Yelp Ordered to Take Down Negative Online Review After Law Firm Wins Defamation Case: Yelp Fighting Back (with Lotsa Big Gun Help)

A negative online review is posted by unhappy client on Yelp.com.  The negative Yelp review discusses services provided by a lawyer and law firm. So the law firm files a lawsuit, arguing that the online review is derogatory and has hurt business. Sound familiar?

It should.  It happened two years ago here in Texas.  

For details, read "Texas Law Firm Sues Client Over Negative Online Review at Yelp.Com." It includes a link to their original petition, as filed in the Travis County District Court.  

California Court Orders Yelp to Remove Negative Review Held to be Defamatory

Different twist out on the West Coast, one that's getting lots of media coverage.  There, a California personal injury law firm filed suit seeking damages allegedly resulting from a negative online review. 

Difference here between the two suits?  The California case includes Yelp being ordered to take down the review.  

Spearheaded by plaintiffs' lawyer Dawn Hassell, the California law firm won at both the trial and appellate levels (admittedly easily done as the author of the online reviews failed to show up and "defaulted.")  

Hassell's victory?  That's big news right there.  But there's more.

California Appeals Court Agrees With Court Order  to Remove Negative Review

The California judge ordered Yelp to remove the defamatory online review from its site.  And the California appeals court affirmed his decision.  

Their reasoning?  Read the appellate opinion: Hassell v. Bird, No. A143233 (Cal. Ct. App. June 7, 2016).

Yelp was not ordered to pay monetary damages to the law firm.  (Doing so would arguably violate the California Communications Decency Act.)  

Big deal here:  Yelp was NOT a defendant in the California case.  The law firm didn't sue Yelp.  It came into the case after it was ordered to remove the review.  Anyone else thinking about a possible due process problem?  

Go into all the legal stuff with Eric Goldman on his blog.  

Read Yelp's Petition for Review to the California Supreme Court.

California Supreme Court Reviewing Case; Facebook, Twitter, Microsoft Write to the Court

Bigger news.  The "friends of the court" that are entering the arena.  

It's reported that powerhouses including Facebook, Twitter, and Microsoft have written to the California Supreme Court.  This is fine; it's called acting as a "friend of the court," or "amicus curaie." 

Their letter warns Hassell's victory, if not reversed, will endanger free speech and otherwise do bad things.  

Among others filing before the California Supreme Court wanting a reversal:

• Public Citizen - read their amicus curaie filing here;
• Reporters' Committee for Freedom of the Press - read their amicus here;
• RStreet - read their amicus filing here; and
• Bunch of Law Professors (letter by Professor Eugene Volokh) - read their letter here, as published by the Washington Post in Volokh's article dated August 19, 2016, that has some helpful background information. 

Docket Information on Hassell v. Bird

Interested in what happens?  The California Supreme Court Docket for Case S235968, styled Hassell v. Bird, is online and upon request, notices of new developments will be emailed to you. 

• On September 21, 2016, the California Supreme Court granted writ.

Texas Law Firm Sues Client Over Negative Online Review at Yelp.Com

 In June, a Texas law firm did what so many lawyers these days dream about: they sued the author of a negative online review for defamation. 

Gunfight: Image, Wikimedia Commons Public Domain

Austin’s Grissom and Thompson has filed a civil lawsuit against their former client, a man named Joseph Browning, over a review he published online at Yelp.com, alleging that the law firm is the victim of defamation because the online review was "blatantly false" and had no basis in fact.

You can read the Texas law firm defamation petition here.

The full text of the negative online review appears as an appendix to the pleading.

The Online Review That Fueled the Law Firm’s Defamation Lawsuit 

The negative review was published not long after Mr. Browning was sued by the law firm for not paying his legal fees. In part, Mr. Browning wrote that not only did the law firm miss deadlines, but that the lawyers had no strategy and "couldn't even get the basic facts of the case straight after burning through 20 hours of billable time." 

He concluded his Yelp review with this zinger: "They will not defend you. They will hurt you. This is their motive. That is their intent." 

Mind you, Grissom and Thompson already obtained a judgment against Joseph Browning over unpaid attorneys fees and totaling around $4000. I have not read of any malpractice case against them, and the ABA coverage reports that Mr. Browning did not mount a defense to their case for fees.

This defamation claim is not a part of a fee fight.  It is an independent lawsuit.

The lawyers, speaking through their lawyer to the ABA Journal, say they may never collect on that judgment, and they may never see any money from their defamation (libel, libel per se) claim, but they're moving forward on principle.

Will This Law Firm’s Lawsuit Encourage Other Attorneys to File Defamation Claims Over Negative Online Reviews? 

Today, so many lawyers – particularly those practicing criminal defense or family law – are faced with false or malicious negative online reviews.

 It’s offensive to the attorneys, it can be maddening.  And there's the real worry that a negative online review can hurt a law firm's business reputation.

Will attorneys follow in the steps of Grissom and Thompson and start filing lawsuits against the authors of these bad online reviews?

It's a good question.

Personally, those lawyers I know who have dealt with a negative online review have had a knee-jerk reaction of filing a lawsuit, but have ultimately decided not to do so. They've relied on their numerous positive reviews in place on the web, as well as their lawyers' personal reputations and their history of case results to balance against the negative review.

And they’ve crossed their fingers that their clients and future clients will a malcontent when they see one. It’s a sticky situation, being a lawyer and having to deal with an online review these days. It’s not like anyone monitors these reviews before they are published (Yelp argues this isn’t their job).

Maybe things are changing.

.

Online Review Defamation Case: Jury Verdict is in for Dietz Development LLC v. Perez

Late last Friday afternoon, as juries are wont to do, the verdict was reached in a Virginia defamation case that I’ve been following for awhile now: Perez v. Dietz Development, LLC (for details in the case, read my earlier post and for the dance turn the case took up at the Virginia Supreme Court read this).

Bottom line, both the plaintiff and the defendant were held to be guilty of defamation by the Virginia jury — and no damages were awarded to either side. Zowie.

It took the jurors the full Friday to deliberate the case, where Fairfax County’s Jane Perez was sued by her contractor for alleged harm to his business (around $750,000) because of the negative reviews that she wrote about her experience with his company in online reviews at Yelp.com as well as Angie’s List.

That’s defamation claim, round one.

Defamation claim, round two, hit when the owner of the company, a man named Christopher Dietz, went online and wrote some stuff in response to the things that Jane Perez had written. Things that Perez would argue defamed her.

Talk about finger-pointing.

Jury Finds Defamation in Perez v. Dietz Development 

Now, each side can argue that they were right — the other side has been found guilty of defamation. Of course, each side has to walk away with no award money in their pocket to cover the costs of litigating this case through a week of trial, much less that appellate review round to the state’s high court.

Who knows what the bottom line is for either of them once all the dollars and cents are added up. (Perez was assisted by the ACLU and Public Citizen, FYI.)

Here’s the thing: the victim of a negative online review (which the jury agreed was defamatory) took the same action that many lawyers understand: he responded to the bad review, and in doing so found himself faced with a defamation claim against him and months and months of this controversy being spotlighted in the local media. As well as spending lots of time and money in the fight.

This is not a lawyer online review case. It is, however, something for lawyers to consider before they decide to reply to any negative online review that pops up on an online review site like Yelp, Avvo, YellowPages.com, etc.

The Dietz Lesson for Lawyers Deciding How to Handle a Bad Online Review 

Lawyers and law firms have lots to consider before taking up their arms in battle against a negative online review.  Practical things that may fly in the face of principles and true justice.  What are the consequences of a lawyer's responding to an online review that is negative, maybe even defamatory?

Will another lawyer be all too happy to pursue that unhappy client’s defamation claim against the attorney or his firm?

Are these cases akin to the warnings that lawyers get when pondering a lawsuit over unpaid attorneys’ fees (i.e., that they are inviting a counterclaim for malpractice no matter how weak it may be, as a strategic defense play)?

Just one more consideration in how to deal with negative reviews these days. It may be painful to be silent in the face of a disturbing, negative online review, but many may argue that it is the prudent thing to do.  Particularly when lawyers are involved and there's the possibility of Bar disciplinary action in addition to civil litigation (as was recently faced by an Illinois attorney who responded to a negative online review, now she's been disciplined for her actions).

Those interested in learning more about this case can review the Complaint filed by Christopher Dietz and Dietz Development that started this lawsuit back in October 2012:

Complaint for Defamation Based Upon Online Review in Dietz Development LLC v. Perez (Virginia)

Update on Yelp Review Case: Virginia Supreme Court Rules in Dietz Development LLC v Perez Injunction

The Yelp Review online defamation case (for details, see my previous post) continues through the Virginia courts, and the latest news is that the Virginia Supreme Court has issued its order in favor of Ms. Perez.

Regarding a request for review of the circuit court's order which required Ms. Perez to "remove any post that refers to jewelry" and "modify any post that refers to '... Summary Judgment' (meaning that the case has no merit)" to 'Summary Judgment (meaning that the case was dismissed with prejudice in my favor)" and that the defendants were to comply with these instructions from the court in any further publications, the Virginia Supreme Court reversed the circuit court.

The highest court in the State of Virginia has ruled that the preliminary injunction order issued on December 7, 2012, by the circuit court regarding the Yelp Review was "not justified" and that "respondents have an adequate remedy at law."

Read both the lower court order and the Virginia Supreme Court ruling - as well as the entire case docket with updates - at CitizenMediaLaw.com.

So, what does this mean?  Dietz's defamation allegations live to fight another day -- but the judge's attempt to limit damages has been thwarted (assuming arguendo that this was his intent in requiring references to theft allegations be removed from the online review).

Yelp Review Gets Reviewer Sued by Company Claiming Significant Damage From Single, Bad Online Review: Is This The Case That Sets the Precedent for Internet Defamation Suits Based on Bad Online Reviews?

If this isn't the start of a trend, I don't know what is.  There's a sizable case over on the East Coast that seems to be holding its traction against the usual arguments of free speech in a case where defamation damages are being claimed based upon an online review.  I think that lots of lawyers are going to be watching what happens here.

(It's not that these bad reviews haven't been the subject of lawsuits filed by lawyers already:  there's a Dallas law firm that has filed a $50,000 damage suit for a bad review on Google ("Ben Doe") and there's a Florida lawyer who sued for removal of a bad online review at a lawyer-review site and had the case settled pretty quickly.)

Why?  I've already had more than one discussion with clients in different parts of the country that are angry and fretful about the opportunity offered to anyone out there to write a bad review of their work and have it published for all to see at Yelp or Avvo or whereever.  There are lots and lots of review sites these days.

The calls that I've had regarding bad reviews are from lawyers in firms that practice in emotional areas: family law, criminal defense, etc. where someone is going to be upset.  It's almost an old joke that no one likes their ex-spouse's divorce lawyer.  

Most of my law firm clientele are concerned with how to deal with snarly reviews at these online sites, when they are prohibited or limited in publishing client testimonials from clients that are very pleased with the work the lawyers have done.  They aren't so concerned with the single bad review as their perceived inability to balance that bad review out with the numerous client letters, cards, and testimonials that they have on file where clients offered stellar reviews of the firm and its work.

It isn't fair, granted.  However, no one has brought up the idea of suing the bad reviewer.  Yet.  I'm thinking that those lawsuits may be coming.  Consider this.

The $750,000 Internet Defamation Lawsuit Out of Virginia

Dietz Development is a small District of Columbia business owned by Christopher Dietz that Fairfax, Virginia resident Jane Perez contracted to do some work on her home last February.  Seems Mr. Dietz and Ms.Perez are acquainted because they went to high school together, and that's why Dietz Development got the call.

Now, these two ex-students and former friends are on opposite sites of a defamation suit that is getting international attention (like this article in Great Britain's Daily Mail).  Dietz Development is alleging a loss of $750,000 in lost profits and damage to the company's reputation (or business goodwill) because of one, single bad review posted on the Yelp site.

Read the complaint here (provided by The Washington Post).  The Yelp review appears as Exhibit B (second post on page).

There was a similar review posted to membership review site Angie's List, which has been included in the complaint (see Exhibit A) but isn't getting the spotlight that the Yelp review has garnered, perhaps because the readers of Angie's List are not the general public but only those who pay a membership fee to access the Angie's List web site.

Judge Grants Restraining Order: Reviewer Must Edit The Online Review as Case Proceeds

This week, a judge granted Dietz's motion for a temporary order requiring Jane Perez to change the online review although the order does not require that the bad review be taken offline in its entirety.  (Whether this is drawing a line on potential damages claims or giving the plaintiff a big hint that he's going to win this thing is too soon to tell.)

Media reports are that Perez has been ordered to remove her allegations that Mr. Dietz stole jewelry from her home.  I haven't been able to find the actual court order online (yet).

What Was in the Yelp Review That Got Jane Perez Sued?

The lawsuit alleges that not only did the review complain about the quality of the work that was done, or not done, it also claims that Mr. Dietz stole jewelry from the home (theory: he was the only one with a key to the house aside from the home owner at the time that the jewelry went missing) and that Dietz was operating without the proper license to do business.

Of course, Mr. Dietz posted his own reply to her bad review.  He's arguing that wasn't enough.  From this single bad review, the plaintiff is claiming a huge amount of damage ($750,000).

And this case is proceeding through the courts. It's not being tossed.  And the judge just made the review edit the review.  

In my opinion, online reviews of businesses -- including law firms -- are going to be considered in a different manner than book reviews (where book reviewers are also facing the risk of being sued for a bad review).

These online business reviews may be able to hurt a business more than a single bad book review, also my opinion here.  After all, a book review is understood to be the opinion of a work of fiction or non-fiction and the reader understands that what is poison to one may be meat to another.  It's subjective.

An online review of a service provider, on the other hand, can be objectively judged.  Was the work shoddy or not?  Expert opinion and factual support can provide an answer.  Was there a theft?  Who did it?  These are things that can be proven with facts in a courtroom.  Same thing with the licensure issue.  Maybe this is true for damages sustained from a bad review, as well.

Will more businesses sue for bad online reviews?  Will law firms tee it up?  I think so.

And where are the publishers in all this?  They sure are quiet and I'm wondering if that's smart.  

Here's my first big question: where is the responsibility of the publisher in these online review defamation cases?  I'm wondering if the online web site that profits by building a review directory for the public isn't going to be held by a judge somewhere to have a corresponding duty regarding the reviews that are placed upon its site pages.

Surely there are going to be plaintiffs that include these sites in their pleadings; after all, these are probably deeper pockets than the individual reviewer.  My little voice is asking, "if someone claims a criminal act like theft, then isn't that stepping across some sort of publisher duty line in an online review of a business?"

Another big question I have: what does this do to trustworthy reviews?  Free speech is important and it's priceless in its value.  Something that we may learn once it's gone (like privacy rights) in the near future.

I do read online reviews before making a purchase or inviting someone into my home for repairs.  Will these suits simply insure that the bad reviews won't get published out of fear of reprisal and I won't be able to learn that the book or the plumber or the car is a bad deal?

If this litigation happens, then what's the value of the review site to me?  Why bother reading CitiSearch for a restaurant to check out if all that CitiSearch can offer me is fluff stuff?

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. 

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.

Anonymous Comments: Should You Block Them From Your Blog?

Anonymous comments did not start with the World Wide Web; they've been around for centuries and they've always been a headache at times. For an interesting read about anonymous comments, check out the Online Journalism Review's article on traditional journalism's take on anonymous commenting -- you'll learn a lot: for instance, did you know that Benjamin Franklin wrote many an anonymous comment under the psuedonym "Silence Dogood"?

The position of many print publishers is this: if someone wants to have their words published in their publication, then the publisher feels that the writer should have the cojones (yes, I'm in Texas) to put their name right up there with their comment. Of course, the publisher's lawyers have pointed out that there may be legal consequences to the words printed in the publication; therefore, having the ability to find that potential co-defendant if the comment proves litigious is important to the legal team.

I get it. And I'm still in favor of allowing anonymous comments on your blog (or blawg).

Here's why: technology being what it is today, right now there are all sorts of hurdles to leaving a comment on a blog or newspaper or online magazine. Just this past week I experienced the following:

1. I had a devil of a time trying to leave a comment to a Typepad post - I was requested to sign in via Twitter or Facebook or Google to leave the comment, or alternatively leave my name and address (for the blog's growing email marketing list). If I used Twitter, I was asked to agree to allow the platform to post its own tweets on my Twitter feed. That's right. Their stuff. On my Twitter feed. Without my prior looksie. I was left with two options, well three: (a) agree to be on their mailing list; (2) allow the platform to be my Tweet-partner; or (3) not leave a comment. Surprise: I didn't leave the comment.
2. A client in Florida wanted to put a comment at one of the top Florida newspaper's online sites. Same platform issue. After much time (that we both could and should have dedicated to other things), her comment was left on the news article -- and now, she is watching her Twitter feed, to see what they are going to do (and I hope she's got her finger on the Application Approval button at the Twitter settings page).

In social media today (think Klout), you want to have comments on your blog (or blawg).  You want to make it easy for readers to communicate with you.  Sure, there's a spam issue and yes, there will be times when a comment is troublesome. I'm not recommending that bloggers ignore the contents of the comments and monitor what's being written by readers. 

However, it is just too darn easy to surf away if the blog (or blawg) puts up a hurdle for the reader to jump in order to write a short thought or two about the post.  Who wants to spend all that time and effort just to leave a little message?

I know I don't.  I leave anonymous comments when it's too much burdensome to get through the blogging platform's hurdles ... maybe I will leave a signature within the comment itself.  If I remember.  For something like, "thanks for sharing this" I may not.

Bottom line:

• blocking anonymous comments doesn't help your reader (or your social media dialogue, if that is the terminology that floats your boat) and may alienate some of them, since it's the fastest and simplest way of leaving a comment online. 
• forcing readers to allow third party access to things like their Twitter feeds just to have the joy of leaving a comment on your blog is just plain disrespectful and manipulative and wrong in my humble opinion, and I'm sure I'm not alone here. 
• blocking anonymous commenting is not going to prevent you from getting troublesome comments: it's just as easy for troublemakers to create online pseudonyms with fake online email accounts, etc. as it was for Ben Franklin to sign "Silence DoGood" to his letters long ago -- you're not stopping the dedicated writer who doesn't want to leave his real name. 
• in the event of a huge lawsuit, techies may well be able to track down the source of the comment anyway: how anonymous that writer really is in today's technological world is debatable.

Perez Hilton v Lindsay Lohan's Friend: Defamation Concerns for a Blogger

All the media coverage today surrounding Perez Hilton being sued by Lindsay Lohan's friend for defamation may give many a blogger pause.

Here's the skinny: bloggers can be sued for defamation not only for their own posts - anonymous or otherwise - but also for the comments left on their blog. Comments, too? Yep.

And, in today's legal arena, remember that while they may not win, they may well be able to pursue a lawsuit against you. In this murky, new area of the law, there's lots of leeway to argue that a cause of action has been established and the suit's not frivolous (even if it's not winable).

While the law is still evolving, here's what is leading the pack:

1. John Doe 1 v. John Cahill. In October 2005, the Delaware Supreme Court held that anonymous bloggers are not immune from being sued, but the standard of proof to reveal their identity is the highest possible burden.

2.The US Communications Decency Act holds that a blogger who repeats someone else's statements is legally responsible for the defamatory content of those statements, just as if the blogger was the original speaker, if the blogger knew, or had reason to know, that the statements were defamatory. The Act protects against liability for online "intermediaries" who merely provide or republish speech by others.

For a nice discussion of this evolving area of the law, check out TCS Daily's 2003 article, The Next Litigation Background; the British blog Internet Defamation which has been posting exclusively on this topic from a world-wide perspective since 2005; the articles at Law.Com, including Charles Toutant's on cult bloggers and the October 2007 Law.Com's online report of the National Law Journal's Roundtable discussion on this issue.