Digital Media Lawyer Blog

Digital media law update: In a January 21 decision, a California Federal judge permitted a plaintiff to discover the identity of the operator of a counterfeit online poker chip business, without requiring the plaintiff to providing evidence to support its allegations. The court merely required the plaintiff to (1) show that the anonymous defendant was a real person who could be sued in a Federal court, (2) recount the steps it had taken to locate the defendant, (3) show that its action could survive a motion to dismiss, and (4) file its request for discovery with the Court. See Zynga v. Does 1-5 d/b/a Easy Chips, Northern District of California, No. 5:09-cv-05232, Order Granting in Part and Denying in Part Plaintiff Zynga's Motion for Leave to Conduct Third Party Discovery (January 21, 2010). While the standard imposed by the Court here was far lighter than that typically imposed in cases involving Internet defamation, it was not necessarily inappropriate in this case.

We have frequently written about the differing standards that courts use when confronted with a request from plaintiffs to uncover the identity of the anonymous author of material posted on the Internet. The right to speak and write anonymously is protected by the First Amendment of the U.S. Constitution -- and to an even greater extent by some State constitutions. However, the extent of the right to anonymous speech varies based on the content of the speech. At one end of the spectrum, the author of purely political anonymous speech may be given absolute protection against disclosure of his identity. At the other end, the author of defamatory speech may ultimately be given no protection from disclosure at all, since defamatory speech is considered unprotected under the U.S. Constitution. Fn1

While certain types of speech, such as defamation, may get little or no protection, a court considering a complaint is not in a position to know whether the allegations have any merit. There is always a danger that the allegations will prove untrue, or that the defendant will be able to establish a valid affirmative defense. As such, to protect the rights of anonymous authors, courts around the U.S. generally require a plaintiff to show that their claims have at least some level of merit before being permitted to discover the identity of the anonymous author of the speech at issue.

These standards can vary greatly from court to court. Some courts impose what we have termed a "light" standard, and merely required the plaintiff to show that his complaint would withstand a motion to dismiss or that it was filed in "good faith." This light standard was applied in the recent Liskula Cohen case. See In re Liskula Cohen, Supreme Court of the State of New York, County of New York: Part 11, Index No. 100012/09. While this test has different labels, it ultimately merely requires the plaintiff to show that his complaint meets pleading standards -- no evidence or proof is required.

Continue reading "Zynga v. Does d/b/a Easy Chips: California Federal Judge Applies Light Standard for Uncovering Identity of Anonymous Proprietor of On-line Business" »

The 11th Circuit has just issued an opinion in which it rejected the national community standard in Internet obscenity standards that was recently adopted by the 9th Circuit. Instead the 11th Circuit adopted the older local community standard previously announced by the Supreme Court for obscenity cases in general. See U.S. v. Little, 11th Circuit, No. 07-00170 (Feb. 2, 2010).

In a 1973 pre-Internet decision, the U.S. Supreme Court held that a local community standard should be applied in obscenity cases, so that the attitudes of the town in which the alleged violation occurred determine whether a violation has occurred. Miller v. California, 413 U.S. 15 (1973). This means that distribution of the same material might be punishable under Federal statutes in one city, but not in another.

However, in 2003 decision regarding the Child Online Protection Act (COPA), several Justices discussed whether this standard should be changed for cases involving material distributed over the Internet. See Ashcroft v. ACLU, 5335 U.S. 564 (2002). Two Justices, O'Connor and Breyer, stated that a "national standard" should be adopted for such cases. Justice O'Connor argued that because Internet publishers cannot control where their materials will be downloaded, using a "local community" standard would impose the most restrictive view of obscenity taken by any community in the country on them. This would "potentially suppress an inordinate amount of expression."

Seizing on Justice O'Connor's language, in 2009 the 9th Circuit held that "a national community standards must be applied in regulating obscene speech on the Internet . . ." U.S. v. Kilbride, 584 F.3d 1240 (9th Cir. 2009). In support of its decision, the 9th Circuit claimed that a majority of the justices in Ashcroft had supported adoption of a national community standard for Internet cases.

As we wrote in our November 5, 2009 post, the 9th Circuit got this point wrong. In fact, the opinion by Justice Kennedy, which the 9th Circuit counted as expressing support for a national community standard, actually stated that a national community standard was "neither realistic nor beyond constitutional doubt." Because only Justices O'Connor and Breyer expressed support for a national community standard, this means that the Supreme Court left the "local community" standard of Miller intact -- even for Internet cases. See also Kilbride at 1719 (noting that the Kilbride decision also had actually not reached the issue of national v. local community standards).

Continue reading "U.S. v. Little: Emerging Circuit Split on Whether National Community Standards Should Be Applied in Internet Obscenity Cases" »

In twin February 4, 2010 decisions, the Third Circuit reached opposite rulings on whether a school violated a student's First Amendment rights by disciplining him for creating a defamatory MySpace page about the school principal. In both cases, a student used an off-campus computer to create the profile. In both cases, the profile created a reaction on campus, and enraged the school principal. In both cases, the principal reacted by suspending the student. However, the 3rd Circuit found the suspension was only proper in one of the two cases. Here's why.

In the Layshock case, Justin Layshock, a 17 year old high school senior, created a "parody profile" of his principal, Eric Trosch, using his grandmother's computer. The profile included a photograph copied from the school district website and characterized Trosch as a habitual drunk and marijuana user, a "steroid freak", a "big whore" and a "big fag." Layshock "friended" several fellow students on the webpage. This caused news of it to "spread like wildfire" to most of the school's student body. The webpage was viewed by students in the school's online computer class, and three other students also created parody sites about Trosch.

Trosch complained to the local police and also instituted disciplinary proceedings against Layshock at the school. After a hearing, the school district found Layshock guilty of "gross misbehavior", "obscene, vulgar and profane language" and computer policy violations -- for use of school pictures without authorization. The school then imposed a ten-day, out-of-school, suspension on Layshock, placed him in an Alternative Education Program (for children who are unable to function in a normal classroom setting), banned him from all extra-curricular activities and prohibited him from participating the school's graduation ceremony. See Layshock v. Hermitage School District, 3d Circuit, N0. 07-4465, Opinion, Feb. 4, 2010).

In the J.S. case, J.S., a 14 year old middle school student, created a fake MySpace page for her principal, James McGonigle, using her parent's computer. The profile did not list his name, but included his photograph, which was taken from the school district's website. The website described McGonigle as a bisexual who liked "hitting on students and their parents" and "love[d] sex (of any kind)." J.S. initially set the MySpace profile as "public", but then changed the setting to private and granted "friend" status to about 20 children at the school. However, because the school computers block access to MySpace, students were only able to view the page from off-campus computers.

After learning about the website from a student, McGonigle called J.S. into his office. He told her that he was very hurt by the site and that he planned to take legal action against J.S. and her family. He later imposed a ten-day suspension on J.S., and prohibited her from attending school functions.

According to the school, the profile caused a minor disruption on campus. Two teachers had to quiet their classes while students talked about the profile, one guidance counselor had to proctor a test so another administrator could sit in on the meetings between McGonigle and J.S., and two students decorated J.S.'s locker to welcome her back following her suspension. J.S. v. Blue Mountain School District, 3rd Cir.., No. 08-4138, Opinion (Feb. 4, 2010).

Continue reading "Layshock and J.S.: The 3rd Circuit Attempts to Define the Circumstances under Which a School Can Punish a Student for Creating a Defamatory MySpace Profile" »

Digital media law update: The dominant understanding among U.S. Circuit Courts is that the Communications Decency Act is an immunity statute that protects an ISP from any kind of civil suit for publishing information from a third party. Among the Circuits that have adopted this position are the 1st, 3rd, 4th, and 10th. There have been some partial dissenters from this view, including the 7th and the 9th Circuits. See Chicago Lawyers' Committee for Civil Rights under the Law, Inc., 519 F.3d 666 (7th Cir 2008); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).

In a recent decision, the 4th Circuit has reaffirmed its position that the CDA provides ISPs with immunity from suit for information created and developed by third parties. See Nemet Chevrolet v. Consumeraffairs.com, 4th Cir., No. 08-2097 (Dec., 29. 2009).

According to the Court,

"This Circuit has recognized the 'obvious chilling effect' the 'specter of tort liability' would otherwise pose to interactive computer service providers given the 'prolific' nature of speech on the Internet . . . Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, immunity is an immunity from suit rather than a mere defense to liability: and 'it is effectively lost if a case is erroneously permitted to go to trial'. . . We thus aim to resolve the question of §230 immunity at the earliest possible stage of the case because that immunity protects websites not only from 'ultimate liability,' but also from "having to fight costly and protracted legal battles." (emphasis added).

In the Nemet case, this meant that the Court resolved the question of §230 immunity in a 12(b)(6) motion to dismiss, which was filed at the outset of the case. The Court ultimately dismissed the claim, concluding that the factual allegations in the complaint could not plausibly support an inference that Consumeraffairs.com could be considered a creator of the defamatory posts in question.

Even Circuits that have dissented from a strict immunity interpretation of the CDA have also been willing to entertain such early motions to dismiss defamation suits. See Chicago Lawyers, 521 F.3d at 672 (affirming judgment on the pleadings based on a CDA immunity defense); Barnes v. Yahoo, 570 F.3d 1096 (9th Cir. 2009) (affirming motion to dismiss negligence claim based on CDA immunity defense). This suggests that the debate over whether the CDA is an "immunity" statute may be a bit of a tempest in a teapot without much practical effect on actual court decisions.

In any event, regardless the Circuit in which an Internet defamation claim is brought, plaintiffs with a colorable CDA defense are still advised to attempt to seek dismissal at the earliest stage in the litigation possible -- such as via an anti-SLAPP motion or motion to dismiss.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Communications Decency Act update: A New Jersey Superior Court judge recently evoked controversy among First Amendment and media law experts by ordering GoDaddy, Domains by Proxy, ASP.net and Verisign to "shut down and disable" three websites which published allegedly defamatory posts. See Apex Technology Group, Inc. v. Doe, N.J. Superior Ct., Law Division, Middlesex County, No. MID-L-7878-09, Order (Dec. 23, 2009). The preliminary injunction order was issued based on the plaintiffs' claim that it had been defamed by postings that appeared on the sites www.endh1b.com, www.itgrunt.com, and www.guestworkerfraud.com. The order also directed the three websites to take down the posts, as well.

No one on the defense side was represented at the preliminary injunction hearing. The court order also suggests that no one at the domain name registries/registrar/web hosting companies received notice of or were represented at the hearing. As a result, the order appears to be rife with substantive and procedural defects. (Not an unusual result when an order is issued without the benefit of defense counsel briefing).

But what about the substantive issue at stake in this order: What rights does a person who is the object of a defamatory Internet post have to get the post removed? Can the aggrieved seek an injunction against the author of the post? If she can't locate the author, who may be anonymous, does she have the right to get an injunction against the host of the website to get it removed?

In fact, the law is somewhat unsettled in this area, and the relief available may depend on the jurisdiction in which the plaintiff sues.

• The First Amendment to the U.S. Constitution bars injunctive relief, but only until a jury trial on whether the statement in question is defamatory has been conducted.

The First Amendment to the U.S. Constitution protects freedom of speech, but this protection is not unlimited. A series of U.S. Supreme Court decisions have held that a media outlet may be enjoined from further publication of a libelous statement. See Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973). However, such an injunction may only be issued after a full jury determination that the statement is in fact defamatory. See Kramer v. Thompson, 947 F.2d 666, 676 n. 25 (3d. Cir. 1991) (summarizing cases).

Continue reading "Apex Technology v. Doe: May a Court Enter an Injunction Requiring an ISP to Take Down an Allegedly Defamatory Third Party Post?" »

Communications Decency Act update: Plaintiffs seeking to get defamatory posts removed from an online website have often been stymied by the Communications Decency Act which protects the web host from suit for publishing third party posts. However, for some time, plaintiffs have been getting around this by seeking an injunction against the original author of the post and then asking the court to enforce this injunction against the website operator under Federal Rule of Civil Procedure 65. For more on this strategy, see Eric Goldman's blog post of November 10, 2009.

However in a December 21, 2009 ruling a federal judge in the Eastern District of Illinois ruled that this strategy violates federal law. See Blockowicz v. Williams, N.D. Ill., No. 1:09-cv-03955, Memorandum Opinion and Order.

The plaintiffs in this case brought a defamation against the defendants, Joseph Williams and Michelle Ramey, for statements published on various websites, including the Ripoff Report (www.ripoffreport.com). The defendants apparently never answered the complaint and the court entered a default judgment against them, requiring them to remove their defamatory postings from the websites. However, the plaintiffs were never able to contact the defendants, and the posts remained on-line.

The plaintiffs then filed a Motion for Third Party Enforcement of Injunction to force the operators of ripoffreport.com to remove the postings from their website. Ripoff Report refused to do so, claiming that the injunction order did not apply to it.

The Court agreed. Under Federal Rule of Civil Procedure 65, an injunction binds "not only the parties to the injunction but also nonparties who act with the named party." SEC v. Homa, 514 F.3d 661, 674 (7th Cir. 2008). Other case law indicates that this means that an injunction may bind third parties who are under the control of or who are represented by the defendant. However, it does not bind third parties who act independently and who rights have not been adjudicated.

In this case, the Court found that www.ripoffreport.com acted independently of the defendants. While ripoffreport.com published the defendants' defamatory statements, submission of defamatory statements to its website was against www.ripoffreport.com's Terms of Service. There was no evidence in the record that ripoffreport.com "intends to protect defamers and aid them in circumventing court orders." There was also no evidence that www.ripofferport.com had any contact with the defendants since the injunction was entered. In short, the Court found that www.ripoffreport.com's connection to the defendants was tenuous and insufficient to force its compliance with the injunction.

In conclusion, the Court stated that it was sympathetic to the plaintiffs' plight: "they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view." But given the plaintiffs' strategy of attempting to enforce a third party injunction against an unrelated party, it had no choice.

Of course, there are other options for the plaintiffs: They could refocus their efforts on locating the original defendants, and getting them to act. In addition, the Ripoff Report might be willing to voluntarily take down the posts in question, if provided the right information.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Employers often wonder how far they have to go in preventing employees from committing crimes or torts on the Internet. In a recent decision, the Wisconsin Court of Appeals found that an employer is only required to prevent on the job misconduct that is foreseeable. But "employers have no duty to supervise employees' private conduct or to persistently scan the word wide web to ferret out potential employee misconduct." Maypark v. Securitas Security Services USA, Inc., 2009 WI APP 145 (Sept. 1, 2009).

The Maypark case centered around a security guard named Schmidt who worked for Securitas, a security company. Schmidt was stationed at Polaris Industries, a Securitas client in Osceola, Wisconsin. Schmidt worked at a guard shack at the entrance to Polaris's parking lot, where he assisted in the control of visitor and employee access. Polaris employees wore photo identification badges, which Schmidt was responsible for producing.

Sometime during 2005, Schmidt copied photographs of some 50 female Polaris employees to a flash drive -- apparently from the guard shack computer. He took them home, performed unspeakable acts on them, and then posted pictures of the adulterated photos on adult blogs he created on Yahoo!.

When Polaris was alerted to the photos, its information systems department did a search of the guard shack computer and figured who the perpetrator was. Polaris informed Securitas, which immediately terminated Schmidt after he admitted posting the images. Polaris then demanded that Schmidt remove the images from Yahoo!, which he did.

Polaris notified the Osceola police, who declined to prosecute Schmidt. Ten plaintiffs then sued Schmidt and Securitas. After a bench trial, the judge found Schmidt liable for defamation and invasion of privacy and Securitas liable for negligent training and supervision. Securitas appealed.

The Wisconsin Court of Appeal reversed based on the "foreseeability" test. To find a defendant liable on a negligence tort, a court must find that the defendant owed the plaintiff a duty of care. A common test to determine if a duty of care exists is whether it was foreseeable that the harm caused to the plaintiff would be caused by the defendant's action. A party cannot be held to be negligent if it was not reasonably foreseeable that harm might result from its act or failure to act. Sigler v. Kobinsky, 2008 WI App 183. "Failure to guard against the bare possibility of injury is not actionable negligence." Grube v. Marks, 56 Wisc.2d 424 (1972) (emphasis added).

Continue reading "How Far Must an Employer Go in Preventing Employee Internet Misconduct?" »

Digital media law: The 9th Circuit has done it again. In its ruling last week in U.S. v. Kilbride, the 9th Circuit announced that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated by email." (Case Nos. 07-10528, 07-10534, October 28, 2009). The 9th Circuit stated that its holding followed the view expressed by a majority of U.S. Supreme Court Justices in Ashcroft v ACLU, 535 U.S. 564 (2002) that application of a national community standard in Internet obscenity cases would not "generate serious constitutional concerns."

The Justices said no such thing. To the contrary, Justice Kennedy, whom the 9th Circuit includes in the majority supposedly agreeing with its holding, wrote that "it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York" through a national obscenity law. Ashcroft v. ACLU, 535 U.S. at 597. If the U.S. Supreme Court takes the appeal of Kilbride, the 9th Circuit's ruling here could well be reversed.

The Kilbride case involves the appeal of the criminal convictions of two spammers, Jeffrey Kilbride and James Schaffer, who distributed two sexually explicit images via email throughout the U.S. The Defendants' spam operation was enormous and generated some 662,000 complaints to the FTC from persons around the country.

The Defendants were ultimately charged with violations of two Federal obscenity laws -- 18 U.S.C. § 1462 and 1465, which prohibit the importation into the U.S., and the transportation in interstate commerce, of "obscene, lewd, lascivious, or filthy" books, pictures and other media. Both statutes apply to distribution of materials via the Internet, and specifically include distribution via an "interactive computer service," as defined by the Communications Decency Act. A conviction under Section 1465 has been upheld for images sent from a computer bulletin board in one state to a personal computer in another state. U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996).

Prior U.S. Supreme Court decisions have held that obscenity is to be determined by the standards of the local community in which the publication was made. However in Kilbride, the Defendants were prosecuted for their national distribution of obscene materials. As part of its case, the government called eight witnesses from various parts of the country who had filed complaints with the FTC about the Defendants' emails. These witnesses testified about the circumstances under which they had received the Defendants' emails, their reaction and attitudes towards these images and their views on pornography generally. The government also introduced evidence regarding the 662,000 other complaints they had received about the images. For its part, the defense introduced evidence regarding community attitudes towards pornography drawn solely from Arizona -- the judicial district where the case was prosecuted.

At the close of evidence, the jury was instructed that it should use the standards of the "community as a whole, that is to say by society at large, or people in general" in determining whether the images distributed by the Defendants were obscene. This community was "not defined by a precise geographic area", so the jury could consider evidence of standards existing outside Arizona. They were also told that they could consider their "own experience and judgment" as well as the evidence presented in making this determination. The jury ultimately returned a verdict finding the Defendants guilty under the two statutes.

On appeal to the 9th Circuit, the Defendants argued that these instructions were improper, because they asked the jury to apply a global or societal standard for obscenity. The Defendants claimed that because the distribution of the emails was made nationally, the District Court should have instructed the jury to apply a "national" obscenity standard.

The 9th Circuit agreed that the Defendants had a point. It cited a 2002 plurality U.S. Supreme Court decision regarding the Child Online Protection Act (COPA), in which two Justices, O'Connor and Breyer, had stated that a "national standard" should be used for laws involving distribution of obscene material over the Internet. Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700 (2002). Justice O'Connor stated that community standards for obscenity vary greatly throughout the country. However, persons using the Internet to publish materials are unable to control the geographic location of their audience. As a result, requiring Internet publishers to hold to a "local community" standard for obscenity, would require them to adopt the most restrictive view of obscenity taken by any community in the country. In Justice O'Connor's view, this would "potentially suppress an inordinate amount of expression." Id. at 587.

Continue reading "U.S. v. Kilbride: 9th Circuit's Holding that Internet Obscenity Laws Should Be Governed by a National Standard Rests on Shaky Grounds" »

A Tennessee trial court adopted a version of the "heavy" Dendrite standard for permitting discovery of the identity of the anonymous poster of an allegedly defamatory blog. However, as interpreted by the trial court, this standard was not insuperable, and resulted in an order that the plaintiffs were entitled to discovery of the identity and personal information of the blogger.

The plaintiffs in the case (Swartz v. Doe, Sixth Circuit Court for Davidson County, Tenn., No. 08C-431), Donald and Terry Swartz, are residents of Old Hickory, Tennessee, and are involved in widely varied businesses, including rehabilitation and sale of real estate and operation of recovery facilities for substance abusers. (It seems likely that the businesses are related. Perhaps the Swartzs convert the buildings they rehabilitate into recovery centers)

The main defendant in the case, John Doe #1, is the author of a blog entitled "Stop Schwartz", located a http://stopschwartz.blogspot.com. The blog allegedly accused the Swartzs of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, etc. Perhaps Doe #1 is a neighbor of some of the Swartz properties and doesn't like addicts being moved into buildings on his block. (Note: the blog was still up as of October 30, 2009, but the allegedly offensive posts had long been removed and no entries had been posted for several months).

The Swartzs filed suit in 2008 against Doe #1. They then issued subpoenas to Google seeking to discover his name and address. Google sent a notice to the blogger stating that it would comply with the subpoena unless he filed a motion to quash the subpoena within 3 weeks. Doe #1 then hired a lawyer who filed the motion to quash. A year later, Judge Thomas Brothers of Davidson County issued his final ruling on this motion to quash, as well as on a related motion to dismiss.

Judge Brothers began by noting the important role that anonymous speech has had throughout history. However, he stated that "internet anonymous speech is not entitled to absolute protection." Rather, "the free speech interest of the Defendant must be balanced with the reputation and privacy interests of the Plaintiffs."

He then reviewed the variety of standards applied by courts today for revealing the identity of anonymous bloggers. Finding that "a growing number of courts have begun to follow the standard" in Dendrite International, Inc. v. John Doe, 775 A.2d 456, 760-61 (N.J. Super. Ct. App. Div. 2001), Judge Brothers stated his intention to follow this test. Under the Dendrite test, a plaintiff must: (i) attempt to notify the anonymous blogger that he is the subject of a discovery procedure, (ii) give the blogger a reasonable time to oppose this discovery, (iii) identify the exact statements by the blogger that give rise to his claim, (iv) make a prima facia or substantial showing for each element of each cause of action, and (v) if the plaintiff establishes these elements, the court must the balance the First Amendment interests of the defendant against the strength of the plaintiff's case and the plaintiff's need for the disclosure to proceed on his claims.

Continue reading "Swartz v. Doe: Tennessee Ruling Provides Clarity on Showing Needed to Uncover Identity of Anonymous Blogger in Defamation/Privacy Case" »

Digital media law update: A September 30, 2009 decision supports a contention we have made for some time: use of a personal name in a gripe or parody website is unlikely to support a cause of action under trademark law. The exception is when a website misuses a famous name that has become synonymous with a business. However, as this decision also shows, even if your name isn't famous, that doesn't mean you have no legal remedy. You still may be able to sue and recover significant damages under defamation or privacy law.

The case is Bernard J. Carl v. BernardJCarl.com, D.C. Vir., No. 1:07-cv-1128. The Plaintiff, Carl, founded a private equity firm called Brazos Europe, Inc. In 2005, Brazos acquired the French linen company, D. Porthault. Brazos retained the French law firm Darrois Villey & Maillot (Darrois) to facilitate the transaction. Darrois, without Brazos' knowledge, subcontracted some of the work to the law firm Cotty Vivant Marchisio & Lauzeral ("Marchisio").

After the closing, Marchisio claimed that Brazos failed to pay it for its work. Brazos responded that Marchisio's work was defective. Marchisio then sued Brazos in a French court -- but lost! Marchisio, however, was not dissuaded. Instead of slinking away, it registered the domain name "bernardjcarl.com" and posted the following message on the site:

Message to the attention of Brazos Europe Inc. and managing partners Mr Bernard J. Carl and Mrs Shannon Fairbanks

In the meantime, feel free to meditate Benjamin Franklin: "Creditors have better memories than debtors." . . . .

The object of this message, Bernard J. Carl, contended that the statement was false and defamatory. He never hired Manchisio and owed it nothing. He also claimed that several potential investors in Brazos raised questions about the claims in the site. Accordingly, he filed suit -- first against the website, and then against its author Manchisio. His suit ultimately proceeded against Manchisio on three theories: (i) false representation under federal trademark law, based on Manchisio's use of his name "Bernard J. Carl" in the domain name of the website (15 U.S.C. § 1125(a)), (ii) cybersquatting under the Anti-cybersquatting Consumer Protection Act, for Manchisio's use of his name (15 U.S.C. § 1125(b)), (iii) cyberpiracy, also for the use of his name (15 U.S.C. § 1129(a)), and (iv) common law libel.

Continue reading "Carl v. BernardJCarl.com: Co-option of Personal Name for Gripe Website Supports Cause of Action for Defamation, but Not Trademark Infringement or Cybersquatting" »

Digital media law update: On October 8, 2009 a jury returned a verdict based in a case in which an employee claimed that he had been defamed by an email broadcast that contained truthful accusations against him. Massachusetts is one of a handful of states that permits a plaintiff to bring a defamation suit regarding truthful statements made by a defendant -- if those statements were made with actual malice.

The Noonan case

The case is Noonan v. Staples, Inc., D.C. Mass, No. 06-10716. In 2005, Staples, the well-known office supply chain, conducted an audit of the expense reports of 65 employees, including Noonan, a traveling salesman. The auditors discovered a May 2005 expense report in which Noonan had requested $1,622 in reimbursements above what he actually spent. A subsequent audit of other reports he submitted uncovered more errors -- some in Noonan's favor and some in Staples' favor. Nevertheless, based on its findings, the audit team concluded that Noonan had falsified his expense reports. As a result, Staples fired him.

Staples also sent an email to all employees in the division where Noonan was employed -- approximately 1,500 people -- that stated:

"It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone's part. It is incumbent on all managers to understand Staple'[s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver's responsibility to monitor and question is a critical factor in effective management of this and all policies.

If you have any questions about Staple['s] policies or Code of Ethics, call the Ethics Hotline . . . or ask your human resources manager."

In addition, because he was being fired for cause, Staples refused to permit Noonan to exercise options to purchase almost 24,000 shares of stock (apparently worth a lot of money), and denied him any severance benefits.

Noonan sued Staples for libel and other causes of action relating Staples' actions against him. A cause of action for libel in Massachusetts, like most States, requires that a plaintiff show that (1) the defendant published a written statement, (2) concerning the plaintiff, that was both (3) defamatory, and (4) false, and (5) either caused economic loss or is actionable without economic loss. Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir. 2006). Staples brought a motion for summary judgment on the libel claim, arguing that the evidence clearly established that Noonan had violated Staple's travel and expense policy, and that the email was consequently true and no libel action could lie. The District Court granted the motion.

On appeal, the 1st Circuit agreed that there was no triable issue of fact as to whether the email was true. However, the Justices noted that under Massachusetts law, "even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with 'actual malice.'" Mass. Gen. Laws. ch. 231, § 92. Under modern defamation law, a plaintiff is often permitted establish malice by showing that the defendant made the defamatory statement with knowledge that it was false, or with reckless disregard for whether it was false or not. However, for the purposes of truth + malice defamation, the 1st Circuit held that the older meaning for malice -- hatred or ill will toward the plaintiff -- was required.

Continue reading "Noonan v. Staples: Jury Decides Against Plaintiff in Truth + Malice Internet Defamation Case" »

Digital Media Law Update: In another in a long string of cases involving consumer complaints posted on the RipoffReport, a state court in New York dismissed a defamation case filed by a "Study in Europe for the Summer" educational company against one of its former students and against XCentric, the operator of RipoffReport.com. But this time, the defense victory had little to do with the Communications Decency Act. Rather, the decision in this case was driven largely the court's conclusion that the Ripoff Report post constituted nonactionable consumer opinion.

The case is Intellect Art Media v. Milewski, Supreme Court of New York, New York County, Index No. 117024/2008. Intellect Art Media operates the Swiss Finance Academy, a summer college program offering business courses in Switzerland. Milewski applied to the Academy in February 2008 and was accepted in March. Milewski was originally told that the program would be held in Verbier, Switzerland. The location was later changed to Lugano. But Milewski didn't learn about the change until shortly before the program commenced in July 2008. When Milewski showed up, he was only able to pay of the $7,000 tuition money. Nevertheless, he was permitted to attend based on his explanation that the remainder of the funds would come once a student loan was funded. However, beginning on July 24, 2008, the school claimed that Milewski began to engage in disruptive behavior. As result of this behavior and his failure to pay the full tuition, Milewski was expelled.

On July 19, 2008 a report was posted on RipoffReport.com regarding the Academy. The author, who was identified only as "Lilly," accused the Academy of being a "bait & switch company," making "false promises," and being run "by two incompetent people." The post went on claim that the Academy "is a 100% bait and switch scam," that "the tell you where the location is then a week before the program starts they change the location as say no refunds whatsoever," "all we got from breakfast was TOAST," and "its all a joke and a scam that needs to be stopped."

The Academy claimed that as a result of this posting, the enrollment for its 2009 summer program fell by 70%. Accordingly it sued Milewski (who it identified as "Lilly" on information and belief) and XCentric, which operates the Ripoff Report, for defamation - and other causes of action.

The standard elements of a case for defamation around the U.S. are that a plaintiff must plead and prove are: (1) the defendant made a false and defamatory statement, (2) which was published to one or more third parties, and (3) which caused damage to the plaintiff. However, the United States has a strong cultural tradition of respecting an individual's right to speak his mind -- as exemplified by the First Amendment. As a result, judges and legislatures tend to create special rules that prevent plaintiffs from recovering in many cases.

For example, under New York law, a defendant can defeat a defamation claim by showing that the published statements are "substantially true." Newport Leasing Service v. Meadowbrook Distributing Corp., 1 AD3d 454 (N.Y. App. 2005). He can also defeat a defamation claim by showing that the defamatory statements, "when read in context would be perceived by a reasonable person to be nothing more than a matter of personal opinion." Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (N.Y. 1991). Loose, figurative or hyperbolic statements, even if deprecating to the plaintiff, are not actionable. Dillon v. City of New York, 261 AD2d 34 (N.Y. App. 1999). Moreover, according to Judge Judith Gische, courts in New York as "loathe to stifle someone's criticism of goods as services."

Continue reading "Intellect Art Media v. Milewski: Xcentric/Ripoff Report Escapes Another Defamation Case" »

I should have anticipated this. On the very same day (August 25) that I posted a blog entry questioning whether the predicted flood of Twitter-squatting suits would ever arrive -- a suit that verges on Twitter-squatting or Twitter-jacking was announced.

The case involves transgender, Nampa, Idaho mayoral candidate Melissa Sue Robinson. According to the local Fox radio affiliate, Ms. Robinson discovered that someone had created a Twitter account under her name and displaying her photograph with the title "woman with a penis." She reportedly asked Twitter to remove the account, but got did not get immediate action to remove the site.

Twitter's Terms of Use provide that users "must not abuse, harass, threaten, impersonate or intimidate other Twitter users." The Terms of Use also state that violations of this or other Twitter policies "will result in the termination of your Twitter.com account." My own check of the Twitter site yesterday indicated that the account has been deactivated. So apparently, Twitter has now acted on Ms. Robinson's complaint and terminated the account under its stated policies.

Ms. Robinson is reported to be in the process of unmasking the identity of the anonymous blogger. Prospective plaintiffs seeking to sue an anonymous blogger are often required to commence legal proceedings against the blog host to uncover the blogger's identity. However, this may not be necessary here. Twitter's Privacy Policy includes the following provision:

"Compliance with Laws and Law Enforcement: Twitter cooperates with government and law enforcement officials or private parties to enforce and comply with the law. We may disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims, legal process (including subpoenas), to protect the property and rights of Twitter or a third party, the safety of the public or any person, to prevent or stop any illegal, unethical, or legally actionable activity, or to comply with the law."

This suggests that Twitter may be willing to voluntarily provide the name of the blogger without requiring Ms. Robinson to institute court proceedings against it.

Ms. Robinson has indicated that she plans to file an action for defamation and invasion of privacy against the blogger, once his/her identity is revealed. While Ms. Robinson may have an actionable claim against the blogger, I would not expect her to be able to maintain similar claims against Twitter, because these causes of action would likely be blocked by the Communications Decency Act.

Ms. Robinson's case may technically not be a case of Twitter-squatting, because it is unclear whether the Twitter account at issue was under her name, or whether it merely referenced her name in a tweet. If her name was not part of the account name, then it may be better to categorize this as a case of Twitter-harrassment. While the flood of Twitter-squatting suits may not yet be here, this case represents at least one drop of rain.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

There are many hurdles to recovering damages when a third party makes a defamatory post about you or your business on an interactive website. The Communications Decency Act generally shields the site that published the third-party post itself, which means that you will have to sue the original author. If the poster was anonymous, you will have discover his identity before your suit can get off the ground. While some web hosts will disclose the identity of an anonymous poster in response to a simple request or a subpoena, others will not do so without a court order.

A court order is often not easy to get.

Anonymous speech has played a critical role in furthering the American democracy. Thomas Paine was able to publish his Common Sense which urged Americans to revolution, without fear of personal reprisal, because he was able to publish it anonymously. The Federalist Papers were also published anonymously. Given this heritage, the U.S. Supreme Court has repeatedly found that the right to speak anonymously is protected by the First Amendment. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995).

The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker's identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama, 357 U.S. 449, 462; 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

While courts permit disclosure of an alleged defamer's identity, a court faced with a complaint that accuses an anonymous speaker of engaging in defamation faces a "chicken and the egg" dilemma. If trial proves that the speaker is liable for defamation, then his anonymity was not entitled to First Amendment protection and should be disclosed. If trial proves that the speaker is not liable for defamation, then his anonymity was entitled to First Amendment and should not be disclosed. However, disclosure of a speaker's identity is generally required for a court to determine whether his words were defamatory. In other words, you have to disclose his identity to determine whether his identity should be disclosed.

For example, proving a cause of action for defamation often requires showing that the speaker acted with malice. To show malice, a plaintiff must have evidence that the speaker made his defamatory statements intending or knowing that they would cause harm to the plaintiff, or that he made his statements without a reasonable basis for believing that they were true. Such evidence of a defendant's mental state can generally only be provided to a court after the speaker has been identified and discovery of his purposes and of the facts available to him at the time he spoke has been obtained.

Continue reading "Solers, Inc. v. Doe & In re Liskula Cohen: Hurdles to Uncovering the Identity of an Anonymous Internet Poster Vary Greatly throughout the U.S." »

Many blog sites on the Internet are devoted to complaints or criticism of the practices of businesses and their executives. For example, we recently blogged about a site that critiques the practices of beauty company Mary Kay, Inc. -- www.pinklighthouse.com. Another site focuses on critiques of Starbucks' operations --starbucksgossip.typepad.com. The authors of such blogs or websites frequently worry that their posts could subject them to ruinous liability for defamation, trademark infringement (for use of the company name), or copyright infringement (for reprinting company materials).

However, a recent decision by a District Court in the Northern District of California illustrates the protections the law affords attack blogs from such claims. In 2006, Robert Delsman, Jr., a former General Electric employee, submitted a claim for disability benefits to the firm that handled such claims for GE -- Sedgwick Claims Management, Inc. Sedgwick is managed by David North (CEO) and Paul Posey (COO). Delsman grew dissatisfied with Sedgwick's handling of his case and began to express his views about Sedgwick, North and Posey in a blog and a postcard mailing campaign called "Operation Going Postcard."

The blog, which is currently hosted at http://www.gesupplydiscrimination.com/, accused Sedgwick of wrongfully denying benefits to claimants, violating various laws, and accused Sedgwick and its "minions" (which it termed "Sedgthugs") of having committed "Sedgcrimes."
Delsman also took two copyrighted photos of North and Poser and superimposed them on "WANTED" postcards, some of which he "morphed" to look like pictures of Adolph Hitler and Heinrich Himmler. The postcards contained messages next to the photos such as this: "WANTED FOR HUMAN RIGHTS VIOLATIONS. . . Have you been threatened by this man or his minions? The time for change is at hand!" On the reverse side, they read: "Have you been terrorized, threatened or lied to by Sedgwick Claims Management Services? The time to act is now! Report these despicable activities to the US Department of Justice and the Attorney General in your state. Sedgwick CMS can be stopped peacefully and purposefully if enough people act now! Get informed!"

That's strong stuff!

Sedgwick filed suit against Delsman seeking to stop his damaging campaign. It claims included copyright infringement, for his use of the photos, and the usual panoply of defamation-related claims, including libel and interference with prospective business advantage. See Sedgwick Claims Management Services, Inc. v. Delsman, U.S.D.C. Northern District of California, Case No. C 09-1468 SBA, Order Granting Defendant's Motion to Dismiss (July 16, 2009).

There is nothing wrong with the types of claims Sedgwick brought. I have successfully brought them myself on behalf of defamed plaintiffs. However, the circumstances have to be right. The reality is that the First Amendment protects a lot of damaging speech.

Continue reading "Attack Blog's Salvos against Corporation and Blogger's Use of Copyrighted Photos in Parodies of Management Deemed Non-Actionable by California District Court" »

In its May 22, 2009 decision in Worden v. Alaska, the Alaska Court of Appeals overturned a criminal conviction that was based on the presence of several images of child pornography in the web browser cache on a defendant's hard drive. This decision followed a much-criticized 2006 ruling by the Ninth Circuit in the Kuchinski case that also found that a defendant cannot be convicted of possession of child pornography based on the presence of images in a browser cache, if he is unaware of their presence.

Under federal and some state statutes, merely viewing child pornography, whether intentional or not, is not criminalized. (Fn1) Instead, these federal and state statutes criminalize receipt, transportation, shipment, distribution and possession of child pornography. (Fn2)
However, when a computer user surfs the web, its browser automatically saves a version of any images viewed into a cache on the computer's hard drive. So the act of viewing images containing child pornography on the web will, in most cases, put you in possession of these images -- in your browser cache.

While it is possible to delete images from an internet cache, this does not mean that the code for the image is no longer located on the hard drive. In many cases, prosecutors and their computer experts have been able to locate even "deleted" images -- and such deleted images been used as the basis for pornography convictions. (Fn3)

The courts have recognized that there is a genuine risk that illegal images can be unintentionally received by computer users. For example, a person may unintentionally receive child pornography from a spam email message, in a pop-up while web surfing, or via a computer virus. (Fn4) In addition, while federal and many state statutes define child pornography to include explicit images of "minors", who are defined as persons under the age of 18, some states define minors as persons under lower ages, such as 16. So a web surfer seeking "adult" images that are legal in such a locality could well receive images that would constitute child pornography under U.S. and state laws.

However, most courts recognize that mere receipt or possession of an illegal image is not sufficient to impose criminal liability. (Fn5) Rather, to be guilty of a crime, a person must have a sufficient mens rea, or mental state. Generally, federal courts require that a person must "knowingly" have received, transported, shipped, distributed or possessed child pornography to be found criminally guilty. (Fn6)

Where the basis for a claim of possession is the presence of images in a disk cache (or of images that have now been deleted from the cache), the courts have held that "the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession." (Fn7) If a defendant is found to have downloaded or otherwise purposely saved images to some location on his computer system, or to have accessed and manipulated images in a cache, courts have found that possession occurred. (Fn8) In most child pornography cases, there is sufficient evidence of such purposeful control over images on a hard drive for courts to find both knowledge and possession.

This is where the Kuchinski decision comes in. If the sole available evidence is the presence of illegal images in a cache, at least some courts have found that this is insufficient to find criminal possession. In Kuchinski, an examination of the defendant's hard drive revealed 106 downloaded images in files and in the recycle bin, and between 12,904-17,784 images in Deleted Temporary Internet Files -- deleted cache files. (Fn9) Kuchinski admitted to possession of the 106 downloaded images, but denied possession of the 12,000+ images in the cache files. In fact, there was no evidence that Kuchinski knew that the cache images existed. The Ninth Circuit found that given his lack of knowledge, there was no basis for holding him criminally liable for possession of the images. The Ninth Circuit stated that "where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those filed, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over those images." (Fn10)

Continue reading "Worden v. Alaska: The Ignorance is Bliss Defense Rides Again" »

Is a digital media website the "developer" of all information that it requires users to include in on-line profiles? The disturbing answer, according to a recent court opinion, is "yes."

In a May 22, 2009 ruling, Judge Schell of the Eastern District of Texas dismissed a complaint for negligence, gross negligence and strict products liability against MySpace brought by on behalf of a 15 year old girl who was assaulted by a person whom she met on MySpace.com. See Doe IX v. MySpace, Inc., United States District Court, Eastern District of Texas, No. 4:08-CV-140 (Order granting motion to dismiss). The plaintiff claimed that MySpace was negligent for "refusing to employ reasonable safety features on its website." Order at 2. The plaintiff also argued that MySpace was not entitled to Communications Decency Act immunity because it provided prompts to assist users in creating profiles and thus was a co-developer of the profiles. Presumably the criminal who assaulted the plaintiff had been assisted by these prompts in creating the profile through which he met the plaintiff. Id.

The court rejected both of these arguments. On the first claim, the Court held that in effect the claim was attempting to hold MySpace liable for publishing information furnished by another information content provider. "Failing to employ reason safety features" means much the same thing as negligently deciding whether or not to publish a particular profile -- a traditional function of a publisher. Id. at 2.

On the second claim, the plaintiff argued that MySpace was a co-developer of the profiles on its sites because when a user creates a profile, MySpace prompts the user to enter additional information about "Interests & Personality", "Name", "Basic Info", Background and Lifestyle," Schools," Companies," Networking," and "Song & Video on Profile." The plaintiff claimed that the use of such prompts in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) was held to make a website a developer of information on the profile. Id. at 3.

The judge rejected this claim, because "[t]he Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, an (sic) information content provider." Because MySpace users are not required to provide any additional information, MySpace is not an information content provider. Order at 3.

The result in this case is not out of line with prior decisions on the Communications Decency Act. However, I do take issue with his reasoning in finding the MySpace was not a co-developer of its user profiles. While it is true that in Roommate, users were required to enter certain information in profiles, it was not this factor alone that made Roommate a developer of the information on those profiles. After all, many interactive websites require a user to enter basic information such as the user's name, email address and gender. Rather, the problem for Roommate was that the information it required users to provider was found to be discriminatory. As the Ninth Circuit noted: "Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business." Fair Housing Council, 521 U.S. F.3d at 1166.

The real issue for ISP liability should be whether it is culpable in eliciting the illegal content from a third party. As long as an ISP provides neutral tools to assist users in creating and searching for content -- as MySpace appears to have done here -- then it should get Communications Decency Act protection as not being the publisher or speaker of this material. On the other hand, if a website encourages users to post illegal material, that is a different story.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Sometimes a shift in label can signal a shift in policy. A recent shift by the Ninth Circuit away from the use of the term "immunity" when describing the effect of the Communications Decency Act appears to signal such a change.

In earlier cases, the Ninth Circuit frequently referred to the Communications Decency Act as providing "immunity" to internet service providers who publish third-party material. See, e.g., Batzel v Smith, 333 F.3d 1018, 1029 (9th Cir. 2003). Many other circuits followed this characterization. The exception was the Seventh Circuit, which pointed out that the operative language, in 47 U.S.C. § 230(c)(1), did not use the word "immunity", but merely provided an exclusion from liability by means of a definition -- by defining an internet service provider as not a "publisher or speaker" in certain contexts. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003).

The Seventh Circuit's approach is not to assume that an internet service provider (ISP) receives blanket immunity for third party content, but to ask whether the suit in question is seeking to treat the ISP as a publisher or speaker. See Chicago Lawyers' Comm. For Civil Rights under the Law v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008). If the theory of liability is something other than that the ISP is publishing or speaking the words in question, liability may be imposed. For example, the Seventh Circuit stated that Section 230(c)(1) would not "help people steal music or other material in copyright." Id. at 670. (Fn1) The Communications Decency Act would not protect such activities as aiding, abetting, inducing or encouraging, or conspiracy with, a third party to place illegal content on a site. Id. at 671-72.

In earlier decisions, the Ninth Circuit has not been adverse to finding against Communications Decency Act immunity for internet service providers. However, it generally did so by finding that the ISP was itself a co-provider of the illegal content. This was the approach in Batzel v. Smith and Fair Housing Council v. Roommates.com. (Fn2)

While the Ninth Circuit probably has not abandoned this approach, in Barnes v. Yahoo, the Ninth Circuit has now also adopted the Seventh Circuit's "definitional" method for analyzing the scope of the Communications Decency Act. Barnes v. Yahoo, 2009 WL 1232367 * 3-4. This enabled the Ninth Circuit, in Barnes, to find against CDA protection for third-party content, because it was able to characterize the cause of action as something other than holding an ISP liable for speaking or publishing third party content -- in this case, breaking a promise regarding third party content.

Looking at typical cases in which the Communications Decency Act has been applied (defamation, fraud, obscenity, assault/harassment), the "definitional" approach to the scope of the CDA would seem to move the debate to determining the kinds of acts by an ISP that rise to the level of encouraging illegal behavior. Given the fact-intensive nature of this determination, the outcome of many cases currently in the works should be interesting.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Notes:

Fn1 In making this comment, the Seventh Circuit seemed to forget that 47 U.S.C. §230(e)(2) specifically excluded laws relating to intellectual property from the application of §230.
Fn2 Batzel v. Smith, 333 F.3d 1018, 1031-35 (9th Cir. 2003); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1163-1167.

A May 7, 2009 ruling by the Ninth Circuit means that digital media companies will have to be careful about what they say when dealing with a complaint about an offending post. In another of a series of recent cases that have begun to find limits in the "immunity" provided by the Communications Decency Act, on May 7, 2009, a Ninth Circuit three-judge panel held that the CDA provides no protection to an internet service provider who promises, but then fails, to remove content provided by a third party.

Barnes v. Yahoo!, Inc. __ F.3d___, 2009 WL 1232367 (9th Cir. 2009) concerned an alleged fact situation in which after the breakup of their relations, the plaintiff's boyfriend began to post profiles regarding the plaintiff (Barnes) on Yahoo websites and in Yahoo chatrooms. These posts contained nude photos of the plaintiff, a solicitation to engage in sexual intercourse and provided the address and phone number at her place of employment. Before long, Barnes was peppered with emails, phone calls and personal visits, "all in expectation of sex." 2009 WL 1232367 at *1. A virtual repeat of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).

Barnes sent Yahoo several formal requests for the takedown of the posts. Nothing happened. Then, the day before a local news outlet was preparing to broadcast a report on the incident, Yahoo's director of communications called Barnes, asked her to fax directly the previous statements she had mailed and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." 2009 WL 1232367 at *1.

Barnes claims that she relied on this statement and took no further action on the profiles. However, apparently still failing to get any action, two months later Barnes filed this suit against Yahoo. Shortly thereafter, the profiles disappeared. Id.

Barnes sued Yahoo under two causes of action: (i) negligent undertaking, and (ii) promissory estoppel. "Negligent undertaking" is based on the principal that if you decide to help someone else out, as a Good Samaritan, to protect their person or things, you are subject to liability if you act negligently. "Promissory estoppel" is based on the idea that if you make a promise, with the intent that a third party rely on it, you can be held liable if you fail to perform that promise.

In response to Barnes' complaint, Yahoo argued that it was immune from liability under the Communications Decency Act (47 U.S.C. § 230(c)). The Ninth Circuit agreed as to the negligent undertaking claim, but not as to promissory estoppel. The difference for the Court was the nature of the specific act on which Yahoo was being sued under the two legal theories -- Yahoo's failure to take down the posts v. Yahoo's failure to keep its promise to take down the posts.

Continue reading "Barnes v. Yahoo: No Communications Decency Act Protection for Internet Service Provider Who Fails to Keep Its Promise to Take Down an Offending Post" »

The actions taken by craigslist in its recent disputes with the state attorneys general appear contradictory.

Craigslist has now twice agreed to measures to limit its "erotic services" section. On November 6, 2008, craigslist signed a joint statement with 43 state attorneys general under which it agreed to do such things as create a system to identify and remove pornography and to charge fees for ads posted to its "erotic services" section with the goal of reducing the number of such ads. (Fn1) Then, on May 5, 2009, South Carolina Attorney General Henry McMaster sent a letter to craigslist stating that the site would be subject to criminal prosecution if it did not remove all material that made it possible for third parties to post content soliciting prostitution or containing pornographic images. According to press reports, Attorney General McMaster was considering actions against craigslist for "aiding and abetting prostitution, obscenity and conspiracy." (Fn2) As a result, on May 12, craigslist responded by voluntarily terminating its "erotic services" subcategory and replacing it with an "adult" category. This new category was only to be for "lawful activities", and craigslist agreed to manually screen all ads before they appeared on the site and to reject all ads that contained nudity or appeared to offer illegal services.

However, at the same time, craigslist has continued to insist that it had no legal obligation to take these actions, because of its immunity under the Communications Decency Act and U.S. Constitutional protections. According to the May 20, 2009 complaint it filed in the U.S. District Court of South Carolina to prevent the McMaster from initiating criminal action against it, craigslist's decisions to modify its site were merely "voluntary actions to deter abuse of its website as a matter of good corporate citizenship . . . ."

There is no question that craigslist's changes to its website make good sense from public relations and corporate citizenship standpoints. But did recent court decisions regarding the scope of the Communications Decency Act inform these changes as well?

Continue reading "Did Recent Decisions on the Scope of Immunity under the Communications Decency Act Inform Craigslist's Decision to Modify Its Site?" »

A recent Wall Street Journal article highlights an important fact about digital media immunity acts such as the Communications Decency Act and the Digital Millennium Copyright Act. These acts generally only protect information intermediaries, not original authors of content.

According to the May 21, 2009 article, "Bloggers, Beware: What You Write Can Get You Sued", a blogger made several posts in online forums about a hacker attack on a company that makes software used to track sales for adult entertainment sites. The blogger allegedly claimed that personal information of the sites' customers had been compromised. While the blogger may have thought that her intentions were noble, the company sued her for defamation, contending that no consumer data was compromised and accusing her of embarking on a campaign to defame it.

In this situation, the Communications Decency Act (47 USC Sec. 230(c)(2)) would likely provide immunity to the online forums on which the blogger posted her statements. However, it would not immunize the blogger, assuming that she was the original source of the allegedly defamatory statements, because it only provides protection for "information provided by another information content provider."

Similarly, the Digital Millennium Copyright Act (17 USC Sec. 512) would also likely provide immunity for any claims of copyright infringement to the internet service provider. However, it also would not immunize the blogger, because its relevant provision only provides protection for "infringement of copyright by reason of storage at the direction of a user". (Sec. 512(c)).

The general public is aware that the film and recording industries have been able to sue users of file sharing sites for copyright infringement. However, digital media users may not be aware that blogging or posting information on an interactive website can expose them to a wide variety of speech-related tort suits, as well. Because the internet enables messages to be broadcast easily to a massive audience, it actually vastly increases the chance that a thoughtless word can cause damage, and thus give rise to legal liability on the part of the author.

So what do I recommend that a person, like me, who creates original digital media material, do to protect him/herself?

First of all, recognize that you are an author of material that is being published to a potentially vast audience. Second, before you hit the "post" button, review what you have written and see if it contains material about a third party that they might claim constitutes a threat to their safety, is false, injures their reputation, casts them in a bad light or releases personal information about them. Third, also consider whether your use of third party materials is fair. Is your post really nothing more than a copy of someone else's material? Have you credited the third-party sources you used?

The unconsidered potential for liability when posting on the internet reminds me of an incident from Ronald Reagan's presidency. On August 11, 1984, during a mike check before his weekly Saturday radio address, President Reagan made the quip "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes." While he intended this as a private joke, the statement was leaked to the public and created a major international incident, reportedly causing the Soviet Army temporarily to go on alert.

The internet can be an even louder megaphone. When you post, don't forget that people are listening.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

The Communications Decency Act (CDA) has been broadly interpreted to provide immunity for operators and users of interactive computer services, who publish information provided by a third party, from even the most egregious of torts against individuals. See 47 U.S.C. § 230. However, sometimes taking a slightly different approach to this statute can yield strikingly different results -- as can be seen in the different treatments given to the "misappropriation of right of publicity" tort in two different courts.

Carafano v. Metrosplash.com was a CDA case with an extreme fact pattern. In Carafano, an unknown person posted a personal profile of actress Christianne Carafano, who used the stage name Chase Masterson, on Matchmaker.com, a dating website. The profile stated that "Chase529" was "looking for a one-night stand" and like "hard and dominant" men with "a strong sexual appetite" and that she "liked sort of being controlled by a man, in and out of bed." The profile listed two of Carafano's movies and included pictures of her. The profile also provided her home address and telephone number. Shortly after this posting, Carafano began to receive sexually explicit messages on her voicemail. She also received a highly threatening and sexually explicit fax that also threatened her son. Feeling unsafe in her home, she and her son stayed in hotels away from Los Angeles for several months. 339 F.3d 1119, 1121 (9th Cir. 2003).

Carafano asked Matchmaker.com to remove the profile, which is did after a few days. Carafano then sued Matchmaker.com's owner, Metrosplash, on invasion of privacy, misappropriation of right of publicity, defamation and negligence claims. The District Court dismissed Carafano's claims on various state law grounds, including that she had failed to show that Metrosplash acted with malice. Carafano appealed. The Ninth Circuit affirmed finding that all of Carafono's claims were barred by the CDA. Id. at 1123-25.

However, in a case outside the Ninth Circuit, with similar facts, a District Court reached the opposite result. In Doe v. Friendfinder Network, Inc., an unknown person created a profile with the screen name "petra03755" on the AdultFriendFinder.com website -- a site which bills itself as "the World's largest SEX and SWINGER personal community." The profile identified "petra03755" as a recently separated 40-year old woman in the Upper Valley region of New Hampshire who was seeking "Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship." The profile included information on her sexual proclivities, birth date, height, build, hair and eye color, and submitted an apparently "Photoshopped" nude photograph. The Plaintiff claimed that the biographic information and photograph identified her as "petra03755" to people in her community. The Plaintiff learned about the profile a year after it was posted from a friend who had been discussing it with other members in the Plaintiff's circle and believed the profile to be hers. 540 F.Supp.2d 288 (D. New Hampshire 2008).

Continue reading "Emerging Circuit Split: Does the Communications Decency Act Shield State Law Claims for Misappropriation of Right of Publicity?" »

A recent decision by Judge Fogel in Northern District of California provides a helpful gloss on the Ninth's Circuit's reinterpretation of the Communications Decency Act (CDA) (fn1) in its 2008 Fair Housing Council decision. (fn2) In December 2008, on a motion to dismiss brought in Goddard v. Google (fn3), Judge Fogel considered whether the CDA protected Google's "AdWords" program which allows advertisers to draft short advertisements and select corresponding keywords. The Plaintiff sued Google, claiming that she clicked on an AdWord advertisement that was linked to an allegedly fraudulent mobile service subscription provider website and which caused unauthorized charges to appear on her cellular telephone bill.

According to Judge Fogel, "the only relevant inquiry" for the applicability of the CDA "is whether the interactive service provider "creates" or "develops" the content. (fn4) Looking at older precedents, the Court found that if a website merely provides "neutral tools" to create web content, these are "squarely within the protections" of the CDA -- even if third parties use these tools to create illegal conduct. The fact that a website operator collects fees from users who engage in such illegal content is also irrelevant.

Continue reading "District Court Holds that a Website's Assistance of Users in Creating On-line Content Can Be Sufficient to Eliminate Immunity Under the Communications Decency Act" »

The genius of many interactive websites is that they enlist the public in creating massive databases that are searchable by relevant keywords. This enables "buyers" to quickly find "sellers" who are offering the exact "product" type the buyer is seeking -- whether it be a used automobile, a dating or marriage companion, or housing. To assist users, most sites ask users to create "profiles" from a pre-set menu of options that are most relevant to the particular search to which the website is oriented.

Occasionally, users are able to take advantage of such services to perform illegal and harmful acts. However, courts have generally held that the Communications Decency Act (47 USC §230) provides immunity to the internet service provider, because merely providing menus to assist users in creating a profile has not been found to transform the service provider into the author or creator of the posting -- the "information content provider."

This all seems to have changed with the Ninth Circuit's en banc ruling in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). The Ninth Circuit characterized Roommates.com as a website that was designed to match people renting out spare rooms with people looking for a place to live. The Ninth Circuit described the Roommates.com service as a standard searchable database website, in which users created profiles that were largely generated via a pre-determined menu of questions. (fn1) These profiles included the user's preferences as to "sex, sexual orientation and whether he would bring children to the household." (fn2) The profiles were created using drop-down menus that asked such things as whether the user was male or female, gay or straight, and whether the housing seeker would live with children or not. (fn3) According to the Court, while asking such questions could well offend the Fair Housing Act and state housing discrimination laws, this information was required by Roommates.com in order for users to access its system.

The Ninth Circuit held that "by requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated responses, Roommate becomes much more than a passive transmitter of information provided by others, it becomes the developer, at least in part of that information." Hence CDA immunity would not be available. (fn4) The Court also found that the CDA immunity was not available for Roommate's search system, because it filtered listings and directed emails to subscribers "according to discriminatory criteria." (fn5)

Continue reading "Fair Housing Council Decision Leaves Unanswered Questions as to Assistance a Website Operator Can Give Users in Creation of Content without Forgoing CDA Immunity" »

In 1998, in another of a series of attempts to prevent access by minors of adult materials on the Internet, Congress passed the Child Online Protection Act (COPA, codified at 47 USC § 231). However laudable Congressional intent was, the text of COPA was unquestionably vague and overbroad. Internet content providers and distributors can now breathe more easily. By denying a writ of certiorari in American Civil Liberties Union v. Mukasey, on January 21, 2009, the U.S. Supreme Court has put the final punctuation mark on a lengthy court challenge to COPA and effectively agreed that it is unconstitutional.

The text of COPA states: "Whoever knowingly and with knowledge of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both." (fn1) The statute defines "material harmful to minors" as material that is "obscene" or that is designed to pander to the prurient interest, depicts sexual acts and taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (fn2)

The ACLU first filed its challenge to the constitutionality of COPA in 1998, the day after the bill became law. A Pennsylvania District Court judge enjoined enforcement of COPA pending trial on the merits. The ruling was then affirmed by the Third Circuit only to be remanded for further proceedings by the Supreme Court - twice. After the second remand, the case was tried by the Pennsylvania District Court on a bench trial, which again found COPA to be unconstitutional. The Third Circuit affirmed this ruling in July 2008 -- finding COPA to be unconstitutional for the third time. The Supreme Court's refusal to accept certiorari means that it appears to be content with the record and reasoning in the Third Circuit's July 2008 opinion.

Continue reading "Overbroad Rules on Internet Publication of Materials "Harmful to Minors" Killed by Supreme Court Ruling" »