons that this was filed in Missouri was because... that's where Johnson could actually find a lawyer willing to file something so ridiculous (the same lawyer who made the silly threats against Twitter) and, perhaps, because Missouri lacks a real anti-SLAPP law. It has one, but it only applies to petitioning the government. All the more reason to support a federal anti-SLAPP law.
We can go through all the reasons why the lawsuit is likely to fail, but, come on, we've got other stories to write as well, so we'll just pick out some of the highlights.
Missouri?!? WTF? There is no legitimate reason to file this lawsuit in the state court in Missouri. Johnson is in California. Gawker is in NY. And no, the fact that it's kind of "in the middle" doesn't count. This lawsuit will almost certainly be thrown out over the venue choice. The rationale in the lawsuit is laughable:
Because Plaintiffs have been injured in the State of Missouri, the matter is properly
before a circuit court of Missouri. Venue is determined solely by statute. State ex rel.
Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). Because the matter alleges torts,
including defamation and invasion of privacy, venue is proper in this Court.
That's unlikely to fly. As Adam Steinbaugh notes in his write-up (the link above), the case will almost certainly get dumped for "lack of personal jurisdiction." At the very least it won't stay in state court as it meets all the easy criteria for removal to federal courts (parties in different states, over $75k at stake...). Steinbaugh also wonders if Gawker might try to jump into federal court and file for declaratory relief in a state where it can use an anti-SLAPP law, but that's not actually as easy as it may sound for a variety of reasons.
The standard for defamation: As we've discussed many, many times, if you're a public figure, the standard for defamation is very high (as it should be). The statements need to be done with "actual malice," meaning that Gawker published false stuff, knowing it was false and that it would harm Johnson. That's not happening.
That's not defamation: Among the things that Johnson complains about is a Gawker claim that he is the "web's worst journalist." That's clearly a statement of opinion. No court is likely to find that defamatory.
Intermediary liability to the rescue: Johnson also claims that Gawker reporters "solicited" defamatory comments. That's protected by CDA 230 and should get tossed out. From the lawsuit:
It is very common for initiators of writings (such as Defendants Howard and
Trotter) to create content amongst other non-initiating content creators, and to directly
respond-to and collaborate with non-initiating content creators, instigate and solicit responses
from non-initiating content creators, and adopt the conclusions of or otherwise advertise or
approve of the content of non-initiating content creators as signified through text content or by
hyperlinking to additional locations on the same webpage or the webpages of other stand-alone
Yeah, that's not how the law works.
False things about false light: The lawsuit makes "false light" claims in addition to defamation. There's a problem with that. For the most part, Missouri does not recognize "false light." It's not absolutely true, but mostly true, as noted in a recent Missouri Supreme Court ruling that notes that it has left open the possibility of false light in future cases, but that it absolutely will not allow attempts to just pile on a false light claim that is nothing but an attempt to allege defamation in another form. This is not false light and Missouri's courts have rejected basically all false light claims for decades.
In the end, this may be more of the same nutty trolling from a nutty troll, but now that it's (supposedly) actually hitting the judicial system, it's worth highlighting yet another attempt to use defamation law to silence the press. What's almost hilarious about this is that Johnson often holds himself out as a strong supporter of the First Amendment. Funny stuff.
Back at the end of April, the EFF featured a patent held by Horstemeyer in its monthly "Stupid Patent of the Month." We actually reposted it ourselves. You can go back and read those original posts detailing how and why the patent is stupid. But Horstemeyer isn't happy. It apparently hurt his feelings for his little patent to be called out among all the stupid patents for extra special treatment. So he had a lawyer send a threat letter claiming that the post included "false, defamatory and malicious statements."
The letter lays out three such claims. First, saying that it's "false" to say that "patent applicants attorneys have an ethical obligation to disclose any information material to patentability." Yes, that's really a battle they want to fight: To argue that they have no ethical obligation to do so, and that to claim otherwise is somehow defamatory. This is wrong on all sorts of levels. Next, they claim that saying that "Horstemeyer has not made any genuine contribution to notification 'technology'" and that "he has shown advanced skill at gaming the patent system" is defamatory because it "impugns" him. That's not how defamation works, but okay. Finally, they object to the claim that "It appears Horstemeyer hoped the Office would not notice [the Alice] decision and would simply rubber-stamp his application."
None of these statements comes even remotely close to being defamatory. They are all either statements of opinion or, at best, hyperbole. To argue that these are defamatory is simply ridiculous.
But rather than just do the initially dumb thing of sending a threat letter, hoping it would lead the EFF to pull its story down (ha!), Horstemeyer took it a step further and had his lawyer file an actual complaint in a Georgia county court. The lawsuit repeats, verbatim, the complaints in the letter. And it goes even further, ridiculously arguing that because Mark Cuban and Markus "notch" Persson donated hundreds of thousands of dollars to EFF, with Cuban's money going to form the "Mark Cuban Chair to Eliminate Stupid Patents" (a position currently held by Daniel Nazer, who wrote the original EFF post), it shows that the "defamation" was done "with malice" and "for their own selfish financial benefit and profit."
This also makes absolutely no sense. Nazer doesn't make any additional money by calling out Horstemeyer's stupid patent for being stupid. The whole thing is nuts.
The EFF has responded by sending a letter, noting that Horstemeyer knew they were responding and still rushed to the courthouse. As the EFF rightly notes, nothing in the article is even remotely defamatory.
The Article is opinion that is absolutely protected by the First Amendment to the United States Constitution and state law, including that of Georgia and California. As your Letter does not identify any specific statement of fact that is provably false, it instead appears that your client takes issue with EFF expressing its belief that: Mr. Horstemeyer sought and was granted a "stupid" patent, - U.S. Patent No. 9,013,334 (the "'334 Patent"); that he appeared to "gam[e] the patent system" in doing so; and he may have acted unethically. While you may disagree with this opinion, it is not actionable.
It then walks, point by point, through the complaint and details why none of the claims are even remotely actionable. Following this, it notes that if Horstemeyer does not decide to drop the suit, the EFF will (quite reasonably) seek anti-SLAPP rulings, including the awarding of attorney's fees under Georgia's and California's anti-SLAPP laws:
Further, assuming that your client is able to establish personal jurisdiction over EFF and Mr. Nazer, EFF will move for an immediate determination of whether the Article is protected speech, and will further move for its attorney's fees, under the applicable anti-SLAPP statute and/or under Fed. R. Civ. P. 11. See. e.g., Cal.Civ.Proc.Code § 425.16 (California anti-SLAPP statute); 0.C.G.A. 9-11-11.1 (Georgia anti-SLAPP statute); Hindu Temple and Community Center of High Desert. Inc. v. Raghunathan, 311 Ga. App. 109 (2011) (awarding fees); Koly v. Enney, 269 Fed. Appx. 861, 36 Media L. Rep. 1513 (11th Cir. March 7, 2008) (award of attorney's fees required under Fed. R. Civ. P. 11 because allegations that conduct of corporate officers were examples of "impropriety" and a "serious conflict of interest'' were personal opinions based on the facts set out in a corporate communication to other directors).
It also notes, of course, that continuing with the lawsuit is likely to:
bring further publicity to his actions with regards to the '334 Patent, specifically his failure to disclose Judge Wu's decision to the PTO as well as his apparent belief in this and other patent applications that he is under no duty to disclose adverse court decisions regarding substantially similar patents.
from the can-you-heal-not-understanding-the-law? dept
Oh boy. Today in Streisanding, we've got a lawsuit filed by Adam Miller, a faith healer, against Stephanie Guttormson, supposedly over claims of copyright infringement and defamation, though neither claim holds up under much scrutiny. Instead, this looks like a typical SLAPP suit, in which Miller is upset about a video that mocks him and his faith healing and decides to sue over it. Enter Stresiand Effect. The video is currently up, and the view count is rapidly escalating. At the time the lawsuit was filed (according to the lawsuit) it had about 1,500 views. Now it's much more:
There's nothing too surprising in the video, but it basically uses one of Miller's own promotional videos and intersperses some commentary and criticism. The lawsuit... is... well... a joke. First, he claims copyright infringement, though this is pretty obviously fair use. It's being used for criticism and commentary, and in order to make that work, it needs to show clips of the video. Miller's lawyer tries, weakly, to present a few arguments to try to get around fair use, including arguing that it's commercial use. Of course, as we keep repeating, commercial use does not mean that you can't have fair use. Tons of fair use involves commercial use. And, even given that, it's ridiculous to argue that this is "commercial use." The best the lawsuit can do is claim that the inclusion at the end of the video of a couple of "advertisements" makes it commercial. That, alone, probably isn't even enough to claim this is "commercial use," (which is generally more about selling the actual work or directly profiting). Plus, it's not even accurate. The "advertisements" aren't really advertisements at all, but rather a friendly acknowledgement of who sent her the video, with a link to that guy's own website and audio bookstore, with a mention that Guttormson appears on that guy's podcast every so often.
The lawsuit also claims too much of the original video was used, but there's little evidence to support that. Guttormson comments on basically every clip in the video, so it's hard to see how she's using "more of the original work than was necessary" as the lawsuit claims.
The lawsuit also alleges, as part of the copyright claim, that "Guttormson is liable for the actual harm caused to Mr. Miller as a result of Guttormson’s infringement and statutory damages." That's an interesting claim, but completely bullshit in the copyright context. The "actual harm" has to be over the copyright. Unless there was "actual harm" in Miller no longer being able to license/sell that video to a third party because they felt they could see it all for free through Guttormson's video (a crazy claim), then there's no actual harm. If the commentary in Guttormson's video, which mocks Miller's wacky faith healing nonsense, created "actual harm," well, that's not a copyright issue and is unrelated to any copyright claim.
The lawsuit also makes some claims about how the video itself was never actually released, but rather was password protected in Miller's wife's account. So the lawsuit alleges that Guttormson must have "hacked" into Eve Miller's account. In the video itself, however, as mentioned above, Guttormson notes that it was actually David Smalley who sent her the video. And while it's not entirely clear, from the comment threads under the video, it certainly sounds like Miller's video was most likely publicly available somewhere online. The evidence of "hacking" here seems really weak. And if there was hacking, the evidence that it was Guttormson is non-existent.
As for the defamation claims... there are only two specific things called out in the lawsuit. The first is this:
As just one example, Guttormson explains what happens at an appointment with Mr. Miller, “You will be fed faith-based bullshit.” This statement is false and defamatory; Mr. Miller’s work does not require a client to hold any faith, and he has worked with non-believers and atheists.
Um. Okay, it appears that Miller's lawyer is misrepresenting what "faith-based" means in this context. Guttormson isn't saying that those seeing Miller are expected to "have faith in a certain religion." She's saying that the treatment by Miller is not evidence based but is based on someone's blind "faith" in Miller being able to actually do something. And, besides, Miller's own words show that he's pitching a bunch of faith-based quackery. In the video clip, he himself explains the process, noting talking first about how he talks to people who come to them about things that happened in their childhood, like "traumas" that might explain their illnesses (really) and then says:
And then after we get through this, we put them on the table, and great holy spirit comes and breaks up dark cellular structure that creates any illness. Because I believe that illnesses are of a dark path.
That's like the definition of "faith-based" right there.
The other "defamation" claim is about the title of the video, which refers to Miller as a "con man." For the most part, courts don't consider phrases like that defamatory though (there are some exceptions, but it very much depends on context and if they're alleging a very specific thing, rather than a general insult). The link there is from Perle & Williams on Publishing Law and notes:
As Dean Prosser observed, "[A] certain amount of vulgar name-calling is tolerated on the theory that it will necessarily be understood to amount to nothing more." Thus, "communism" is too amorphous a characterization to be actionable, as is the term "grifter." The term "crook" has been held by one court to be a word of general disparagement rather than an allegation of specific criminal conduct, and thus was not slander; a restaurant critic's remark that a restaurateur was a "pig" and a television news editorial that referred to a chiropractor as a "quack" and a "cancer con artist" were held to be expressions of opinion; the words "those bastards" were held "mere epithets... as terms of abuse and opprobrium" and as such were not actionable for defamation; referring to a judge as "incompetent," "arrogant," "biased," and "one of the 10 worst judges in New York" was not held to be defamatory; calling a stockholder a "silly, stupid, senile bum" was not held to be slanderous; referring to Carl Sagan as a "butt-head astronomer" was held not libelous; and referring to a masonry contractor as a "shithead" was held not actionable....
In short, the likelihood that calling Miller a "con artist" is "defamation," let alone "defamation per se" as the lawsuit alleges, is... quite unlikely.
Even more to the point, this was a video that almost no one had seen. And now, because of this lawsuit, not only are tons more people checking it out, even more people will start investigating Adam Miller and the claims he makes about his "healing" services. Miller's website has gone down, but a quick look through the internet archive shows that it's chock-full of quackery (note to Miller's lawyer: that's not defamatory, so buzz off):
What this healing work is...
The Great and Holy Beings, such as Mother Mary, Jesus, Buddha, Quan Yin, Saint Germain, Archangel Michael and many others come into a person's body and transmute with light every single cell and raise the vibratory rate. In other words, diseases or injuries in the body have a very low, darkened vibration and when a Holy Being works with any person it changes the cellular structure permanently and the issue that is being worked on will never come back. This work is permanent. It is important to understand that Adam Miller is not a conduit, or psychic or related to any other work on the planet. This work is a result of Adam's death experience. Adam Miller would never claim to do this work himself. It is done by Holy Beings only.
So, uh, yeah. And he's the one claiming that "faith-based bullshit" is defamatory? Yikes.
Meanwhile, before filing the lawsuit, it appears that Miller posted another video announcing his response to the video above. In it he notes that a lawsuit is being prepared. But he also has a bunch of his "happy clients" give testimonials or complain about Guttormson, claiming that what she said was, like, really mean and "unprofessional." If Miller had merely posted his response including such testimonials, that would be perfectly fine. You deal with speech you dislike with more speech. But suing someone with bogus claims of defamation and copyright infringement? When you're spewing quackery? Not only is that going to flop in court, it's just going to lead a lot of people to examine what you're selling yourself...
There are all sorts of issues with the whole "right to be forgotten" ruling in Europe from a few months back. However, some of the confusion around it has resulted in people thinking it's something that it totally isn't -- leading to some rather public revelations of astoundingly thin skins. Take the case of pianist Dejan Lazic who apparently was not pleased with a less than sparkling review the Washington Post gave him four years ago. The review really isn't that bad. It basically just says the performance didn't quite live up to expectations, and someone as talented as Lazic should be able to do better. Lazic's response? Send the Washington Post (not Google) a demand to take down that review under the right to be forgotten ruling. Let's count the ways that this is profoundly mistaken:
The ruling only applies to "data controllers" -- i.e., search engines in this context -- and not the publishers themselves. That was clear from the ruling.
The ruling applies to search engines in Europe, not newspapers in the US.
The ruling is not supposed to apply to people in the public eye, so famous world-traveling musicians don't count.
The purpose is to remove outdated information, not things like a review of a performance.
It most certainly is not, despite Lazic's stated belief, supposed to be about letting someone control "the truth" about themselves.
Because of all of this, the lukewarm review of Lazic's performance from 2010 is getting lots of new attention.
Because of all of this, Lazic's views on censorship, free speech and his own personal reviews is now widely known.
Lazic, however, is big on this "truth" thing -- and apparently, negative reviews are not the truth, and thus should be removed:
“I so often listen to a concert, and then the next day read about it in the newspapers — read something that is simply too far from the truth,” Lazic complained. “This is something I, as an artist, am seeking and looking for my whole life: the truth.”
There's a simple way to avoid that: don't read your own reviews. Or, recognize that people have opinions and not everyone is going to like everything you do. But Lazic, apparently, thinks that an individual should have the right to edit others opinions of him or herself:
We ought to live in a world, Lazic argues, where everyone — not only artists and performers but also politicians and public officials — should be able to edit the record according to their personal opinions and tastes. (“Politicians are people just like you and me,” he explains.) This is all in pursuit of some higher, objective truth.
Not only that, but apparently a negative opinion, according to Lazic, is "defamatory." That's a rather interesting definition of defamatory that few legal statutes would agree with, because it's wrong.
“Defamatory, mean-spirited, opinionated, one-sided, offensive [and] simply irrelevant for the arts,” is how he put it.
The review itself doesn't appear to be, well, any of those things necessarily. But that's Lazic's opinion, which he's entitled to. Well, except, based on Lazic's own "rules" for truth, it certainly seems like the author of his original review, Anne Midgette, should now have the right to claim that Lazic's opinion of her opinion is "offensive" and have it deleted as well.
Except that's' not how it works.
And it's especially bizarre in the world of the arts, where reviews and criticism are quite common. Living in a world where people can delete negative reviews may feel good, but it makes no sense at all. It's a world in which the worst performers are never driven to improve because just about anyone can just disappear a negative review because they disagree with it.
from the good-thing-we-never-bought-anything-from-roca-labs dept
Roca Labs is a company that describes itself as a manufacturer of "dietary supplements" some of which they label with highly questionable claims that I imagine would not be supported by anything the FDA would consider to be credible evidence. In particular, they have something called "Gastric Bypass Alternative" which claims to help people lose weight -- though I would treat such claims skeptically without further proof. Indeed, it appears that many of Roca Labs' buyers are not happy about it. The Better Business Bureau gives Roca Labs an F grade due to the large number of complaints, many of which remain unresolved. Meanwhile the site PissedConsumer also has a bunch of complaints about Roca Labs and its products -- and it appears that the PissedConsumer page ranks rather highly on Google for searches on Roca Labs. Roca Labs is -- apparently -- not happy with that.
So it has now sued the parent company of PissedConsumer, Consumer Opinion Corp, trying to get the reviews taken down. The lawsuit is worth reading. It claims that PissedConsumer is engaged in "deceptive and unfair trade practices" and that part of this is... because customers of Roca Labs agree to never say anything negative about the company.
Roca sells its products directly to the public and in exchange a discounted price, Roca's customers agree under the terms
and conditions of said purchase that regardless of their outcome, they will not speak, publish, print, biog or write negatively about Roca or its products in any forum.
Of course, any such agreement is of questionable legality. However, we've certainly been seeing a lot of these questionable "no negative reviews or you pay" agreements showing up lately.
But, you say, PissedConsumer isn't the issue here, right? After all, the company never agreed to those conditions, even if the buyers did agree to them (whether or not they're legally sound). Roca is trying to get around that by arguing that because it has this clause and because PissedConsumer urges angry consumers to complain, the company is "tortiously interfering" with Roca's business because it's encouraging people to break the agreement. I'm not joking.
Defendants deliberately and tortiously interfere with Roca Lab's customers by encouraging them
to breach their customer agreement with Roca as Defendants author or co-author false, malicious and
negative posts about Roca that are published on their subject website and Twecred to Twitter's 271
Where to start? First of all, no. Almost everything there is ridiculous. Presenting a platform for people to express their own opinions is not encouraging them to break any contract (which, again, is of dubious legality in the first place). Second, the site is not authoring or co-authoring the posts. Third, there's no evidence that anything being posted is "false." Fourth, what does Twitter's total user base have to do with anything? It appears that @PissedConsumer's account has a few thousand followers.
None of this matters anyway, because even if any of the other arguments made sense (and none of them seem to make much, if any, sense) PissedConsumer is clearly well protected by Section 230 of the CDA, which protects websites from the actions of their users. And, of course, PissedConsumer and its legal team are well aware of all this having hit back at previous bogus legal threats in the past. I don't expect Roca Labs will get very far with this complaint. However, if you'd like to see which complaints Roca Labs especially wants deleted, check page four of the complaint below, where the company conveniently lists out the statements it doesn't like. And, because they're so wrong on just about every other legal claim, it seems worth noting that many of them are clearly statements of opinion, rather than anything that would be clearly defamatory anyway (and if they were defamatory the company would need to go after those individuals who made them in the first place, rather than the company hosting the content).
A food blogger in France has been fined 1500 euros ($2,040 USD) for writing a negative review of a restaurant. According to Arret Sur Images (translated), Caroline Doudet wrote an unflattering review of Il Giardino, an Italian restaurant in Cap-Ferret, France in August of 2013 on her blog Les Chroniques Culturelles. She was brought to court six months later by the restaurant.
Doudet's review is actually a blog post, one that would require readers to do a little digging to get past the normal review sites. As far as I can tell from the translation, Doudet portrayed the lousy service she encountered in a far more humorous fashion than most negative reviews, all the while clearly pointing out the deficiencies she encountered.
So, rather than address the issues, or simply disregard the single voice complaining about the three waitpersons apparently needed to acquire a single round of beverages (not to mention quality issues with the food [and service] past that point), Il Giardino decided to make its mégot mal a full-blown legal affair.
It all comes back to European supervillain The Google.
Sud Ouest reports (translated) that the lawyer for the restaurant claims that the post caused "great harm" to his client because when the restaurant was Googled, the negative review was one of the first results.
Ah, yes. SEO uber alles (he said, fearlessly mixing European dialects like a trainspotting linguist). Great harm was apparently suffered and, therefore, the person who received lousy service from the aggrieved entity must pay. The court apparently agreed with this faulty line of logic (possibly due to Google's name being raised [and presumably greeted with involuntary hisses by attending countrymen]) and slapped the blogger with a hefty fine and a request that she "change the title" of the offending post.
Doudet was also charged $1,360 in court costs, bringing her total fines to a positively KlearGearian level of vindictive ridiculousness ($3,400).
There are too many things wrong with this court decision to enumerate, but Doudet's take on the fiasco sums it up beautifully.
"If bloggers do not have the freedom to write negative reviews, positive reviews make no sense either."
If businesses like Il Giardino want to continue living a "hear no evil" existence, that's fine. But no one should believe anything positive posted about the restaurant anywhere -- not if this is how the business reacts when it's criticized. Every so often, something truly defamatory should be addressed in this fashion, but just being criticized shouldn't trigger this sort of reaction. If the restaurant's Google juice is so diluted it can't outweigh a blogger, the problem lies with the restaurant, not the critic. Now that it's punished a critic, its reputation has gone completely south, something that wouldn't have happened if it had just accepted the fact that bad reviews happen and moved on.
When will they learn? Yet another company upset by a negative review on Yelp has hired a lawyer to issue a highly questionable legal nastygram threatening a defamation lawsuit if the review wasn't removed. Paul Levy from Public Citizen has the full story of Manhattan Lasik hiring Frederic Abramson to send a legal threat to Michael Linden. Linden apparently purchased a $1795 Groupon deal for Manhattan Lasik, only to discover when he showed up that Manhattan Lasik claimed he wasn't eligible for the kind of surgery the Groupon covered. Instead, they wanted him to pay an additional $1700 for a different procedure. Linden, for obvious reasons, wasn't happy and posted a negative Yelp review back in July.
A few weeks went by and Linden received a letter written by Abramson, claiming that the review was defamatory, though without saying how it was defamatory. Levy called up Abramson and found him unwilling to point out anything actually defamatory:
When I first contacted Abramson to ask what parts of the letter were allegedly false, he began by blustering that everything was defamatory, but when I laughingly asked whether it was false that the doctor “was very nice,” he quickly focused instead on the use of words like “scumbag.” Linden, he complained, had come in with a Groupon, the service covered by the Groupon would not have been right for his condition, and Linden, he said, simply refused to accept that he needed to buy a different kind of service even though, Abramson said, the reasons were given to him repeatedly. So Abramson was admitting that the underlying factual statements were true, but complaining about the opinion words used. In a similar case, a judge in Manhattan ruled that the words “scam” and “bait-and-switch” plainly reflected the consumer’s personal opinion of his dealings with a business. Abramson knows about this case, having blogged about it himself a few years ago.
Abramson also complained that discount coupons were a major source of his client’s business, and have been a source for years, and he stands to suffer serious harm if consumers learn from Yelp that his discount coupons might not be worth a four-figure investment. But as Med Express recently learned the hard way, companies can't sue for defamation just because criticism can hurt business, the criticism has to be based on deliberate falsehood. And once the words are deemed opinion, they are constitutionally protected. And by the same token, I pointed out to him that if consumers needed to worry about whether the $1700 they would be spending up front for a Groupon might not do them any good, that was valuable information for consumers that ought not be suppressed.
I like the fact that Levy calls out the fact that Abramson himself blogged about the very case that destroys his own arguments. That's a nice touch. Levy also notes that Abramson has a bit of a reputation for copyright trolling -- and got smacked down by a judge in a case we wrote about. So it's probably not a huge surprise to find out that Abramson tried the laughable trick of putting this at the bottom of his threat letter:
Please be aware that this letter is copyrighted by our law firm, and you are not authorized to publish this in any manner. Use of this letter in positing, in full or in part, will subject you to further causes of action.
Oh really now? It's a pretty despicable practice by some lawyers to try to claim that copyright prevents the public discussion of questionable legal threat letters designed to silence criticism. Levy notes that it appears some lawyers have been lined up to support Linden should this progress -- with one of them raising the question of whether or not Manhattan Lasik is guilty of false advertising with its Groupon promotions. Levy and that lawyer sent the NY Attorney General's office some info for them to investigate.
Of course, Levy also notes that, yet again, this is one of those unfortunate situations where NY doesn't have a very good anti-SLAPP law to hit back on these kinds of threats. It's yet another reminder why we need a strong and comprehensive federal anti-SLAPP law that will help protect people who are expressing their opinions and presenting factual information in reviews from legal bullying.
In August, we lamented the fact that nearly two-thirds of Americans couldn’t name a single member of the Supreme Court. At the time, we blamed it on the perceived stupidity of our nation’s population, calling for televised oral arguments in the hopes that they’d someday compete in the ratings with reality shows like Keeping Up With the Kardashians. Unfortunately, given the high court’s resistance to change and the burgeoning evidence that we live in a country that’s overflowing with Honey Boo Boos, neither is going to happen any time soon.
But that’s really beside the point, because even if SCOTUS arguments were televised, they’d likely appear on C-SPAN, a channel that some people have probably never heard of before. Another thing that some people have never heard of before is the Supreme Court itself. That was a serious statement….
According to the latest Pew Research Center survey of 1,501 adults, conducted between March 13 and 17, approximately two percent of respondents claimed that they had “never heard of” the Supreme Court, which is the highest percentage that response category’s seen since 2007. Really? Really?!
Unlike the names of our nine Supreme Court justices, knowledge of the fact that the Supreme Court exists in the first place isn’t mere trivia question fodder. This is something that people learn in grade school, and considering that many of the Court’s high-profile cases have received hours upon hours of television coverage on basic cable, it’s shocking — nay, mortifying — that some can claim they’ve never heard of highest court in all the land. In sum: America, F**K YEAH!
Among the people who have heard of the Supreme Court, the justices’ favorability ratings are near an all-time low. Here’s more info (people who’ve never heard of SCOTUS should read this S-L-O-W-L-Y):
A national survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that 52% view the court favorably, while 31% view it unfavorably. Those ratings have changed only modestly since last July, shortly after the court’s ruling to uphold most of the Affordable Care Act.
The WSJ Law Blog (sub. req.) notes that in years prior, between 1987 and 2010 in particular, the Supreme Court’s favorability rating never fell below 57%, and oftentimes was higher than 70%.
Are people just pissed off that “nine unelected people from a narrow legal background” have been responsible for many of our major democratic decisions (e.g., health care reform, immigration enforcement, affirmative action, and gay marriage)? That’s apparently what Justice Kennedy thinks, so it’s probably safe to assume that laypeople feel the exact same way.
But hey, at least these people have an opinion about the Supreme Court and know that it’s not some sort of a fictitious entity like the Justice League. We’re probably better off this way.
Defamation is only supposed to apply to cases where there's a factually false statement made about someone. It shouldn't apply to cases where the facts are accurate, or the statements are opinions. But while the US's defamation laws generally deal pretty well with this, it's not as clear elsewhere. The UK, unfortunately, is somewhat famous for its bad defamation laws, where the burden is generally on the accused to prove they didn't defame someone -- which can be an expensive process. Over the past week or so, video gaming journalists and industry watchers have been dealing with a bit of controversy. Eurogamer columnist Rab Florence wrote a column questioning the close relationship between some gaming journalists and the companies they cover, where it sometimes seems like the journalists are pitch people, rather than objective journalists. This is not a new concern, especially in video game journalism, where such accusations tend to show up pretty regularly (sometimes more accurately than others).
While a lot of the controversy is over those accusations, that's not the really controversial thing that happened. That's because part of Florence's article quoted some tweets from Lauren Wainwright, who worked for another publication, and then pointed out that the tweets at least raised concerns in his mind. Here's what he wrote:
One games journalist, Lauren Wainwright, tweeted: “Urm… Trion were giving away PS3s to journalists at the GMAs. Not sure why that’s a bad thing?”
Now, a few tweets earlier, she also tweeted this: “Lara header, two TR pix in the gallery and a very subtle TR background. #obsessed @tombraider pic.twitter.com/VOWDSavZ”
And instantly I am suspicious. I am suspicious of this journalist’s apparent love for Tomb Raider. I am asking myself whether she’s in the pocket of the Tomb Raider PR team. I’m sure she isn’t, but the doubt is there. After all, she sees nothing wrong with journalists promoting a game to win a PS3, right?
Another journalist, one of the winners of the PS3 competition, tweeted this at disgusted RPS writer John Walker: “It was a hashtag, not an advert. Get off the pedestal.” Now, this was Dave Cook, a guy I’ve met before. A good guy, as far as I could tell. But I don’t believe for one second that Dave doesn’t understand that in this time of social media madness a hashtag is just as powerful as an advert. Either he’s on the defensive or he doesn’t get what being a journalist is actually about.
The first is that a lot of people want to know more about why I made the changes and issued an apology. The answer is that Lauren Wainwright threatened us with legal action and made it clear she would not back down, at which point we took legal advice and ultimately made the decision to remove the paragraphs. It was not a decision that I took lightly. One objection to this action that I've read online is that there was no libel. All I can really say is that the advice we received meant that removing the offending text and apologising to Lauren was the right course of action to take. We also considered the fact that the article wasn't really about her but about all of us, and I felt that the edited version did not change Rab's meaning.
It's entirely possible that Eurogamer removed the content because of the cost that would be involved in fighting off a lawsuit, but it is a big issue to see a journalist threaten another publication over quoting her and expressing an opinion. Wainwright could have merely responded to the questions directly -- but going so far as to threaten litigation is ridiculous and deserves to be called out. In fact, as Erik Kain at Forbes points out in the link above, it's not just ridiculous, it's hypocritical, since Wainwright herself has a history of quoting others' tweets and then adding commentary.
What it highlights is that she apparently didn't like Florence's opinion, which is clearly stated as his opinion. He worries about even the appearance of possible bias, which is a reasonable position to take. But rather than leading to an interesting discussion about bias and journalism, it instead went into this ridiculous detour about defamation law and censorship over criticism.
Being unable to graciously accept financial criticism isn't just an American problem, however. As several European nations continue their slide into bankruptcy, their respective governments have stepped up to do the only thing that makes sense: ban short sales on government-backed bank shares (following on a similar plan to ban negative ratings). It's yet another case of governments attempting to suppress expression it doesn't like (i.e., "We think failure is the most likely option.") through legislation. And as Matt Levine of Dealbreaker explains, there's a whole lot of unintended consequences to banning "sad thoughts about banks:"
This is hard to believe because all European banks are obviously well capitalized and any suggestion to the contrary is just rumor and speculation. But! Sometimes things go wrong. Sometimes banks need to raise money. When equity investors are staying away from them, sometimes they do this by selling convertible bonds...
The short sale bans are mostly for just 15 days, but repeatedly changing the rules in the financial markets will have effects well beyond the brief share-price gains. If you're a convertible arbitrage investor, it's now pretty clear that you should never buy convertibles issued by a European bank, because you may not be able to hedge when you need to. Which can't be good for the banks' future capital raising needs.
Oddly enough, the protectionist legislation meant to protect the banks from "evil" speculation will also work against their ability to raise funds in the future, which extends the damage from "just right now" to "an indefinitely longer period."
Then there's this bit of extremely broad terminology coming from Spain's entry into the "the only correct position is a positive position" ban-happy sweepstakes:
This preventive ban affects any trade on equities or indices, including cash equities transactions, derivatives in regulated markets or OTC derivatives, that has an effect of creating a net short position or increase a previous one, even if on an intraday basis. A net short position means any position resulting in a positive economic exposure to falls in the price of the stock.
In much simpler words: investors are not allowed to profit when stock prices dip. This also means that investors can't mix in a few shorts with the rest of their investments to insulate themselves against price drops. Or rather, that they can do that, but only if the end result of the investments is that they lose money when stock prices fall. Spain, it would seem, is only going to allow bullish investments despite the realities of the market, and it will be watching this on a day-to-day basis, if the language above is to be believed. Adios, bear market day traders!
France ties things down even further in its extensive AMF document:
3 - Is an investor allowed to create a net short position in one of the securities concerned by using derivatives? No, investors are not allowed to use derivatives to create a net short position; they may only use derivatives to hedge, create or extend a net long position.
France is also savvy to other devious, speculative moves as well:
6 - Are trades in index derivatives allowed where the basket of securities includes one or more of the securities concerned? a) Investors exposed to the equity market are allowed to hedge their general market risk by trading in index derivatives. In this context, the AMF accepts the marginal net short positions in the securities concerned that may result from that trading in index derivatives. b) Trading in index derivatives for any other purpose than hedging general market risk is not allowed unless the resulting net short positions in the securities concerned are offset by long positions.
Again, this overly broad ban against speculators who have the audacity to express their lack of confidence in a financial system via their market activity will also steamroll "legitimate" investors who are just looking to "not lose money," as Levine points out:
We wonder how you would test whether a net short position in an index derivative is for the purposes of "hedging general market risk" or for the purposes of "profiting on spreading false rumors" (or other non-legitimate purposes, like hedging specific market risk). Presumably anyone shorting European indexes does so because they don't want to lose money when the market goes down. Even speculators.
Oh, and one more thing: these bans are still in effect if you're a citizen of these short-sale-banning countries, no matter which country you actually reside and/or do business in:
The Decision applies to any natural or legal person, French or foreign, regardless of whether trading takes place in France or in another country, or on a regulated market or not.
All of this ridiculous legislation is due to various governments suddenly developing very thin skin when investors insult them tangentially with their financial decisions and opinions. There's nothing to be gained by banning short sales and plenty of unintended consequences to unleash into an already-disrupted marketplace. Levine sums up their attitude this way:
You take shorting of bank shares as a personal affront, and your goal is not to have functioning markets but just to prove that you’re tough.
While I'm sure most governments would love all of their citizens to believe that their respective nations will overcome all odds and rise to greatness once again, in the meantime, investors are still going to bet on what is likely, rather than just wrapping themselves in the flag and throwing their money into whatever the legislative body deems to be proper, patriotic investments.