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Defamation and privacy online
- 1. Defamation and Privacy Online Katie Sunstrom Lorance & Thompson, PC
- 2. Overview • Defamation – What is defamatory? – Defenses – Single Publication Rule – Fault Standards (actual malice; negligence) – Section 230 of the Communications Decency Act – Anonymous Speech – Damages • Invasion of Privacy – Intrusion Upon Seclusion – Public Disclosure of Private Facts
- 3. Defamation Defendant: (1) published a false statement; (2) that was defamatory concerning the plaintiff; (3) while acting with negligence regarding the truth of the statement; (if Plaintiff is a private individual). WFAA-TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998); or (3) while acting with actual malice (if Plaintiff is a public official or figure). Huckabee v. Time Warner Entm't Co. , 19 S.W.3d 413, 423 (Tex. 2000) http://www.dmlp.org/legal-guide/examples-public-and-private- figures
- 4. Defamatory? • Statement in which the words tend to damage a person's reputation, exposing him to public hatred, contempt, ridicule, or financial injury. Einhorn v. LaChance , 823 S.W.2d 405, 410-11 (Tex. App.-- Houston [1st Dist.] 1992, writ dism'd w.o.j.) • Per se v. per quod
- 5. Defamatory? • Defamation per quod- requires reference to additional facts to ascertain the defamatory nature of the statement, and requires proof of actual damages. • Defamation per se-itself gives rise to a presumption of damages and requires no independent proof. Shifts burden of proving truth to the Defendant.
- 6. Is online speech less reliable?
- 7. • Dietz Development v. Perez- Bad contractor, Yelp review.
- 8. • Horizon Human Services v. Gary Austin
- 9. Defenses • Truth • Opinion • Fair and accurate reporting of a governmental proceeding • Neutral reportage • Fault defense; the First amendment • Communications Decency Act • Death • Statute of limitations- 1 year.
- 10. Single Publication Rule • A libel action accrues upon publication: “the last day of the mass distribution of copies of the printed matter.” • Accrues upon the first online publication. Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007). • Nearly all courts reject the “continued publication” argument.
- 11. Negligence Standard • the defendant did not act with a reasonable level of care in publishing the statement at issue.
- 12. Courtney Love Settles Twitter Rant Lawsuit http://www.cbsnews.com/8301-31749_162
- 13. Actual Malice • Knowing falsity or reckless disregard as to truth or falsity; • If not made in good faith but with serious doubts as to truth.
- 14. Actual Malice • Private speech about matters of private concern vs. public concern • Obsidian Finance Group v. Cox
- 15. Section 230 of the Communications Decency Act No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 USC § 230(c)(1).
- 16. Section 230 of the Communications Decency Act 47 U.S.C.S. § 230(c)(1) of the Communications Decency Act barred negligence claims filed by a mother whose minor daughter was sexually assaulted by a man she met online through an interactive teenage website because the website was not required to employ age verification software to detect predators by screening member profiles for truthfulness. Doe v. MySpace Inc., 528 F.3d 413, 417 (5th Cir. Tex. 2008).
- 17. Section 230 of the Communications Decency Act In this case, the undisputed evidence shows that Defendants provide a broad choice of categories from which a user must make a selection in order to submit a report. See Pl's Appx. at 264, 335-337. While some categories are negative, such as the category entitled "corrupt companies," other categories are neutral, including categories entitled "restaurant," "business consulting," and "internet providers." Pl's Appx. at 264, 335-337. Based on this undisputed evidence, the Court finds that the magistrate judge correctly found that Defendants did not lose immunity under the CDA by requiring posters to chose from a wide range of categories. GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. LEXIS 1445, 13-14 (N.D. Tex. Jan. 9, 2009)
- 18. Section 230 of the Communications Decency Act Parents’ defamation-related claims barred by CDA 230. Defendants transferred the information to their online database without changes. Prickett v. Infousa, Inc., 561 F. Supp. 2d 646 (E.D. Tex. 2006)
- 19. Anonymous Speech • Journalists’ Qualified Privilege Tex. Civ. Prac. & Rem. Code § 22.021 et seq • First Amendment McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (U.S. 1995).
- 20. Anonymous Speech “Thanks for the invitation to visit you…but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the Internet over to your house – have you done it before, or do they usually invite you to the house?” Stone v. Paddock Publs., Inc., 961 N.E.2d 380, 388 (Ill. App. Ct. 1st Dist. 2011).
- 21. Anonymous Speech To obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiff's control. In re Does 1-10, 242 S.W.3d 805, 822 (Tex. App. Texarkana 2007) (quoting Best Western Int'l v. Doe, 2006 U.S. Dist. LEXIS 56014, 4-5 (D. Ariz. July 25, 2006).
- 22. Judge Throws out $14 million Libel Verdict
- 23. Damages • Reputation damages-establish a link between specific evidence and the harm to Plaintiff’s reputation. • Special Damages • Exemplary Damages College Network, Inc. v. Moore Educ. Publrs., Inc., 378 Fed. Appx. 403, 405 (5th Cir. Tex. 2010).
- 24. • Default judgment against Hunter Moore for
- 25. Invasion of Privacy • intrusion upon one’s physical solitude or seclusion; • public disclosure of private facts; • false light; and • appropriation. • 2-year statute of limitations
- 26. Invasion of Privacy • Requires proof of the following elements: (i) "an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns," which (ii) "would be highly offensive to a reasonable person," and (iii) resulted in injury. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) .
- 27. Invasion of Privacy Key logger placed on wife’s computer to spy on her email communications. Langston v. Langston, 2011 U.S. Dist. LEXIS 101184, 1-2 (E.D. Tex. Aug. 31, 2011).
- 28. Invasion of Privacy “Intrusion upon seclusion is typically associated with either a physical invasion of a person's property or eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying.” Texas Comptroller of Public Accounts v. Attorney General of Texas, 244 S.W.3d 629, 636 (Tex. App. — Austin 2008, pet. granted).
- 29. Public Disclosure of Private Facts To establish a claim for the tort of invasion of privacy based on the public disclosure of private facts, the plaintiff must show that (1) publicity was given to matters concerning his private life; (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex. 1995). Lowe v. Hearst Communs., Inc., 487 F.3d 246, 250 (5th Cir. Tex. 2007)
- 32. Questions? Katie Sunstrom Lorance & Thompson, P.C. 2900 North Loop West, Suite 500 Houston, Texas 77092 P: 713.868.5560 F: 713.864.4671 C: 713.502.3049 E: ks@lorancethompson.com @beingkatie @stalkerlawyer
Notes de l'éditeur
- Libel (written); slander (oral). Trade libel- defamation against the goods or services of a company or business.
- Opinion? Verifiable fact? Conveys a provably false factual assertion, such as someone has committed murder or cheated on a spouse.
- And therefore less likely to be harmful or for the public to believe it is actually true? -I think that is a red herring. Sandals Resorts Int’l, v. Google- Readers give less credence to internet speech on blogs or online message boards. -may be seen as more figurative or hyperbolic.
- Arizona case “ The COO of Horizon Human Services, Billie Holliday, was the architect of my termination, and the CEO, Norman Mudd, was the one who executed it. They have fired many sick employees without a thought or care in the world for the horrible position they are placing those people in.”
- Statute of limitations of one year applies to other torts based on defamatory injury: Texas courts have clearly established that when allegedly defamatory statements form the sole basis of a plaintiff's tortious interference claim, the one-year statute of limitations applies. See Peavy v. Harmon, 37 F. Supp. 2d 495, 524 (N.D. Tex. 1999) (applying Texas law); P&G v. Amway Corp., 80 F. Supp. 2d 639, 657 (S.D. Tex. 1999) (applying Texas law); Martinez v. Hardy, 864 S.W.2d 767, 776 (Tex. App. -- Houston [14th Dist.] 1993, no writ) ; Moore & Assoc. v. Metropolitan Life Ins. Co., 604 S.W.2d 487, 491 (Tex. App. -- Dallas 1980, no writ) . Nationwide bases its tortious interference claim on the fact that "prospective customers have seen the false statements in the [a]rticle." Nationwide's tortious interference claim is, thus, indistinguishable from its defamation claim and barred by the one-year statute of limitations. See P&G, 80 F. Supp. 2d at 657 (finding that the one-year statute of limitations barred the plaintiff's tortious interference [*13] claim where the plaintiff merely asserted that the defendant's "false and misleading statements . . . tortiously interfere with the [plaintiff's] business relations").
- B. The Single Publication Rule Applies to Internet Publications Nationwide asserts that because the alleged harm stems primarily from the online circulation of the article, the statute of limitations period should begin to run on the date the Dallas Morning News posted the article on the Internet, not the date of the print publication. Furthermore, Nationwide claims that a republication of the article occurs every time an Internet user types Nationwide's name into a search engine and retrieves the article, so that each "hit" retriggers the statute of limitations. Thus, according to Nationwide, the uncertainty about when the Dallas Morning News posted the article and the article's continual republication preclude the Court from dismissing the case on limitations grounds. Nationwide's argument requires the Court to consider the application of Texas defamation law in the context of the Internet, an issue that Texas courts have yet to address. In the absence of controlling Texas law, the Court must analyze the relevant law in Texas and attempt to predict how a Texas court would rule on the issue. See American Reliable Ins. v. Navratil, 445 F.3d 402, 406 (5th Cir. 2006). In cases alleging libel in mass media, Texas courts apply the "single publication rule," the purpose of which is to prevent plaintiffs from bringing stale and repetitive claims against publishers. See Williamson, 980 S.W.2d at 710; Holloway v. Butler, 662 S.W.2d 688, 692 (Tex. App. -- Houston [14th Dist.] 1983, writ ref'd n.r.e.). Under the single publication rule, a libel action accrues upon "publication," which Texas courts have defined as "the last day of the mass distribution of copies of the printed matter." Williamson, 980 S.W.2d at 710. In this regard, Texas courts have held that retail sales of individual copies or sales of back issues of the printed matter do not constitute new publications that retrigger the statute of limitations. Holloway, 662 S.W.2d at 692. In short, the courts view the mass communication of a single defamatory statement as a single wrong that gives rise to only one action. Id. at 691. Although Texas courts have yet to address the applicability of the single publication rule in the context of the Internet, the few jurisdictions that have considered the issue have applied [*8] the rule to Internet publications for statute of limitations purposes. See Traditional Cat Assn., Inc. v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353, 354 (4th Dist. 2004); McCandliss v. Cox Enterprises, Inc., 265 Ga. App. 377, 593 S.E.2d 856, 858 (Ga. Ct. App. 2004); Mitan v. Davis, 243 F. Supp. 2d 719, 724 (W.D. Ky. 2003) (applying Kentucky law); Churchill v. State, 378 N.J. Super. 471, 876 A.2d 311, 316 (N.J. Super. Ct. App. Div. 2005); Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 465-66, 747 N.Y.S.2d 69 (N.Y. 2002). The Court finds Firth instructive, considering that Texas courts have already indicated approval of its underlying reasoning. See Holloway, 662 S.W.2d at 691 (citing Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (N.Y. 1948), with approval, a case on which the Firth court relied in extending the single publication rule to Internet publications). In Firth, a public employee sued the state for publishing an allegedly defamatory report on the State's website. Firth, 775 N.E.2d at 464. The employee, like Nationwide, argued that the single publication rule should not apply to Internet publications because [*9] online material is available only to those who seek out the specific article, and therefore, each "hit" or viewing of the report constitutes a new publication or republication for limitations purposes. Id. at 465. The New York Court of Appeals flatly rejected this argument, holding that the concerns underlying the single publication rule -- namely, preventing the "endless retriggering of the statute of limitations" and promoting the "open [and] pervasive dissemination of ideas" -- applied with even greater force to Internet publications. Id. at 466. According to the court, a "multiple publication rule would implicate even greater potential for endless triggering of the statute of limitations, multiplicity of suits and harassment of defendants," which would hinder the development of a robust marketplace of ideas. Id. Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 2006 U.S. Dist. LEXIS 95243, 6-9 (N.D. Tex. Oct. 16, 2006)
- The defendant must be a "provider or user" of an "interactive computer service." The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue. Yelp case http://blog.ericgoldman.org/archives/2011/10/yelp_gets_compl.htm
- Just because you filter searches or provide forms and categories does not make you a content provider and make you responsible for that content.
- Texas’ shield law has protected journalists from testifying in court, prevented television stations from giving up unaired video and concealed the identity of people commenting anonymously on news websites. - As far as online speech this only covers some bloggers; those employed by print or broadcast news media. Texas Free Flow of Information Act § 22.024. Limited Disclosure Generally After notice and an opportunity to be heard, a court may compel a journalist, a journalist's employer, or a person with an independent contract with a journalist to testify regarding or to produce or disclose any information, document, or item or the source of any information, document, or item obtained while acting as a journalist, if the person seeking the information, document, or item or the source of any information, document, or item makes a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; (2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information; (3) reasonable and timely notice was given of the demand for the information, document, or item; (4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; (5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and (6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure. First Amendment protections: Before unmasking speaker, you must show that they have actually defamed the plaintiff. Further, you must give them notice before revealing their identity and give them an adequate opportunity to respond. -Some have a lower threshold, almost like a pleading standard or a preliminary injunction standard. -Risk of a chilling effect when unmasked and not pursued. Independent Newspapers, Inc. v. Brodie , 966 A.2d 432 (Md. 2009); Solers, Inc. v. Doe , 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD , 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); A.Z. v. Doe , 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010); Swartz v. Doe , No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009); Zherka v. Bogdanos , 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009); Krinsky v. Doe 6 , 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals , 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC , 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe , 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google , 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10 , 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe , 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe , 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe , 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe , 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill , 884 A.2d 451 (Del. 2005); Dendrite International v. Doe , 775 A.2d 756 (N.J. App. Div. 2001).
- http://www.aaronkellylaw.com/internet-defamation-laws/illinois-appeals-court-protects-anonymous-poster-in-internet-defamation-lawsuit/ As this court has recognized, HN5while anonymous speech is a long-protected right of citizenship, there is no constitutional right to defame. Maxon, 402 Ill. App. 3d at 713. Nonetheless, the Supreme Court has recognized the important role that anonymous speech has played throughout history and that individuals sometimes choose to speak anonymously for the most constructive purposes. See Talley v. California, 362 U.S. 60, 64-65, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960). In addition, identification and fear of reprisal may deter even peaceful discussions regarding important public matters. See Talley, 362 U.S. at 65; People v. White, 116 Ill. 2d 171, 177, 506 N.E.2d 1284, 107 Ill. Dec. 229 (1987). "Anonymity is a shield from the tyranny of the majority." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). Thus, an author is generally free to decide whether he wishes to disclose his true identity and his decision not to do so is an aspect of the freedom of speech provided in the first amendment. McIntyre, 514 U.S. at 341-42. Furthermore, discussion of public issues as well as debate regarding candidates' qualifications are integral to the government established by our Constitution. McIntyre, 514 U.S. at 346. Political speech will occasionally have unpalatable consequences but our society gives greater weight to the value of free speech than the danger that free speech will be misused. McIntyre, 514 U.S. at 357. That the first amendment applies to Speech via the Internet is also clear. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). Stone v. Paddock Publs., Inc., 961 N.E.2d 380, 388 (Ill. App. Ct. 1st Dist. 2011) Test: (1) Verification; Must be verified (signed by party); (2) Detail facts that support a defamation cause for action; (3) Plaintiff can only seek identifying information relevant to the matter at hand; and (4) (a)Unnamed person must be the liable entity that will be responsible for damages if found guilty OR (b)Party requesting identity must prove that they would survive a motion for summary judgment – not just a motion to dismiss.
- http://www.star-telegram.com/2012/06/13/4027734/judge-throws-out-14-million-jury.html http://www.star-telegram.com/2012/06/13/4027734/judge-throws-out-14-million-jury.html#storylink=cpy -Biggest hurdle early on was getting identity of anonymous posters on Topix. -Had to file motions in California to get Topix to produce the IP addresses. -Issue is internet anonymity. Anonymous speech is protected by the first amendment.
- Reputation Damages- The Texas court of appeals vacated the award, observing that "appellees cite to no specific testimony wherein a witness stated that either of the appellees was damaged (noneconomically) specifically by statements contained in the two presentations." Id. at 505 . "To the contrary, the specific testimony related to" numerous other alleged instances of defamation. Id. The court concluded that the plaintiffs had failed to demonstrate "a causal connection [between their damages and] the presentations in question," adding that "it is not reasonable to infer that the general testimony . . . (as appellees suggest here) relates to a different, unmentioned specific cause." Id. at 506 . "[T]he general testimony d[id] not constitute the type of detailed evidence required to support awards of . . . reputation damages in the defamation context." Id. at 507 . Here, in contrast to Exxon, the appellees did present specific evidence that linked the Business Statements to harm to MEP's reputation. Moore testified at trial that deposition testimony had revealed instances of customers who had declined to purchase from MEP because of the perception that the company was going out of business. Four witnesses, all sales staff in attendance at that meeting, testified that they had in fact relayed the Business Statements to MEP customers. Shara Wright testified that she relayed the Business Statements to customers on "hundreds" of occasions. The evidence at trial also showed that the timing of the Business Statements correlated with a downward trend in sales at a time when several factors--including an improved sales staff, an important endorsement from an online college, and an [**21] economy in which school enrollment was on the rise--should have prompted an increase in sales. TCN argues that more specific evidence should be required, but that is not the relevant standard. Because there was evidence at trial that specifically connected the Business Statements--as opposed to other bad acts or statements by TCN--to harm to MEP's reputation, there is no basis to vacate the jury's award. College Network matter.
- Twitter rant by former owner of IsAnyoneUp.com which was a “revenge porn” site where people would post nude pictures of their ex’s without permission. -failed to answer, default judgment was entered against him in Nevada.
- In this suit, Plaintiff Tara Cheree Langston alleges that her estranged husband used a keylogger program on their computer to access personal journals and emails without her consent. According to Plaintiff, Defendant admitted to such conduct during a deposition in a divorce proceeding currently pending in Denton County District Court. In the case pending in this Court, Plaintiff has made a claim under the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. a) further obtaining Plaintiff's oral, wire, or electronic communications; b) accessing Plaintiff's computers, cell phones, and computer accessories; c) accessing Plaintiff's personal information and/or communications, in any format from Plaintiff's internet service provider, electronic mail (e-mail) account providers, cell phone service provider, instant messaging services, and any other password-protected websites; d) disseminating, sharing, copying, downloading, recording or otherwise duplicating any information, files, records, recordings, video, photographs, images, or any other data compilation in any format, which contains any of Plaintiff's communications, writings, thoughts, images, or personal information; e) any use of any materials specified in c) and d) above or the contents of those materials, except as authorized by a court of competent jurisdiction; and f) any destruction, alteration, manipulation, or deletion of the material [*7] specified in d) above.
- A subsidiary of defendants published an article describing a blackmail scheme carried out by two married attorneys. The article alleged that one attorney had engaged in a series of extramarital affairs and that the second attorney had then extorted thousands of dollars from the first attorney's lovers by sending them draft Tex. R. Civ. P. 202 petitions naming them as defendants. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by the second attorney against the first attorney and her lovers and the ethics of the second attorney's behavior. Additionally, the story revealed details of the attorneys' domestic life. The instant court concluded that an article describing the use of the legal system by prominent local lawyers in a way that could have been described as blackmail was a matter of public concern. The court declined to circumscribe the paper's coverage in this case by imposing judicial rules on what was relevant and appropriate. Further, there was no relevant state court determination to which the district court should have deferred as to the issue of public concern. The San Antonio Express News, a Hearst subsidiary, published an article describing a blackmail [**2] scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary's lovers by sending them draft Rule 202 petitions 1 (the "202 documents") naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted's intent to contact the men's wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $ 75,000 and $ 155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted's behavior. Additionally, the story revealed details of the Roberts' domestic life, including their purchase of a $ 655,000 house in a San Antonio suburb, the fact that they had an eight-year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since been tried and convicted on charges of theft related to the allegations in the article.