INTERNET LAW BLOG

In a 1964 decision, the Supreme Court established that truth is an absolute defense against defamation. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). However, for parties involved in defamation suits, it is similarly important to know about the affirmative defense of substantial truth.

The Texas Court of Appeals found in favor of defendants who had posted a critical review of the plaintiff’s product online. David Rafes, Inc. v. Huml, No. 01-08-00856, 2009 WL 3491043 (1st Dist. Ct. App. Tex. Oct. 29, 2009). In the suit, David Rafes alleged that Michael Huml and Slowboy Racing, Inc. published defamatory statements about Rafes’ business, Turbochargers.com. The allegedly defamatory statements included Huml claiming that Rafe’s turbocharger was a “poorly manufactured turbo from China” that would “inevitably fail in a short amount of time” and that it was a “Chinese version us[ing] an inferior stainless in its composition.” Id. at 2. Among several defenses asserted by the defendants was that their statements were substantially true.

In order to bring a cause of action for defamation, a plaintiff must establish that the defendant:

1. published a statement about the plaintiff
2. that was defamatory
3. while acting with either actual intent or reckless disregard, i.e. malice (if the plaintiff was a public  official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement

Id. at 4.

Generally, a defendant can defeat a libel claim by establishing that the published statement on which the action for libel is based is a true statement. Additionally, a defendant can defeat a libel claim by establishing that the statement at issue is substantially true. The Court explained that in order “[t]o determine if a publication is substantially true, we consider

1. whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
2. than a truthful statement would have been, and
3. [w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”

Ibid.

The substantial truth standard has also been referred to as the “gist” test because, under this approach, only the “gist” of the statement in question must be true in order for the statement to be protected. As the Court explained, “[t]he defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.” Ibid. This doctrine protects certain false statements so long as any inaccuracies do not materially alter the dissemination of otherwise truthful speech.

The Huml Court decided in favor of the defendants, finding that the trial court had heard sufficient evidence to conclude that the plaintiff’s turbocharger was, as it concluded, a “bad product” and that the evidence “substantiat[ed] the ‘gist’ of the statements contained in the internet article regarding the production and manufacturing of the turbocharger.” Id. at 7.

The substantial truth defense is significant in that it provides defendants with a less stringent – and potentially less expensive – way to combat a libel suit. If a defendant can show that the statement at issue is substantially true, it will hopefully be possible under the right circumstances for the defendant to have a motion for summary judgment granted (which will allow the case to be disposed of without going to trial). The doctrine is also important for libel plaintiffs because it notifies them that statements that criticize them need not be entirely true in order to be protected.

Comments/Questions: gdn@gdnlaw.com

© 2024 Nissenbaum Law Group, LLC

Cyberbullying occurs when one person repeatedly uses information technology such as blogs, chat rooms, cell phones, e-mails or instant messaging to deliberately threaten, harass or intimidate another person(s). Cyberbullying also includes cyberstalking; sending sexually offensive messages to the victim; monitoring the victim’s online activities; sharing private or intimate information about the victim with others; and/or intentionally infecting the victim’s computer with a virus. Technology has created the opportunity for new forms of harassment in a variety of ways and from any distance. With the rapid spread of social networking sites and other Internet communication forums, there has been a tremendous increase in the Cyberbullying cases both in the federal and state courts.

Cyberbullying is not just confined to children. Adults working at large companies or educational institutions can also be victims. Cyberbullying can not only result in hurt feelings but also in severe harm to the victim, up to and including precipitating a suicide.  In many states, there are statutes passed by the Legislature that outlaw Cyberbullying.

Unfortunately, in the absence of such a statute, the common law does not generally recognize Cyberbullying as an independent tort. However, the victims of Cyberbullying can often bring a garden variety cause of action for defamation or intentional infliction of emotional distress when they are the victim of such behavior.

To prove intentional infliction of emotional distress, the victim has the burden to show that the harasser’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. American Home Prods. Corp, 58 N.Y.2d 293, 303 (1983). The victim also needs to prove that the victim suffered sustained financial, physical or psychological injury due to the harasser’s conduct. Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 269, 797 N.Y.S.2d 83 (2005).

To prove defamation, the victim is required to show the following:

1. The defendant made defamatory statement regarding the plaintiff;
2. The defendant published the statement to others; and
3. Injury resulted to the plaintiff.

Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991).

Thus, there are potential common law remedies for Cyberbullying even in the absence of a specific statute providing relief.

Comments/Questions: gdn@gdnlaw.com

© 2024 Nissenbaum Law Group, LLC

Whereas many Internet defamation cases involve anonymous defendants, there are many situations in which a plaintiff wants to remain anonymous. For example, a victim of defamatory comments of a sexual nature may wish to remain anonymous to avoid public humiliation.

In general, a plaintiff must place his name on a pleading in order to sue in federal court because courts have held that the public has a right to know in such instances. However, a court may allow a litigant to bring suit anonymously under certain, limited circumstances. In determining whether to make this allowance, the court will conduct a balancing test, weighing the plaintiff’s need for anonymity against the interests of public disclosure.

In a case before the United States Court of Appeals for the Second Circuit, the Court reversed a lower court’s decision which dismissed a plaintiff’s claim merely because she had filed the suit without using her name. Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185 (2nd Cir. 2008). In that case, a female plaintiff who claimed to have been the victim of a sexual assault sought to file a lawsuit against the alleged perpetrator without disclosing her name. In support of its decision, the Court cited the Ninth Circuit case Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), which outlined a standard for determining whether a litigant may file suit anonymously. There, the Court found that a plaintiff may only sue anonymously if his need for anonymity outweighs both the prejudice to the opposing party and the public’s interest in knowing the plaintiff’s identity.

Applying that same standard, the Second Circuit Court in Sealed Plaintiff outlined a series of factors to be considered in conducting the balancing test, which are: (a) whether the litigation involves matters that are highly personal or sensitive, or a plaintiff that is particularly vulnerable; (b) whether there is a risk of retaliation against the party filing suit or any innocent non-parties; (c) whether the identification presents other harms and the severity of those harms; (d) whether plaintiff is particularly vulnerable to possible harms of disclosure; (e) whether the suit is challenging actions of government or that of private parties; (f) whether defendant is prejudiced by allowing plaintiff to press claims anonymously; (g) whether plaintiff’s identity has thus far been kept confidential; (h) whether public’s interest in litigation is furthered by requiring plaintiff to disclose his identity; (i) whether because of the purely legal nature of issues presented or otherwise there is atypically weak public interest in knowing the litigants identities; and (j) whether there are any alternative mechanisms for protecting confidentiality of plaintiff. Ultimately, the Court determined that given the nature of the claim, the plaintiff’s interest in keeping her name anonymous was more important than the public interest in knowing her identity.

In light of this decision, potential plaintiffs should note that a court may allow them to file suit anonymously in certain instances. However, they should also be wary that courts are likely to allow them to do so only under narrow circumstances, such as where the facts or allegations surrounding a claim are of a particularly sensitive or personal nature.

Internet Law Legal Counsel

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To state a claim for unjust enrichment in New York, a plaintiff must establish that a) the defendant benefitted; b) the defendant benefited at the plaintiff’s expense; and c) that equity and good conscience require restitution.  Tasini v. AOL Inc., 851 F.Supp.2d 734, 739-40 (S.D.N.Y. 2012).  Ultimately, a court must be persuaded that it would be against equity and good conscience to allow a defendant to retain what the plaintiff seeks to recover. Id. at 740.

InTasini, the Plaintiffs brought suit against the Defendants alleging, among other things, that the Huffington Post was unjustly enriched by its practice of soliciting and accepting unpaid written submissions for its website. Id. at 739.  The Plaintiffs further alleged that the Defendants unjustly denied them compensation for their independent promotion of the content. Ibid.

The Defendants moved to dismiss the suit claiming that the Plaintiffs failed to “demonstrate that equity and good conscience require restitution and, in the alternative, that the plaintiffs’ unjust enrichment claim is barred by the existence of an implied contract between the plaintiffs and the defendants.” Ibid.  The Defendants made clear to the Plaintiffs from the beginning that they would not be compensated for their voluntary contribution to the website.

The court noted that the essential inquiry in any action for unjust enrichment is whether it can be shown that equity and good conscience warrant restitution, which would therefore obviate the need for dismissal. See id. at 741.  The court further noted that in evaluating whether equity requires restitution, New York courts look to whether the plaintiff has alleged an expectation of compensation that was denied.  Ibid. In this case, the Plaintiffs had full knowledge of the transaction and only expected to gain exposure from their contributions.  Ultimately, the court held that the complaint failed to plead an expectation of monetary compensation and the Plaintiffs therefore could not recover under their unjust enrichment theory.  Further, it was held that since the Plaintiffs contributed to The Huffington Post out of their own unprovoked desire, equity and good conscience did not support what was sought in this matter.

When bargaining, it is important that parties are clear about one another’s expectations.  Everything should be set in writing, if possible, before the transaction proceeds.

Comments/Questions: gdn@gdnlaw.com

© 2024 Nissenbaum Law Group, LLC

Many Americans are able to go online, enter their address into Google and zoom-in on the ensuing map so closely that they can see an image of their own home. This obviously raises invasion of privacy concerns.

In 2010, that question was proposed to the United States Court of Appeals for the Third Circuit. Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. 2010). In 2008, a couple residing in Pennsylvania (“the Borings”) sued Google, claiming that the company’s “Street View” feature on Google Maps invaded their privacy. The Street View program allows users to see panoramic views of locations throughout the United States. To collect the images, Google attaches panoramic digital cameras to passenger cars and drives around cities photographing areas along streets and roads. Individuals are able to report and request the removal of inappropriate images they find on Street View.

The Borings, who live on a private road, claimed that their privacy interest was disregarded by Google when the company took photos of their property and made those photos available to the public. In addition to alleging that Google invaded their privacy, the Borings also asserted claims for trespass, injunctive relief, negligence and conversion. In February 2009, the United States District Court for the Western District of Pennsylvania granted Google’s motion to dismiss all of the Borings’ claims. The plaintiffs appealed.

Under Pennsylvania law, there are four tort actions for invasion of privacy:

1) unreasonable intrusion upon the seclusion of another;

2) appropriation of another’s name or likeness;

3) unreasonable publicity given to another’s private life; and

4) publicity that unreasonably places the other in a false light before the public.

Burger v. Blair Med. Assocs., Inc.¸ 600 Pa. 194, 964 A.2d 374, 367-77 (Pa. 2009).

The Court followed the District Court’s interpretation of the Borings’ complaint as asserting claims for intrusion upon seclusion and publicity to private life. Plaintiffs stating a claim for intrusion upon seclusion must allege conduct that:

1) demonstrates an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and

2) avers sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.

Pro Golf Mtg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa. 2002).

The Court upheld the District Court’s decision and determined that the Borings’ claim for intrusion upon seclusion failed because the alleged conduct would not be highly offensive to a person of ordinary sensibilities. Boring, 362 Fed. Appx. at 280. “No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there.” Id. at 279. The Court also referred to an example included in the Restatement (Second) of Torts that “knocking on the door of a private residence [is] an example of conduct that would not be highly offensive to a person of ordinary sensibilities.” Ibid. The Court reasoned that Google’s actions of photographing an external view of the Borings’ home was arguably less intrusive than knocking on a door. “The existence of that image…does not in itself rise to a level of an intrusion that could reasonably be called highly offensive.” Ibid.

The Court also agreed with the District Court’s decision that the Borings’ claim of publicizing private life failed. To state such a claim, a plaintiff must allege that the matter being publicized is:

1) publicity

2) given to private facts

3) which would be highly offensive to a reasonable person, and

4) is not something that is of legitimate concern to the public.

Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984).

The Court determined that the Borings failed to allege sufficient facts to establish that the publicity given to them by Google’s actions would be highly offensive to a reasonable person. Boring, 362 Fed. Appx. at 280.

The Court’s decision suggests that attempts to sue Google for invasion of privacy over its use of residential images in its Google Map program are not likely to succeed. Courts could suggest that Google’s opt-out option provides a better route for residents who think that their privacy rights are being violated.

Privacy & Internet Law Legal Counsel with Nissenbaum Law Group

For questions or legal concerns regarding privacy matters and World Wide Web inquiries, see our Internet & Technology Law practice page and contact us.

© 2024 Nissenbaum Law Group, LLC

Recently, there has been a virtual tsunami of articles about the so-called hidden dangers of using the Pokémon GO app. The vast majority of them concern potential violations of the privacy rights of both consumers and landmark-owners. The media’s Chicken Little-like take on this is that augmented reality apps are opening the door to a dystopian future.

However, what has not been widely discussed is the impact of all this on the developers of augmented reality apps. That deserves some space as well.

I am the managing attorney of the Nissenbaum Law Group, LLC, a boutique commercial law firm located in NY, NJ, PA and TX with a focus in intellectual property. Our firm handles a fair amount of work involving apps. This includes everything from licensing agreements and movie and book deals to lawsuits over infringement of our clients’ intellectual property. We have reviewed the Pokémon GO controversy from the developers’ perspective and have come to the conclusion that it raises some very intriguing legal issues. Here are a few.

What sort of access is really necessary in order to utilize the app?

Many commentators have complained that signing into Pokemon GO provides “full access” to users’ Google accounts, i.e. gmail, maps, contacts, calendar, etc. See Slate.com’s excellent article on this concern. But does the app need to require a user to give total access to their Google account or is that simply an unnecessary overreach? If not, why stir up the hornet’s nest of privacy concerns when you can simply dial back the access without impairing the app’s functionality? The developer may not have complete control over how the app is downloaded, but that is precisely the point. Indeed, implementing such legal protections might give the developer a marketing edge to sell a more privacy-friendly product when others are not, e.g. end-to-end encryption. On the other hand, many developers have taken the position that no change is necessary since the heightened access level is fully disclosed and consented to by the app users in the terms and conditions and privacy policy. Either way, the developer should enter this legal thicket with eyes open. There is a downside of having the “benefit” of free access to user data.

The web has been rife with articles concerning Poké Stops and Pokémon Gyms located at properties owned by people who have no idea that they have been selected.

Notable examples of this have come from such wide-ranging landmarks as the Holocaust Museum and Arlington National Cemetery. Setting aside the concern that it can be irritating to suddenly have 50 people show up at a national landmark because it has now become part of a video game, there are serious questions about whether this is also an invasion of privacy.State laws differ, but generally, invasion of privacy breaks down into three basic categories. As set forth in the Restatement of the Law, Second, Torts, § 652, they are:

• Intrusion Upon Seclusion – One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
• Appropriation of Name or Likeness – One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
• Publicity Given to Private Life – One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
  (a) would be highly offensive to a reasonable person, and
  (b) is not of legitimate concern to the public.

It is obvious that any one or all of these could apply to the legal issues raised by augmented reality technology.

So how can the developer be protected? A good start would be a waiver of liability. It is critical that the terms and conditions for the app waive liability not just for the company distributing it, but the developer, as well. Another important consideration is whether the developer can obtain a suitable insurance policy that would cover these sorts of claims. There is no way of being completely protected, but such measures at least can offer a partial shield to potential liability.

Where does copyright law come into all this? Let’s consider the following hypothetical: the XYZ Candy Company is known throughout the country as being the best place to buy high-end candy and related items in bulk. It has a tremendous Internet presence and has franchised stores all along the eastern seaboard. Its unique building design—which is in the shape of one of its candies—has been copyrighted (Yes, under the right circumstances, a building design can be the subject of a copyright). But now, the XYZ Candy Company building also has become a Pokémon Gym. Players from miles around aggregate to that location because the name and logo are depicted in the app as a Pokémon Gym location. At what point does this mean the app is using the copyrighted design in violation of the copyright registration? The concern is not just that a developer would lose a lawsuit like that, but that they would be sued at all. Even a successful defense against such a challenge would create all sorts of negative consequences for the developer, e.g. litigation cost; backlash from the fan base; strain on the relationship with the app distributor; etc. If the potential for a copyright suit relating to building design is significant, the developer should consider negotiating license agreements / location releases with the copyright owner to specifically authorize the app’s use of it.

Another legal risk for the developer that should be mitigated by appropriate waivers of liability and indemnification clauses is a slip and fall claim. Believe it or not, there are already proposed laws that would prevent people from walking in public locations while utilizing their cell phone. These laws would penalize pedestrians who use the sidewalk while distracted: something which would only be exacerbated by using a cell phone with an augmented reality location app. (And while we are on the subject, how about liability for using the app while driving?)This raises the obvious question of who would be indemnifying the developer in this scenario. Perhaps the user. They could, on the one hand, hold the developer harmless from the user’s own claim for damages caused by the user’s negligence and, on the other hand, indemnify the developer for any claims by others (third parties) for damage that also arose from the user’s conduct. While not foolproof, the best way to try to obtain this protection would be to include it within appropriate terms and conditions for use of the app.

An integral way that augmented reality apps can be monetized is for the property owners to pay (perhaps on a per visitor basis) to be listed as a sponsored location. This can be complemented by such businesses using their status as an augmented reality location to provide discounted services to participants. All of this raises the question of how the developer can maximize the value of the brand and the monetization opportunities. Proper intellectual property registrations and a strong licensing and enforcement regime would be critical to doing so.Let’s take the example of a restaurant that advertises itself as a “Poké Stop” and utilizes a game image in connection with the stylized “Poké Stop” mark in its store window. That is arguably an instance of both copyright and trademark infringement. To best enforce those rights, however, it would be important for the game developer to have federally (if not internationally) registered those intellectual property rights.

But why is it important to inhibit this type of use? Doesn’t it help promote the game? Perhaps, but, on the other hand, once a restaurant can associate itself with the game and the developer for free, the opportunity to sell that right to another restaurant diminishes greatly. Why would Restaurant A pay to be a sponsored location, if Restaurant B is doing it without paying? The value of the license—the amount that Restaurant A might pay the developer for that opportunity—is greatly enhanced by properly policing the intellectual property and not allowing third party infringers to use those rights without permission.Moreover, even if the developer is not seeking to make money from these opportunities, it still behooves it to have a license in place. Having a proper license can help the developer maintain brand integrity and quality control.

As to brand control, for example, if the game is sold and targeted as being family-friendly, it will be important to ensure that the reality-based locations that are associating themselves with the game and its intellectual property, are appropriate venues, rather than liquor stores, places of adult entertainment and so forth.

Quality control is also critical. A license can help maintain this and ensure that a location using the brand indiciative of the game does not inadvertently tarnish it. In other words, if there is a restaurant that has health code violations, terrible reviews and other such challenges, the developer may very well not want to have its game associated with it. A proper license can help to provide an exit strategy and afford the developer enhanced rights.

Augmented reality apps are a quintessential example of disruptive technology. Their impact will extend beyond the digital world and affect other segments of society that may not currently even be aware of their existence. In the past, the law has done a very uneven job of keeping up with the pace of change created by such disruptive technologies… I could provide more examples, but I just saw a Mewtwo run into my law library. Gotta catch ‘em all…