Articles Posted in Internet Defamation

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.

Edward Bukstel, CEO and majority shareholder of VitaminSpice, Inc., a publicly traded company, has brought a libel action in the Eastern District of Pennsylvania against DealFlow Media and affiliated individuals, claiming that DealFlow knowingly published a false story about VitaminSpice. The complaint alleges the following facts.

DealFlow provides independent research services and analysis for finance professionals such as investment managers, law firms, banks, public and private corporations, hedge funds, and financial companies. It publishes The DealFlow Report for individuals and institutions in the field of business and finance. DealFlow’s website asserts that over 6000 institutions rely on it for accurate, comprehensive and timely information about finance.

In early 2013, Bukstel negotiated a deal allegedly worth over $8 million involving the sale of VitaminSpice assets to a New York investor. An article appeared in a March issue of The DealFlow Report, entitled “VitaminSpice CEO Says He Requested Trading Halt Amid Dispute Over Stock Manipulation.” The Article went on to report that Bukstel had accused his former attorney of stock manipulation. According to Bukstel, the Article, its title in bold, news.jpgappeared on page one of the issue and was the major headline. Bukstel asserts that the defendants intended the article to be conspicuous so that every reader would be drawn to it.

Section 230(c)(1) of the Communications Decency Act is intended to immunize providers of interactive computer services against liability arising from content created by third parties. Under Section 230, most Internet services will not be liable for false or defamatory material published on their sites so long as the information was created by another party. Although this statute provides website operators with a strong defense against defamation claims and other torts, a motion to dismiss is not a sure thing, at least not here in Virginia.

Section 230 applies to providers and users of an “interactive computer service,” but does not protect information content providers. If a website provides both functions, it will not be immune from liability. In Nasser v. WhitePages, Inc., the Western District of Virginia held that discovery would be required before the court could determine whether WhitePages was entitled to Section 230 immunity. Santa Clara University law professor Eric Goldman, who writes frequently about the protections of the Communications Decency Act, has sharply criticized the ruling as “overly cautious.”

Michael Nasser filed an emotional distress and nuisance action against WhitePages, Inc., alleging that WhitePages incorrectly listed his phone number as that of “Comcast Phone of Virginia,” resulting in thousands of unwanted phone calls intended for Comcast. Nasser made numerous requests to remove the listings, but the listings remained on WhitePages’ website for approximately sixteen months. Nasser alleged that he had to seek http.jpgmedical treatment for various issues because of the unwanted calls, and he sought $500,000 in compensatory and punitive damages for intentional and negligent infliction of emotional distress and nuisance.

Many jurisdictions, including Pennsylvania, follow the old common law rule that equity will not enjoin a libel. The First Amendment carries a presumption against prior restraints, but does not pose an absolute bar to injunctive relief in defamation actions. Still, most courts are extremely reluctant to grant equitable relief in actions for libel, slander, invasion of privacy, and related actions, due in no small part to the fact that money damages are usually adequate to compensate the plaintiff.

Recently, in Pennsylvania, Dr. Steven R. Graboff, a board certified orthopaedic surgeon and expert witness, tried unsuccessfully to obtain an injunction against the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (AAOS), requiring them to remove from their website an article that portrayed him in a false light. In an earlier action, Graboff had sued for false light invasion of privacy based on the offending article and a jury awarded him $196,000 in economic and non-economic damages. After the lawsuit, however, AAOS refused to take down the article. So Dr. Graboff sued them again, alleging “continued tortious conduct.”

He sought an injunction as well as additional compensatory and punitive damages, claiming AAOS intentionally and maliciously disregarded his rights by keeping the harmful article on the website in willful disregard of the earlier judgment. AAOS moved to dismiss this new action on several grounds.

The Internet search giant Google periodically issues “Transparency Reports” which summarize government requests for removal of content from the Internet and Google’s response to the requests. Google also discloses statistics regarding requests received from copyright holders. The latest report, issued for the last six months of 2012, reveals that Google received 2,285 government requests to remove 24,179 pieces of content during that time period – a significant increase from the first six months of 2012 during which it received 1,811 requests to remove 18,070 pieces of content. By a large margin, the number one reason for a removal request is claimed defamation, followed by privacy and security reasons, trademark and copyright infringement, violence, impersonation, government criticism, bullying, national security, adult content, hate speech, religious offense, drug abuse, electoral law, geographical dispute, suicide promotion and “other.”

The large increase in removal requests is mostly due to clips of the movie “Innocence of Muslims” and Brazil’s most recent elections. Twenty countries asked Google to review YouTube videos containing clips of “Innocence of Muslims.” Seventeen of those countries asked Google to remove the videos. Although Google restricted the videos from view in some countries, it did not remove the content from others. Google received 316 requests for removal of information relating to alleged violations of Brazil’s electoral code. Although it removed some content in response to court decisions, it is appealing other cases on the ground of freedom of expression under the Brazilian Constitution. Also related to the elections, Google received requests from a prosecutor, an attorney and a judge to remove blog posts and search results that were allegedly defamatory. Google refused to remove this content.

The latest report shows that Google readily removes content that infringes a protected copyright or trademark, and that it complies with court orders to remove defamatory matter. However, Google is typically unwilling to remove allegedly defamatory material that has not been declared as such by a court of law. For example, Google scrub.jpgrefused to remove YouTube videos that allegedly defamed a school administrator, police officers, government officials and prosecutors, and it only age-restricted an allegedly defamatory video showing Argentina’s president in a compromising position. However, Google did remove items that a court had ruled defamatory to a man and his family, and in response to a court order, it removed a blog post that allegedly defamed a retired military officer accused of business gain through political ties.

Jane Perez hired Dietz Development to repair her townhome. When Perez became dissatisfied with Dietz’s performance, she fired Dietz and posted negative online reviews on both Yelp and Angie’s List. Her comments not only expressed her dissatisfaction with Dietz’s work but also implied that Dietz was responsible for some jewelry missing from Perez’s home. Dietz sued Perez for defamation in Fairfax County Circuit Court and requested a preliminary injunction ordering her to remove the statements.

Perez opposed the injunction but apparently did not argue that an injunction would be an impermissible “prior restraint” under the First Amendment. The trial judge gave Dietz a partial victory, enjoining any discussion of the missing jewelry and ordering Perez to delete certain misleading statements she had made about a related lawsuit. Perez filed a motion for reconsideration in which she raised the prior-restraint issue, and appealed to the Supreme Court of Virginia shortly thereafter. Remarkably, the Supreme Court vacated the injunction just two days after the petition for appeal was filed and without even giving Dietz an opportunity to respond.

The First Amendment prohibits prior restraints on speech unless publication would threaten an interest more fundamental than the First Amendment itself. Perez argued that Dietz’s reputation as a businessman in the community does not rise to that level of importance. She also argued that although some jurisdictions allow an Yelp.jpginjunction against comments that have been found false and defamatory after a full trial, injunctions against speech that has not been found to be false and defamatory are never appropriate.

Panamanian lawyer Juan Carlos Noriega has brought a defamation suit in the District of Columbia against the Huffington Post for falsely attributing to him an “offensive” article he claims he had nothing to do with. The article, entitled “The Primacy of the Rule of Law,” (which has since been removed from the site) concerned a “fake vaccination program” that the Central Intelligence Agency ran in order to gather information on Osama Bin Laden. The CIA relied on Dr. Shakeel Afridi to run the vaccination program, and when he was arrested, the United States government called for his release.

The article claimed that the United States’ outrage over Dr. Afridi’s arrest was inconsistent with every nation’s basic commitment to the rule of law, and that the United States’ demand that Afridi be released showed a disregard for Pakistan’s democracy and jurisprudence. The article suggested that Afridi had violated the Hippocratic Oath and that, because of the fake campaign, Pakistani parents had become skeptical of vaccinations and were refusing to immunize their children. The article asserted that thousands of innocent Pakistani children may be crippled for life with polio or die from hepatitis because of the vaccination scheme. A link to the article revealed a short biography and picture of Noriega and listed him as one of “HuffPost’s signature line up of contributors.”

Noriega claims he has never written anything for the Huffington Post. He says he’s never even submitted a comment on the site or created an account. According to the complaint, The Huffington Post did not contact Afridi.jpgNoriega before publishing the article, and when Noriega’s counsel informed the Huffington Post that he had been a victim of identity theft and asked it to remove the article, the Huffington Post did not respond. Noriega asserts that the Huffington Post maliciously and negligently published the article and attributed to him “highly offensive and defamatory beliefs” concerning terrorism, Pakistan, bin Laden, the U.S. government and the CIA that he does not hold.

Carlos Henriquez and his wife traveled from their home in Georgia to Colombia to seek infertility treatments. They eventually contracted with a surrogate mother who gave birth to twins. A custody dispute arose between the Henriquezes and the surrogate, and a Colombian court awarded custody to the Henriquezes. A Colombian newspaper, El Pais, published articles about the case and placed the articles online where Georgia residents could access them. Henriquez brought a defamation claim against El Pais arguing that the articles were defamatory. El Pais moved to dismiss the claim for lack of personal jurisdiction.

Henriquez contended that El Pais targeted his family and purposefully directed the defamatory statements at Georgia. He argued that the court had personal jurisdiction over El Pais because it published defamatory statements in print and on its web page that were seen in Georgia. Henriquez submitted evidence that the El Pais web page contained advertisements for U.S. companies that transacted business in Georgia, from which El Pais derived revenue.

El Pais argued that the court lacked personal jurisdiction because the advertisements were placed on its site by bogota.jpgan ad server owned and operated by, a Colombian company. El Pais did not market its own goods but merely disseminated news stories. The district court granted the motion to dismiss and Henriquez appealed.

A jury awarded Russell Ebersole $7,500 in compensatory damages and $60,000 in punitive damages on his libel claim against Bridget Kline-Perry in the United States District Court for the Eastern District of Virginia. Ms. Kline-Perry moved for a new trial or, alternatively, a reduction of the punitive damages award, which the court treated as a motion for remittitur. Finding $60,000 to be unconstitutionally excessive, the court remitted the punitive damages to $15,000 and gave Mr. Ebersole the option of accepting the reduced amount or requesting a new trial.

The court agreed with Ms. Kline-Perry that the $60,000 award of punitive damages violated her right to due process. When faced with an excessive verdict, courts will generally order a remittitur. Remittitur is a process by which the court reduces the damages award while giving the plaintiff the option of re-trying the case in lieu of accepting the reduction. The Federal Rules of Civil Procedure do not provide specifically for remittitur, but precedent holds that a court should order remittitur when a jury award is so excessive as to result in a miscarriage of justice.

In determining whether a jury award of punitive damages violates due process, courts consider (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by cut-money.jpgthe plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases.

Kenneth M. Seaton, sole proprietor of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, brought a defamation action against TripAdvisor after the hotel was identified by the travel site as the dirtiest hotel in America. The United States District Court for the Eastern District of Tennessee, however, found that TripAdvisor’s list of “2011 Dirtiest Hotels” could not support a defamation claim and dismissed the case on August 22, 2012.

TripAdvisor relies solely on customer reviews to compile its “Dirtiest Hotels” list – it does not conduct an independent investigation of each hotel. Seaton claimed that TripAdvisor attempted to assure the public that its list is factual, reliable and trustworthy by including the following statements along with its list: (1) “World’s Most Trusted Travel Advice”; (2) “TripAdvisor lifts the lid on America’s Dirtiest Hotels”; (3) “Top 10 U.S. Crime-Scenes Revealed, According to Traveler Cleanliness Ratings”; (4) “Now, in its sixth year, and true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation’s most hair-raising hotels”; (5) “This year, the tarnished title of America’s dirtiest hotel goes to Grand Resort Hotel and Convention Center, in Pigeon Forge, Tennessee.” The list quoted a TripAdvisor user: “There was dirt at least ½ inch thick in the bathtub which was filled with lots of dark hair.” The list also featured a photograph of a ripped bedspread.

Defamation claims require proof of false statements or false implications. Seaton contended that by publishing its “2011 Dirtiest Hotels” list, TripAdvisor was implying that the Grand Resort Hotel and Convention Center was, in fact, the dirtiest hotel in the United States and that a reasonable person reading the list would consider this supposed fact in making their travel plans. Seaton argued that the list was not mere hyperbole because it dirtyhotels.jpgcontained actual numerical rankings with comments suggesting that the rankings were based in actual fact.

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