The Supreme Court of Texas Rules Injunctions for Defamation Not Proper and Requires Proof of Damages
On Friday, the Supreme Court of Texas issued two important defamation rulings. The first, Kinney v. Barnes, held that injunctions to prohibit defamatory speech do not pass constitutional muster. The second, Burbage v. Burbage Funeral Home, raises the bar on the recovery of compensatory damages.
Injunctions preventing speech are an unconstitutional prior restraint
In Kinney, the plaintiff sought a permanent injunction preventing the defendant from further making further defamatory statements and making the defendant remove defamatory statements. Texas courts had already ruled temporary injunctions preventing additional defamatory statements were unconstitutional prior restraints of free speech.
The Supreme Court of Texas clarified: “We hold that, while a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint, an injunction prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texans’ free-speech rights under Article I, Section 8 of the Texas Constitution.”
Certain injunctions against obscenity or illegal commercial speech are still permitted, but defamation, alone, cannot support an injunction. Because it is a prior restraint, an injunction would only be allowed “when essential to the avoidance of an impending danger . . . and only when it is the least restrictive means of preventing the harm.” Preventing defamation, which can be subject to damages, does not satisfy that test.
You can read the case here - Kinney v. Barnes
What are appropriate damages?
Burbage, meanwhile, involved a messy interfamily squabble where one family member accused the other of engaging in elderly abuse against the matriarch. The jury awarded the individual defendant $6,552,000: $250,000 for past injury to reputation; $2,500,000 for future injury to reputation; $1,000 for past mental anguish; $1,000 for future mental anguish; and $3,800,000 in exemplary damages.
The jury awarded the family-run funeral home $3,050,000: $50,000 for past injury to reputation; $1,000,000 for future injury to reputation; and $2,000,000 in exemplary damages.
The court opined: ”Texas law presumes that defamatory per se statements cause reputational harm and entitle a plaintiff to general damages such as loss of reputation and mental anguish. But this presumption yields only nominal damages. Beyond nominal damages, we review presumed damages for evidentiary support.”
Reviewing the evidence, the court noted there was a lot of speculation about the impact the defamatory statements would have on the business. Speculative evidence is not sufficient. The court also drew the distinctions between special damages, nominal damages, reputational damages, economic damages and their interplay with defamation and business disparagement.
In conclusion, the court wrote, “[t]he evidence does not show actual loss of reputation, that anyone believed the defamation, that the Burbage Funeral Home suffered an actual loss, or even the funeral home’s actual value. On the record here, we hold that no evidence supports the jury’s award of $3.8 million in actual damages.”
As a result, the court determined there was no actual damages. With no actual damages, there could be no exemplary damages. Therefore, the plaintiff got nothing other than a piece of paper confirming he was defamed. Honor can be expensive.
Here is the opinion - Burbage
A Houston area woman has sued Facebook asking for $123 million because Facebook was slow to take down a fake a profile created by her ex-boyfriend with pornographic images.
You can see the story here
The plaintiff sued Facebook and the ex-boyfriend for negligence, breach of contract, gross negligence, intentional infliction of emotional distress, invasion of privacy and defamation. The request for $123 million is based on $.10 for every Facebook user. You can read the amended petition here–Ali v. Facebook petition.
My guess is this case will likely be removed to federal court (both defendants are out of state) and then summarily dismissed as to Facebook. As regular readers should know by now, website operators like Facebook are not liable for the content created by others under the Section 230 of the Communications Decency Act. It provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
Although sympathetic to the plight of the plaintiff, Section 230 unquestionably (and may result in sanctions against the plaintiff) immunizes Facebook from the negligence, invasion of privacy, intentional infliction of emotional distress and defamation claims.
It appears the plaintiff is heavily relying upon the fact it took Facebook a long time to take the fake profile down. Facebook’s community guidelines do prohibit fake profiles. Facebook says it will take down posts and profiles in violation of the guidelines, but it never contractually commits to the users it will quickly police the site. In fact, Facebook expressly says it will not guarantee an expedient removal stating:
If you see something on Facebook that you believe violates our terms, you should report it to us. Please keep in mind that reporting a piece of content does not guarantee that it will be removed from the site.
It is therefore questionable whether there is any contractual obligation on Facebook to take down offensive or fake profiles. Regardless, most courts do not allow plaintiffs to artfully plead around the Communications Decency Act and have poured out similar breach of contract claims.
I wrote an article for the Bloomberg BNA Social Media Law & Policy Report entitled “How to Enforce Terms of Service for Online Social Media Promotions and Contests.” We tried to squeeze in a few more keywords. The full article is available at the link below.
Who owns the rights to a selfie taken by a monkey? While it sounds like a law school exam, it is based on a real story as reported here by the American Bar Association.
According to the article, a monkey picked up the photographer’s unattended camera and began taking pictures. This is one of the images captured by the monkey.
The nature photographer claims he owns the copyright. Meanwhile, the Wikimedia Commons website has been distributing the picture for free and has refused to take it down.
Usually, the rule is that whoever takes a photograph owns the copyright as discussed with the famous Ellen DeGeneres Oscars selfie. Wikimedia is claiming animals can’t own copyrights unless a human adds a significant creative element to the picture. Hence, Wikimedia says there is no copyright with the picture.
Under U.S. Copyright law, to be entitled to the copyright, you have the be the “author” of the work which is normally the person who created the work and the basis for the general rule when it comes to photographs.
The U.S. Copyright Office has a rule that the work must be of “human authorship” and works created mechanically or by random selection, without any human contribution, are not eligible for a copyright. The photographer’s claim that the picture was a result of his hard work may not succeed under U.S. law. It’s not the amount effort that counts, it’s the inclusion of human creative originality.
The blawgosphere is offering many opinions on this. For example, Steve Baird suggests that perhaps the monkey is the photographer’s assistant and therefore the credit for the picture goes to the photographer. Matthew David Bozik opines that perhaps it is a joint work. We will have to see what tactic the photographer takes.
In the meantime, what can you do to avoid the same problem short of making the animal sign a work for hire agreement? You can do post-production work on the photograph that provides its own original creative touch to it without releasing the original. While it may not be a selfie if you remotely take the picture, you would still be considered the one who clicked the button. According to the articles, the photographer went through a lot of effort to make this happen – will he get the credit?
Last month, the Sixth Circuit ruled that website operators are not liable for content provided by others (User Generated Content or UGC) because of Section 230 immunity under the Communications Decency Act in the Jones v. Dirty World Entertainment decision.
Based on the history of the CDA, that should be no surprise. However, internet lawyers were watching this case closely because a federal judge let a defamation case go to trial and this could have created a hole in the CDA defense. Alas, the court of appeals ruled the way most experts expected and the world can return to normal.
We posted about the trial court’s decision before. Last summer, a jury found TheDirty.com “encouraged the development of what is offensive” and was therefore liable for the defamatory posts about former Cincinnati Bengals cheerleader Sarah Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.
As a refresher, Section 230 of the CDA provides: ”[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because the websites are not the publisher or speaker, the sites can’t be liable for defamation. Most courts immediately dismiss website operators from defamation suits when the claim is based on UGC.
Jones sued Dirty World Entertainment Recordings which owns TheDirty.com. The site, as expected, immediately filed a motion to dismiss the complaint because the claims were based primarily on the UGC. The trial judge denied the motion arguing the defendant purposefully seeks out and encourages defamatory content. The court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”
The court of appeals said the trial court erred when it held The Dirty was the “creator” or “developer” of the offensive content and when the trial court allowed a “encouragement test” that would cause a website to lose the CDA immunity.
The Sixth Circuit instead implemented the more accepted material contribution test requiring evidence the website operator was “responsible, in whole or in part, for the creation or development” of the defamatory content. Based on this test, the appellate court found the website did not “author” the statements, pay for the content and did not require defamatory content to use the site. The court also confirmed there was no liability for selecting the content or refusing to edit the content.
What does it mean?
The CDA has been a very effective tool for website operators. Imagine if Facebook or YouTube could be sued for defamation. Those sites would not exist. With the good, comes the like of The Dirty. There is an old saying that “bad facts make bad law.” That almost happened in this case. TheDirty.com asks people to “submit dirt.” The submission form has entries for the “dirt,” and provides a link to upload photographs. More reputable websites, don’t have this feature. But, if The Dirty is protected, then you should have no worries that your more mainstream site will also be protected. If there is going to be any changes to allow for liability for those who “encourage” defamation, the change will have to come from the state house and not the court house.
This weekend The Houston Chronicle reported Facebook did not turn over information requested by local authorities in response to death threats. People have been criticizing social media companies for turning over data to government entities. This time Facebook demanded a court order and now people are upset. It shows how it is a difficult situation for online companies and sometimes they are damned if they do and damned if they don’t.
According to the article, a Facebook message said a user was “Going to kill everyone in Splendora on July 13th.” Local officials asked Facebook for information, but the site told them to come back with a court order. According to Facebook, the government officials never did.
A Facebook spokesperson is quoted as saying:
We promptly review and respond to all emergency requests. In this case, we reviewed the matter and asked to police to send us legal process or a court order for the requested information. The police have yet to send us any formal request.
According to Facebook, on their Facebook and Law Enforcement page:
We take the privacy of your information very seriously. If Facebook receives an official request for account records, we first establish the legitimacy of the request. When responding, we apply strict legal and privacy requirements. . . .
We work with law enforcement to help people on Facebook stay safe. This sometimes means providing information to law enforcement officials that will help them respond to emergencies, including those that involve the immediate risk of harm, suicide prevention and the recovery of missing children. We may also supply law enforcement with information to help prevent or respond to fraud and other illegal activity, as well as violations of the Facebook Terms.
This appears to be a Not In My Backyard situation online. We all want Internet privacy, but when we perceive the threat is against our community, our principles get challenged.
I don’t believe the demand for a court order was out of line. I am sure the law enforcement officials would have preferred just to be handed the information. I stand to be corrected by those more familiar with criminal law procedure, but getting an appropriate order from a judge should not have been too onerous. Although Facebook did not apparently turn over the information right away, I suspect this is not over and the investigation will continue.
A suspect has been taken into custody according to KHOU-TV11 after some unspecified cooperation from Facebook. A 13-year-old girl is surely regretting her actions.
This morning, the U.S. Supreme Court ruled in a 6-3 decision that Aereo violates copyright law by retransmitting over-the-air programming without authorization. This will shut down the controversial start-up or force them back to the drawing board to come up with a new system. The sound you heard was a huge sigh of relief of all over-the-air networks, cable carriers and content creators because this would have caused everyone to re-evaluate how programming is broadcast, and more importantly, paid for.
For those not familiar with Aereo, it essentially allowed users to “rent” an antennae that would pick up a signal at a certain point. Aereo would then take that over the air signal and send it to the user’s phone so they could stream the content from their phones.
The issue was whether this was a “public performance” of the copyrighted works. Aereo said it was not because the users could receive the same content for free if they had antennas attached to their TV at home. Aereo merely re-transmitted the same content to allows users to access it on their phone privately.
The networks sued Aereo almost as soon as it launched in 2012. They argued the simultaneous broadcasts to thousands of paying customers represented an illegal retransmission of protected works — even if you called it renting an antenna.
Actually, everyone can give a sigh a relief. Had Aereo won, the broadcast networks said they would stop providing content. The cable companies pay the networks a lot of money to retransmit the over the air channels and this would have changed everything.
While this is a blow to Aereo and possibly innovation – at least through this specific model – the world as we knew it before Aero will continue.
Originally published last year, but worth revisiting
As the summer arrives in full force, I am watching a lot of my start-up friends take advantage of the unpaid internship to help with some needed coding, design or marketing projects they haven’t gotten to. These kids are smart, hungry, can use the experience and wouldn’t it be nice to have someone pick up coffee and donuts for you once in awhile?
- the training is similar to that which would be given in a vocational school (even though it includes actual operation of the facilities of the employer);
- the training is for the benefit of the trainees;
- the trainees do not displace regular employees, but work under their close observation;
- the employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion operations may actually be impeded;
- the trainees are not necessarily entitled to a job at the conclusion of the training period; and
- the employer and the trainees understand that the trainees are not entitled to wages for the time spent training.
The mid-terms are coming up, so you know there will be stories of politicians getting into clashes with artists over the use of songs and other content in ads and at rallies. In Texas, for better or worse, the real competition is often in the Republican primary and several run-offs have already brought up some copyright issues.
But it’s a fair use!
Many ads use snippets from copyrighted TV news stories or headlines from local papers often citing fair use. Fair use is an affirmative defense to a copyright violation meaning, it is the campaign’s burden to prove the use was fair. Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
A Texas Showdown Example
Dan Branch is a candidate in a run-off for Texas Attorney General. NBC-owned Dallas station KXAS is arguing the Branch campaign used too much footage from its copyrighted newscast in this letter.
Specifically, NBC says the ad features “extensive use” of the story and features the voice and likeness of their anchor. All but two seconds of music at the beginning is the TV news story. NBC also says the use of the footage makes it appear the anchor and the station support the candidate and creates questions of journalistic integrity.
You can see the ad here for yourself.
NBC has demanded that the campaign cease further dissemination of the ad. As of today, the video was still up under TexansforDanBranch on YouTube.
The run-off for the Republican primary in the race for Lt. Governor has gotten more attention including this ad:
Parody is also a defense to a copyright claim. Yes, even bad parodies can be protected. Just think what happens when the ads start focusing on the people in the other party.
I’ll admit, General Mills did not go that far. What they did, according to The New York Times was notify customers that if they downloaded a coupon, joined a forum or entered a sweepstakes, the customer would waive their right to sue in court and would have to go through an online “informal negotiation” or arbitration.
Since the story broke, General Mills is trying to backtrack. For example, General Mills admitted it would not apply if you interacted with the company on Facebook or simply purchased one of its products at a store, but that the company could enforce it if you interacted on the company’s website.
However, there was a pop-up notice on the company’s home page that “require[s] all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.” Consumer watchdogs were concerned General Mills was trying to escape all liability for mislabeling claims or damages related to product recalls just because you “liked” a Facebook page or purchased a product at your local grocery.
In two recent cases, the Supreme Court has held related clauses to be enforceable. In June 2013, in American Express v. Italian College Restaurant, the Court enforced an arbitration clause between AmEx and the merchandisers. Two years before that in AT&T Mobility vs. Concepcion, the Court upheld a class action waiver.
Yet, there is still, and always will be, the issue of consent. When I buy Lucky Charms for my kids (I know, Dad of the Year), I am not consenting to a long list of terms of conditions. I am buying cereal. A court would be hard-pressed to find I consented to a long list of terms and conditions on the General Mills website. That would not be magically delicious in the least bit.
On the other hand, if I download a coupon, or enter a sweepstakes, I would not be surprised to have a pop-up that requires me to agree to terms and conditions no one reads. I might waive my rights to file a class action or a jury trial as it relates to that particular transaction. In fact, I would not be surprised if this practice becomes more prevalent.
There may be some issues as to whether downloading a Cheerios coupon means I agreed to waive claims against Haagen Dazs in an unrelated transaction.
Despite the fact social media and the internet have made things a little more complicated and hard to keep up with, the basics of contract law still apply. To bind a consumer, you need to show they consented to the terms which is why a click-wrap agreement is preferred over a browse-wrap agreement. On top of that, especially when it comes to jury and class action waivers, you need to satisfy both procedural and substantive conscionability.