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

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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.

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

Hearings Delayed in Online Defamation Case Involving New Jersey Theatre Group

Commentary: A Court hearing in a New Jersey online defamation case involving a community theatre group called the Marlboro Players has been delayed. The hearings were schedule to take place on June 12, 2008 in the Superior Court of New Jersey in Freehold Township.

The case stems from comments that were posted in an online theatre forum on the Internet site NJ.com. The complaint filed by the Marlboro Players alleges that the 11 anonymous defendants named in the suit, each listed as John Doe, used various screen names to post defamatory statements against both the organization and several named individuals. The complaint asserts that the statements were intentionally made with the purpose of demeaning and humiliating the community theatre group and its members and participants.

The Marlboro Players are seeking actual damages to be determined at trial and punitive damages in the amount of $100,000. The group alleges that the anonymous posts have damaged the reputation of the theatre company and have had a negative effect on recruiting participants and the theatre’s ability to bring in revenue.

In bringing suit against the anonymous posters, the Marlboro Players served a subpoena on the operators of the NJ.com website, demanding that they produce identifying information provided by each anonymous individual at the time of signup. In response, the attorneys for the anonymous defendants filed a motion to quash the subpoena.

In the hearings which were supposed to have taken place on June 12, the judge was to issue a decision on whether or not to grant the defendants’ motion. Should the judge eventually rule in favor of the Marlboro Players, the organization will proceed with its civil lawsuit alleging defamation, and the anonymous posters will have the right to appeal the judge's decision.

Notably, in signing up on NJ.com, all users must accept a user agreement which provides in part: “You agree no to use any obscene indecent, or offensive language or to provide to or post on or through the Web site any graphics, text, photographs, images, video, audio or other material that is defamatory, abusive, bullying, harassing, racist, hateful, or violent." Arguably, therefore, an action could be brought based on the fact that NJ.com is not enforcing its own rules.

This case brings up the interesting interplay between the rights of anonymous posters against the rights of the individuals and entities being defamed. It is a well established principle of law that a person has a First Amendment right to engage in free speech anonymously. However, when an inaccurate or exceedingly offensive posting causes harm to another, the law must provide a remedy that takes into account the rights of the victim, as well.

It remains to be seen how New Jersey courts will decide this case as the courts of other states have gone in different directions. As a result of the delay in the court proceedings, the identities of the anonymous posters will remain unknown, at least for the time being. As of the date of this post, no further hearings had been scheduled in the matter.

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

Is Commercial Speech on the Internet Protected Under the First Amendment?

Commentary: It seems like a simple question. Is commercial speech on the Internet protected under the First Amendment to the Constitution of the United States? Unfortunately, before answering it, we must ask a more complicated one: just what is “commercial speech”?

Most people would say that commercial speech involves matters relating to commerce, such as advertisements. However, often web sites and blogs mix advertisements (such as promotional information about the company that runs the site or blog) with hard information (such as newsfeeds or, as in the blog you are reading, legal commentary). In fact, one might argue that one of the appeals of the World Wide Web to advertisers is that mixing the advertisements with the useful information or other content attracts potential buyers who spend time looking at the website and thereafter, might want to purchase the advertised products or services. Put another way, it is far more likely that someone will view an advertisement that is bundled with compelling nonadvertising content.

The United States Supreme Court has yet to completely grapple with this issue of mixed use Internet speech. However, it has set forth the concept that the government generally does not violate the First Amendment when it regulates commercial speech in the form of advertising. Bigelow v. Virginia, 420 U.S. 809 (1975). Also, the Supreme Court has made it clear that there is an enhanced protection for noncommercial speech that is mixed with commercial speech (such as advertising). Bolger v. Youngs Drug Corp., 463 U.S. 60 (1983). Hence, the key issue is the extent to which the First Amendment protections that are afforded to citizens of the United States generally will also apply to speech meant to further commercial interests.

Unfortunately, the unique aspects of speech involving web sites or blogs has not been squarely addressed by the Supreme Court. There is reason to believe that commercial speech on the Internet might be handled differently by the Court than other commercial speech given such unique factors as: (a) the viral nature of Internet speech resulting in the fact that the poster does not always control where the information will be posted; (b) the fact that there are special statutory immunities that apply for web sites that serve as forums for speech (so long as they do not editorialize or otherwise inject themselves into the substance of the postings); and (c) the practical difficulty of separating what is and is not Internet commercial and non-commercial speech.

While other lower federal courts have addressed these issues, only time will tell if the Supreme Court is willing to carve out such an exception.

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

Can Schools Punish Internet Bullies?

Commentary: School bureaucracies have one overriding goal: to exert control over student life sufficient to create an atmosphere conducive to learning. However, when that control is exerted outside school premises, students may legitimately question whether it is wise or even legal for the school to have such authority.

Internet bullying is a perfect case in point. There are many examples of the ways in which it can invade the process of learning: the teacher in Florida who was the subject of a sexually demeaning post by her student (resulting in a $1000 judgment); or the principal in Pennsylvania who sued over a MySpace posting that posted derogatory comments about him (suspension of the student was upheld by the trial court and is now on appeal).

However, there have also been cases in which a student has sued the school district for impairing his First Amendment rights. This has involved everything from a student who was forced to leave the school because he posted rap songs that the school district found objectionable to a young man who was temporarily forced to leave a school because he posted negative comments about the school administration. Each of these instances resulted in an award or settlement involving money damages to the student.

The dividing line seems to be whether a credible case can be made that the student’s Internet posting is linked to disrupting the school’s efforts to create an atmosphere conducive to learning. In other words, although the behavior occurs outside of school, could its impact boomerang back to the scholastic environment? Without that element, it appears that the courts will generally favor the student’s First Amendment rights to Internet speech. In such instance, the courts appear reticent to enforce the school’s right to regulate the extracurricular behavior of its students.

Comments/Questions: ljm@gdnlaw.com

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