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.
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.
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 email@example.com.
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").
2. See, e.g., Urbanski v. Township of Edison, No. L-4201-09 (N.J. App. Div. Jan. 17, 2014) (allegations of hostile work environment including "insulting comment" posted about plaintiff on website); Sorensen v. Fayerweather Yacht Club, No. CV136033440S (Conn. Super. Ct. Dec. 13, 2013) (allegations that defamatory statement was published on club's Internet homepage); Fitzgerald v. Pricone, No. CV125015694S (Conn. Super. Ct. Nov. 27, 2013) (allegations of defamatory statements made on social media websites). The Digital Media Law Project (part of Harvard University's Berkman Center for Internet & Society) maintains a database of "threats" to Internet journalists and bloggers that identifies many defamation suits that are pending around the nation. See http://www.dmlp.org/about-digital-media-law-project.
3. See, e.g., Leser v. Penido, 62 A.D.3d 510 (1st Dep't 2009); subsequent appeal at 96 A.D.3d 578 (1st Dep't 2012); summary judgment granted by 2013 N.Y. Slip Op. 30352(U) (Sup.Ct. N.Y. Co. Feb. 21, 2013).
4. 2013 N.Y. Slip Op. 33388(U) (Sup.Ct. N.Y. Co. Dec. 9, 2013).
5. See Rokofsky v. Washington Post, 39 Misc. 3d 1226 (Sup. Ct. N.Y. Co. 2013).
6. The court characterized the case as the "proverbial poster child for e-filing" as electronic filing would have saved reams of paper, been more efficient, and preserved limited judicial resources. Id. at n.1.
7. It is worth observing that the court rejected the plaintiff's claims under §§50 and 51 when it found that no commercial issues had been raised and that §§50 and 51 did not apply to "newsworthy events or matters of public interest." The court concluded that coverage of the plaintiff's conduct in the criminal trial and comments regarding it were matters of public concern and therefore not actionable.
8. Sandals Resorts Intl. v. Google, 86 A.D.3d 32 (1st Dep't 2011).
9. Obsidian Finance Group v. Cox, No. 12-35238, No. 12-35319 (9th Cir. Jan. 17, 2014).
10. 558 U.S. 310, 352 (2010).
11. Matter of Konig v. CSC Holdings, 112 A.D.3d 934 (2d Dep't 2013).