Monthly Archives: February 2011

When is a billboard too racy?

A billboard in Atlantic City, New Jersey has recently garnered national attention.  The billboard for “Moonshine Follies”, a show running at the Resorts Casino Hotel (“Resorts”) from February 20th to April 17th, pictures a woman’s bare bottom as part of the advertisement.   NJ Transit owns the land on which the billboard is situated and received several complaints about the explicit nature of the advertisement.

NJ Transit informed Resorts that it wanted it to take down the billboard.  Resorts then filed a lawsuit seeking an injunction to keep the billboard up.  Judge Nelson C. Johnson of the Superior Court of New Jersey, Atlantic County, preliminarily ruled that the billboard would stay up until he could convene a March 10th hearing to determine its fate.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Does a person have to show that his reputation was harmed to bring a lawsuit for per se online libel or slander?

The NJ Supreme Court is currently considering an appeal that may determine once and for all whether a person can proceed with an online per se libel suit even though there is no evidence that his reputation has been actually harmed.

In W.J.A. v. D.A., 416 N.J. Super. 380 (App. Div. 2010), the nephew created a website in which he posted allegations that his uncle had molested him years ago. The uncle then sued his nephew for defamation.

Defamation is when the defendant communicates to another person a false statement about the plaintiff that harms the plaintiff’s reputation in the eyes of the community or causes others to avoid him. There are two types of defamation, libel which is when the false statement is written or printed and slander which is when the false statement is spoken.

New Jersey law provides that someone suing for defamation must show actual damages. However, there is an exception to that requirement in which damages will be presumed. It is called “per se” slander or libel. The usual examples are set out in the standard New Jersey jury charges:

  • The statement charges someone with the commission of a crime. 
  • The statement accuses someone of having an offensive or loathsome disease that would tend to deprive the person of companionship. 
  • The statement concerns matters that are incompatible with business, trade, profession or office.
  • The statement charges serious sexual misconduct.

In this case, the Appellate Division of the Superior Court of New Jersey determined that per se defamation is not limited to the spoken word (slander), but also applies to the written word (libel). The Court reasoned that:

“[F]or purposes of summary judgment, no one disputed that the defamatory statements attributed to defendant were defamatory. Thus, dismissal of the action at that stage-merely because plaintiff presented no proof of actual damage – provides defendant with a license to defame. If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense, does not offend us.”

W.J.A. v. D.A., 416 N.J. Super. At 606-607 (App. Div. 2010)

The opinion is also notable because it clarifies that a defamatory Internet posting is libel, not slander.

This case is now on appeal to the NJ Supreme Court, which should issue its ruling sometime this term.

Download W.J.A. v D.A., 416 N.J. Super. 380 (App. Div. 2010)

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Do bloggers have to disclose their sources?

The New Jersey Supreme Court has accepted a case in which it will decide whether a person posting comments on the Internet has to disclose the source of the posted information.
In Too Much Media, LLC v. Hale, 413 N.J. Super. 135, (App. Div. 2010), certif. granted, Too Much Media, LLC v. Hale, 203 N.J. 433 (2010), a woman sought protection under the NJ Shield Law, N.J.S.A. 2A:84A-2, which protects journalist from disclosing their confidential sources. The woman claims that, like a paid journalist, she was investigating a newsworthy matter and reporting her findings via a posting on an Internet bulletin board. The Appellate Division found that she was not investigating and reporting news and therefore, was not protected by the Shield Law. It stated in part,

“Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.” Although any attempt at defining “news” would ultimately prove illusory, some delimiting standards must pertain lest anyone with a webpage or who posts materials on the Internet would qualify.”

Too Much Media, LLC v. Hale, 413 N.J. Super. at 154-5 (App. Div. 2010)

This matter is now being reviewed by the NJ Supreme Court, which should issue its ruling sometime this term.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC