Peter Black's Freedom to Differ

Will Marieke Hardy’s Twitter case change Australian law for ever?

I have a piece up at The Conversation on Twitter being sued for defamation:

Twitter is being sued for defamation by a Melbourne man who was wrongly identified as the author of a “hate blog” directed at writer and TV personality, Marieke Hardy.

Hardy posted a tweet last year to “name and shame” Joshua Meggitt, the Melbourne man she incorrectly identified as the blog’s author, leading Meggitt to sue Twitter for defamation.

While Meggitt and Hardy have already apparently reached a (confidential) legal settlement, the broader issue of Twitter’s moral culpability and legal responsibility for allegedly defamatory tweets has now been brought sharply into focus.

This is the first time under Australian law Twitter has been sued for defamation, and it raises three interesting legal questions with respect to the liability of online intermediaries or platforms, such as Twitter, Facebook and YouTube.

Read the full post here.

My weekly chat with Andrew Bartlett on 4ZzZ

Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week.  This week we discussed federal politics, the Victorian election, The Ashes, defamation on Twitter and WikiLeaks:

Andrew Bolt is not happy about @andrewbolt

One interesting phenomenon on Twitter is the emergence of fake accounts, where someone pretends to tweet as a celebrity or political figure, usually to make fun of that celebirty or political figure.  Most fake Twitter accounts disclose that fact upright, either by including "fake" in their Twitter username or using some comic variation of the name of the celebrity or political figure.  Others use the individual's own name, and are far more subtle.

Andrew Bolt discovered today that someone has been pretending to tweet as him @andrewbolt since 11 Feburary 2009.  (I'm not sure why it take Andrew Bolt so long to be aware of this account.)  Understandably Bolt is not impressed:

So which organisation is implicated in this dishonesty?

It shouldn’t need saying, but I do not have a Twitter account and the fake one seems to be the work of people whose employer will be very embarrassed to find its staff once more engaging in deceitful slurs. A little warning there. A tearful sorry afterwards will be both too late and insincere, especially from people with their record of sliming.

Some people share Bolt's outrages, even suggesting that he  should report the account to the police for identity theft, and that he should sue for deceptive and misleading conduct (neither of which have any merit, as I'll explain in a moment).  Others think it is a big joke and see Bolt as a fair target who should get over himself.

To begin with, I can understand why Andrew Bolt is upset by this account.  Although it hasn't that hard to figure out it is a fake account and not the real Andrew Bolt, I must admit that when I first saw a tweet from Andrew Bolt a year or so ago, I thought it was from the real Andrew Bolt.  It is also a likely breach of Twitter's Terms of Service, which incorporates Twitter's Rules, which in turn states:

Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

However, these Rules need to be read with Twitter's Parody, Commentary, and Fan Accounts Policy, which gives some guidance as to what will considered to be "in a manner that does or is intended to mislead, confuse, or deceive others":

In order to avoid impersonation, an account's profile information should make it clear that the creator of the account is not actually the same person or entity as the subject of the parody/commentary. Here are some suggestions for marking your account:

• Username: The username should not be the exact name of the subject of the parody, commentary, or fandom; to make it clearer, you should distinguish the account with a qualifier such as "not," "fake," or "fan."
• Name: The profile name should not list the exact name of the subject without some other distinguishing word, such as "not," "fake," or "fan."
• Bio: The bio should include a statement to distinguish it from the real identity, such as "This is a parody," "This is a fan page," "Parody Account," "Fan Account," or "This is not affiliated with…"
• Communication with other users: The account should not, through private or public communication with other users, try to deceive or mislead others about your identity. For example, if operating a fan account, do not direct message other users implying you are the actual subject (i.e., person, band, sports team, etc.) of the fan account.

If an account is engaged in parody and follows all of the above recommendations, it will generally be free to continue in its parody so long as it doesn't mislead or deceive others. These are considered best practices for clearly marking accounts as one that is engaging in non-impersonation parody/commentary. Users may also choose to use different language to indicate that an account is a parody, commentary, or fan account so long as it is clear. However, if an account is found to be deceptive or misleading, we may request that the user make further changes to bring the account more in line with these best practices. Accounts with a clear intent to deceive may be permanently suspended.

Notwithstanding the fact that close examination of the fake @andrewbolt Twitter account will result in most people concluding that it is indeed a fake, Twitter would be entitled to ask the user to amend the username to make it clear it is a fake or parody account, as well as requiring a statement in the bio to additionally make it abundantly clear.  That, to me, would seem not only to be a fair and reasonable course of action for Twitter to take, but one they are able to do so under their Terms of Services, Rules and Policies.  It is also likely that if the fake @andrewbolt voluntarily made such a change, he or she would then be complying with Twitter's Terms of Services, Rules and Policies.

There is, however, another issue; namely, whether Bolt might have any legal options open to him.  Contrary to some suggestions that have circulated today, he would not be able to sue for the tort of passing off, as this Twitter account does not constitute a representation in the course of trade by one trader which damages the goodwill of another trader.  Further, he will not be able to sue for deceptive and misleading conduct under the Trade Practices Act 1974 (Cth), as this fake Twitter account was not done in "trade or commerce".  There is also no criminal offence that has been committed here, as fraud or identity theft requires economic loss.

That is not to say that Bolt may not have a cause of action for defamation.  Bolt would need to establish that one or more of the tweets from the fake @andrewbolt was a communication:

• of a defamatory matter;
• that was referrable to the plaintiff; and
• was published.

An imputation will be considered defamatory if it

• exposed the plaintiff to hate, contempt or ridicule (see Ettingshausen v Australian Consolidated Press (1991) 23 NSW LR 443);
• tended to make the plaintiff shunned or avoided (Morgan v Lingen (1863) 8 LT 800);
• tended to lower the plaintiff in the estimation of others (Sim v Stretch (1936) 52 TLR 669).

Using one or more of these definitions, it seems to me that Bolt would at least have an arguable case, that one or more of the tweets constituted a defamatory imputation.  Moreoever, they were referrable to Bolt and published.  It is also worth noting that cartoons, caricatures, jokes or satire may be defamatory depending upon the context of the publication (see Entienne v Festival City Broadcasters (2001) 79 SASR 19).  How a jury would construe these statements, given they take place in the context of a fake Twitter account, is hard to predict.  Nonetheless, I do believe that a judge would find that the material is capable of defaming Bolt and that it would then be up to a jury to decide whether the material actually defamed Bolt.

So while I think it is highly unlikely Bolt would actually sue for defamation, it is worth remembering that even fake Twitter accounts, while intended for the purpose of satire and humour, may well have legal consequences.

Is the internet killing defamation lawsuits?

A really interesting post on THR, Esq. suggests that the internet hasn't resulted in the proliferation of defamation lawsuits that was once expected; instead, it could be that in fact the internet is resulting in fewer defamation lawsuits:

Back in the early days of the Web, plenty of media lawyers predicted that without discerning, professional journalists filtering content, malicious falsehoods would proliferate and libel lawsuits, in turn, would increase.

Turns out the opposite is true. The NY Observer's John Koblin zeroes in on a trend we've also noticed: with the exception of some high-profile celebrity dustups (many of which are filed in friendlier British courts), we just aren't seeing many libel lawsuits any more. Like, at all.

What's happening?

As any discerning Web-surfer knows, there certainly isn't a lack of false information online. But as Koblin points out, the very democratization of media that many predicted would open the floodgates of litigation has provided an outlet for the defamed to fight back. And with the ability to correct stories online, most libel-related disputes are getting resolved before they result in litigation. (So the lawyers aren't working any less hard, they're just not filing and litigating as many lawsuits.)

This makes sense. After all, libel law developed based on a key presumption: that those who enjoy access to media hold a certain power over those who don't. (That's one reason why the standard for defamation is different for a public figure like a celebrity than it is for Average Joe; the public figure presumably has more access to media to counter the defamatory item.) When that power was abused and caused damage, redress was appropriate.

Now, of course, anyone can publish anything and reach every dark corner of the globe (assuming that dark corner has Wifi). And unlike the quaint old days of print, false information published online can be disappeared under threat of lawsuit just as quickly as it appeared.

via thresq.hollywoodreporter.com

A really interesting post on THR, Esq. suggests that the internet hasn't resulted in the proliferation of defamation lawsuits that was once expected; instead, it could be that in fact the internet is resulting in fewer defamation lawsuits:

Back in the early days of the Web, plenty of media lawyers predicted that without discerning, professional journalists filtering content, malicious falsehoods would proliferate and libel lawsuits, in turn, would increase.

Turns out the opposite is true. The NY Observer's John Koblin zeroes in on a trend we've also noticed: with the exception of some high-profile celebrity dustups (many of which are filed in friendlier British courts), we just aren't seeing many libel lawsuits any more. Like, at all.

What's happening?

As any discerning Web-surfer knows, there certainly isn't a lack of false information online. But as Koblin points out, the very democratization of media that many predicted would open the floodgates of litigation has provided an outlet for the defamed to fight back. And with the ability to correct stories online, most libel-related disputes are getting resolved before they result in litigation. (So the lawyers aren't working any less hard, they're just not filing and litigating as many lawsuits.)

This makes sense. After all, libel law developed based on a key presumption: that those who enjoy access to media hold a certain power over those who don't. (That's one reason why the standard for defamation is different for a public figure like a celebrity than it is for Average Joe; the public figure presumably has more access to media to counter the defamatory item.) When that power was abused and caused damage, redress was appropriate.

Now, of course, anyone can publish anything and reach every dark corner of the globe (assuming that dark corner has Wifi). And unlike the quaint old days of print, false information published online can be disappeared under threat of lawsuit just as quickly as it appeared.

Australia doesn't mind a good Slapp (strategic lawsuit against public participation)

Mark Pesce sent me a link to this article in the New York Times, "Venting Online, Consumers Can Find Themselves in Court", which I think raises an interesting issue for us here in Australia.  Here is an extract from the article:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Read more here.  While many States in America have anti-Slapp laws (and Congress is considering legislation to make it harder to file such a suit), Australia does not have any such protection.  It could be argued that Australia does not need anti-Slapp laws because, generally speaking, corporations do not have a cause of action for defamation in Australia.  However, this is immaterial because of the tort of injurious falsehood, which allows corporations to sue for false statements concerning their goods or business.

Given the financial and power imbalance between a business and an individual who has posted a critical comment online, I think Australia should also consider whether we need anti-Slapp laws.  Internet users should feel free to post comments, reviews and even criticisms of businesses online, without the fear of being threatened or intimidated with costly and flawed lawsuits.

Be careful what you write on Facebook

The Mallesons IP Whiteboard blog has a post that should remind all of us to be careful with what we write on Facebook and other social media platforms:

Be careful what you write on Facebook!  Adelaide teenager Christoper Cross has recently been convicted for criminal defamation after posting material about a local policeman on a Facebook site.  Cross said that he “didn't realise you could get in trouble for things on the internet ”.  Pleading guilty in the Kadina Magistrates Court to criminal defamation, Cross became only the second person in South Australia ever convicted of the rarely used charge.  He now has a criminal record and was sentenced to a 2 year good behaviour bond.

The message for Cross and any other users of social media is that although anyone can publish material on social media, the laws that apply to traditional media will still apply. Social media is published in real time and the posts are often permanent. 

Read it here.

Meanwhile on The Faculty Lounge blog, Jacqueline Lipton wonders about whether the laws of defamation should apply to this new medium:

I was asked for comment today about defamation and Twitter and, in particular, whether the laws of defamation should apply differently in this new medium.  Over the last year or so, there have been a number of cases involving defamation via Twitter, including a high profile situation involving Courtney Love earlier this year.

Despite thinking much about online defamation for my cyberlaw classes, my focus is usually on jurisdictional concerns and ISP liability.  The questions that have come up time and time again are issues like:

 (a) Is it fair for a plaintiff to sue a defendant in defamation at the place where information was downloaded which may be in a completely different jurisdiction to where the defendant uploaded it?  Generally, the answer to this one has been "yes".

 (b) To what extent should Internet middlemen (like ISPs and bulletin board operators) be liable for defamatory comments posted by their customers and members?  Section 230 of the CDA generally immunizes them, subject to a few exceptions - see, for example, the Roommates.com case.

But I've not really (or at least recently) heard the argument that Internet forums are so different from traditional publication venues that they should be generally exempted from defamation law.  Is there a viable argument that Twitter is more like a coffee house conversation than an online publication?  If so, should this matter for a defamation analysis?  And, if it does, where does one draw the line between Twitter, blogs, online social networks like Facebook and MySpace, and any other online forums (eg massive multi player online games)?  Just food for thought as I prepare my notes for next semester's exciting instalment of cyberlaw classes...

Read it here.  My personal feeling is that the law should be, as far as possible, the same whether the speech occurs offline or online, but I'd be interested to know what you think ...

I was asked for comment today about defamation and Twitter and, in particular, whether the laws of defamation should apply differently in this new medium.  Over the last year or so, there have been a number of cases involving defamation via Twitter, including a high profile situation involving Courtney Love earlier this year.

Despite thinking much about online defamation for my cyberlaw classes, my focus is usually on jurisdictional concerns and ISP liability.  The questions that have come up time and time again are issues like:

 (a) Is it fair for a plaintiff to sue a defendant in defamation at the place where information was downloaded which may be in a completely different jurisdiction to where the defendant uploaded it?  Generally, the answer to this one has been "yes".

 (b) To what extent should Internet middlemen (like ISPs and bulletin board operators) be liable for defamatory comments posted by their customers and members?  Section 230 of the CDA generally immunizes them, subject to a few exceptions - see, for example, the Roommates.com case.

But I've not really (or at least recently) heard the argument that Internet forums are so different from traditional publication venues that they should be generally exempted from defamation law.  Is there a viable argument that Twitter is more like a coffee house conversation than an online publication?  If so, should this matter for a defamation analysis?  And, if it does, where does one draw the line between Twitter, blogs, online social networks like Facebook and MySpace, and any other online forums (eg massive multi player online games)?  Just food for thought as I prepare my notes for next semester's exciting instalment of cyberlaw classes...

Law 2.0

At the State Legal Educators Conference this morning, I am presenting a paper titled Law 2.0: The Challenge of User-generated and Peer-produced Networks, Content & Culture.  You can watch a video of that presentation here:

Law 2.0: The Challenge of User-generated and Peer-produced Networks, Content & Culture from Peter Black on Vimeo.

You can download a copy of the PowerPoint slides here.  These are the videos I will be showing as part of my presentation:

• The Machine is Us/ing Us;
• The Grey Video;
• JibJab’s This Land;
• Barack Roll.

Anonymous defamation

The New York Daily News reports on a lawsuit against Google, as host of Blogger.com:

A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a "skank" and an "old hag."

Liskula Cohen, a blond beauty who has modeled for Giorgio Armani and Versace, made headlines last year when a doorman at a Manhattan hot spot was jailed after smashing her in the face with a vodka bottle.

Now she wants to force Google to reveal who slammed her online as the "#1 skanky superstar" on a blog hosted by the search engine's subsidiary.

"It's petty, it's stupid and it's pathetic," Cohen said of the sniping. "And when I do find out who did this, at least I'll know who my enemies are."

The defamation suit, filed in Manhattan Supreme Court, seeks a court order compelling Google and its Blogger.com service to identify whoever led the vicious Internet assault against Cohen.

Her lawyer Steven Wagner conceded it's not easy to identify bloggers who lob insults anonymously, as New York courts have generally declined to force them into the light.

"We think we have a case," he said. "This is libelous, it's defamatory and you shouldn't just get away with this."

Read more here.  Ars Technica summarises in lay terms the legal hurdles presented by this case:

Since the blogger is anonymous, however, there is an extra legal hurdle between Cohen and whatever financial revenge she seeks.

That hurdle would be Google and its army of lawyers. Essentially, Cohen has to demonstrate defamation twice: once to show that she has a sufficient case that the identity of the blogger should be unmasked. At that point, the case could proceed against the actual author of the blog, at which point the defamation would have to be demonstrated all over again. None of this will be easy, as US courts generally set a high standard for defamation of public figures, and Cohen has made a name for herself in ways that go beyond modeling by getting hit in the face with a vodka bottle at a Manhattan club.

As a result, the case appears to be an uphill battle, which means both that nothing is likely to come of it and that, should something unexpected happen, the legal context makes it likely that the decision will further muddy the waters when it comes to determining the legal status of bloggers.

Read more here. 

It is interesting to consider what the legal position would be if this had occurred in Australia, as I think it would be easier for Cohen to obtain relief.  That is because Cohen would be able sue Google for defamation.  In the US, Google has immunity courtesy of s 230 of the Communications Decency Act, however no such immunity exists in Australia and Google would be unlikely to be able rely on the defence of innocent dissemination.  However, even if Cohen did not sue Google, she would be able to use the threat of a lawsuit as leverage to require Google to disclose the identity of the anonymous blogger.  And ultimately that is where these sorts of lawsuits should be fought - between the person alleging defamation and the party who posted it to the internet - without involving the intermediaries or platforms who should not be liable for what others post to that intermediary or platform.

Linking is not defamation

Earlier this week British Columbia Supreme Court Justice Stephen Kelleher delivered an important ruling for free speech on the internet.  In Crookes v Wikimedia Foundation Inc., 2008 BCSC 1424, Wayne Crookes sued Jon Newton, the operator of  p2p.net, for defamation for linking to four articles that Crookes alleged were defamatory.  Justice Kelleher ruled that where it is just a link to a defamatory article this does not amount to republication and is therefore not defamation.  Here as part of his Honour's reasons:

[25] That brings me to the second issue, whether creating a hyperlink to defamatory material is publishing the defamation.
[26] In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, the Court of Appeal considered whether publication of a web address or "URL" in a newsletter constituted publication of the contents of the website.  The Court of Appeal held that it did not ...
[27] Thus, the court declined to rule on whether publication of an internet location by a hyperlink amounts to publication of the contents of the linked website.
[28] That is the question that arises squarely in the present case.  I agree with the defendant that footnotes in an article are an apt analogy.  Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.  
[29] A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter.  The purpose of a hyperlink is to direct the reader to additional material from a different source.  The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.  
[30] Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site.  This is especially so as a reader may or may not follow the hyperlinks provided.  
[31] I conclude that the reasoning of the Court of Appeal in Carter leads to the same conclusion on the narrower issue before me.  Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website.  I conclude that that does not make the publisher of the web address a publisher of what readers find when they get there.  
[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself.  The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles.  In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.
[33] As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.
[34] I do not wish to be misunderstood.  It is not my decision that hyperlinking can never make a person liable for the contents of the remote site.  For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion.  
[35] I conclude that there has been no publication.  The action is therefore dismissed.

Read the judgment here.

Defamation on Facebook

As if to demonstrate Judge Ryrie's point from my previous post about the uncertainty of Facebook pages ("that anyone can create an identity that could mimic the true person's identity"), I then read this story about a defamation case in the UK centred around a fake Facebook page:

A businessman whose personal details were "laid bare" in fake entries on the Facebook social networking website has won a libel case at the High Court.

Mathew Firsht was awarded £22,000 in damages against an old school friend, Grant Raphael, who created the profile.

The judge ruled that Mr Raphael's defence - that the entry was created by mischievous party gate-crashers at his flat - was "built on lies".

The profiles were on Facebook for 16 days until they were taken down.

Mr Firsht accused Mr Raphael of creating a false personal profile, and a company profile called "Has Mathew Firsht lied to you?".

Mr Raphael claimed that "strangers" who attended an impromptu party at his house in Hampsted in London sneaked off to a spare bedroom and created the profiles on his PC.

The judge heard that the private information concerned Mr Firsht's whereabouts, activities, birthday and relationship status and falsely indicated his sexual orientation and political views.

Bearing a grudge

Mr Firsht complained about allegations that he owed substantial sums of money which he had repeatedly avoided paying by lying, and that he and his company were not to be trusted.

Deputy Judge Richard Parkes QC awarded Mr Firsht £15,000 for libel and £2,000 for breach of privacy.

Mr Firsht's company, which finds audiences for TV and radio shows and provides warm-up services for live audiences, including the evictions on Big Brother, was awarded £5,000 for libel.

He accused Mr Raphael of bearing a grudge against him since they fell out in 2000 and of creating a false Facebook entry with the aim of causing him anxiety and embarrassment.

Read more here (from BBC News).

Section 230 immunity and the Roommates.com case

Larry Downes looks at the section 230 immunity and the Roommates.com case:

I write in this month’s CIO Insight about the 9th Circuit’s en banc decision in the Roommates.com case. This important decision tested the limits of immunity for information service providers (in this case, the operator of a website that allows users to post roommate-matching ads) under Section 230 of the 1996 Communications Act. At issue was whether Roommates.com could be sued under fair housing laws for asking users about their age, sex, sexual orientation, whether they have children and their preferences for these characteristics in a roommate. Eric Goldman has an excellent post on the case at his website: http://blog.ericgoldman.org/archives/2008/04/roommatescom_de_1.htm

Writing for the majority, Chief Judge Kozinski held that the service was not entitled to immunity (the merits are yet to be decided) because the site was a “developer” of the potentially-illegal content. In short, Kozinski distinguished free-form text boxes (immunity intact) from drop down menus that offered only limited choices. The drop down menus, the court held, are not immune, because they cross the line between hosting and assisting in the development of the content, and Section 230 applies only to the former.

I’m troubled, as many people are, by the decision and some of its dicta. In particular, Footnote 15 signals increasing judicial resistance to the Section 230 safe harbor. It also falls into the trap of judges assuming they know more about the information economy than they do:

“The dissent stresses the importance of the Internet to modern life and commerce, Dissent at 3476, and we, of course, agree: The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant—perhaps the preeminent—means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congres and thus give online businesses an unfair advantage over their realworld counterparts, which must comply with laws of general applicability.”

Kozinski cites nothing to support these comments. But what does it even mean to say that the Internet has become “a dominant…means [can there be more than one dominant mean?] through which commerce is conducted”? Despite double-digit growth for over ten years, e-commerce still only accounts for well under 10% of retail activity. And I can’t even find a measurement for services revenue, which Roommates.com represents. Which is to say, as far as I can determine, “the Internet” is still a fragile new means of communication.

Read more here.

Mercedes Corby wins

Mercedes Corby has won her defamation against Today Tonight:

Mercedes Corby has won her defamation case against Channel Seven.

Corby, sister of Schapelle Corby - jailed for attempting to smuggle marijuana into Bali in 2004 - had claimed that she was grossly defamed in the Today Tonight programs.

The claims were that she had asked her then best friend, Jodie Power, to smuggle drugs into Bali; that she had confessed, herself, to smuggling marijuana; that she was guilty of smuggling marijuana; that she was knowingly involved in Schapelle Corby's smuggling and that she had possessed marijuana.

Ms Corby further complained that the program conveyed the meaning that she was a threat to the safety of Ms Power, who had made strong claims against her and the Corby family in the television programs and that Ms Corby had denied Schapelle Corby's lawyers the chance to prove Schapelle's innocence.

Read more here (from the Sydney Morning Herald).

"Rumour Has It"

The Washington Post charts the evolution of gossip to Juicy Campus and wonders what the law can do:

"I am suggesting that language evolved to allow us to gossip . . . to facilitate the bonding of social groups . . . it mainly achieves this aim by permitting the exchange of socially relevant information."

-- Robin Dunbar, "Grooming, Gossip, and the Evolution of Language" (1996)

"RE: Sluts Sluts Sluts

"I think that loud mouth girl from Starbucks is ALSO qualified to be in the listing above . . . No question that girl is nuts! I think my friend said her name was Cinthya."

-- post on JuicyCampus.com (2008)

When gossip clown Perez Hilton gossips on his blog about the stars of "Gossip Girl," we wonder how far we've come in spite of technology. The absurd self-reflexivity, the gazing at one another's navels, the swirling infinity of gossiping about a show about gossip -- it's like that snake that eats itself. And what are we left with? A reptile gagging on its own business.

Celebrity gossip, which clogs checkout aisles and runs wild in cyberspace, overshadows a more integral (and fascinating) form of gossip: the person-to-person kind, the overheard whispers, the pedestrian skinny. Gossip has been around forever, and, for almost as long, it has been labeled a vice. Moses descended Mount Sinai with a sub-commandment forbidding the bearing of tales. German philosopher Martin Heidegger dismissed gossip as a waste of energy. Only in very recent history have researchers and journalists started writing pieces with heretofore provocative titles.

"Gossip May Be Virtuous."

"Why Gossip Is Good for You."

"In Praise of Gossip: Indiscretion as a Saintly Virtue."

These conclusions are akin to the Food and Drug Administration reporting that fried dough is, in fact, nutritious, and the more you eat, the longer you'll live. But what does it all mean when it mutates on the Internet, spreading swiftly and sensationally?

For much of this year, college newspapers and m edia commentators have hemmed and hawed over JuicyCampus.com, a Web forum that provides a blank slate on which students can write anything they want about anyone. While the site attracts a large share of lurid, hateful and nonsensical ramblings (the stuff you'd find anywhere on the Internet), there is also gossip that includes full names and sordid details. Since its birth in August, JuicyCampus has courted the outrage of students who claim defamation and of state attorneys general who claim consumer fraud.

The site's 24-year-old founder, Duke University alumnus Matt Ivester, thinks it's all very natural. Social networking has moved online. Shouldn't gossip be a part of that?

"People talk about us being the opposite of Facebook and MySpace," notes Ivester, who says the site gets tens of thousands of hits a day. "We're completely anonymous. There are no profiles. We're filling that void. . . . People love celebrity gossip, and in many ways what we're doing is changing from Hollywood celebrities to campus celebrities."

This may be a vainglorious claim on Ivester's part, but Internet gossip might be a tempting venture for someone searching for "some kind of false and illusory prima donna status," as college senior Gregory N. Wolfe, 21, worded it in a column about JuicyCampus this year for the Cornell Daily Sun. Wolfe thinks JuicyCampus, apart from its innocuous ramblings, is damaging to communities because charges are unanswerable and viewed by thousands of people who have no reference point.

"At least in the typical telephone gossip you have source attribution, you know who's trustworthy," he says in a phone interview. "But you don't get this here, and you can't answer to it."

Instead of making the rounds in one social circle, Internet gossip jumps among them, and the information loses essential background information and credibility. "Traditional gossip occurs in a context, among people who know the person being gossiped about," writes George Washington University law professor Daniel Solove in his book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet." "But the Internet strips away that context, and this can make gossip even more pernicious."

Which is exactly what JuicyCampus does. Solove considers the site to be a paradigm of problems created when gossip and the Internet intersect: The site is not liable for anything users post, and the users are generally protected because they are anonymous. The rights of privacy and free speech engage in a confounding tango, and Solove thinks privacy is being compromised a little too much.

"I've thought long and hard to come up with an elegant solution . . . but there really isn't anything," he says. "There isn't a law that will make everyone play nice. At best the [existing] law can push norms in one direction or help raise awareness of a problem."

Read more here.

Wikipedia seeks CDA immunity ... and should get it

Wikipedia seeks immunity under the Communications Decency Act:

Online encyclopedia Wikipedia is asking a court to dismiss a libel lawsuit brought by literary agent Barbara Bauer, who alleges that she was described as "The Dumbest of the 20 Worst" in an article.

In papers filed in a New Jersey state court last week, Wikipedia argues that it is immune from liability under the federal Communications Decency Act. That law generally provides that Web sites can't be sued for comments posted by users.

"It's clearly the case that we have a statutory immunity and I expect that we will demonstrate that to the court," said Mike Godwin, general counsel at Wikipedia's parent company, the Wikimedia Foundation.

The case stems from a 2006 article about Bauer's company, the Barbara Bauer Literary Agency. She alleged in her lawsuit that the Wikipedia article libeled her by calling her "The Dumbest of the Twenty Worst" literary agents and asserting that she has "no documented sales at all."

..

There are few, if any, other instances where Wikipedia has been sued for libel in the U.S.--despite the fact that all content on the site is submitted by users and edited by volunteers. But even without a clear track record of lawsuits against Wikipedia, other court decisions interpreting the Communications Decency Act give the site solid cause for optimism that the case will be dismissed, according to Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "There is no doubt that Wikimedia qualifies for (immunity) for any claims based on user submissions or edits to Wikipedia, and I would expect any associated lawsuit against Wikimedia alleging libel to be tossed quickly," he said.

Wikipedia also argues that the case should be dismissed because some of the alleged comments complained about are opinions, which courts have said can't be considered defamatory. "Calling people 'dumb' is not libelous," said Matt Zimmerman, a lawyer with the Electronic Frontier Foundation, which is part of Wikimedia's legal team.

Read more here (from Media Post).

Record online libel damages awarded in UK

The Guardian reports on record online libel damages awarded in the UK:

A social housing firm and its owner have been awarded the UK's highest internet libel damages at the high court after an anonymous news and discussion site agreed to pay £100,000 compensation following a campaign of defamation and harassment.

Gentoo, formerly the Sunderland Housing Group, became the subject of an attack by "a seriously defamatory, abusive and scurrilous anonymous website at dadsplace.co.uk", according to a statement read in open court by the organisation's counsel, Hugh Tomlinson QC, before Mr Justice Eady today.

"From behind their cloak of anonymity, Dads Place used their publications and in particular the website to conduct a malicious, unpleasant and relentless campaign of libel and harassment," Hugh Tomlinson QC told the high court.

...

Tomlinson told the high court: "Those responsible for the publication of the Dads Place Publications took careful steps to conceal their identities and it took many months of painstaking investigation to identify just some of those responsible for Dads Place and bring proceedings against them.

"As a result of those proceedings the website was finally shut down in July 2006."

[Gentoo chief executive, Peter] Walls added: "It has taken us almost three years for this company to achieve this crucial result. There is no doubt that the internet can be a fantastic tool for good but we urgently need legal change to enable victims of internet abuse to have a quicker and more effective route to justice."

Olswang associate Ashley Hurst, who acted for Gentoo and Walls in the case, called for a code of conduct for web publishers.

"It is difficult to see how the government can legislate effectively in this area because technology moves faster than the courts and there are always new technical loopholes to exploit," Hurst said.

"But one option may be to develop the remit of the Press Complaints Commission, or develop a voluntary code of conduct so that at least reputable websites can distinguish themselves from the rogue ones by signing up to the code as a badge of credibility."

Read more here.

Still immune?

Having blogged about Juicy Campus several times over the past few weeks (see here, here, here and here), I thought Daniel J Solove's post at Concurring Opinions asking whether the Roommates.com case would affect the s 230 immunity for  Juicy Campus:

The U.S. Court of Appeals for the Ninth Circuit (en banc) has just issued a very interesting opinion interpreting a federal law providing immunity from liability for online speech -- the Communications Decency Act (CDA), 47 U.S.C. § 230. The case is Fair Housing Council v. Roommates.com, LLC, 2008 WL 879293 (9th Cir. April 3, 2008) (en banc). 

The CDA § 230 states: "No 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." Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

I have been critical about the way that this statute has been interpreted:

Unfortunately, courts are interpreting Section 230 so broadly as to provide too much immunity, eliminating the incentive to foster a balance between speech and privacy. The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as well as to engage in online shaming. These websites thrive under Section 230’s broad immunity.

The Roommates.com case suggests a limit to § 230 immunity that some might believe creates a way to hold sites like JuicyCamus.com responsible for the gossip and rumors they solicit. In the end, I don't believe that Roommates.com will save the day and penetrate § 230's armor for sites like JuicyCampus.

Read more here.

Law & Order sued

The New York Times describes the libel case being leveled against the producers of Law & Order:

In the criminal justice system of television’s “Law & Order,” the plots are inspired by two separate, yet equally important, groups: the television writers who craft the intricate if sometimes convoluted episodes, and the real-life characters who inspire those writers. This is one of their stories.

Ravi Batra, a Manhattan lawyer, filed a lawsuit in 2004 against Dick Wolf, the creator of the television series, arguing that the plot of a November 2003 episode included an unsavory character, Ravi Patel, who is modeled on Mr. Batra. In a decision made public on Wednesday, Justice Marilyn Shafer of State Supreme Court in Manhattan rejected a motion by Mr. Wolf’s lawyers to dismiss the lawsuit.

Read more here.

More on Juicy Campus

The New York Times covers some of the legal issues surrounding Juicy Campus, a site I have blogged about a few times over the past few weeks (see here and here):

... Juicy Campus [is] an eight-month-old Web site (JuicyCampus.com) that cultivates and distributes gossip across a network of 59 college campuses. Promising that all posts will be anonymous, it allows students to participate in a collegiate version of celebrity gossip sites like TMZ.com and PerezHilton.com; it is a dorm bathroom wall writ large, one that anyone with Internet access can read from and post to.

...

For many students who have been written up on Juicy Campus, even those who are accustomed to posting provocative pictures on Facebook photo albums and drunken videos on YouTube, the experience has been a formative lesson that an online reputation is as much a part of one’s permanent record as a grade-point average or a credit score.

“Juicy Campus is really just an exclamation point following everything that’s already been going on,” said Daniel J. Solove, an associate professor of law at George Washington University who specializes in online privacy.

College students, he said, aren’t “thinking about the consequences because they haven’t experienced them yet and because they weren’t warned by their parents, who didn’t experience them, either.”

Despite their distaste for the site, some legal experts believed  Juicy Campus could not be sued for gossip posted by its users.

“Legally, Juicy Campus is fully, absolutely immune, no matter what it runs on its site from users, just like AOL is not responsible for nasty comments in its AOL chat rooms,” said Michael Fertik, a graduate of Harvard Law School and the founder of reputationdefender.com, a service that helps clients remove defamatory material about themselves from the Internet.

But he added that the Communications Decency Act of 1996, which provides the site legal protections, was “functionally Mesozoic” in the blogging age. Juicy Campus, he said, “is not encouraging people to be themselves, it’s encouraging people to be the worst version of themselves.”

Even if such options were open to him, the Yale student whose pornographic past was exposed on Juicy Campus said he would probably not take action against the site. “Revenge means focusing on someone else, when what I need to do is take care of myself,” he said. “I’m not a gossip person, which means I’m not a counter-gossip person, either.”

The day after his history was revealed, he changed the photograph on his Facebook profile to one of himself giving viewers a halfhearted thumbs up.

Read more here.

JuicyCampus.com ... only in America

The Washington Post's Marc Fisher describes an entry about a University of Virginia (U-Va.) student on JuicyCampus.com, a website that urges college students to "give us the juice" anonymously:

[it] names [her] and says she "will sleep with any guy." This sort of post has given JuicyCampus -- which features message boards for 50 colleges, including the recent additions of U-Va. and the Naval Academy in this area -- instant notoriety and the sadly resulting success.

The subject of that posting, a junior at the Charlottesville campus, didn't know that a thousand people had read the slur against her until I told her about it.

"Initially, I wasn't too concerned about it, although I did get angrier the more I thought about it," she says. "Everyone I know feels that the Web site merely serves as an outlet for petty and immature people who have nothing better to do with their time."

Not wishing to be associated with sexual sleaziness for the rest of her life, she contacted JuicyCampus asking that her name be removed.

Nothing doing. JuicyCampus guarantees anonymity to those who slime others, but disavows any obligation to those who are maligned on its pages.

From the site's FAQ:

" Is the site really anonymous?"

"There is no way for someone using the site to find out who you are. And we at JuicyCampus . . . prefer not to know who you are."

" How do I remove a comment I posted?"

"You can't. Once it's out there, it's out there."

The article goes on to look at the legality and morality of the site:

If the offending post is about you, too bad. "JuicyCampus does not remove content," the site says. "We encourage you to shift your point of view. . . ."

Legally, JuicyCampus is protected by a 1996 law that shields Web site operators from responsibility for nasty, defamatory or false material their readers might post.

And morally? The founder, Matt Ivester, a 2005 Duke University graduate who launched the site in August, delights in telling interviewers that his business is just "a fun place to hang out" and bears no responsibility for any slanders.

But you'd expect that of the creator of such a business.

While it is legal under US law, it perhaps surprising that many students seem to accept that they can't really do anything about being named on the site:

"I haven't heard any cry for action," says Daniel Colbert, executive editor of the campus Cavalier Daily and author of an editorial urging students not to post schoolmates' names on the site. "I'm in the journalism industry, so we tend to believe you should be responsible for what you say, but a lot of people in our generation don't have that idea. They don't expect that something that's published should be true."

"Students are more used to this kind of information being out there than the parent generation," says Lauren Tilton, president of U-Va.'s student council. "It's the nature of the Internet."

The student government at Pepperdine University asked administrators to block the site from school computers, and students at Texas Christian University appealed to advertisers not to buy space on the site. But at most colleges where the site has exploded in popularity, deans recommend combating bad speech with good speech, or just ignoring the site and hoping it will go away.

"We don't want to and we can't inhibit speech," says Pat Lampkin, U-Va.'s vice president for student affairs. "Do we condone what's on the site? Absolutely not. We see the harm things like this cause. We'd rather see a discussion about owning your own words."

Read more here. 

It is worth noting that the 1996 law that the article refers, s 230 of the Communications Decency Act, has no Australian equivalent.  As such, if such a site was set up in Australia soliciting juicy gossip from Australian university students, the site would find itself in legal trouble.

Update: I just noticed this post on the Juicy Campus Blog (note the "boring" bit added to the end):

Hate isn't Juicy.  A letter from the Founder of JuicyCampus.com

Hey Juicy Campers,

Thanks so much for your support over the past few months! We’ve grown bigger and faster than we ever expected, and we owe it all to you.

You’ve posted thousands and thousands of messages spanning a whole wide range of juicy topics. There are hilarious posts about drunken antics, helpful posts about classes and professors, and thought provoking posts about race, gender and sexuality. As you know, the site is pretty entertaining now!

Unfortunately, it hasn’t all been fun and games. Some of the things that have been posted have been mean-spirited, and we have received emails from people claiming to have been defamed on the site. Our hope for the site has always been that JuicyCampus would be a place for fun, lighthearted gossip, rather than a place to tear down people or groups.

We want you to be able to post about the topics that are most important, interesting and entertaining to you. We want you to share truthful stories about the hilarious things that you and your friends are doing on the weekends. We want you to post about the real-life scandals that are happening in Student Government, and in the Administration. We want you to give your opinions on the best and worst classes and professors. We want you to make JuicyCampus Juicy, not hateful.

So, we appeal to you to keep JuicyCampus the fun place that it was meant to be. Please consider whether your post is entertaining or just mean, and whether using a person’s full name really adds value, or if it would be just as juicy as a blind item. Remember that words can hurt, and the people you are talking about are real. Ultimately, JuicyCampus is created by our users, and we ask that you please take this responsibility seriously.

Keep it Juicy,

Matt Ivester
Founder, JuicyCampus.com


A (boring) note from our lawyers:

All users of JuicyCampus.com are subject to JuicyCampus.com’s Terms and Conditions, which can be read here. 

Please be advised that Juicy Campus is not the author of the posts that appear on the site. Rather, Juicy Campus is the provider of an interactive computer service. As such, pursuant to 47 U.S.C. Section 230, Juicy Campus is immune from liability arising from content posted by users.

Read it here.

Facebook defamation Down Under

Australian IT reports on what is apparently the first Australian case where Facebook has been met with threats to sue:

A VICTORIAN man has published public apologies in two major papers after comments he made about a family through his Facebook page.

The public notices have cost the man about $400 after he was threatened with suits for defamatory allegations against individuals he had known some years before.

While contacting an "add friend" through his Facebook page, the man sent a private message making the allegations of criminality.

But his new Facebook friend was also a friend of the family he was making the allegations against, and the message was passed on to others across two states.

Defamation expert Brian Walters, QC, said it was the first Australian case he had heard where the social networking site had been met with threats to sue.

But Mr Walters said the internet and social pages were a minefield for defamation.

"For a case of defamation you just need to communicate from one person to another," he said.

"The problem with the internet is it's so easy for people to write anything on it and it's so instant and far reaching and difficult to control."

In his published apology, the man said the allegations were false and offensive.

"They were said out of haste and did not reflect the truth and I regret making them," he said.

Read more here.

Real estate, Google and defamation

From The Age:

'So sue me' taunt to agents over 'defamatory' web articles

Peter Gregory

CONSUMER advocate Neil Jenman has called on two South Yarra real estate agents to sue him for defamation after they launched legal action to stop internet access to two of his articles.

Paul Castran, managing director of the firm Castran Gilbert, and the company's sales director Mark Forytarz say they have been defamed by allegations of improper or illegal behaviour.

The allegations are contained in two articles from Mr Jenman's website, which could be seen when the agents' names were entered on internet search engine Google.

A Supreme Court statement of claim lodged in December said they sought action by Google to remove access to the articles, but it was not done.

The claim said the first article depicted Mr Forytarz as an unscrupulous and unethical real estate agent.

It said the article suggested he bullied and badgered a severely brain damaged man into selling his house to earn commission — for himself and his agency — of hundreds of thousands of dollars.

"(Mr) Forytarz has been gravely injured in his reputation and feelings, and has suffered distress, embarrassment and humiliation, and has thereby suffered and will continue to suffer loss and damage," the document said.

The claim said the second article suggested Mr Castran repeatedly, deliberately and knowingly flouted the law by employing others to act as dummy bidders, and was guilty of a crime.

It said he was also gravely injured in his reputation, and suffered damage through distress, embarrassment and humiliation.

Outside court yesterday, Mr Jenman said he was bemused that he was not sued. "Why wouldn't they attack the person who is making the comments about them?" he said.

"My (comment) is: 'Here's my chest. Come on, take a shot at me.' "

Yesterday in court, Justin Quill, for the two men, said they were respected real estate agents whose names, when "Googled", produced very offensive material from the stories.

He said the items were defamatory, without doubt.

Matthew Stirling, for the company, said Google Inc, not Google Australia, operated the search engine.

He said Google Australia did not have access to the data, and could not remove what was said to be the offending material.

Mr Stirling said the plaintiffs had indicated legal action might not be necessary if the articles were removed.

Justice Stephen Kaye adjourned the hearing to March 7. He also made orders adding Google's international arm to the court action.

Read more here.

"I hate" forums raise legal issues

The Guardian considers how hate groups could expose social networking sites to legal liability:

Social networking forums, where users give full vent to their gripes about everyone from gas providers and airline companies to the local bus operator, have caught the eye of media lawyers, who warn that such postings may be leaving sites such as Facebook and MySpace open to libel actions.

Advertisers raised concerns last summer over the kind of user-generated content they could be associated with on such sites, and there are now growing fears over so-called "hate pages", such as Facebook's "I hate BT".

Under current legislation, if website owners remove defamatory material as soon as they are aware of it, then they are not liable. But lawyer Nick Armstrong, writing in Media Law, published by Sweet & Maxwell, sees serious legal risks in allowing users to establish groups and pages whose sole purpose is to invite aggressive criticism of organisations and individuals. He also believes that website owners need a better grasp of their responsibilities.

"Social networking sites are perhaps being too complacent about some of the risks in this area," says Armstrong, a partner at law firm Charles Russell. "There is a widespread but inaccurate belief that posters of defamatory material are liable rather than websites themselves, but this should not be taken as a green light for social networking sites to allow users to say whatever they please."

...

He argues that the courts may decide that current laws do not absolve sites of responsibility if they could reasonably have known in advance that libellous comments would be made.

"Sites would be safest if they didn't allow 'I hate' pages because a court is likely to say - however impractical it is - that Facebook, or whoever, should have known that there was a risk of defamation." They could be liable for, in effect, inciting users to post defamatory material, he adds.

That leaves social networking sites with two headaches. How do they close such groups, and is it really right to decide what users should and should not discuss?

Armstrong agrees that shutting down "hate groups" is not the way forward, but says that websites need to react faster when complaints come in - which can be difficult as sites grow.

"It's like something out of Kafka trying to get through to Google, for instance. The danger with these sites is that they are so big that a complaint might not be acted on fast enough."

Facebook would not say whether it had considered banning "hate groups", but a spokeswoman did point to the site's terms of use. Users are told they cannot post content that "makes threats of any kind or that intimidates, harasses, or bullies anyone, is derogatory, demeaning, malicious, defamatory, abusive, offensive or hateful".

Read more here.  Although the article considers only UK law, such sites would face similar legal risks in Australia.

eBay for Cruise book

The Australian reveals how some Australians are getting their hands on a copy of the controversial Tom Cruise biography:

CONSUMERS hungry for Andrew Morton's Tom Cruise: An Unauthorized Biography are turning to eBay to get a copy.

US publisher St Martin's Press has instructed its distributors not to sell the book outside North America.

Some copies were selling for more than $60 on the website last week. The book retails for $US26 ($30) in the US.

An eBay vendor, who wished only to be referred to as Wojtek, had sold more than 150 copies in less than two days, through his eBay company "memorymate".

"We don't usually sell books, but we are interested in exclusive products with massive potential and this is as good as it gets," he said.

"These things don't happen too often. The book has generated so much attention and the more people are hearing about it, the more that they want to buy it.

"The censorship factor has also had a major impact."

Wojtek, who works for an Australian branch of a US-based company, has ordered 800 copies from the US so far and is finalising a deal with an independent bookstore in Sydney.

Read more here.

That Tom Cruise video

Gawker is hosting the controversial Tom Cruise video:

You have to watch this video. It shows Tom Cruise, with all the wide-eyed fervor that he brings to the promotion of a movie, making the argument for Scientology, the bizarre 20th-century religion. Making the argument is an understatement. The Hollywood actor, star of movies such as Mission Impossible, is a complete fanatic. "When you're a Scientologist, and you drive by an accident, you know you have to do something about it, because you know you're the only one who can really help... We are the way to happiness. We can bring peace and unite cultures." There's much much more. Let me put it this way: if Tom Cruise jumping on Oprah's couch was an 8 on the scale of scary, this is a 10.

...

Yesterday, for a few hours, the clip of Tom Cruise discussing his beliefs as a Scientologist appeared on Youtube, and was republished by Radar and Defamer. That video is no longer available, most likely after the Church of Scientology sent in a copyright infringement notice. Gawker is now hosting a copy of the video; it's newsworthy; and we will not be removing it.

Read more and watch the video here.  Gawker has received a copyright infringement notice, but they are refusing to comply.  You can read the request to the remove clip posted to Gawker and Defamer as part of our coverage of the Tom Cruise biography, and, after that, Gawker's refusal to comply, here.

Even dumb speech is protected

From Techdirt:

Judge Points Out That Lawyer Ranking Site Is Free Speech... Even If It's Dumb

Earlier this year, we wrote about a new website, Avvo, that had created an algorithm to try to "rank" lawyers based on quality. It should come as no surprise, of course, that some lawyers (e.g., the low-ranked ones) weren't particularly pleased with such a system and some of them got together to sue the site as a class action suit -- on behalf of poorly ranked lawyers around the world. While you can certainly understand why lawyers would be upset at such a site, just because you're upset about something doesn't make it illegal. And, just as judges have repeatedly pointed out that things like Google's search rankings are protected free speech as opinions, a judge has dismissed the lawsuit against Avvo, noting that the rankings are merely opinions and that's protected free speech. That's not to say that the judge thinks Avvo is particularly useful. In fact, he points out how ridiculous the rankings are -- but that doesn't mean they're illegal. Chalk one up for free speech online.

Read it here.

Some light reading ...

Here are a few academic articles that may be of interest to you ...

First, David Rolph looks at defamation and celebrity in Australia:

Rolph, David, "Dirty Pictures: Defamation, Reputation and Nudity" . Law Text Culture, No. 10, pp. 101-134, 2006 Available at SSRN: http://ssrn.com/abstract=1032487

Abstract: The concept of reputation in defamation law has not been the subject of detailed academic analysis. The most comprehensive account of reputation in defamation law remains Robert C. Post's seminal article, 'The Social Foundations of Defamation Law: Reputation and the Constitution' (1986) 74 California Law Review 691. Post identifies at least three concepts of reputation in defamation law: reputation as property; reputation as honor; and reputation as dignity. This article seeks to apply Post's concepts of reputation to Australian defamation law. Through a case-study of two recent defamation cases, the high-profile litigation of Ettingshausen v Australian Consolidated Press and the comparatively little known case of Shepherd v. Walsh [2001] QSC 358, this article explores the concept of reputation in Australian defamation law. Although these two cases bear important similarities - both involve plaintiffs suing in respect of the publication of naked photographs they claimed exposed them to ridicule - the differences are more striking. This article argues that reputation can be understood as an economic and a social construct but should also be recognized as a media construct - reputation as celebrity.

Second, a case note on Universal Music Australia Pty Ltd v Cooper:

Bosland, Jason John and Wright, Robin W., "Australia: Copyright - Secondary Infringement by Authorization - Hyper-linking" . Available at SSRN: http://ssrn.com/abstract=1032757

Abstract: Comments on the Australian Full Federal Court judgment in Universal Music Australia Pty Ltd v. Cooper on whether a website proprietor committed secondary copyright infringement by authorizing infringement, if the website contained hyper-links to copyright recorded music, which the website users downloaded without the copyright proprietor's consent. Discusses whether the website proprietor had the power to prevent copyright infringement. Considers whether the website was designed specifically to facilitate the unlawful downloading of music.

And finally, copyright reform and the law/norm gap:

Tehranian, John, "Infringement Nation: Copyright Reform and the Law/Norm Gap" . Utah Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1029151

Abstract: As the introduction for a forthcoming symposium issue of the Utah Law Review on Fixing Copyright, this Article focuses on the issue of copyright reform with a particular eye towards identification and analysis of the wide law/norm gap that exists in the field. The 1976 Copyright Act inextricably mediates our relationship with cyberspace and new media. Yet three decades have passed since the Act went into effect, and without dispute, tremendous economic, technological, and social changes have occurred in that time. Although these changes do necessarily dictate wholesale revision of the law, we have certainly reached an appropriate point to evaluate the efficacy of the extant Act and think holistically about the issue of reform.

At this juncture, three key trends bear close observation. First, copyright law is increasingly relevant to the daily life of the average American. Second, this growing pertinence has precipitated a heightened public consciousness over copyright issues. Finally, these two facts have magnified the vast disparity between copyright law and copyright norms. We are, in short, a nation of copyright infringers. In the twenty-first century, the average American violates copyright law with spectacular gusto on a daily basis without batting an eyelid. As surveillance technology grows more sophisticated, thereby allowing acts of infringement increasingly to come under the detection and enforcement power of copyright holders, we will be forced to confront the law/norm gap. In response, we have already begun to reexamine our norms. It is also incumbent upon us to reexamine the vitality of our copyright regime - a regime that presently threatens to make criminals of us all.

s 230 CDA

The Citizen Media Law Project has posted an excellent primer on section 230 of the Communications Decency Act.  Read it here.

Defamatory blogging

Mindy McAdams has written a useful round-up of current US case law and thinking around bloggers' legal responsibility for libelous comments posted on their blogs.  Read it here.

The law of photography

At Blawg IT Brett Trout considers the laws relating to photography.  Read it here.

UK libel law on trial

From The Guardian:

English libel law itself could face scrutiny in a US court, in a case brought by a US author in New York.

Rachel Ehrenfeld's Funding Evil: How Terrorism is Financed - and How to Stop It was published in 2003, and alleged that Saudi businessman Sheikh Kalid bin Mahfouz, among others, financed terrorism, a serious defamatory allegation. The book was published in the US, but 23 copies were made available for sale in the UK.

In 2004, Mahfouz won a default defamation claim against Ehrenfeld in the high court from the libel judge Mr Justice Eady. Ehrenfeld is seeking to resist the enforcement in New York of that English libel judgment.

In the past, US courts have refused to implement libel judgments obtained in England. The high court in England has been a popular venue for libel claimants - and English judges have been obliging in hearing cases not obviously related to this jurisdiction, including actions brought against US-based defendants. In 2000, for example, the House of Lords allowed a claim by Russian businessman Boris Berezovsky (at the time still resident in Russia) against the US Forbes magazine.

One crucial issue is often whether there is significant circulation of the material in question within the UK. With information posted on the internet essentially available everywhere immediately - and English law taking the view that material is published where it is read - the propensity for material to be actionable in England is all the greater.

But though it may be possible to bring a claim in libel in the English court against a foreign defendant and obtain judgment and an award of damages, if the defendant has no assets within the jurisdiction (such as a bank account or a house), that award can be fulfilled only if it can be enforced where the defendant does have assets. That is almost invariably in his or her home jurisdiction.

Read more here.

Legal Aspects of Web 2.0 Activities: Management of Legal Risk Associated with Use of YouTube, MySpace and Second Life

The Intellectual Property: Knowledge, Culture and Economy (IP:KCE) Research Program in the QUT Faculty of Law has released a report originally prepared for Smart Service Queensland on the legal issues of Web 2.0 - Legal Aspects of Web 2.0 Activities: Management of Legal Risk Associated with Use of YouTube, MySpace and Second Life:

As Web 2.0 technologies proliferate, an increasing number of Australians, especially young Australians, are relying primarily on information and communication technologies to engage and interact with each other and the world. If governments are to have meaningful interaction with young people, it is therefore important for them to explore the potential of these communication platforms. But legal considerations must be taken into account when strategising how best to make use of emerging technologies.

The report identifies the practical legal risks associated with activities conducted in online participatory spaces. Encompassing Copyright, Privacy, Defamation, Breach of Confidence and other areas of law, the report outlines the main considerations that arise when engaging in the online environment. It also examines the popular social networking platforms YouTube, MySpace and Second Life in detail, analysing legal issues specific to their Terms of Use and functionality.

The report was written by Jessica Coates, Nic Suzor and Dr Anne Fitzgerald with Anthony Austin, Kylie Pappalardo, Brendan Cosman, Damien O’Brien, Elliott Bledsoe and myself.

You can download the report here.

Legal Threats Database

The Citizen Media Law Project, run by the Berkman Center for Internet & Society, has created a Legal Threats Database.  Creative Economy describes the Database:

The Legal Threats Database is a catalog of the growing number of lawsuits, cease and desist letters, and other legal challenges faced by those engaging in online speech. This publicly accessible database aims to provide lawyers, citizen journalists, and mainstream media alike with a valuable resource for assessing the validity and possible outcomes of legal threats to online speech, based on actual cases and legal actions.

The database, the first such interactive compendium, contains legal threats from 35 states and 9 countries, and is growing daily. These threats range from copyright infringement lawsuits filed against bloggers to cease and desist letters claiming defamation sent to MySpace users. Visitors to the CMLP’s website can input new threat entries, comment on existing threats, and search the database in a number of ways, including by location, legal claim, publication medium, and content type.

Visit the Database here.  This is an excellent idea and if you are aware of or have received any "legal threats" I would encourage you to add it to the database.

US blogger threatened with lawsuit after accusing school district of fraud

From Ars Technica:

A blog criticizing the Galveston, Texas, school district is facing legal action after the district objected to some of the comments on the site as libel. Now, the site operator has been contacted by attorneys who are demanding that she remove the offending material.

School districts tend to be contentious places; there's always some scandal involving funding or the placement of a new school or the proposed curriculum for the kids. Much of the grumbling among parent groups used to take place offline, though, and now that it can so easily be published for all the world to see, bloggers might need to pay more attention to exactly what they're writing.

In this case, the "GISD Watch" blog (run by parent Sandra Tetley) has written plenty of unflattering things about school officials. Posts on the site refer to school trustees as the "Lack of Trustees" and the "Council of H'Eight"; the head of the district is referred to as "Superintendent Evil." While that might make for an excellent comic book figure, it also indicates just how relentlessly personal some of the site's criticisms are. And that's not getting into the insinuations and accusations of fraud.

Lawyers for the school tell Galveston's The Daily News that they have no intention of squashing free speech, they simply want specific (and in their view libelous) accusations about alleged crimes removed from the site. Lawyer David Feldman calls the 16 posts in question the most "personal, libelous invective directed toward a school administrator" that he has ever seen.

The GISD Watch blog has taken to the calling the school's action a SLAPP suit (a Strategic Lawsuit Against Public Participation), despite the fact that no suit has apparently been filed. Tetley told the paper that she would be willing to remove anything libelous from the blog, so long as she does not have to tone down her opinions.

Read more here.

Wikipedia cleared in French defamation case

Good news for Wikipedia, according to the New York Times:

A French judge has dismissed a defamation and privacy case against Wikipedia after ruling the free online encyclopedia was not responsible for information introduced onto its Web site.

The U.S.-based Wikipedia Foundation, which is behind the popular compendium, was sued by three French nationals over a Wikipedia article that said they were gay activists.

Judge Emmanuel Binoche ruled that a 2004 French law limited Wikipedia's liability and noted that contentious references in the disputed article had in any case been removed.

"Web site hosts cannot be liable under civil law because of information stored on them if they do not in fact know of their illicit nature," Binoche said in his written ruling released at the Paris civil law court earlier this week.

Moreover, Web site hosts are not legally bound to monitor or investigate the origin of the information they store, he added.

Read more here.  It would be interesting to see how a similar case would play out Australia, a topic I looked at (with Professor Brian Fitzgerald and Hayden Delaney in "Legal Issues for Wikis: The Challenge of User-generated and Peer-produced Knowledge, Content and Culture" for the Murdoch University Electronic Journal of Law.

Defamation online

Eric Goldman has excellent summaries of two interesting online defamation cases in the US.  The first is BidZirk, LLC v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007), a case where even though the blogger was ultimately successfully, the case serves as "a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger's life".  Read the post here.

The second is American Airlines, Inc. v. Google, Inc., 4:07-cv-00487 (W.D. Tex. Oct. 24, 2007), where according to Goldman "In an uninsightful one-page order, the court has denied Google's motion to dismiss American Airlines' lawsuit over Google's keyword advertising sales."  Read the post here.

Virtual defamation

A recent article in the Brooklyn Law Review considers the tricky subject of virtual defamation.  Here is the abstract:

Chin, Bettina M., "Regulating Your Second Life: Defamation in Virtual Worlds" . Brooklyn Law Review, Vol. 72, No. 4, 2007 Available at SSRN: http://ssrn.com/abstract=1013462

Abstract: Although the issue of virtual harm has never been raised in real-world courts, virtual worlds like Second Life have become increasingly significant in terms of both time and money for their users. As such, it is important to develop theories of how the law may apply to and resolve disputes that originate in these worlds. This Note will therefore argue that because users have imported real-world concepts, specifically currency and economy, into the metaverse, it would behoove brick and mortar societies to provide for redress if a user suffers pecuniary loss in these worlds. This Note will also explore certain ambiguities inherent and unique to the virtual environment when traditional elements of defamation law are applied to it. Moreover, this Note will argue that real-world courts should be the proper forum in which to litigate defamation actions, where victims suffer pecuniary loss due to the fall of their reputations.

More on defamation and blogging

Two interesting posts from different sides of the world on the recent defamation and anonymous blogging cases from the UK.  In the US, the Media Law Prof Blog discusses "Defamation and Anonymity in Cyberspace, UK Style", while in Australia  The Local reports on two Australian bloggers who have found themselves in middle of  legal issues arising from their blogging activities.  The Local also has some links to sites that have more information on the legal issues arising from blogging:

• Club Troppo  which has a comprehensive post Feeling lucky? Bloggers and defamation liability; and
• Larvatus Prodeo with Defamation and the Internet.

I should add also that QUT Law’s Intellectual Property: Knowledge, Culture and Economy is close to finalising a legal guide to blogs, wikis and podcasts.  In the meantime there is an article my colleague Damien O'Brien wrote, "Blogs and the law: Key legal issues for the blogoshphere" for the Media & Arts Law Review (unfortunately only the abstract is available online).  However I also co-authored with Hayden Delaney and Professor Brian Fitzgerald an article on wikis that covers similar territory, "Legal Issues for Wikis: The Challenge of User-generated and Peer-produced Knowledge, Content and Culture" for the Murdoch University Electronic Journal of Law and the full text of that article is available online.  Note both articles cover more than defamation, looking at privacy and copyright issues as well.

Defamation and anonymous blogging

Legal Eagle has an excellent summary of Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), which I blogged briefly about yesterday (see here).  Read Legal Eagle's summary and analysis here.

Bloggers beware: exposing anonymity

Some significant legal decisions from the UK for all bloggers:

Disgruntled fans of Sheffield Wednesday who vented their dissatisfaction with the football club's bigwigs in anonymous internet postings may face expensive libel claims after the chairman, chief executive and five directors won a high-court ruling last week forcing the owner of a website to reveal their identity.

The case, featuring the website owlstalk.co.uk, is the second within days to highlight the danger of assuming that the apparent cloak of anonymity gives users of internet forums and chatrooms carte blanche to say whatever they like.

In another high court case last week, John Finn, owner of the Sunderland property firm Pallion Housing, admitted just before he was due to be cross-examined that he was responsible for a website hosting a scurrilous internet campaign about a rival housing organisation, Gentoo Group, its employees and owner, Peter Walls.

Exposing the identity of those who post damaging lies in cyberspace is a growth area for libel lawyers.

Dan Tench, of Olswang, the law firm representing Gentoo, said: "This case illustrates an increasingly important legal issue: proving who is responsible for the publication of anonymous material on the internet. This is likely to be a significant issue in defamation cases in the future."

Read more here (from The Guardian).

Social networking and the law

Writing for FindLaw, Kevin Fayle has a piece on the legal issues (from a US perspective) surrounding the use of social networking sites:

It seems that everyone is a member of a social network these days. Whether it's your kids on MySpace and Facebook, or your colleagues on LinkedIn, people are taking advantage of these new online meeting spaces to make friends, communicate and expand business opportunities.

But what are the legal obligations that arise out of the use of social networks, both for the user and the sites themselves? The law in this area is still relatively unsettled, but some recent developments have created intriguing precedent, and legislation in motion promises to keep things interesting for the foreseeable future.

Read more here.

Defamation in virtual worlds

An interesting article on Second Life published in the Brooklyn Law Review:

Chin, Bettina M., "Regulating Your Second Life: Defamation in Virtual Worlds" . Brooklyn Law Review, Vol. 72, No. 4, 2007 Available at SSRN: http://ssrn.com/abstract=1013462

Abstract: Although the issue of virtual harm has never been raised in real-world courts, virtual worlds like Second Life have become increasingly significant in terms of both time and money for their users. As such, it is important to develop theories of how the law may apply to and resolve disputes that originate in these worlds. This Note will therefore argue that because users have imported real-world concepts, specifically currency and economy, into the metaverse, it would behoove brick and mortar societies to provide for redress if a user suffers pecuniary loss in these worlds. This Note will also explore certain ambiguities inherent and unique to the virtual environment when traditional elements of defamation law are applied to it. Moreover, this Note will argue that real-world courts should be the proper forum in which to litigate defamation actions, where victims suffer pecuniary loss due to the fall of their reputations.

2Clix withdraws lawsuit

From the Sydney Morning Herald:

An Australian software firm, which was suing a broadband community website over unflattering comments published on its message board, has said it would drop its case.

2Clix, which sells an accounting program, sued Whirlpool owner Simon Wright for "injurious falsehood", asking for $150,000 in damages and an injunction requiring Whirlpool to remove forum threads highly critical of 2Clix's software.

But while legal experts doubted the ability of 2Clix to win the case from the outset, it could have had major ramifications for website operators and their users. A win for 2Clix would have set a nasty precedent and seriously limited the ability of web users to criticise companies' products and services.

Read more here.

Bloggers being sued in Canada

Michael Geist observes a trend in Canada:

         The number of Canadian lawsuits arising from blog postings is on the rise - the Montreal Gazette covers a mushrooming defamation lawsuit launched against Zeke's Gallery, a Montreal art gallery who maintains a blog, while the Ottawa Citizen has coverage of Steelback Brewery's Frank D'Angelo's suit against an Ottawa blogger.

Read it here.

AutoAdmit lawsuit

There have been several interesting posts recently on the AutoAdmit lawsuit in the US.  Eugene Volokh has a good summary of the lawsuit:

The two women law students who were generally badmouthed and insulted by pseudonymous commenters on the AutoAdmit Web site have sued. They've sued Anthony Ciolli, who helped found and manage AutoAdmit, and they've sued the pseudonymous commenters. The claims are copyright infringement (based on someone's apparent copying of some photographs of Doe I to which the copyright was owned by Doe I), appropriation of name and likeness, disclosure of private facts, false light invasion of privacy, and intentional and negligent infliction of emotional distress. The suit seeks compensatory and punitive damages, "permanent removal of the message threads from the AutoAdmit Site," "authorization to Google permanently to remove the cached message threads," and costs.

Read Eugene Volokh's thoughts here.  Daniel J Solove at Concurring Opinions also has a useful summary of the case.  Read it here.

See also Eric Goldman here, Above the Law here and the Wall Street Journal Law Blog here.

Michael Geist sued?

This may be old news now, but Michael Geist posted this on Wednesday:

Wayne Crookes Reportedly Sues Me Over My Blogroll

There are several reports (here, here, and here) that Wayne Crookes, who previously launched suits against a wide range of parties including Wikipedia, Yahoo, and a domain name registrar, has sued me in B.C. courts for defamation.  I have not been served with the suit, but the reports indicate that I am being sued for an allegedly defamatory third party comment on my site that I took down and for writing about, and linking to, P2PNet.net, which in turn linked to another site that allegedly contained a defamatory posting.  In other words, I'm reportedly being sued for maintaining a blogroll that links to a site that links to a site that contains some allegedly defamatory third party comments.

Read it here.

Should online defamation be criminalised?

Susan W Brenner asks whether online defamation should be criminalised:

Brenner, Susan W., "Should Online Defamation Be Criminalized?" . Mississippi Law Journal, Vol. 76, 2007 Available at SSRN: http://ssrn.com/abstract=982418

Abstract: In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder; the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.

(Hat tip: Law Blog Metrics.)

Internet safe harbours

Mark Lemley rationalises internet safe harbours:

Lemley, Mark A., "Rationalizing Internet Safe Harbors" (April 10, 2007). Stanford Public Law Working Paper No. 979836 Available at SSRN: http://ssrn.com/abstract=979836

Abstract:Internet intermediaries - service providers, Web hosting companies, Internet backbone providers, online marketplaces, and search engines - process hundreds of millions of data transfers every day, and host or link to literally tens of billions of items of third party content.

Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.

While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a “notice and takedown” system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.

Location, location, location

Eric J Sinrod explains for CNET News.com why even in internet litigation it is all about location:

The Web site DontDateHimGirl.com allows women to make anonymous postings about specific men.

So it was that a

defamation lawsuit got filed

with respect to statements made on the site about one particular man. But the case was just dismissed for failure of personal jurisdiction, offering a signal lesson in why the details of the law matter ...

The court recognized that the DontDateHimGirl.com Web site, like other sites, is accessible to anyone connected to the Internet anywhere in the world. The court rejected the notion that a defendant can be hauled into court in any state for any controversy, regardless of contacts with that particular state. This would violate principles of due process, according to the court.

This reasoning makes abundant sense. It also should provide comfort to companies and individuals. They only need answer to legal allegations in states where they have sufficiently substantial contacts to justify further legal proceedings.

Read more here.

Defamation and anonymous commentary online

An interesting lawsuit was filed in Canada this week:

The hosts of the speed-of-light world of Internet blogs and interactive websites that publish anonymous commentary should be forced to pay when reputations are damaged, says a former Green Party staff member who is suing three such sites.

Google, the online encyclopedia Wikipedia and openpolitics.ca, a Canadian political website based in Toronto, are being sued in Vancouver in a libel case that could change the way Internet opinion is monitored and published.

Wayne Crookes, a former campaign manager of the Green Party of Canada, said he “suffered an immense amount of frustration and emotional distress” over postings on Google's Blogspot.com, a free blog-hosting website, within an entry under his name in Wikipedia, and on openpolitics.ca, an interactive political forum set up by Michael Pilling, an Ontario and federal Green Party activist.

Read more here (from The Globe and Mail). 

I've blogged about the relevant law in the US and Australia before (see here), but I'm not sure on the position in Canada.  This will definitely be a case to watch.

Don't Date Him Girl lawsuit dismissed

I've written about the Don't Date Him Girl lawsuit in the past (see here), so it is interesting to note that the lawsuit has been dismissed, with the judge finding it had been filed in the wrong venue.  From the Online Dating Industry Journal:

A lawsuit filed last year against the controversial Don't Date Him Girl Website has been dismissed. The lawsuit, filed by Todd Hollis, a lawyer, was for defamation for Don't Date Him Girl allowing a poster to "anonymously" post lies about him, something the site has been accused of quite a bit ...

According to judge R. Stanton Wettick, the "Defendant’s Web site is accessible to anyone connected to the Internet anywhere in the world. Under plaintiff’s argument, defendant could be hauled into court in any state for any controversy. This result would be inconsistent with the Supreme Court’s understanding of the requirements of due process."

The judge was referring to the lawsuit being filed in the wrong venue. Since Don't Date Him Girl resides in Florida, the lawsuit should have been filed in Florida, according to the judge. The suit had been filed in Pennsylvania. This leaves a potential option for Hollis to once again go after Don't Date Him Girl.

Read more here.