from the this-is-philanthropy? dept
Earlier this week we noted that Peter Thiel’s legal vendetta against Gawker went way beyond just the Hulk Hogan case. In fact, it appeared that Thiel not only paid the lawyer, Charles Harder, to set up his own legal practice (without revealing to Holder who was really paying the bills), but basically sought to help pay the bills of lots of folks pushing legal claims on Gawker, no matter how tenuous. That included a questionable labor dispute (where even the plaintiff said he felt used by the lawyer) and a weird defamation case in which the court easily tossed out the defamation claim against Gawker, but the plaintiff, Meanith Huon, settled the claim against Above The Law (where his argument was marginally stronger), but appealed the ruling against Gawker, telling the court that he wasn’t concerned about the appeal because he was “getting support from Hulk Hogan’s lawyers in California.” The deeper you look at the Huon case, the more ridiculous it seems. The Forbes report (adblocker blocker warning) noted at one point:
Harder didn?t even know who was funding the litigation until FORBES broke the news in May. What he surely did know: The checks cleared. And there was presumably more where that came from, if he could find more cases.
It would appear that the checks are still clearing, because Harder is threatening Gawker with yet another defamation lawsuit, this time involving a silly story about Donald Trump’s hair. He’s not threatening on behalf of Trump, but rather on behalf of the firm that the Gawker piece suggests may be “treating” Trump’s hair, a company called Ivari International.
Gawker originally did not actually post Harder’s threat letter, because it included a completely bogus claim that the letter itself could not be republished due to copyright:
This letter is confidential and protected by applicable Copyright law, and therefore may not be copied, published, disseminated or used by any person for any purpose, other than internally at your company and its outside legal representatives for purposes of evaluating the claims herein and complying with the foregoing demands.
We see these kinds of notices all the time, and know that you absolutely can republish such threat letters without fear of actual infringement, but as Gawker’s reporter rightly notes, doing so might only give Harder yet another opportunity to pile on a questionable lawsuit. After some consideration, however, Gawker changed its mind and posted the letter. It’s as ridiculous as you’d expect. It lists out 19 specific statements from the original article, which it claims are false and defamatory. At the very least, that’s more advanced than most purely bogus threats that don’t highlight exact statements.
Still, the key statements that Harder claims are defamatory are taken directly from other lawsuits against Ivari, and there’s what’s known as fair reporting privilege, which allows you to quote what’s found in a lawsuit and not be liable as if you’d said it yourself. Many of the other statements are minor issues that hardly rise to the level of defamation in any sense of the term, let alone hitting the necessary standards of being done recklessly with malicious intent, as would be necessary for a defamation claim to succeed. Incredibly, in the very first item, Harder even changes a word to misrepresent what Gawker’s article said. Here’s from the Gawker article:
What?s more, Ivari?s New York location was inside Trump Tower?on the private floor reserved for Donald Trump?s own office.
Note the “was inside” statement? Here’s the line that Harder claims is defamatory:
“What’s more, Ivari’s New York location is inside Trump Tower?on the private floor reserved for Donald Trump?s own office.”
Notice a difference? That’s right, in Harder’s version he changes “was” to “is.” Many of the other claims are of a similarly dubious nature.
Separately, Harder’s letter claims this is a defamatory statement:
Ivari’s business brochure refers to microcylinders as “microextensions.”
Except… the Gawker article doesn’t actually do that. Rather it just asks a question about whether or not the two things are the same:
At the very least, microcylinders would certainly explain how a 69-year-old man could grow hair with the capacity to effectively wrap itself around the circumference of his head several times over. Without having direct access to Donald Trump?s head, of course, it?s difficult to say for sure exactly how these attachments would function. Are they simply a web of additional hair as described in the Roach lawsuit? Do the microcylinders include what the Ivari brochure dubs ?microextensions,? ensuring extraordinary length?
That’s not what the Harder lawsuit implies Gawker said at all.
Then there are clear statements of opinion, such as the Gawker author stating that a hair treatment method from Canada “appears to be fairly similar to” Ivari’s process. “Appears.” In other words, it’s an opinion, not a statement of fact. You can’t sue over statements of opinion. There’s the claim in the threat letter that Ivari “often depicts himself as a doctor.” By itself, that claim could potentially be defamatory, but Harder leaves out that Gawker didn’t actually say that. Rather it quoted a lawsuit that said that, and that’s protected under the fair reporting privilege. The only other claim that could be possibly defamatory is one claiming that Ivari had its license suspended in California for tax-related reasons. Gawker’s original story links to the California Secretary of State’s website from which it pulled the records. It’s possible that Gawker’s reporting was wrong from its research, but making a good faith error hardly would rise to the level necessary for a defamation claim.
Gawker has also published its own response to Harder, which is worth a read.
I write in response to your June 9 letter in which you demand that an article about Donald Trump’s hair be unpublished. You are requesting the retraction of an investigatory news article revealing information about the presumptive Republican presidential nominee that he might consider unflattering. Yet, you say your takedown demand is made on behalf of Edward Ivari. This is a vastly overbroad demand to be made for Mr. Ivari, who plays only a part in the article about Donald Trump. It’s also a surprising demand to be made by Mr. lvari considering that he had ample requests from our reporter to contribute to the article, and because you take no issue with the central thesis of the piece that Mr. Ivari has worked on Donald Trump’s hair. Further, you declare as libelous 19 statements in the article, all of which are from “lawsuits” or are innocuous on their face, such as the statement about the location of Mr. Ivari’s office. Accurate descriptions from court records and non-defamatory statements do not create viable claims for libel and are not cause to “immediately and permanently” remove a news article.
Gawker also takes issue with the demand that the threat letter not be shared:
You also demand that your letter be maintained in secret. You declare it “confidential and protected by applicable Copyright law,” and explain that this means it “may not be copied, published, disseminated or used by any person or for any purpose, other than internally at [Gawker Media] and its outside legal representatives for purposes of evaluating the claims  and complying with the  demands.” We have never agreed to such confidentiality or to limitations on what purposes we may use your letter. It is understandable, as explained above, why you would want to keep the substance of your letter private, but it is still remarkable that you would try to prevent us from making it public. At least one litigation you are responsible for is part of an admitted effort to use the legal system to destroy Gawker Media, a controversy that has vast public interest and implications. The plan was effectuated confidentially for years until the press brought it to light. We will not voluntarily keep hidden your latest legal effort against us.
Gawker’s letter further notes that if Harder provides any actual evidence of false statements, the company will correct them, but they note that nothing in the original reporting is false or inaccurate. Once again, the threat appears to be ridiculous, and little more than yet another questionable lawsuit to toss on the file against Gawker to bury the company in legal fees.
Thiel often claims to be about supporting big disruptions in technology. If he dislikes Gawker this much, why not fund competitors who will drown Gawker out of the market, rather than abusing the judicial system to have regular SLAPP-style threats made against a publication that he doesn’t like?
Filed Under: charles harder, defamation, donald trump, donald trump's hair, peter thiel, press freedom
Companies: gawker, ivari