Category Archives: New York Caselaw

May statements made in the course of an ongoing fraud investigation be defamatory?

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

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)


© 2011 Nissenbaum Law Group, LLC

An Internet Service Provider is Generally Protected from Liability for Defamation by the Federal Communications Decency Act

On September 2, 2010, the Supreme Court of New York, New York County decided a case in which it determined a defamation claim regarding negative remarks about the plaintiff’s dental practice posted by a third-party on defendant’s web page.  The court in Reit v. YELP!, Inc., et al. –N.Y.S.2d—, 2010 WL 3490167 (N.Y.Sup.), held that the Federal Communication Decency Act of 1996 (“CDA”) protected Yelp from liability for defamation.  The Court analyzed plaintiff’s defamation claim pursuant to the CDA and stated:   

Section 230 of the CDA provides that “[n]o 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,” (CDA § 230[c][1] ), and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section” (Id., § 230[e][3] ).  “Interactive computer service” is defined as “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server …” (CDA § 230[f][2] ).  An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other information computer service” (CDA § 230[f][3] ).

Id. at 1.

Through the CDA, Congress granted interactive computer services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.  Similarly, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred.  However, an internet computer service is liable for its own speech, or when it develops information.

Id. at 2.

The Court held that the plaintiff’s defamation claim was barred by the CDA because defendant was an interactive computer service as defined under the CDA and was not considered an internet content provider.  The allegedly defamatory content was supplied by a third party information content provider and consisted of a message board posting.  Id.  Thus, the Court granted defendant’s motion to dismiss plaintiff’s complaint.       


© 2009 Nissenbaum Law Group, LLC

Waiver of Liability Clause is Overcome By a Search Engine Victimized by Gross Negligence

On July 27, 2010, a Federal Judge sitting in the Southern District of New York ruled that a search engine could sue for gross negligence against its Internet service provider, even though the search engine had signed a waiver of liability. In Baidu, Inc. v., 10 Civ 444 (SDNY 2010), the Court was presented with a case in which a company that operates one of the world’s largest search engines, Baidu, Inc., was shut down for a number of hours by hackers from the “Iranian Cyber Army.” Once the hackers penetrated the website’s security protocols, they posted an Iranian flag and a broken Star of David.

As reported in the New York Law Journal, Volume 224, No. 10 (2010), the parties admitted that the ISP agreement had clearly stated that Baidu, Inc. was proceeding at its own risk and would provide its own security. However, the hacker was able to penetrate by emailing that it had lost its password. It provided a new password, notwithstanding the fact that the hacker was unable to answer the security questions.

The Court held that the gross negligence by was either intentional wrongdoing or at the very least, “reckless disregard for the rights of others.” On that basis the Court allowed the case to proceed on the claims of gross negligence and breach of contract.


© 2009 Nissenbaum Law Group, LLC

New York Federal Court Rejects Contributory Trademark Infringement Suit Brought by Tiffany Against eBay for the Sale of Counterfeit Goods

Internet Law: New York Caselaw: Trademark Infringement: On July 14, 2008, the U.S. District Court for the Southern District of New York issued a decision siding with eBay in a landmark trademark infringement lawsuit brought against the online auction site by Tiffany, Inc. and Tiffany and Company (collectively, “Tiffany”). Tiffany, Inc. v. eBay, Inc., Case No. 04-Civ-4607 (S.D.N.Y. July 14, 2008). In its suit, Tiffany sought to hold eBay liable for the sale of counterfeit Tiffany jewelry by eBay sellers under the doctrine of contributory trademark infringement. The Court rejected Tiffany’s claim, declining to accept a theory of liability which would have drastically expanded the reach of contributory trademark infringement.

Prior to bringing suit, Tiffany had informed eBay that a substantial amount of counterfeit Tiffany jewelry was being sold on the auction site. Tiffany demanded that eBay immediately suspend access to the site to any sellers that Tiffany identified as selling counterfeit goods. It also insisted that eBay remove any listings that offered five or more of the same Tiffany item for sale, contending that where a listing offered a large number of the same Tiffany item, the item was likely counterfeit. In response, eBay refused to comply with Tiffany’s requests.

In bringing its claim, Tiffany argued that eBay should be held liable for contributory trademark infringement because it had been put on notice (by Tiffany) that its sellers were engaging in counterfeit sales and thus it should have “reasonably anticipated” the wrongful sales of counterfeit (and infringing) merchandise occurring on its site. Accordingly, Tiffany argued, eBay had a legal obligation to proactively investigate and remove any listings that raised a suspicion of wrongdoing.

The Court disagreed with Tiffany, holding that eBay should be absolved of liability as long as it takes appropriate steps to suspend access to the site and remove listings when it receives specific knowledge that a particular listing is infringing. The Court noted that a trademark owner has the burden of policing its own mark. It found that eBay cannot be held liable for contributory infringement simply because of its generalized knowledge that some of its sellers might be engaging in infringing behavior.

In support of its decision, the Court cited Coca-Cola Co. v. Snow Crest Beverages, an earlier contributory infringement case having a similar fact pattern. 64 F.Supp. 980 (D. Mass. 1946), aff’d, 162 F.2d 280 (1st Cir. 1947). In that case, Coca-Cola claimed that Snow Crest had contributorily infringed its mark by selling an item called “Polar Cola” to bartenders who mixed it into “rum and Coke” drinks. Coca-Cola argued that Snow Crest should have reasonably anticipated the infringement because Coca-Cola’s lawyers had informed Snow Crest that the practice was occurring in a number of bars. Coca-Cola did not, however, provide names of specific bars where the alleged infringing behavior was occurring. The Coca-Cola Court refused to impute knowledge of the infringing behavior to Snow Crest based on a “blanket demand” by Coca-Cola.

Just as the Coca-Cola Court had held that Snow Crest should be liable based on generalized notice of what some of its buyers might be doing, the Court in Tiffany v. eBay held that generalized notice that some of its users might be selling counterfeit goods on its site was insufficient to impute knowledge to eBay of any specific acts of actual infringement. The Court reasoned that “the doctrine of contributory trademark infringement should not be used to require defendants to refuse to provide a product or service to those who merely might infringe the mark.” The Court took particular note of the fact that eBay had devoted a substantial amount of resources to establishing and implementing procedures to combat the sales of counterfeit goods.

The decision is a favorable one for entities offering services similar to eBay. Its holding sends the message that such intermediaries will not be responsible for investigating and policing all of the potentially infringing activity on their sites. It also highlights an additional potential defense for websites that are sued for its “members” acts, emphasizing the importance of detailed notice. On the other hand, the decision should also serve as a warning to trademark owners that they bear the burden of policing others’ use of their marks. Moreover, it accentuates the importance of a trademark owner providing very specific and detailed notice in the event of an infringement.

Notably, in a separate case brought against eBay in the Tribunal de Commerce in Paris, the court’s holding went in the opposite direction. There, the court found that eBay was not taking adequate measures to prevent the auction of unauthorized and counterfeit goods. It is interesting to note that different jurisdictions are interpreting website responsibility differently, thus creating different legal standards for the operation of a website in different areas.


© 2008 Nissenbaum Law Group, LLC

In New York, Can An Email Confer Jurisdiction Upon An Out-of-State Business?

New York Caselaw: New York courts have discussed whether email can confer jurisdiction upon a business. More specifically, an out-of-state company that merely sends an email to purchase goods may not be subject to the jurisdiction of the courts of New York. Nonetheless, New York courts will examine the email’s content to see how far it goes to specifically solicit business from New Yorkers. Courts will also look to the content of an email to find out whether there is a nexus between the email that was sent and the reason that the business is being sued. Further, courts will examine whether the potential subjects of any lawsuit purposely availed themselves of the privilege of transacting business within New York.

Unfortunately, there are no bright-line rules. Since each case is different, prior to soliciting business via the Internet, a business should consult an attorney to be sure that it fully understands the legal implications of such solicitations.

As technology begins to take a more active role in the administration and solicitation of business, it is important to keep in mind that the use of that technology may have unintended legal consequences which could become irreversible if not handled in a timely manner.


© 2008 Nissenbaum Law Group, LLC

Are Personal Emails Sent From Work Protected in New York?

New York Caselaw: New York courts are still developing the law as it applies to electronically stored information. Generally, there are numerous legal issues associated with the use of email and other forms of electronically stored data.

One such issue is an employee’s right to privacy when sending personal email from work. Courts often look at whether a workplace has a written email policy when determining the level of privacy to give to an employee’s email. If there is an email policy, courts will look at where it is posted and whether it was sent to each employee. Even if an employee does not sign and acknowledge that they received or read the policy, courts may still be able to find that an employee has no privacy rights if the employee should have known about the policy. Even emails to an employee’s personal attorney from a work computer may not be protected against an employer’s perusal, and therefore the employee may have waived the attorney-client privilege as it relates to that communication. Courts will also look to the language of an employer’s email policy to determine if the employer has the right to review and/or prohibit such email communications.

Under the circumstances, it is imperative that every business consult with an attorney prior to creating an email and computer usage policy and properly inform employees of such regulations. A well drafted email and computer usage policy may provide an employer with an advantage in litigation and may legally minimize employee misconduct. On the other hand, it is important that employees understand that emails sent from work may not be private and therefore may become evidence in a lawsuit. For more advice on an employee’s privacy rights, an inquisitive employee should consult a qualified attorney.


© 2008 Nissenbaum Law Group, LLC

New York Court Rejects Disclosure of Anonymous Blog Poster

New York Caselaw: The New York County Supreme Court in Greenbaum v. Google, Inc., held that an elected member of a school board was not entitled to discover the identity of an anonymous blog poster who posted derogatory comments about the board member, calling her a “bigot” and an “anti-semite.” However, the Court did not focus upon the legal issue of whether it was appropriate to order disclosure of the anonymous speaker’s information; instead, it noted that since it did not believe that the comments rose to the level of defamation, there was no need to reach the issue of whether disclosure of the poster’s identity should be revealed.

It first commented that an appellate court in New York had not yet developed a standard that would govern the disclosure of the names of anonymous bloggers. The Court indicated that an anonymous Internet speaker must be given an opportunity to be heard in court and that those parties bringing a lawsuit must identify the actual statements that they believed to be defamatory. Notably, when a court gives an anonymous poster the opportunity to be heard, it will generally take steps to ensure that the speaker’s identity remains anonymous until it renders a decision as to whether the disclosure of the identity of that poster is lawful. Otherwise, an anonymous poster might be afraid to post speech that is protected by the First Amendment for fear that a court would give any litigant his name. Courts generally strive to not chill speech in this manner.

After examining the speech at issue, the Greenbaum Court found that it did not need to further articulate a standard for disclosing the identity of an anonymous internet poster because the posted comments were not defamatory. As such, the case could be dismissed without the speaker’s identity being revealed.

This case emphasizes the need to have a legitimate defamation claim prior to filing an action alleging defamation. Obtaining a speaker’s identity can be difficult and time-consuming. The courts will not generally readily demand the disclosure of speakers’ information. Accordingly, it emphasizes the importance of reviewing the speech at issue to be sure that it is such that it is likely to result in a viable claim.


© 2008 Nissenbaum Law Group, LLC

U.S. District Court Orders Google to Turn Over YouTube User Records in Viacom Suit

New York Caselaw: The demands on Google to release user information extend to yet another level. The United States District Court for the Southern District of New York has ordered Google to turn over to Viacom its records of which users watched which videos on YouTube, now owned by Google. The order, issued by Judge Louis Stanton, comes in the midst of Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube.

The suit, initially filed by Viacom back in March 2008, alleges that Google and YouTube engaged in massive intentional copyright infringement by posting nearly 160,000 unauthorized clips of entertainment programming owned by Viacom and by failing to prevent its users from posting infringing materials to the YouTube site. Google has maintained that it is shielded from liability under the safe harbor provision of the Digital Millennium Copyright Act of 1998. The immunity set forth therein lets Internet service providers (ISPs) off the hook for infringing activities of users. But, this immunity only applies if the ISPs adhere to several requirements and promptly remove any allegedly infringing material upon notification of the alleged infringement from the copyright owner.

Although Judge Stanton’s order limits the information that must be produced, it does direct the Google to turn over as evidence a database containing the usernames and IP addresses of YouTube viewers, along with an accounting of what videos they watched and at what time. Viacom asserts that it needs the information to demonstrate video piracy patterns in order to build its infringement case against the defendants.

Viacom, along with other large networks, film production companies and even sports leagues, is undertaking immense efforts to ensure that their copyrighted productions are not being released and made viewable on YouTube. Nonetheless, the order is certainly a cause for concern among YouTube users that the personally identifiable information they provide in registering with the site will fail to remain secure. There is also an argument that order violates the Video Privacy Protection Act, a federal law passed in 1998 to prevent “wrongful disclosure of video tape rental or sale records.” However, that law remains generally untested as it applies to the Internet.

Notably, the order also provides that Google does not have to turn over its computer source code which controls the search function and Google’s Internet search tool The judge agreed that such information is Google’s trade secret, stating that “[a] plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.”

This case raises many questions that could turn copyright and Internet law on its head: (1) can an ISP be liable for infringement despite the Digital Millennium Act; (2) can personal records be released; (3) given that the records relate to videos, does that the disclosure of user information violate the Video Privacy Protection Act; and (4) can there be liability for creating software that favors infringing content? It will certainly be interesting to see how this unfolds.


© 2008 Nissenbaum Law Group, LLC