YELP Online Reviews: Virginia Appeals Court Forces YELP to Identify 7 Anonymous Reviewers Who Wrote Bad Reviews

Those who wrote anonymous negative reviews placed upon the YELP online review site are no longer protected from being identified, rules a Virginia appellate court in Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al. (Read the complete opinion below.)

Precedent-Setting Case: Anonymous Reviewers Must Be Identified by Yelp.com

The Virginia Court of Appeals has set precedent in a case where the owner of a carpet cleaning company, Joe Hadeed, sued Yelp and seven John Does (anonymous reviewers) because Mr. Hadeed believes that seven (7) anonymous reviews placed on Yelp.com about his company, Hadeed Carpet Cleaning, Inc., have hurt his business.

Hadeed wants Yelp to reveal the identities of the seven anonymous reviewers, in order to enable him to prove that they were not customers of his business and therefore had placed reviews on the online review site that were false, defamatory, and illegal.

Yelp, represented by Public Citizen, argued that the anonymity of the seven reviewers is protected by the First Amendment and that their names should remain secret. Yelp argued that before identities are revealed, the court must determine if the plaintiff’s claim of defamation is viable. This argument failed at trial and the appellate court has now confirmed that these anonymous bad reviews aren’t going to receive constitutional protection.

The Virginia appeals court found that the trial court judge did not abuse his discretion by holding Yelp in civil contempt for failing to comply with a subpoena duces tecum served upon it by Hadeed. Yelp must provide the identities behind the seven bad reviews to Hadeed.

The anonymous reviews, which claimed that Hadeed Carpet Cleaning was guilty of false advertising in its offers of low prices for carpet cleaning, were consumer reviews that would violate Yelp’s Terms of Service if they were written by people who were not actual customers of Hadeed Carpet Cleaning.

What the Hadeed Carpet Cleaning Case Against YELP Means To You 

This Virginia case may change how online reviews for goods and services are treated not only in Virginia but in other states around the country. By requiring Yelp to reveal the names of the seven anonymous reviewers, bad reviews left online are not as safe from the writers having their identities revealed as in times past. (Note: we don’t know if there are really seven different people here. This could boil down to one person who has posted online using seven different IP addresses from different devices.)

1. Anonymous Reviewers Aren’t As Safe From Revelation 

Anonymous reviews left on YELP or other review sites may not be protected if their anonymity is legally challenged. This means anyone writing a negative review online should be aware that if they don’t want to leave their name as a reviewer, it doesn’t mean that they won’t be identified in the future.

Anonymous isn’t as anonymous anymore. Critics argue that this ruling may discourage people from leaving valid criticism of bad service with online review sites. Others argue that trial judges are going to be making the privacy decisions here, and legitimate, honest negative reviews aren’t the target here. It’s fake bad reviews left behind the mask of the name “Anonymous” that judges will allow to be disclosed.

2. Businesses Victimized By Bad Reviews Have Increased Ability to Fight Back 

Bad reviews that are real are one thing. Bad reviews that are fake, and placed on a review site with the intent to hurt and harm a business, are another.  This case may help companies, including law firms, protect themselves in the future from the real harm that can come from fraudulent online negative reviews.

Update:  The Atlantic reports that Yelp will be appealling to the Virginia Supreme Court.  Stay tuned.

 Read the Virginia Opinion here:
 

Commercial Speech vs Political Speech and the Law Firm's Blog - Is Your Blawg Protected Free Speech or Not? What Would Your State Bar Answer Here?

Free speech isn't without its limitations, lawyers know this, and when it comes to "commercial speech" the United States Supreme Court has been happy to allow limitations on the free speech of attorneys and law firms when "commercial speech" is involved.  Lawyers don't like being regulated, however, and there are attorneys blogging today who may think that their blog (blawg) isn't subject to state bar review when in fact, it is.  Those bloggers (blawgers) are at risk of bar discipline.

Free speech protections provided by the federal constitution are not as broad for commercial speech as they are for other forms of free speech.  Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976).  Advertisements are subject to governmental regulation.

This distinction between different kinds of speech is very important for lawyers who write blogs to remember.

Consider, for example, the concerns of the High Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) where things like (1) the adverse effect on professionalism; (2) the inherently misleading nature of attorney advertising; (3) the adverse effect on the administration of justice; (4) the undesirable economic effects of advertising; (5) the adverse effect of advertising on the quality of service; and (6) the difficulties of enforcement were determined to be sound bases for regulating attorney advertising even though "advertising by attorneys may not be subjected to blanket suppression."  Bates, 433 U.S. at 368- 379, 383.

Of course, the Bates opinion came down long before blogs popped up everywhere.  Lawyer blogs are tricky things.  There are firm-blogs, and individual lawyer blogs.  Ones written for specific practice areas (e.g., appellate, real estate, or environmental law) are popular these days.  You will find some blogs attached to law firm web sites (where they may be tools to boost the search result rankings of the firm's site) or you may find blogs as stand-alone publications (where they have their own separate domain).

Blogs and Free Speech:  Commercial vs Political Speech

Twisted into all this complexity of law blogs ("blawgs") are the legal protections afforded to the particular blog under constitutional free speech protections.  Not all blogs (blawgs) are the same, and not all blogs will be policed in the same way.

Commercial speech in a blog will allow the Bar to regulate and police that publication, just as the Bar regulates advertisements in the Yellow Pages, on the television screen, or in a standard firm web site.

If the blog basically serves an advertising purpose, then the state bar association that has jurisdiction over the lawyer or law firm responsible for that blog will argue it has a right to regulate that blog.  Period.

When does a blog not have to conform to Bar regulation?  When the blog publishes content that is protected as political free speech.

Political free speech isn't trying to sell the reader on hiring the lawyer or the law firm.  Political speech essentially involves any “... interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414 (1988).  It's not trying to sell the reader on paying the author of the content for the author's goods or services, in other words.

What happens if there's a mishmash of the two within the blog?

Blogs published by lawyers may offer political speech, but all too often they are intertwined with commercial speech -- especially if the blog is attached to the firm web site.  Whether or not the speech will be given free speech protection isn't as easy of a question to answer.

If one of the motivations for the blog is marketing the lawyer or law firm but it's not the only reason for the blog's publication, then what?

In Bolger v.Youngs Drug Products Corp., 463 U.S. 60 (1983),  the problem of mixed commercial and political speech in advertising was addressed.  Lawyers cannot use political free speech posts to protect themselves from regulation:

Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.

Bolger, 463 U.S. at 68.

If the blog combines commercial speech with political speech, then it will not automatically achieve the constitutional protections that a blog devoted solely to political speech will have.  Nevertheless, that combination of commercial speech with political speech may still rise to that level of constitutional protection if certain characteristics exist.  See, Bigelow v. Virginia, 421 U.S. 809, 818 (1975); Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 474 (1989).

According to other precedent, we have a test:

....For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980); Adams Outdoor Advertising v. City of Newport News, 236 Va. 370, 383, 373 S.E.2d 917, 923 (1988).

Whether or not the reader may be misled means looking at the unsophisticated reader (Bates) and the assumption is going to fall in favor of the potential that someone out there reading the blog posts may be misled -- think Jethro Bodine as your potential reader when you're evaluating your publications.

The Bar Is Focused on Lawyers Misleading their Readers

The reason for bar regulation of lawyer advertising is to protect the public from being manipulated by lawyers marketing themselves in various formats: newspapers, television commercials, internet marketing, etc.  It's true that there's a profit motive in lots of web sites that enjoy protected free speech: the local newspaper's web site, for example, is published by a company operating for a profit and yet its site content is under the First Amendment free speech umbrella.

State bars, however, are going to come down on the side of regulation of the site or blog.  Consider your blog content and the design carefully.

Ask yourself this:

Would Jethro Bodine think you're selling yourself to him, even if your posts are careful not to market your practice or your firm directly?  Does having your blog attached to your law firm web site suggest that the blog is a commercial tool to get him to call the firm for a free initial consultation?  Does the design itself suggest commercial intent with things like 1-800 numbers in huge fontfaces in headings, footers, or margins?

If so, then you need to make sure that your blog (blawg) conforms to your state's advertising requirements (disclaimers, etc.) even if the majority of your content is political in nature.

The Power and Purpose of Citizen Journalists: The Baltimore SWAT Standoff and the Belize Mystery Surrounding John McAfee as Two Examples of Why We Need Citizen Journalists

Citizen journalism may not be respected by traditionally educated and trained journalists, but citizen journalists sure seem to be making lots of headway in reporting news via the web.

I've been watching and reading citizen journalism for awhile now, with growing respect.  Why?  Well, because some people are doing this at the risk of their lives - like citizen journalist Rami Ahmad Al-Sayed who died when he was only 27 years old, leaving behind a wife and young daughter, in order to spread the word over the internet about the military assault he was witnessing first hand in Homs, Syria.

Critics snub the idea of citizen journalists for various reasons:  first, their work does not reach the same level of quality as the professional journalist.  They are amateurs.   Second, citizen journalists cannot be trusted to be objective.  They are biased.  Third, citizen journalists aren't regulated - they have no set of rules or ethical codes imposed upon them as do members of the main stream media.  They are rogues.  

I understand that professionals who have studied in their field for years and thereafter dedicated years of their lives to journalism as a career path aren't too happy with these interlopers.  As an attorney who has seen the practice of law change to allow non-lawyers to practice law in some ways, I get it.

However, when it comes to citizen journalists, I don't care.

I don't trust the main stream media (MSM) much these days -- for one thing, the same finger pointing that is made against citizen journalists has been made much too often against members of the Fourth Estate in recent years for me to blindly trust today's news media.

What?  If you want to delve more into the sad failures of modern, professional journalism then I suggest you check out Joseph Campbell's 2010 book, Getting It Wrong: Ten of the Greatest Misreported Stories in American Journalism - which you can read for free at Google Books (at least you could when I typed this).  Or read the witty column in today's Gawker by Hamilton Nolan, "Mainstream Media Attack Dogs Think We're Asking Too Many Questions About Orange Pie."  It pretty much sums things up.

There's room in my world for both types of journalism, and maybe that's how things should be.  Here are two examples of citizen journalists blogging online that I've been following this week.

The Baltimore SWAT Standoff Blogger

Frank James MacArthur considers himself to be a citizen journalist when he isn't driving a cab up in Baltimore and he writes a blog called "The Baltimore Spectator."  Recently, after MacArthur didn't show in court for a violation of probation hearing on an old weapons charge, the police showed up at his house to issue a warrant.

MacArthur didn't cooperate, and it turned into a five hour standoff.  SWAT was called, but things ended peacefully at 11 pm which MacArthur stated that he intended to coordinate with the evening television news.

Now, sure, MacArthur may have done some of this in order to spotlight his citizen journalist site.  However, MacArthur also had a serious distrust of local law enforcement and chronicled the events as they transpired on the web for what he viewed as his own self-protection.

Belize Murder Investigation and The Mysterious John McAfee

Meanwhile, for a few weeks now the founder of a popular computer security software company, John McAfee, remains at large even though there were reports earlier today that he had been arrested at the Belize-Mexico border.  John McAfee has been blogging his story on the internet as he remains out of the hands of Belize police who are seeking custody of Mr. McAfee as a person of interest in the murder of McAfee's next-door neighbor.  McAfee's blog is "Who is McAfee?"

John McAfee is blogging about his successes in evading capture by the local authorities as well as his concerns that if he is taken by Belize police he will be harmed or killed - and this continuing story is making national news basically because of McAfee's own reporting of events thus far.

Belize police officials are calling McAfee "paranoid."  John McAfee's blog posts, however, don't seem to be the rambling, irrational posts of someone who is mentally ill.  His position is that he believed that if he had peacefully cooperated with police at the get-go, he might be killed.

I believe that blogging is important, but never more so than in situations like this, where individual citizens are sharing their stories - as they happen - with the public at large.  Maybe they aren't the most objective reports; maybe they aren't written as well as they could be; and maybe there's no set of rules or guidelines applicable to their work.

However, in both of these blogging stories by citizen journalists, you have first-hand accounts of what local law enforcement is doing, or not doing, together with the interpretation of those events by the suspect of that police power action. 

I want to read this.  I think lots of people do. I think we need the citizen journalist and I hope that citizen journalism becomes more respected, and protected, over time.    

Citizen journalists blogging on the internet (and I include micro-blogging at Twitter) bring information  to the reader that professional journalists don't provide.  Perhaps they can't provide it, I'll have to ponder that one.

As for the expansion of the police power through technological advances, and how privacy rights are endangered today and Big Brother scenarios are rapidly becoming reality, I'll write about that on my opinion blog soon enough.

COPPA Applies to Blogs: the Xanga Story

More and more, it appears that blogging will gain the respect that it deserves not from appreciation of its content, its growth as a solid, accepted social media outlet, nor its ability to share breaking news, but because bloggers have become parties to litigation in various forms.

Alongside copyright infringement and shield law cases popping up all over the country, consider this:  the Children's Online Privacy Protection Act (COPPA) was passed by Congress to protect kids from online skulduggery.

In sum, COPPA regulates how personal information is gathered and used when it's kids who are inputting the stuff.  It requires things like parental consent for purchasing info, for example.

Last spring, Disney got hit big time with a fine by the Federal Trade Commission to the tune of $3,000,000.00 for collecting info from kids at its Playdom, Inc. site without parents' okay. 

However, here's the point I'm making.  Bloggers must adhere to the COPPA regulations just like Disney Corporation and other Big Kahunas. 

Xanga.com, for example, is a blogging service that was sued for COPPA violations awhile back.  Xanga offered MySpace-like services to kids and got hit with a $1 million fine (the biggest COPPA fine at that time, according to MSNBC). 

Seems Xanga was allowing kids under 13 years of age set up blogs in its "blogging community" and the Federal Trade Commission found this did not comport with COPPA requirements.

True, Xanga isn't a blog itself -- it's a blogging service.  However, it's still within that blogging realm and its story is a part of the path to blogging's respectability. 

Illinois Shield Law: Chicago Case Rules No Protection for Blogger

Another blog fight over application of state shield law.  Expect this Illinois case of first impression to go up on appeal, after all the losing party has already announced that the fight’s not over.
 
Nevertheless, a Chicago court has set a precedent on how Illinois will apply its shield law in the case of a blog out of California, TechnoBuffalo, which has been sued by an Illinois printing company, Johns-Byrne Co., in a lawsuit asking the court to force the blogger to reveal its source for an image of a Motorola cellphone (the Droid Bionic). 

John-Byrne argued that it needs the name of the blog’s source in order to seek legal remedies against what it believes to be an evildoing employee who violated John-Byrne’s legal rights by sharing the images. 

TechnoBuffalo responded by arguing the state shield law, and claiming that it was acting in the same role as a traditional media source reporting on the cellphone industry. 

What is the big deal?  TechnoBuffalo published the pix on its blog before the cellphone was actually available for sale.

Some would call that a “scoop.”

Nevertheless, the Cook County Circuit Court Judge ruled that the blog is not the same as Main Stream Media and shield laws of Illinois (and presumably California? though how the Chicago judge could rule on Cali law escapes me) and ordered the name of the blog’s confidential source to be released.

Let’s see if the appellate court agrees.

Recommended Read: “ETrouble” and 4 Things Companies Can Do About It

 

Great article in Corporate Counsel discussing the risks of social media these days.  Etrouble, they call it. 

I read it via Law.com: “From the Experts: Your Company Tweeting its Way into Trouble? Four Steps to Safely Engage in Social Media,” by Judah Lifschitz and Laura Fraher.

Now, this article is written from the perspective of the corporation and the risks of social media upon the company when Twitter, Facebook, etc. is used by employees, etc.

Worth your time to read, even if you read it as the lawyer for The Man pondering the impact of free speech among the little people. 

Employers do have a right to wonder what their exposure is legally when their employees do things like the Starbucks guy who tweeted about “…shoot[ing] everyone.” 

Good read.

More on Shield Laws: Will Congress Pass the Free Flow of Information Act – And Will This Hurt Bloggers?

 

More on bloggers and the extent to which legal protections provided to traditional journalists will be extended to them:  right now, there is a bill moving through the House of Representatives that seeks to extend establishing journalistic protections in the law to only those writers who write "for a substantial portion of [their] livelihood or for substantial financial gain."

This might cover some non-traditional journalists.  It’s not going to cover lots of other bloggers who are crusaders or whistleblowers or other bloggers who are collectively being labeled “citizen journalists.”

New Jersey has ruled that its shield law can cover these citizen journalists.  So has California. Will the federal shield law be deemed to be less welcoming to these activist bloggers?

From the bill’s summary description: 

Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.

Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.

Requires the content of compelled testimony or documents to be limited and narrowly tailored.

Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.

Exempts certain criminal or tortious conduct.

Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.

It’s entitled The Free Flow of Information Act of 2011.

You can track it here.

Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.

While we were all enjoying the holiday season from Thanksgiving to the New Year, another opinion came down regarding defamation suits against bloggers that bloggers everywhere may be interested in reading.  It's the third case of which I'm aware where state shield laws are used as a defense by bloggers sued by defamation: Oregon isn't as blogger-friendly as New Jersey or California.

Oregon Shield Law - No to Bloggers

The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.

Read the Oregon federal judge’s ruling here.

In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group.  Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.

Judge Hernandez ruled against Cox.  His rationale?  Shield law is limited in its application to “traditional media” and blogging isn’t traditional media. 

Cox, he opined, had no traditional education in journalism.  She had no street creds from a “recognized news entity.” 

Result:  the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.

New Jersey Shield Law - Maybe to Bloggers

If you’re following this stuff, this opinion may sound familiar.  There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.” 

Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”). 

Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum.  Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall.  (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)

The New Jersey Supreme Court’s rationale?  From the opinion:

New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.

California Shield Law - Maybe to Bloggers

Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers.  In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.

From O'Grady: 

We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Here’s something to think about:  if Cox had been interviewed on television, or by a “traditional journalist” for a  printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law?  I think so.

Can Book Reviewers Be Sued for Bad Reviews? Yes. Amazon Reviewer Sued by Self-Pub Author for Libel under British Law After French Award for Criminal Libel, and U.S. Precedent

The New Yorker's Book Bench is spreading the news about a lawsuit filed across the pond against an Amazon reviewer as well as Amazon.com and Richard Dawkins by the self-published author of a book entitled, "The Attempted Murder of God: Hidden Science You Really Need to Know."

It's filed under British libel law and the first hurdle appears to be something akin to a Rule 12(b) motion under the Federal Rules of Civil Procedure -- and it will be interesting to see what Great Britian does with this attempt to get money damages out of someone who wrote a thumbs down review of a self-published book uploaded for sale on Amazon. 

Laura Owen has written a nice summary piece on this reviewer libel suit over at PaidContent, entitled "Self-Published British Author Sues For Libel Over Bad Amazon Review.."

Book Reviewer Found Guilty of Libel in France for Bad Review

Think this is nuts?  Well, if this plaintiff had been following the news out of France, then maybe he is being crazy like a fox.  Seems that a plaintiff suing  for "criminal libel" under French law for a bad online review won -- got a nice chunk of change in an award, too.

Among the defendants:  the editor of the European Journal of International Law, New York University Law Professor Joseph Weiler.  Notice that an American book reviewer and noted law professor is being sued for damages in France, and he's posting about his courtroom experiences online. 

Wow.


Could this happen in the United States? Should American Book Reviewers Worry About Being Sued for Damages by an Author for a Bad Book Review?

In the United States, authors have already sued reviewers for allegedly destroying their writing careers by giving bad reviews of their work.  I haven't done extensive legal research on this, but I am aware of  a landmark case where the New York Times got sued by an author named Dan E. Moldea for a review it published by NYT sports writer Gerald Eskenazi. 

That case, really cases, sets a standard for review - there are two relevant opinions here:

Moldea 1:  Moldea v. New York Times Co., 15 F3d 1137 (D.C. Cir. 1994)

Moldea 2:  Moldea v. New York Times Co., 22 F3d 310 (D.C. Cir. 1994)

Interesting thing about Moldea:  upon appeal from a district court dismissal of the case as being without merit, the appellate court initially recognized a cause of action for damages based upon a bad book review -- then, the court changed its mind ... finding that the book reviewer cannot be sued as long as the review is (Moldea, 22 F3d at 315) :

rationally supportable by reference to the actual text he or she is evaluating. 

From the Moldea 2 opinion (22 F3d 311-312, 315-316):

After careful consideration of the Times' petition for rehearing and Moldea's response to that petition, we are persuaded to amend our earlier decision. The original majority opinion was generally correct in its statement of the law of defamation. Unfortunately, that opinion failed to take sufficient account of the fact

Righthaven Update: US Marshalls Are Now Seizing Assets

Quick update on Righthaven: yesterday, a federal judge signed the writ of execution for defendant Wayne Hoehn against losing plaintiff Righthaven, and the U.S. Marshalls are now authorized to take Righthaven assets in order to satisfy a $63,000+ judgment.

For details on Mr. Hoehn's case and what's going on here, check out my earlier Righthaven posts. 

It's a good day for bloggers everywhere. 

Freelance Writer Who Blogged While Sitting on Illinois Wrongful Death Jury Found Not to Have Compromised Jury Integrity and $4.75 Million Award Stands. For Now.

It should not come as a surprise to many that the juror who blogged about her experiences while on an Illinois jury gave defense counsel a solid basis for appealling the $4.75 million verdict that came down against a commuter railway in a wrongful death case brought by the widow of a blind man who died, she alleged, as a result of the railroad's negligence.

Some, however, may be surprised to find that the juror's blogging about her days on the jury, for a total of six posts, did not result in a reversal: on September 30, 2011, the Illinois appellate court ruled that her actions didn't sway the jury or compromise the integrity of their deliberations.  (Read the opinion here.)

Who was this blogger?  Eve Bradshaw is a self-described freelance writer based in Chicago, 50 years old and a mother of three, who sat on an Illinois jury and wrote about it, in a series of posts for her Blogger blog The Green Room, which she has been publishing for several years.

Read the posts in question, or read Mrs. Bradshaw's blog in general, and you'll find a nice person.  Her posts about what was going on during the trial aren't smoking guns of jury tampering or jury evildoing; there is nothing sinister here, which was important to the appellate court. 

Nevertheless on appeal, the defendants argued that jurors should have been interrogated to determine whether or not the blog posts had impacted their deliberations, especially since the posts contained descriptions of communications between the jurors themselves.  It wasn't a winning argument -- however, part of that result springs from the content of the posts themselves (see, e.g., paragraph 63 of the opinion).

It's not over: the appellate court decision could get taken up to the Illinois Supreme Court, and with almost $5 million on the line, I'm betting the defendants will do so. (There are other points of error here as well; a subsequent appeal seems pretty much a given.)

Now, here's what I'm thinking:  first of all, what the heck?  As a lawyer, no I don't think that jurors should be blogging about what is going on -- no more than they should tweet about it, chat over coffee at Starbucks about it, or discuss anything with a member of the media.  At most, I might be willing to consider the posts being saved as drafts ... but to publish them while the trial is in process?  Scary stuff for a lawyer, juror blogging.

I don't think any communication by a juror about the trial process should be condoned, period.  It's a slippery slope to find blogging different than, say, chatting with a reporter, no matter the content of the posts themselves. If Mrs. Bradshaw had voiced these communications to a reporter who then published them in the local newspaper, would we have the same result?

That being said, it also makes me wonder about the additional responsibilities this places upon trial attorneys because if I were still litigating, you can bet your bottom dollar I would have a paralegal assigned to monitor every juror to insure there was no web chatter - be it Twitter, Facebook, or now, personal blogs.  

Seems to me that some will argue that okaying this blogger's posting means that lawyers now have a duty to monitor juror blogging (and to discern that they are or may be blogging) since the blogging itself has been found acceptable.  That's probably true even if there's a jury instruction not to blog (or tweet, etc.).

Taking off the lawyer hat and putting on the writer one, I have to wonder about the risks here.  First, to blogging itself.  Blogging is such a stepchild; a journalist reporting the day's events in the courtroom is one thing.  Posting about jury experiences while you're on the jury and sworn to protect its integrity doesn't do much to uplift the reputation of bloggers in the eyes of the traditional media.

Second, to the blogger.  Consider the potential personal risk of ciivil liability here -- what happens to the blind man's widow if the Illinois Supreme Court goes the other way and reverses that $4.65 million award because of six blog posts? What happens to the blogger then? 

Scary situation up in Illinois. 

blogs, lawsuits, blogging, liability, trials

Bloggers and Anonymous Commenters Sued for Defamation by Cooley Law School

Defamation claims against bloggers may be on the rise, and it may be that lawyers, law firms, and law students are providing an online prototype for others interested in suing bloggers for alleged defamatory conduct.  Seems that a story that has been brewing on the web for months now just got some big, national exposure today as the National Law Journal (and Law.Com) have published an article entitled, "Ripping a critic's mask off: A law school fought to learn the secret identity of an ex-student blogger," written by Karen Sloan.

Blogger Rockstar05 and Anonymous Commenters Sued for Defamation by Cooley Law School

In the National Law Journal piece, readers are given a blow-by-blow of Thomas M. Cooley Law School's ongoing litigation against an anonymous blogger publishing under the moniker of Rockstar05 and three other anonymous defendants (at least two of which are those leaving comments to Rockstar05's post, with another leaving a comment at the Huffington Post), a suit filed by the law school asserting the school has been defamed by the defendants via the words that they wrote online.  The law school is also suing a New York law firm, one of its partners and another lawyer working there, for "trolling" websites under the guise of investigating a class action while "...posting false and defamatory statements about Cooley on various public websites."  Complaint in Cause No. 11780, pp. 1-2 (full copy here).

Rockstar05 is fighting against his or her name being revealed; there's a gag order in place right now on Rockstar05's identity, although Cooley's counsel knows who Rockstar05 is (and so does Karen Sloan of the NLJ, who interviewed Rockstar05 for her article).  What did Rockstar05 do, exactly?

Rockstar05, according to Cooley's complaint, wrote a post entitled, "the Thomas M. Cooley Law School Scam," which can be read in its entirety as Exhibit B to the Cooley pleading (full copy here). 

Public Citizen Has Filed an Amicus Brief in the Cooley Law School Case, Arguing Application of Dendrite Int'l.

Also contributing to the national import of this growing story is the amicus curiae ("friend of the court") brief filed by Public Citizen, a nationally-known consumer rights group.  In its brief, Public Citizen argues for the First Amendment rights of anonymous bloggers, citing to Dendrite International Inc. v. Doe No. 3, et al., where the New Jersey courts have defined a set of guidelines for trial courts "...faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP [ internet service provider] to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses...."

Among the standards set by Dendrite Int'l, the burden of the plaintiff to establish:

... that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.

This is a big deal - and while Michigan isn't required to follow New Jersey, the opinion is well thought out and does recognize the free speech interests at stake when bloggers are sued for what they have written.

October 24th Hearing On Merits of the Defamation Suit

Right now, there is a setting on October 24, 2011, where the law school's law suit against Rockstar05 and the John Doe defendants will go forward.  More and more eyes are watching this case, and there is some commentary already that by filing this suit, Cooley has actually given the controversial words a lot more exposure than they would have had otherwise, by filing this lawsuit.

For details on the suit, you can read the press release by Cooley as well as the petitions that have been filed (pdfs available for reading and downloading at the Cooley Law School site). 

For more commentary, consider:

Professor Turley, who points out the Pandora's Box of discovery that Cooley Law School may have opened for itself.

Blogger Sues Blogger for Copyright Infringement: Nikki Finke's Deadline Hollywood vs The Hollywood Reporter

Nikki Finke reports on the comings and goings of the Hollywood biz at her blog, Deadline Hollywood, and I've read her for years -- she has been instrumental in making blogs more respectable as a legitimate news source.  Nikki Finke's background as a journalist - working at Newsweek, the Los Angeles Times and The New York Observer, in addition to having her writing appear in The New York Times, Vanity Fair, and The Washington Post means that she had top of the line journalistic credentials when she jumped over into the blogging arena. 

Nikki Finke's decision to become a blogger is important to all bloggers, and in doing so, she undoubtedly felt a lot of backlash from the traditional journalists who do not consider blogging to be respectable as a news source.  That's a rabbit trail topic - something to discuss in more depth on another day.

Point here is, I'm not the only one who admires her work, apparently.

Over the past few weeks (or maybe months), Finke has been posting about her battles with The Hollywood Reporter and her claims that her stuff has been popping up without authorization over at THR, which is another blog.  Today, I read on Reuters that Finke's filed suit:  "Deadline blogger sues The Hollywood Reporter." 

Among her claims (and by "her" I mean Finke as well as her parent company, both plaintiffs in the litigation), an allegation that source code was swiped from Deadline Hollywood.  That's plagarism, 21st Century style. 

Finke goes on: she's also alleging that there has been theft of "intellectual decisions" in what she follows in her blog posts.  As bloggers understand all too well, posts go up minute by minute (almost as fast as tweets) when there is a big story -- and deciding what to post and when is a big thing when you're publishing a blog.  Blogging will get more consideration and exposure as a venue for words, and news, and opinion, because of this lawsuit - if for no other reason than everyone's got to catch up with what exactly Nikki Finke is alleging is the harm that has been done and how it happened. 

Once again, Nikki Finke may be helping bloggers everywhere gain more respect for the medium - this time, not on the screen, but in the courtroom. 

blogs, copyright, nikki finke, deadline hollywood, blogging, journalism