Internet Defamation Law Blog

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 (1^st 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.

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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)

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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.       

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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.

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© 2008 Nissenbaum Law Group, LLC

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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 YouTube.com search function and Google’s Internet search tool Google.com. 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.

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© 2008 Nissenbaum Law Group, LLC

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