Defamation Claims Come of Age on the Internet

, New York Law Journal

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Shari Claire Lewis
Shari Claire Lewis

The court then found that it could not be said that the posting of the videotape was for advertising purposes, as 50 Cent had not used it to solicit patronage or to advertise or promote his music. The court added that the plaintiff also had made no allegations that 50 Cent had profited off the videotape, or that he had charged anything to view the videotape.

The court, however, reached a different conclusion with respect to whether the videotape was used for trade purposes, explaining that the issue was whether the videotape was promoted and made available to attract people to 50 Cent or whether it helped him to make a profit. According to the court, there was evidence that the posting of the videotape on certain websites had generated interest in 50 Cent, that he had an ongoing rap war with Ross, and that he had used the videotape to attract viewers to his website, which qualified as a trade purpose. Thus, the court ruled, it could not conclude as a matter of law that there was no trade purpose involved in posting the videotape, and 50 Cent was not entitled to summary judgment on this cause of action.

The court next addressed 50 Cent's motion for summary judgment on the plaintiff's claim that 50 Cent's actions in posting the videotape had caused her severe emotional distress. After setting forth the essential elements of the claim, the court noted that 50 Cent did not dispute that the posting of the videotape qualified as extreme and outrageous conduct or that he had disregarded a substantial probability that posting the videotape would cause extreme emotional distress. Thus, the court stated, the only issue was whether he had caused the plaintiff severe emotional distress.

The court found that even before the videotape was posted, 50 Cent had posted the trailer on thisis50.com, that the plaintiff knew about the trailer, and that she already was upset by knowing that both the trailer and the videotape would be available on the Internet. The court then ruled that the plaintiff's diary, her testimony, and physicians' testimony were sufficient to rebut 50 Cent's motion for summary judgment on this cause of action.

Lawyer's Claim Dismissed

The Supreme Court, New York County, reached the opposite conclusion, however, in a case by a New York lawyer whose conduct had been highly criticized in the course of a murder trial, when he brought suit against the news sources that reported the case and the bloggers that engaged in heated commentary in response.5

The case concerned the plaintiff's representation of a murder suspect in Washington, D.C. Multiple sources reported when the judge in the case granted a mistrial. According to the reports, the court questioned the propriety of the plaintiff representing a murder suspect when he had never tried a case before, and the competency of the plaintiff's performance before the court. The judge also discussed ethical issues that had been raised in regard to emails allegedly sent by the plaintiff requesting that an investigator "trick" an elderly witness into changing her testimony. The blogosphere "lit up" in response to the reports with "strongly worded opinions" regarding the plaintiff's inexperience and the ethical issues.

In response, the plaintiff commenced suit and filed a proposed amended complaint that was almost 300 pages long and that named 74 newspapers, legal reporters, commenters, legal bloggers, and their respective websites. He alleged claims for defamation, intentional infliction of emotional distress, intentional interference with a contract and violation of §§50 and 51, interference with prospective economic advantage, injurious falsehood, negligence and "prima facie tort in the form of 'cyber-bullying or mobbing.'" The court denied the plaintiff's motion to amend and simultaneously granted the pre-answer motions made by 59 named defendants.6

After finding that the out-of-state defendants had no purposeful activities in New York that were substantially related to the alleged defamatory comments and dismissing claims against them en masse, the court dismissed each cause of action that the plaintiff had pled for failure to state a cause of action.7 The defamation claim received the court's greatest attention. The court found that the reporter defendants and those who commented on the reports in their blog postings were entitled to rely on the "fair report" privilege under N.Y. Civil Rights Law §74 since the essence of what was reported was fair and "substantially" accurate. Moreover, the court continued, some of the defendants, such as the bloggers, also were entitled to rely on the "republication exception" or wire service defense. They argued, and the court agreed, that as republishers they had the right to rely on the information that had been previously reported, unless they had substantial reasons to question the accuracy of the original posts.

Lastly, the court concluded that the complained of statements were non-actionable opinions as to whether the plaintiff had acted ethically in asking the investigator to "trick" a witness or in representing a murder suspect without having any prior trial experience. The court cited to a recent decision by the Appellate Division, First Department, that found that content on the Internet was more likely to be perceived as opinion because "readers give less credence to allegedly defamatory comments published on the Internet, as well as in e-mail posts or blogs, than in other contexts."8 The court concluded that viewed in a "broader social context," the on-line commentary was the expression of non-actionable opinion concerning whether the plaintiff's conduct had deprived his client of his constitutional right to effective counsel.

Conclusion

Internet defamation cases are so common that they no longer should come as a surprise. Courts focus on issues as widespread in these cases as in more customary defamation cases. Consider that, just recently, the U.S. Court of Appeals for the Ninth Circuit issued a decision affording the same First Amendment protections to a blogger in a defamation case as are available to more "traditional" journalists.9 The circuit court quoted the U.S. Supreme Court's statement in Citizens United v. Federal Election Commission10 that "[w]ith the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred."

Consider, too, that, here in New York, the Appellate Division, Second Department, recently reversed a trial court decision allowing a defamation case against a blogger to proceed on quite prosaic grounds. The appellate court decided that, given the context in which the challenged statements were made—on an Internet blog during a sharply contested political election—a reasonable reader would have believed that the challenged statement "was merely conveying opinion, and was not a factual accusation of criminal conduct."11 When courts treat Internet-based defamation cases in such a fashion, one can truly say that defamation claims have come of age on the Internet.

Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler LLP, can be reached at shari.lewis@rivkin.com.

Endnotes:

1. See, e.g., Okeke v. Momah, 42 Misc.3d 1218(A) (Sup.Ct. Kings Co. 2014) (allegations that report published on website was libelous and damaged plaintiff's reputation and good name); Seldon v. Crow, 2014 N.Y. Slip Op. 30135(U) (Sup. Ct. N.Y. Co. Jan. 17, 2014) (allegations that Internet postings caused "mental pain and suffering").

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