Internet Defamation Law Blog

Consumer Reviews: A Form of Permitted Defamation?

Commentary: We regularly receive inquiries relating to postings on consumer review websites. The usual issue concerns the fact that the business owner feels that the customer’s posting is defamatory and should be removed. In such a case, there are a number of things that the “victim” business needs to keep in mind.

First, for most of these websites, the publication of customer reviews, whether positive or negative, is the nature of their business. If they were to remove negative reviews, their credibility would arguably be hurt and the website’s viability as a business model might be diminished. These sites generally need to allow the posting of negative reviews in order to survive. Accordingly, injured parties are likely to face resistance when requesting that a host website remove such content. In order to have a posting removed, additional legal action may need to be taken; more often than not, a mere demand letter will not do the trick. It is also important to keep in mind that the websites may not have incentive to cooperate with the complaining business under the law. The Communications Decency Act states that a website will generally not be liable for its posters’ speech.

The next question is what right does a business owner have to seek damages against a customer who has posted a negative review. All of the rights and remedies that may be available will vary based upon the specific information relayed in the posting and the unique context facing the victim and the speaker. This is yet another reason that it is important to seek legal counsel to evaluate a specific claim. However, for purposes of this discussion, our analysis will focus on the potential defamation claim.

It is critical that businesses understand that simply because information is negative, and even injurious, that statement may not be defamatory. The posting itself would not be a “permitted form of defamation” since if it is found to be defamatory, it would not be permitted. The question is really whether or not the statement is defamatory. Defamation law is almost always analyzed in accordance with First Amendment law. Just as a business or person has protections under the law from being defamed, so too does the speaker have a First Amendment right to speak about his experiences.

The balance therefore comes from an analysis of the speech itself. Again, the negative nature of the statement is not itself conclusive. Rather, for a defamation claim to exist, the speech must not only be damaging, but it also must be false. Thus, if the customer reports a bad encounter, but he is truthful in his recitation of the history, there is likely no claim for defamation. Similarly, opinions are protected. If a customer simply indicates that he does not like the business owner or did not like the business’s products or services, that is arguably an opinion and therefore, is not a statement that is capable of being false. It therefore cannot be defamatory. The customer has a First Amendment right to share his opinions and experiences.

Defamation law seeks to protect those who are injured by lies. If a posting is made by someone who has never been a customer of a business or by someone who falsifies facts about the business or its products and services, a viable claim for defamation may exist. Of course, the claim would rest upon the extent of the resulting money damages that could be proven.

There is a complex analysis of all statements and underlying facts to determine whether or not a claim for defamation can be made based upon a customer’s online review of a business’s products and services. It is therefore critical that all potential plaintiffs immediately consult with counsel to evaluate the statements and to review the applicable remedies that may be available.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

New Jersey Proposes Social Networking Safety Act

Proposed Legislation: Social Networking: Our attorneys previously co-authored an article entitled  Wrongful Posting on the Internet: The Privacy You Save Could be Your Own. It discussed privacy and other legal issues related to online statements. The article discussed real-life predicaments such as the unfortunate story of a young Missouri girl who committed suicide after having allegedly been harassed on the MySpace social networking website. As the use of social networking websites has grown exponentially, so too have the sordid stories of misuse of those sites for online harassment and sexual harassment.

Since the then-current law was devoid of remedies to specifically address the damages presented by this new trend, in their article, Mr. Nissenbaum and Ms. Magedoff predicted that state legislatures would begin to enact laws to specifically address these issues. New Jersey now appears to be at the forefront of this movement since the New Jersey legislature is currently considering the Social Networking Safety Act. The law proposes imposition of civil penalties for social networking users who transmit a harassing or sexually offensive communication through a social networking website. An offender would be liable to a website operator for $1000.00 plus attorneys fees and would be liable to the recipient of the communication for the greater of (a) actual damages (including compensatory and punitive damages) or (b) $50000.00 plus attorneys’ fees. Notably, certain versions of the pending bill appear to be aimed at communications both (a) to minors under 13 years old and (b) in the event that the communications are sent from someone who is at least 3 years older than the recipient, to those who are younger than 16.

It is critical to understand how this potential law might apply to social networking website operators. Similar to the Federal Communications Decency Act’s immunity, the proposed law seeks to provide a limited immunity to the website operator. However, the it would also impose certain requirements on the website to ensure that it qualifies for that immunity. Specifically, there is a statutory reporting protocol that would need to be adhered to by the website OR they would need to clearly and conspicuously state on the website specific, statutorily-mandated language that indicates they are not complying with those requirements. Failure to adhere to one of these requirements could result in the website operator being liable for the harassing or sexually offensive speech of its users.

Accordingly, all social networking website operators need to be aware of the new requirements that would be imposed upon them if this bill passes. Inevitably, the law would require certain changes to the website text and/or its terms and conditions. Moreover, it is important that website operators understand that this law is aimed at communications that are directed at New Jersey residents. Therefore, it arguably would not make a difference whether the website itself is based in New Jersey; if New Jersey residents utilize the website, it will arguably need to comply with the edicts of the law.

We strongly recommend that all website operators keep abreast of this pending legislation and ensure that they consult with counsel if the law is enacted to be sure that they are complying in a manner that allows them to take advantage of the limited immunity being offered under the law.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

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New Jersey Court Finds that Identities of Sources Used for Donald Trump Biography are Protected by New York Shield Law

Fair Report Privilege: New York Shield Law: A New Jersey Appellate Court recently held that the identities of information sources utilized by the author in composing a biography of Donald Trump were protected from discovery by the New York Shield Law. In Trump v. O’Brien, the defendant Timothy O’Brien was the author of a book which claimed that several individuals having personal knowledge of Mr. Trump’s finances had indicated that his net worth was somewhere in the neighborhood of $150 to $250 million, and that he was not a multibillionaire as he had previously claimed. In response, Mr. Trump sued the author for defamation.

In reaching its decision, the Court first considered choice-of-law principles. It determined that New York law would apply since the action had a significant relationship to the State. Specifically, the Court noted that the book had been published in New York, the author’s career was centered there and many of Mr. Trump’s business interests were located in the State. The New Jersey Court therefore decided this case applying New York law.

Under the New York Shield Law, N.Y. Civ. Rights §79-h, sources of confidential information are provided absolute protection where the information is deemed to be “news” for purposes of the statute. The law defines “news” as “written, oral, pictorial photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.” Applying this broad definition, the Court ultimately found that although the details of Mr. Trump’s life had some entertainment value, they were nevertheless matters of public interest and therefore constituted “news” under the law. Accordingly, the author’s sources were deemed to be protected from discovery.

The case therefore marks a notable expansion of the privilege generally aimed at, and for the benefit of news entities, to the authors of entertainment-related books. The New York law defines a professional journalist as “a person who is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public. . .” In Trump, the Court specifically states that it “regard[s] an author who obtains news in confidence for dissemination to the public through the medium of a published book as fitting within this definitional phrase.”

It will be interesting to see if, and how, this case, and its expansive definition of a “professional journalist,” may be utilized in looking to extend protections of the Shield Law to bloggers and Internet posters who may claim to be disseminating “news” to the public. In fact, there is proposed legislation pending in the New York legislation that seeks to address this very question. The pending legislation seeks to modify the New York Shield Law to include in the definition of a “professional journalist” those who perform such services for a “web log.” For purposes of this bill, a “web log” is defined as “a website or webpage that contains an online journal containing news, comments and offers hyperlinks provided by the professional journalist or newscaster.”

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Deceased Blogger’s Post Continues to Haunt Defamation Plaintiff

Communications Decency Act Immunity: Cherie Davis, an Illinois resident, recently filed suit against Google, Inc., in connection with Google’s operation of blogspot.com, its blog hosting service. The complaint raised some unique and interesting facts.

As set forth in the complaint, Ms. Davis indicated that a blogspot.com customer, Sean Healy, had posted a statement about her on his blog. That statement indicated that Ms. Davis had referred to members of the United States Speedskating Federation as fascists. Ms. Davis alleged that Mr. Healy’s blog publication was defamatory in that it (a) was false since she never made such a statement; and (b) impugned her reputation by implying that she is “someone who made false and inflammatory statements about others without substantiation.” Ms. Davis indicated that such an implication is also false and without merit.

On the surface, this would appear to be a run-of-the-mill Internet defamation case. The unique aspect is that Mr. Healy has passed away. Yet, his blog remains active and the allegedly defamatory statement remains public. Ms. Davis asserted that because Mr. Healy passed away without an estate to probate, she had no one to whom she could direct her request that the statement be removed. Accordingly, without a blog owner to turn to, she sued Google.

The lawsuit, filed April 9, 2009, seeks injunctive relief. In other words, Ms. Davis has requested that the Illinois Court enjoin Google from continuing to post Mr. Healy’s “defamatory” statement.

Google would generally be able to avail itself of the immunities afforded by the Communications Decency Act. However, it will be interesting to see if the Court decides this differently on the basis of public policy. If Ms. Davis truly had no other means of having defamatory content removed, then an argument could be made that Google should step in and remove the problematic content.

Further, Google’s argument, according to the complaint, that “it could not control the content of its customers’ blogs” must fail. First, its own terms and conditions contradict this. Though the company states that it need not edit or remove content, it nevertheless reserves the right to do so: “Google reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement.” Arguably, the terms and conditions do not prohibit the posting of defamatory content, and therefore Google may argue that the posting at issue does not violate the terms of the agreement. That being said, the fact that they can remove content if it does weakens any argument that they technically have no way of controlling the content.

Moreover, Google’s obligations under the Digital Millennium Copyright Act likewise belie this argument. Under the DMCA, an Internet service provider, such as Google, is entitled to limited immunity from copyright infringement of third party posters so long as certain protocols are adhered to. Google obviously tries to avail itself of these protections and appears to have undertaken efforts to comply with those protocols – the terms and conditions even link to DMCA-specific terms. Notably, the DMCA states that an ISP may lose its immunity if it continues to host content that infringes another’s copyright once the ISP obtains knowledge of the same. The end result of this is that ISPs often remove such content upon receiving notice of infringement by a bona fide copyright owner. In fact, Google’s own terms and conditions anticipate this: “our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers.” Again, therefore, it goes without saying that Google must have the capability to control its bloggers’ content.

All that said, the Court nevertheless will be likely be reticent to impose a restriction on the Communications Decency Act. The trend we have been seeing is instead a willingness of the courts to increase the reach of the immunities afforded by the Act. Accordingly, we would anticipate that the Court would not reach such a decision unless it truly believes that (a) the plaintiff was defamed; (b) is being damaged by the continued posting of the statement; and (c) that she has no other recourse to have the content removed. In all likelihood, the Court will demand a showing that the Mr. Healy’s assets have not been transferred to any person or entity, whether by his own will or otherwise. Given that Mr. Healy is survived by his mother, according to the complaint, it seems unlikely that his rights in and to the blog were not inherited by someone.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Salzano v. North Jersey Media Group, Inc., et. al.: Defamation Arising Out of Court Filings

Fair Report Privilege: The New Jersey Appellate Division recently handed down an important decision relating to the republication of allegations that were originally set forth in a legal complaint. In Salzano v. North Jersey Media Group, Inc., et. al., A-6715-06T1, the plaintiff, Thomas John Salzano sued various newspapers and related individuals at those entities for defamation. The statements underlying the alleged defamation consisted of newspaper articles that outlined (and arguably elaborated upon) a complaint brought against Mr. Salzano by a bankruptcy trustee. The complaint alleged, among other things, that Mr. Salzano had “‘unlawfully diverted, converted and misappropriated’ [the entity that was in bankruptcy]’s funds ‘for his own personal benefit.’” These allegations were then reported in various newspaper articles published by the defendants.

The media defendants moved to dismiss the civil complaint on the basis that the fair report privilege should apply as a defense to defamation. The Appellate Division reversed the lower court decision and held that the privilege did not apply. Hence, the case should not be dismissed.

The fair report privilege is an established exception to republication liability under New Jersey defamation law. The general rule is that absent the application of a privilege, a person or entity is liable for republishing a defamatory statement. The Court in Salzano cited the New Jersey Supreme Court’s decision in Costello v. Ocean County Observer, 136 N.J. 594 (1994), where the fair report privilege was articulated and discussed at length. Citing Costello, the Court noted that “to republish a defamatory statement, the reporter or newspaper must verify that a statement was spoken, and also that the substance of the statement is true.” Accordingly, the Court held that the newspapers and related defendants erred in not verifying the facts of the complaint prior to republishing them in the articles.

The Court further held that the fact that the original statements were made in the context of a judicial proceeding was not enough to immunize the media entities. In so holding, the Court noted that although the fair report privilege applies to statements made in “judicial and other official proceedings,” it did not provide an exception to liability in this case. The Court noted that the fair report privilege does not apply to preliminary pleadings “‘such as a complaint or petition, before any judicial action has been taken.’” Accordingly, the Appellate Division held that the media defendants could not assert that the privilege extended to their republication merely because the statements were republished from a judicial filing. Specifically, the Court said that the fact that they were in a complaint made it clear that the privilege should not apply.

Another interesting determination by the Salzano Court was that the actual malice standard should apply to Mr. Salzano’s claims because he was, in essence, a public figure by association. This essentially means that it would not be enough to prove that the defendant was negligent in publishing the statements, but instead, the plaintiff would need to prove an intentional misstatement or willful disregard of the truth. The Court specifically noted that at the time of the articles’ publication, Mr. Salzano was not a public figure. Nevertheless, the Court noted that, as the chief managing officer of the bankrupt entity which was in a highly regulated industry, Mr. Salzano’s father was a public figure. The Court noted that the bankruptcy made the company’s business affairs a matter of public interest and concern. The Court then extended this to indicate that, through the allegations made against him, Mr. Salzano had himself become “enmeshed in a matter of public concern.” Therefore, the Court applied the more stringent, actual malice standard.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Court Defines Test for Filing Anonymous Lawsuit

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 recent 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, 06-1590-cv (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 through 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.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Serving Defendants in Anonymous Internet Defamation Lawsuits

As the Internet continues to change the way we communicate, courts have struggled to determine the appropriate application of due process to those accused of defaming others online. Clearly, defamation claims involving comments made by an anonymous Internet poster are unique. Often the speaker is anonymous or his contact information is otherwise unavailable. Furthermore, because of the speed and widespread use of the Internet, the author may often reside in a different state or country than the reader or then the defamation victim. For these reasons, serving a summons and complaint, necessary to commence the lawsuit on such an individual can be especially challenging.

For instance, when a defendant is sued via a “John Doe” complaint, the plaintiff will generally have to demonstrate the efforts that he undertook to serve the defendant. For example, the plaintiff could show that he gave notice of the lawsuit by posting a message on the same website where the allegedly defamatory statements were made by the defendant. While this is usually not sufficient service in and of itself, this technique can be added to other forms of notice in a manner that some Courts might determine was sufficient service.

Typically, where an allegedly defamatory comment is made online, the only identifier that can be used to link the defamer to the comment is his email and I.P. address. In such a scenario, a plaintiff may try to serve the legal documents via email. However, where comments are made in online forums and message boards, the email address of the speaker may also be unknown. In such instances, a litigant will often sue the unknown individual using a “John Doe” complaint, or a complaint which names the defendant under the fictitious name “John Doe.”

If the plaintiff can demonstrate that he undertook sufficient efforts to serve the defendant, courts will usually permit him to bring an inquest to find out the identity of the anonymous poster. Once the defendant’s identity is discovered, the plaintiff may be required to amend the complaint to reflect the actual name of the party. He may also have to notify that party of the impending lawsuit. Some plaintiffs have gotten creative lately. For example, one plaintiff posted a message on an internet message board. That message contained a copy of the summons and notice asking the defendants to contact the attorney for the plaintiff in order to deliver a copy of the summons and complaint.

As the Internet grows and scope and complexity, both Courts and Legislatures will need to address in more detail the important issue of service of process on line.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Federal District Court Mandates the Disclosure of the Identify of Online Posters in Yale Law Student Case

Internet Law: Federal Case Law: Anonymous Speech: Two female Yale law students recently brought suit in the United States District Court in Connecticut, in Doe I and Doe II v. Individuals, whose true names are unknown, 2008 WL 2428206 (D. Conn. 2008). Through the lawsuit the students alleged that they had been defamed, threatened and harassed on the Autoadmit.com website. The problematic statements were posted on the website forum utilizing monikers, and therefore the identity of the speakers was unknown. The plaintiffs issued a subpoena duces tecum to AT&T as the Internet Service Provider for the website in order to identify the individuals utilizing those monikers.

In evaluating the motion to quash the subpoenas, the District Court noted that the “First Amendment generally protects anonymous speech,” and that such protections extend to Internet speech. The Court acknowledged that many other courts have quashed subpoenas seeking the identifying subscriber information based on First Amendment concerns and protection of anonymous speech. However, the Court specifically noted that the First Amendment right to anonymous Internet speech “is not absolute and must be weighed against [Plaintiff’s] need for discovery to redress alleged wrongs.

The Court outlined several factors to be examined in making this determination: (1) whether the plaintiff undertook efforts to notify the anonymous posters that they are the subject of the subpoena; (2) whether the exact “problematic” statements would constitute actionable speech; (3) the specificity of the discovery request and “whether there is an alternative means of obtaining the information called for in the subpoena;” (4) whether there is a “central need for the subpoenaed information to advance the plaintiffs’ claims;” (5) whether the subpoenaed party had an expectation of privacy when the online material was posted; and (6) whether the plaintiffs have made an “adequate showing” as to their claims. Notably, the Court held that the notice requirement had been met because notice of the subpoena was placed on the Autoadmit.com website itself. Moreover, the Court outright rejected other courts’ interpretations as to what constitutes an “adequate showing.” Instead, the Court adopted the threshold requirement that the plaintiffs “make a concrete showing as to each element of a prima facie case against the defendant.” Specifically, the Court noted that “[u]nder such a standard, ‘[w]hen there is a factual and legal basis for believing [actionable speech] has occurred, the writer’s message will not be protected by the First Amendment.”

Examining the statements at issue, the Court determined that the plaintiff had made such a showing and that her interests in pursing discovery outweighed the defendant’s First Amendment right to anonymous speech. Finally, the Court also denied the defendant’s request to proceed in the litigation as an anonymous party. In so ruling, the Court noted that the defendant had not made a “showing of any substantial privacy right or of any potential physical or mental harm as a result of being a named party in the litigation.”

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

The Digital Millennium Copyright Act: A valuable tool or a dangerous weapon?

It is critical that website operators fully understand their rights and responsibilities under the Digital Millennium Copyright Act (“DMCA”). This is particularly important for operators of social networking sites, blogs or other sites that allow third parties to publish content on the site. As more and more “traditional” websites now allow such postings -- one of the many aspects of the Web 2.0 age -- the importance of the DMCA grows.

The DMCA is a Federal statute that was enacted in the 1990’s which essentially modified copyright law in order to account for new technology, including the Internet. One aspect of the statute specifically provides for a limited immunity for websites posting content that might arguably infringe another’s copyright rights. Essentially, the law outlines certain protocols for webmasters to utilize, which includes providing an adequate way for those whose work has been infringed upon to contact the website and request the removal of the content. The DMCA generally says that if the website has engaged such protocols, and takes down content that is properly reported to it, it can have immunity from a copyright infringement claim. For this reason, it is critical that all websites who host third party content ensure that they are properly engaging in the protocols provided by the DMCA and include the appropriate instructions in their posted terms and conditions.

A little-known aspect of the DMCA applies to those reporting infringements. While the DMCA protocols allow a person whose rights have been infringed to request that the website remove the protected content, the statute also provides a penalty for a person who wrongfully utilizes this protection. The law provides for liability against the wrongful reporter, including payment of attorney’s fees, which may be payable to (a) the alleged infringer; (b) the website that removed the content; and/or (c) the copyright owner or licensee of the copyright owner. Essentially, the damages might be paid by anyone in one of those three categories who is injured as a result of the false report. Specifically, the DMCA states that: “[a]ny person who knowingly misrepresents under this section – (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or identification, . . .” is liable under the Act. 17 U.S.C. 512(f). In sum, there are two ways of being liable under this provision: (a) for indicating that a work is infringing if it is not or (b) for indicating that a work which was removed was in fact, not infringing and should have remained posted.

This penalty-based aspect of the statute was recently highlighted in a case currently pending in Illinois relating to the YouTube.com posting of rodeo competitions. In that case, Showing Animals Respect & Kindness v. Prof’l Rodeo Cowboys Association, an animal rights group posted video from a rodeo event on YouTube. The Rodeo Association then contacted YouTube and requested that the videos be removed because they infringed upon the Association’s copyright. SHARK, the animal rights group, filed suit indicating that the Association’s request violated the DMCA because it was based on a false claim. Its argument was that the Association knew that there was no copyright in the rodeo event, and therefore the request that the videos be taken down was not a rightful request to prevent infringement, but rather constituted a wrongful means of trying to remove content that was unfavorable to them. The case is ongoing.

Clearly, those reporting infringements should take caution in doing so. The Rodeo case highlights the importance of being reasonably certain that one has a viable claim for copyright infringement before making a request that a posting be removed under the DMCA.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

States Adopt Different Requirements for Jurisdiction over Internet Defamation Cases

The flux in jurisdictional laws of the various states in relation to Internet defamation presents some difficult First Amendment challenges. If a speaker makes a statement online, it is arguably published throughout the world. If that speaker cannot reasonably predict which of the many potential sets of laws circumscribing free speech may apply to him, the effect of that uncertainty may chill his speech. In other words, there is an ongoing concern that the very uncertainty about what is and is not prohibited from state to state may create a situation in which speakers will simply elect not to express their viewpoints online. Surely, this is contrary to the spirit of the First Amendment.

The most obvious laws that circumscribe free speech relate to the prohibition against defamation: an untrue statement about another that is communicated to a third party causing harm. States continue to develop different standards for determining whether their courts have jurisdiction over defamatory statements made by out-of-state authors who write over the Internet. New Jersey and New York offer very good examples of how different such jurisdictional standards can be.

New Jersey courts generally take a more lenient approach when determining whether jurisdiction exists in defamation cases. Essentially, a New Jersey court will look to see whether a message over the Internet specifically targets residents of New Jersey. In one recent New Jersey case, the Court held that it did in fact have jurisdiction. In that case, defamatory statements were made on the Internet regarding a female pilot who resided in New Jersey. The Court reasoned that since the person who made the comments knew that the target of the speech lived in New Jersey, he could reasonably have expected that New Jersey courts would have jurisdiction over the matter.

Courts in some other states, however, have declined to find jurisdiction based upon the impact of the online defamatory statements. Most notably, courts in many states have declined to find jurisdiction over comments made on websites based on a determination that the sites were passive websites not targeted to that particular state.

A good example is New York. New York courts have refused to find jurisdiction over defamatory comments made over the Internet, even if a person in New York suffered harm as a result of the comments. In fact, New York courts require defamation plaintiffs to overcome a higher burden when proving jurisdiction. In many cases, litigants have attempted to get around New York’s harsh rules by trying to claim that the defendant was transacting business within the state. However, New York courts will look very carefully at how much business is actually being transacted. Often, cases will be dismissed because the defamer has very few contacts with New York.

In conclusion, jurisdictional requirements for defamation claims vary from state to state. It is imperative that an individual who wishes to pursue a defamation claim against an out-of-state resident be careful to bring that action in the correct jurisdiction. If done improperly, the case may either be dismissed, or the plaintiff runs the risk that he will run out of time to bring a defamation action in the proper jurisdiction before the applicable statute of limitations for defamation has passed.

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© 2008 Nissenbaum Law Group, LLC

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