Defamation Claims Come of Age on the Internet
All of the elements necessary for defamation claims seem to have coalesced on the Internet. There is the ease of posting content, including videos, on blogs and chat sites; the ubiquity of tweets, email, blogs and text messages; the pervasive abandonment of personal privacy; and the ability for almost anyone to quickly set up a website. Internet commentary often is less thought out, less restrained, and more opportunistic than, say, letters to a newspaper used to be, which may make Internet postings more likely to lead to defamatory statements. The wide—nearly universal—accessibility of the Internet and the relative permanence of posted content, combined with the rather litigious environment of today, top off the boiling cauldron.
Indeed, consider that, in only the past few weeks, New York1 and surrounding states2 have seen a plethora of rulings stemming from allegedly defamatory statements that appeared in one form or another on the Internet. Several of the most recent salacious cases offer insight into when a claim will and will not withstand scrutiny.
The Handbag Case
The first concerned a plaintiff who alleged that shortly after her appointment as a moderator in the Louis Vuitton Forum on the luxury handbag website known as "The Purse Forum," an industry competitor doing business as karenkooper.com sought to disparage her reputation "by putting her photo and home address on pornographic websites," posting sexual solicitations under her business and real names, and creating a blog under her name on which he posted her name, photo, home address, and telephone number surrounded by multiple pornographic and sexually explicit pictures, animations, textual postings, and links to pornographic websites.3
The plaintiff sued the defendant for libel and sought summary judgment on two grounds: The defendant had impugned her business and had impugned her chastity.
In its decision granting the plaintiff's motion, the court found that the postings on the blog and the "multiple links and postings on various web sites" were, on their face, libelous and "clearly impugn[ed] plaintiff's chastity and trade on numerous industry forums." The challenge in the case was the plaintiff's ability to tie the defendant to that content.
The court concluded that the plaintiff had supported her motion with "an abundance of evidence" that connected the content to the defendant, including evidence that the blog's IP address was connected to the defendant's business alias, "Karen Kooper," and that the defendant's phone number appeared on a receipt for a purchase made via the "karenkooper.com" website. Adding that the defendant had admitted that he was the only person with the password to the blog, the court concluded that the plaintiff had established that she was entitled to summary judgment on the issue of liability for libel per se as against the defendant.
Another recent decision by the Supreme Court, New York County, highlights the breadth of causes of action that can arise from alleged Internet defamation, and the way such cases have expanded the scope of the alleged wrongs beyond simple blog postings to the full range of social media activities.
The case, Leviston v. Jackson,4 was filed against the rap musician, Curtis James Jackson III, a/k/a 50 Cent, by Lastonia Leviston. She initially alleged intentional infliction of emotional distress, violations of New York Civil Rights Law §§50 and 51, and defamation, although she later withdrew her cause of action for defamation.
50 Cent maintained that, in 2009, he was involved in a "rap war" with Rick Ross, another rap musician, who was the father of the plaintiff's younger daughter. As part of his rap war, 50 Cent posted several videos on his website, thisis50.com, that mocked Ross, generally through a character 50 Cent created called "Pimpin' Curly," 50 Cent's alter ego.
The plaintiff asserted that she and a man had filmed themselves having sex and that the man brought the videotape to 50 Cent without her approval. 50 Cent said that he injected his character, "Pimpin' Curly," into the videotape and then placed a trailer for the video on his website, thisis50.com. The trailer was picked up on another website and then the edited videotape went live on the Internet, where it was picked up by many websites.
The plaintiff said that she kept a diary during the period immediately prior to and after the release of the videotape that revealed that she entertained the idea of suicide as a result of the release of the videotape, and that she was unable to function normally in her daily life. She also said that she had been diagnosed with severe major depressive disorder, with anxiety disorder not otherwise specified, with all the symptoms and impact of post-traumatic stress disorder.
The court issued a decision after 50 Cent moved for summary judgment on the plaintiff's claims. It first addressed the plaintiff's claims that he had used her name and/or picture in violation of §§50 and 51, noting that, to establish a claim under §§50 and 51, a plaintiff had to demonstrate that the defendant had used the plaintiff's name, portrait, picture, or voice in the state of New York for purposes of advertising or trade, without the plaintiff's written permission. Here, the court observed, there was no dispute that the videotape was made available in New York, and that the plaintiff had not provided any written consent for its use.