Category Archives: internet defamation law

May a Court Impose a Requirement that a Webpage about a Case be Posted in Order to Publicize a Settlement that is in the Public Interest?

Is it appropriate for a federal court to condition a settlement of an advertising fraud case upon the posting of a webpage publicizing the settlement? That issue was considered by the Court in FTC v. Circa, CIV. 11-2172 RMB/AMD, 2012 WL 3987610 (D.N.J. Sept. 11, 2012).

That case related to advertisements on the internet about the weight loss properties of acai berries. The advertisements were made to appear like newscasts and there were even fictional reporters and commentators discussing the acai berries weight loss properties.

The Federal Trade Commission instituted a proceeding alleging false advertising. It ultimately settled with Circa Direct providing for a permanent injunction and an $11.5 million payment that would be suspended if certain disclosure criteria were met.

The Court refused to approve the settlement because the public interest would not be served unless an additional term was added. That requirement was that the FTC would display a webpage giving the public the opportunity to assess the facts of the settlement and learn more about the deception involved.

Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

Can You Be Sued For Your Social Media Posts?

What would you change about your Facebook, Twitter, Instagram or other social media sites if you knew you could be sued for using them? A case that could forever change the way we think about social media is currently before the Los Angeles Superior Court. It all started with the following tweet by Courtney Love. @CourtneyLoveUK: “@noozjunkie I was fucking devastated when Rhonda J Holmes Esq of san diego was bought off @fairnewsspears perhaps you can get a quote.”
Love’s former attorney, Rhonda J. Holmes, Esq. is suing for defamation based upon that tweet because it stated that Holmes was “bought off.”  This referred to the way Holmes’ handled her retention to pursue a fraud case against the executors of Love’s late husband, Kurt Cobain’s, estate. Love has raised the defense that she thought the tweet was only being sent to two people. She also has taken the position that it was not defamatory because it was an expression of opinion, not fact.
Generally, defamation has four key elements:
·         a false statement concerning another person or entity;
·         publication or communication of that statement to a third person;
·         intent:
o    malice (intent or reckless disregard) concerning the fact that the statement was untrue if it was about a public figure or
o    negligence by the party making the statement concerning the fact that the statement was untrue if it was about a non-public figure; and
·         harm caused to the person or entity who is the subject of the statement (unless a limited exception applies in which harm is presumed).
Defamation is a civil wrong that can manifest itself in the form of libel or slander. Libel is the written form and slander is the verbal form.  
Judge Michael Johnson ruled against Love and has sent the case to trial. If the jury finds Love guilty of defamation, it would be precedent-setting. The very nature of using Twitter is that the posts are abbreviated and immediate. Nevertheless, based upon this ruling the common law of defamation applies in those situations, as well as the more considered verbal or written statement. The take away is that people using social media should keep in mind that a tweet could result in a lawsuit. 

Clearly, the law is adapting to the new challenges of social media.  

Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

New York Assembly Seeks to Restrict Anonymous Free Speech on the Internet

The New York State Assembly has proposed a law that would
make sweeping changes to how people communicate on the Internet.  The Bill called the “Internet Protection Act”
A:8688 /S.6779 would require the following:

A web site administrator upon request
shall remove any comments posted on his or her web site by an anonymous poster
unless such anonymous poster agrees to attach his or her name to the post and
confirms that his or her IP address, legal name, and home address are accurate.
All web site administrators shall have a contact number or e-mail address
posted for such removal requests, clearly visible in any sections where
comments are posted.

Clearly, this would create
profound problems for civil libertarians and others who believe that people should
be allowed to post their views anonymously.
In fact, it might be unconstitutional, to the extent that a court would
find that it violates the principle that anonymous free speech are matters of
public concern is protected by the First Amendment.

Specifically,
in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the United States
Supreme Court stated:

Anonymity is a shield from the tyranny of the
majority. . . . It thus exemplifies the purpose behind the Bill of Rights and
of the First Amendment in particular: to protect unpopular individuals from
retaliation . . . at the hand of an intolerant society

Id.at357.    

People
who post on websites, as well as webmasters, should follow this development to
see if the law ultimately is signed by the Governor, and if so, whether it
starts a nationwide trend.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What is the standard for a private person to sue a public official for defamation?

The Second Circuit of the United States Court of Appeals recently dismissed a defamation lawsuit brought by a private citizen against the mayor of Yonkers, New York.  Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011).

Selim Zherka, a citizen of Westchester County, New York, publishes the Westchester Guardian, a weekly local newspaper.  In 2007, the Guardian was highly critical of Philip Amicone, the Mayor of Yonkers, accusing him and his administration of corruption, fiscal mismanagement and police brutality.  Zherka claimed in his lawsuit that Amicone retaliated against him for making those accusations by publicly defaming him at a campaign event.  According to Zherka, Amicone called him a “convicted drug dealer,” an “Albanian monster” and a “thug.”  Amicone also said that Zherka would open “drug dens” and “strip clubs” throughout Yonkers and “loot” the “pension funds” of Yonkers’s residents if Amicone was not re-elected Mayor of Yonkers.

Zherka sued Amicone in the United States District Court for the Southern District of New York for violation of his First Amendment rights and per se defamation under New York common law.  Amicone admitted being present at the campaign event, but denied making any of the statements.  Amicone moved to dismiss Zherka’s lawsuit for failure to state a claim upon which relief could be granted.  The District Court granted Amicone’s motion and dismissed Zherka’s First Amendment claim with prejudice and dismissed his defamation claim under New York common law without prejudice.  Zherka appealed that decision to the Court of Appeals.

The Court of Appeals affirmed the District Court’s ruling and upheld the dismissal of Zherka’s First Amendment claim and his common law defamation claim.  The Court reasoned that Zherka could not establish that Amicone’s retaliatory comments “chilled” his speech in any way – that is, that they caused Zherka to refrain from speaking – which is required to establish a First Amendment violation under 42 U.S.C.A. §1983.  Id. at *2.

Zherka argued that the injury presumed as a result of his claim of per se defamation under New York common law was sufficient to establish an injury under §1983.  The Court disagreed, reasoning that Zherka’s alleged injury under New York common law was insufficient to serve as a substitute for the actual “chilling” of speech.  In fact, the Court found that Amicone’s comments seemed to influence Zherka to speak, rather than chill his speech.  For example, following Amicone’s comments Zherka published articles critical of Amicone with headlines such as “Mayor Amicone Stumbles Over the First Amendment,” “Dumb, Dumber and Dumbest,” and “Scrooge Amicone-Rapes Taxpayers; Rewards Cronies.”  Id. at *2.

Thus, the Court held that Zherka could not establish an injury sufficient to prove a violation of §1983.  In conclusion, the Court stated:

Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.

The arena of political discourse can at time be rough and tough.  Public officials must expect that their decisions will be subjected to withering scrutiny from the populace.  A public official’s response to that criticism is subject to limits, but the injury inflicted by that response must be real.  Without that limitation, the Constitution would change from the guarantor of free speech to the silencer of public debate.

Id. at *3.

Download Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011)

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC