Donald Trump famously said during the campaign that, if elected, he would "open up" our libel laws. Of course, after he was elected, in an interview with the NY Times, he walked back some of that promise, noting that someone had pointed out such laws might be used against him too:
MARK THOMPSON: Thank you, and it’s a really short one, but after all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?
TRUMP: Oh, I was hoping he wasn’t going to say that. I think you’ll be happy. I think you’ll be happy. Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.
And now he's had some more time to think about that, and hopefully he's pretty happy with how carefully our libel laws are designed to protect free speech, because they just protected Donald Trump himself from a questionable defamation lawsuit. The lawsuit was filed by Cheryl Jacobus about some tweets from the now-President elect. As summarized by Eriq Gardner over at The Hollywood Reporter:
Jacobus sued Trump and his former campaign manager Corey Lewandowski over comments made in the midst of a heated Republican primary. Seeking $4 million in damages, she alleged in her complaint that the Trump campaign tried to recruit her in May 2015, even attempting to entice her with the prospect of a post-campaign job at Fox News. She says Lewandowski told her that Trump was very close to Roger Ailes. She further claimed of coming to the judgment that working for Trump was untenable because Lewandowski was a "powder keg."
In January 2016, she appeared on CNN to discuss Trump's decision to skip a primary debate on Fox News and opined that Trump was "using the Megyn Kelly manufactured kerfuffle as an excuse." A few days later, she returned to Don Lemon's show and was dubious about Trump's claims of self-funding his campaign.
This may have set Trump off. In one tweet, he wrote how he "turned her down twice and she went hostile. Major loser, zero credibility."
Trump filed for a motion to dismiss, and argued that his statements were purely opinion -- and the judge in her ruling agreed to dismiss the case, pointing, in particular, to the nature of debate and rhetoric on Twitter. As the ruling properly notes, "context is key."
As context is key..., defamatory statements advanced during the course of a heated public debate, during which an audience would reasonably anticipate the use of "epithets, fiery rhetoric or hyperbole," are not actionable.
Later in the ruling, the judge pointed out that a bunch of angry tweets are quite different than, say, an investigative article in the NY Times.
In addition, "[t]he culture of Internet communications, as distinct from that of print media, such as newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything-goes writing style.'".... ["Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns."]). Thus, "epithets, fiery rhetoric or hyperbole" advanced on social media have been held to warrant an understanding that the statements contained therein are "vigorous expressions of personal opinion" "rather than the rigorous and comprehensive presentation of factual matter." .... [reasonable reader would believe that statements made on an Internet blog during sharply contested election generally referencing "downright criminal actions" were opinion, "not factual accusation of criminal conduct"]).
Consequently, "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact."....
Similarly, comments made on television talk shows, given the "give and take" of the show, and the "spirited" verbal exchanges between the host and guest, and the "at times heated" "interplay with audience members," are deemed nonactionable opinion.
And what that leads to is Trump's statements simply aren't defamation -- because our defamation laws are designed to (1) protect freedom of expression and (2) take context into account:
Trump's characterization of plaintiff as having "begged" for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff's a state of mind and is therefore, not susceptible of objective verification.... To the extent that the word "begged" can be proven to be a false representation of plaintiff's interest in the position, the defensive tone of the tweet, having followed plaintiff's negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel. Lewandowski's comments, overall, are speculative and vague, and defendants' implication that plaintiff was retaliating against them for turning her down, notwithstanding the unmistakable reference to her professional integrity, is clearly a matter of speculation and opinion.
Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.... His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration....
Got that? The very nature of our libel laws are designed to enable and encourage public discourse and debate -- even recognizing that it sometimes gets heated and involves insults -- and Twitter, blogs and social media are some of the best representations of that. This is why Trump should be quite happy that our libel laws are as they stand today, and that there's a strong First Amendment bar that has to be cleared to bring a defamation lawsuit against someone, like Donald Trump, who engages in name calling and verbal attacks on someone he disagrees with. This is exactly what the First Amendment is about:
... with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants' statements as opinion, even if some of the statements, viewed in isolation could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.
And that, right there, is why we have strong defamation laws. Even if you dislike Trump and what he stands for (and if you dislike his petty squabbles on Twitter), you should celebrate this ruling for a variety of reasons: it upholds the First Amendment and supports free expression online and it helps demonstrate to Trump himself how important the protections built into our defamation laws today can be.
Earlier today we posted a story about Senator Ron Wyden's letter to Attorney General Loretta Lynch, in which he asks (yet again) for the DOJ to disclose a secret 2003 legal opinion, and also notes that it appears the DOJ lied to the court in a FOIA lawsuit by the ACLU, as the DOJ seeks to block an attempt to force it to release that document. In our post, we pointed to an excellent post by Marcy Wheeler exploring some of the possible "misrepresentations" that the DOJ may have made in its filing -- however, her site, EmptyWheel.net is getting hit today with some sort of attack and the story is down. As we both agree that this is an important story that needs to be seen, at Marcy's request, we're reposting her story here.
I've written a bunch of times about an OLC memo Ron Wyden keeps pointing to, suggesting it should be declassified so we all can know what outrageous claims DOJ made about common commercial service agreements. Here's my most complete summary from Caroline Krass' confirmation process:
Ron Wyden raised a problematic OLC opinion he has mentioned in unclassified settings at least twice in the last year (he also wrote a letter to Eric Holder about it in summer 2012): once in a letter to John Brennan, where he described it as "an opinion that interprets common commercial service agreements [that] has direct relevance to ongoing congressional debates regarding cybersecurity legislation." And then again in Questions for the Record in September.
Having been ignored by Eric Holder for at least a year and a half (probably closer to 3 years) on this front and apparently concerned about the memo as we continue to discuss legislation that pertains to cybersecurity, he used Krass' confirmation hearing to get more details on why DOJ won't withdraw the memo and what it would take to be withdrawn.
Wyden: The other matter I want to ask you about dealt with this matter of the OLC opinion, and we talked about this in the office as well. This is a particularly opinion in the Office of Legal Counsel I've been concerned about — I think the reasoning is inconsistent with the public's understanding of the law and as I indicated I believe it needs to be withdrawn. As we talked about, you were familiar with it. And my first question — as I indicated I would ask — as a senior government attorney, would you rely on the legal reasoning contained in this opinion?
Krass: Senator, at your request I did review that opinion from 2003, and based on the age of the opinion and the fact that it addressed at the time what it described as an issue of first impression, as well as the evolving technology that that opinion was discussing, as well as the evolution of case law, I would not rely on that opinion if I were–
Wyden: I appreciate that, and again your candor is helpful, because we talked about this. So that's encouraging. But I want to make sure nobody else ever relies on that particular opinion and I'm concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it's not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I'm trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?
Krass: No I do not currently have that authority.
Wyden: Okay. Who does, at the Justice Department?
Krass: Well, for an OLC opinion to be withdrawn, on OLC's own initiative or on the initiative of the Attorney General would be extremely unusual. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.
Wyden: I appreciate that and you were very straightforward in saying that. What concerns me is unless the opinion is withdrawn, at some point somebody else might be tempted to reach the opposite conclusion. So, again, I appreciate the way you've handled a sensitive matter and I'm going to continue to prosecute the case for getting this opinion withdrawn.
The big piece of news here — from Krass, not Wyden — is that the opinion dates to 2003, which dates it to the transition period bridging Jay Bybee/John Yoo and Jack Goldsmith's tenure at OLC, and also the period when the Bush Administration was running its illegal wiretap program under a series of dodgy OLC opinions. She also notes that it was a memo on first impression — something there was purportedly no law or prior opinion on — on new technology.
Back in November, ACLU sued to get that memo. The government recently moved for summary judgment based on the claim that a judge in DC rejected another ACLU effort to FOIA the document, which is a referral to ACLU's 2006 FOIA lawsuit for documents underlying what was then called the "Terrorist Surveillance Program" and which we now know as Stellar Wind. Here's the key passage of that argument.
The judgment in EPIC precludes the ACLU's claim here. First, EPIC was an adjudication on the merits that involved the district court's reviewing in camera the same document that is at issue in this litigation, and granting summary judgment to the government after finding that the government had properly asserted Exemptions One, Three, and Five – the same exemptions asserted here – to withhold the document. See Colborn Decl. ¶ 13; EPIC, 2014 WL 1279280, at *1. Second, the ACLU was a plaintiff in EPIC. Id. Finally, the claims asserted in this action were, or could have been, asserted in EPIC. The FOIA claim at issue in EPIC arose from a series of requests that effectively sought all OLC memoranda concerning surveillance by Executive Branch agencies directed at communications to or from U.S. citizens.2at See id. Even if the ACLU did not know that this specific memorandum was included among the documents reviewed in camera by the EPIC court, the ACLU had a full and fair opportunity to make any and all arguments in seeking disclosure of that document. Indeed, in EPIC, the government's assertion of exemptions received the highest level of scrutiny available to a plaintiff in FOIA litigation—the district court issued its decision after reviewing the document in camera and determining that the government's assertions of Exemptions One, Three, and Five were proper. Colborn Decl. ¶ 13. The ACLU's claim in this lawsuit is therefore barred by claim preclusion.
2 One of the FOIA requests at issue in EPIC sought "[a]ll memoranda, legal opinions, directives or instructions from [DOJ departments] issued between September 11, 2001, and December 21, 2005, regarding the government's legal authority for surveillance activity, wiretapping, eavesdropping, and other signals intelligence operations directed communications to or from U.S. citizens." Elec. Privacy Information Ctr. v. Dep't of Justice, 511 F. Supp. 2d 56, 63 (D.D.C. 2007).
Wyden just sent a letter to Loretta Lynch disputing some claim made in DOJ's memorandum of law.
I encourage you to direct DOJ officials to comply with the pending FOIA request.
Additionally, I am greatly concerned that the DOJ's March 7, 2016 memorandum of law contains a key assertion which is inaccurate. This assertion appears to be central to the DOJ's legal arguments, and I would urge you to take action to ensure that this error is corrected.
I am enclosing a classified attachment which discusses this inaccurate assertion in more detail.
Here are some thoughts about what the key inaccurate assertion might be:
ACLU never had a chance to argue for this document as a cybersecurity document
Even the section I've included here pulls a bit of a fast one. It points to EPIC's FOIA request (these requests got consolidated), which asked for OLC surveillance memos in generalized fashion, as proof that the plaintiffs in the earlier suit had had a chance to argue for this document.
But ACLU did not. They asked for "legal reviews of [TSP] and its legal rationale." In other words, back in 2006 and back in 2014, ACLU was focused on Stellar Wind, not on cybersecurity spying (which Wyden has strongly suggested this memo implicates). So they should be able to make a bid for this OLC memo as something affecting domestic spying for a cybersecurity purpose.
DOJ claimed only Wyden had commented publicly about the document, not Caroline Krass
DOJ makes a preemptive effort to discount the possibility that Ron Wyden's repeated efforts to draw attention to this document might constitute new facts for the ACLU to point to to claim they should get the document.
Nor is there any evidence the memorandum has been expressly adopted as agency policy or publicly disclosed. Colborn Decl. ¶¶ 23-24. Although the ACLU's complaint points to statements about the document by Senator Wyden, he is not an Executive Branch official, and his statements cannot effect any adoption or waiver
The ACLU may argue that statements made by Senator Ron Wyden regarding the document, including in letters to the Attorney General, constitute new facts or changed circumstances. See Compl. ¶ 2 ("In letters sent to then–Attorney General Eric Holder, Senator Wyden suggested that the executive branch has relied on the Opinion in the past and cautioned that the OLC's secret interpretation could be relied on in the future as a basis for policy."). But such statements do not constitute new facts or changed circumstances material to the ACLU's FOIA claim because they do not evince any change of the Executive Branch's position vis-à-vis the document or otherwise affect its status under FOIA. See Drake, 291 F.3d at 66; Am. Civil Liberties Union, 321 F. Supp. 2d at 34. As the Senator is not an Executive Branch official, his statements about the document do not reflect the policy or position of any Executive Branch agency. See Brennan Center v. DOJ, 697 F.3d 184, 195, 206 (2d Cir. 2012); Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 356-59 (2d Cir. 2005); infra at 11-12. Senator Wyden's statements are simply not relevant to whether the document has been properly withheld under Exemptions One, Three, and Five, and do not undermine the applicability of any of those exemptions. Additionally, the Senator has made similar statements regarding the document at issue in letters sent during at least the last four years. Compl. ¶ 2. Thus, the Senator's statements regarding the document are not new facts since they were available to Plaintiffs well before the district court ruled in EPIC.
That's all well and good. But the entire discussion ignores that then Acting OLC head and current CIA General Counsel Caroline Krass commented more extensively on the memo than anyone ever has on December 17, 2013 (see my transcript above). This is a still-active memo, but the then acting OLC head said this about the memo in particular.
I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.
That seems to be new information from the Executive branch (albeit before the March 31, 2014, final judgment in that other suit).
I'd say this detail is the most likely possibility for DOJ's inaccuracy, except that Krass' comments are in the public domain, and have been been written about by other outlets. It wouldn't seem that Wyden would need to identify this detail in secret.
(I think it's possible some of the newly declassified language in Stellar Wind materials may be relevant to, but I will have to return to that.)
The withheld document is a 19-page OLC legal advice memorandum to the General Counsel of an executive branch agency, drafted at the request of the General Counsel, dated March 30, 2003 and signed by OLC Deputy Assistant Attorney General John Yoo. The memorandum was written in response to confidential communications from an executive branch client soliciting legal advice from OLC attorneys. As with all such OLC legal advice memoranda, the document contains confidential client communications made for the purpose of seeking legal advice and predecisional legal advice from OLC attorneys transmitted to an executive branch client as part of government deliberative processes. In light of the fact that the document's general subject matter is publicly known, the identity of the recipient agency is itself confidential client information protected by the attorney-client privilege.
But their claim that ACLU has already been denied this document under FOIA is based on the claim that this document is the same document as one identified in a Steven Bradbury declaration submitted in the Stellar Wind suit. Here's how he described the document.
DAG 42 is a 19-page memorandum, dated May 30, 2003, from a Deputy Assistant Attorney General in OLC to the General Counsel of another Executive Branch agency. This document is withheld under FOIA Exemptions One, Three, and Five.
This may be an error (if it is, Bradbury probably is correct, as March 30, 2003 was a Sunday), but a document dated March 30, 2003 cannot be the same document as one dated May 30, 2003. If it's not a simple error in dates, it may suggest that the document the DC court reviewed was a later revision, perhaps one making less outrageous claims. Moreover, as I'll show in my post on newly learned Stellar Wind information, the change in date (as well as the confirmation that Yoo wrote the memo) make the circumstances surrounding this memo far more interesting.
The document may not have been properly classified
As noted, this is a March 2003 OLC memo written by John Yoo. That's important not just because Yoo was freelancing on certain memos at the time. But more importantly, because a memo he completed just 16 days earlier violated all guidelines on classification. Here's what former ISOO head Bill Leonard had to say about John Yoo's March 14, 2003 torture memo.
The March 14, 2003, memorandum on interrogation of enemy combatants was written by DoJ's Office of Legal Counsel (OLC) to the General Counsel of the DoD. By virtue of the memorandum's classification markings, the American people were initially denied access to it. Only after the document was declassified were my fellow citizens and I able to review it for the first time. Upon doing so, I was profoundly disappointed because this memorandum represents one of the worst abuses of the classification process that I had seen during my career, including the past five years when I had the authority to access more classified information than almost any other person in the Executive branch. The memorandum is purely a legal analysis – it is not operational in nature. Its author was quoted as describing it as "near boilerplate."! To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.
In this instance, the OLC memo did not contain the identity of the official who designated this information as classified in the first instance, even though this is a fundamental requirement of the President's classification system. In addition, the memo contained neither declassification instructions nor a concise reason for classification, likewise basic requirements. Equally disturbing, the official who designated this memo as classified did not fulfill the clear requirement to indicate which portions are classified and which portions are unclassified, leading the reader to question whether this official truly believes a discussion of patently unclassified issues such as the President's Commander-in-Chief authorities or a discussion of the applicability to enemy combatants of the Fifth or Eighth Amendment would cause identifiable harm to our national security. Furthermore, it is exceedingly irregular that this memorandum was declassified by DoD even though it was written, and presumably classified, by DoJ.
Given that Yoo broke all the rules of classification on March 14, it seems appropriate to question whether he broke all rules of classification on March 30, 16 days later, especially given some squirrelly language in the current declarations about the memo.
Here's what Colborn has to say about the classification of this memo (which I find to be curious language), after having made a far more extensive withholding argument on a deliberative process basis.
OLC does not have original classification authority, but when it receives or makes use of classified information provided to it by its clients, OLC is required to mark and treat that information as derivatively classified to the same extent as its clients have identified such information as classified. Accordingly, all classified information in OLC's possession or incorporated into its products has been classified by another agency or component with original classifying authority.
The document at issue in this case is marked as classified because it contains information OLC received from another agency that was marked as classified. OLC has also been informed by the relevant agency that information contained in the document is protected from disclosure under FOIA by statute.
As far as the memo of law, it relegates the discussion of the classified nature of this memo to a classified declaration by someone whose identity remains secret.
As explained in the classified declaration submitted for the Court's ex parte, in camera review,1 this information is also classified and protected from disclosure by statute.
Remember, this memo is about some secret interpretation of common commercial service agreements. Wyden believes it should be "declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified."
If this is something that affects average citizens relationships with service providers, it seems remarkable that it can, at the same time, be that secret (and remain in force). While Wyden certainly seems to treat the memo as classified, I'd really love to see whether it was, indeed, properly classified, or whether Yoo was just making stuff up again during a period when he is known to have secretly made stuff up.
In any case, given DOJ's continued efforts to either withdraw or disclose this memo, I'd safe it's safe to assume they're still using it.
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."
Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant
None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
You are not protected by the Speech Act.
This firm has enforced numerous judgments against corporations in your jurisdiction.
Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.
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.