YouTube is aware that its user anonymity allows for an array of hurtful, judgmental, sexist and racist trolls. The site is now attempting to make users more accountable for their posts and prompting commenters to use their real names when logging in.
This policy change was initiated on June 29, 2012, and gives users the option of using a pseudonym or their real name. However, this is not a mandatory policy, as users can simply elect not to switch to their real name or simply maintain their YouTube handle. If a user decides to remain anonymous by clicking a button saying “I don’t want to use my full name,” that user will be directed to a dialogue box that asks them to explain why they do not want to display their real name. Among the options a user can select for their explanation is “My channel is for personal use but I cannot use my real name,” or “I’m not sure, I’ll decide later.”
Even if a user decides to keep their pseudonym when initially prompted, the site allows users to change their settings at any time if it is eventually decided that they want to use their full name. However, it is not clear whether new users will have the option of using a pseudonym or if they will be forced to use their real names when registering.
This new policy is part of Google’s (which owns YouTube) attempt at improving Internet posting.
© 2012 Nissenbaum Law Group, LLC
In W.J.A. v. D.A., No. A-77-10 (May 16, 2012), the New Jersey Supreme Court addressed the question of whether the doctrine of presumed damages applies over the Internet.
That case surrounds Wayne Anderson (“Wayne”), a New Jersey man who was cleared of sexual abuse charges against his nephew, David Adams (“David”) (both fictitious names created by the Court). Wayne was awarded $50,000.00 for defamation in the original suit, and nine years later David created a website that repeated the abuse claims with additional charges. The site included Wayne’s name and address.
The creation of the website initiated the current case. However, because Wayne could only offer anguish and emotional injury as damages, the Law Division judge found those damages subjective and therefore insufficient to sustain a defamation claim. David was granted summary judgment. However, the Appellate Division reversed, holding that Wayne could recover damages in a defamation suit without proving actual harm. This is known as the “Presumed Damages Doctrine,” whereby a claimant may recover nominal damages expected when his reputation has been injured. Reputational damage is often hard to prove, so under certain circumstances, it may be presumed, but the damages are generally nominal.
In that case, the Supreme Court held that the presumed damages doctrine would be recognized. The judge noted that the doctrine acts as a procedural device to help the plaintiff’s claim survive dismissal. Addressing the fact that the damages would be nominal, the Supreme Court noted that vindication is an important piece of any defamation claim and the doctrine acts as a tool by which the plaintiff is provided dignitary recourse.
Because the damages are presumed, it is hard for a jury to devise a uniform method of valuation. That is why a plaintiff can only obtain nominal damages at trial, thereby precluding compensatory damages absent proof of actual harm. Of course, the Plaintiff is free to seek to prove actual damages, which one would hope would be greater. However, that is often not possible.
This case is important because it illustrates that New Jersey will recognize the doctrine of presumed damages, but recovery under the doctrine is limited. The doctrine is a good tool for a plaintiff to use to defeat dismissal and obtain nominal damages when he cannot show actual harm. This is generally the scenario in Internet defamation cases, in which the reputational harm that can be caused is extremely hard to measure.
© 2012 Nissenbaum Law Group, LLC
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.
In a recent case, a 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, 2009 Tex. App. (1st Dist. 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:
- published a statement about the plaintiff
- that was defamatory
- 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 13.
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
- whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
- than a truthful statement would have been, and
- [w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”
Id. at 14.
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.” Id. 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.
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.
© 2011 Nissenbaum Law Group, LLC
A Spanish court recently asked Internet-search provider Google to remove data about a private individual from its index. Spain and other members of the European Union made this request under a doctrine that is commonly referred to in Europe as “the right to be forgotten.”
In 1991, a Spanish newspaper published a critical profile of Spanish plastic surgeon, Dr. Hugo Guidotti Russo. The article referenced a dispute Dr. Russo had with a patient, but failed to mention how meritorious the claims were or how the dispute was ultimately resolved. According to Dr. Russo’s attorney, the lawsuit was dropped once Dr. Russo was cleared, but no media covered that aspect of the case so it never appeared on the Internet. Dr. Russo is still a practicing plastic surgeon in Spain and when potential patients use Google to search for him, the critical article regularly appears on page one of the search results. Dr. Russo believed that the article was harming his ability to attract patients and, with the support of a Spanish court and the Spanish Data Protection Authority (“SDPA”), asked Google to remove the article from its index.
Google refused to remove the article claiming that the Spanish regulators exceeded their authority and that their directive was equivalent to censorship. The important issue raised was how much control private individuals should have over the information about them that appears on the Internet. Currently, there is a groundswell of support in Europe for the “right to be forgotten” movement such that it may be codified as law. The SDPA has previously ruled that freedom-of-expression laws in Spain protect only newspapers and other publications and do not protect search engines.
Other examples of private individuals seeking to “be forgotten” in Spain include:
A high school principal whose citation for urinating in public was published by an official regional government gazette and may still be seen by students and parents alike via a Google search.
A prison guard concerned that a job-related sanction that appeared in Google search results might lead criminals to determine where he works. Spanish police and prison guards are often granted anonymity due to fears that they might be identified, located, and targeted by the armed Basque separatist group ETA.
An individual accused of homicide forty years prior but acquitted due to mental illness. A Google search performed forty years later reveals news of the accusation, but no news of his acquittal or the mental illness that justified the acquittal.
Google’s response is that Spain should require the publications that make the material available via the Internet to embed coding that would tell search engines not to index the information. Privacy experts agree that requiring Google to remove information from its index could have a profound chilling effect on free expression. Advocates of the “right to be forgotten” rules counter that users of the Internet should have a right to be forgotten when the data is no longer needed or when an affected individual requests that the data be removed. The legislation being considered by the European Union would focus mainly on data, photos and, videos that individuals post of themselves on sites such as Facebook and Twitter, that the individuals may later want removed.
© 2011 Nissenbaum Law Group, LLC
On April 7, 2011, the First Department of New York’s Appellate Division upheld a trial court’s dismissal of a lawsuit for defamation. Akpinar v. Moran, 2011 WL 1311902 (1st Dept. 2011). The plaintiff, Reverend Dr. Bill Akpinar, sued attorney William Moran; Moran’s law firm; and the firm’s client, Wachovia Mortgage, FSB (“Wachovia”) for defamation. Akpinar alleged that Moran defamed him in a newspaper article about a pending criminal investigation into a mortgage fraud and a lawsuit brought against Akpinar by Wachovia alleging mortgage fraud.
When referring to Akpinar, Moran told the newspaper, “I’m looking forward to getting him under oath” and “I want to get to the bottom of many questions myself.” Id. Akpinar argued that when considered in the context under which the statements were made, they amounted to defamation. Akpinar claimed “that he lost $17 million in venture funding from unspecified individuals who read the [defamatory] statements.” Id.
The Appellate Division dismissed Akpinar’s complaint, holding that “a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts.” Id. (Emphasis in original). The court reasoned that “the statements neither impute to him the commission of a serious crime nor tend to injure him in his trade, occupation or profession, and therefore do not constitute slander per se.” Id. Neither Akpinar’s reference to the pending criminal investigation nor the civil lawsuit were sufficient to establish a claim for “defamation by innuendo” – whether the statements are defamatory requires a balancing between the alleged defamatory words and the facts and circumstances that surround their publication.
The court also found Akpinar’s allegation that he lost “$17 million in venture funding from unspecified individuals” inadequate to plead special damages as required in a defamation action. Id. Finally, the court noted that Moran’s statements were protected under Civil Rights Law §74 as a “fair and true report of a judicial proceeding.” Id. The court similarly dismissed Akpinar’s claim for intentional infliction of emotional distress as duplicative of his defamation claim and on the ground that Moran’s statements were “not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Id. Thus, the court upheld the decision of the trial court dismissing Akpinar’s lawsuit in its entirety.
© 2011 Nissenbaum Law Group, LLC
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.
© 2011 Nissenbaum Law Group, LLC