Online Defamation & Anonymity

The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional.  The case involved a guy who allegedly took pictures of kids at a water park.  You can read more here.

Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.

The Facts of the Case

The law provides, in relevant part:

 A person commits an offense if the person:

 (1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room: 

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”

We can all agree — creepy.

The Ruling

The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art.  The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny.   The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.

The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams.  The court responded:

Sexual expression which is indecent but not obscene is protected by the First Amendment . . .  Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation.  As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.  A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.

Like most other laws subject to a strict scrutiny test, this one failed, too.  It was not narrowly drawn.

The Takeaway

Although well-intentioned, the law simply covered too much.  This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was.  If I was taking pictures of my kids at the park, the police could ask me why.  If I am doing it to show how nice my city is, I am OK.  If I am doing it because I am creepy, it is against the law.

As the court noted:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

Having the police govern the intent of our photographs is not sustainable.

I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling.  But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.

With that said, we may not be thrilled this about this guy.  If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.

Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure.  Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.

You can read the opinion here.

On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s identity.  Both the majority and dissenting opinions in In re John Doe a/k/a The Trooper are available here.  It will certainly complicate the process of suing anonymous online defamers.

An anonymous blogger who went by “the Trooper” went after Reynolds & Reynolds Co. and its chairman. As we often recommend, the the company sought a pre-suit deposition from Google to try and identify the blogger.  The application was filed in Harris County, where the chairman resided.

In Texas, Rule 202 allows for a presuit deposition to determine whether you want to investigate possible claims.  It is cheaper and more efficient than filing a lawsuit.   The application to do this must be filed in the “proper court.”  You have to serve the petition on the company you want the discovery from (in this case Google) and the party who is the subject of the possible suit (in this case the Trooper).  The company did just that.  Google was unopposed.  The Trooper fought the discovery on a John Doe basis and argued he was not subject to jurisdiction in Texas and therefore the request was not filed in the “proper court.”

Jurisdiction means the subject of the suit must have some connection to state where the lawsuit has been filed.  For example, if you’ve never been to North Dakota, it would be a violation of your due process rights to be dragged into a lawsuit there.  The blogger argued he has no connection to Texas other than the fact his blog is viewable in Texas.

The Majority

The trial court was going to allow the discovery, but the Texas Supreme Court reversed.  The majority wrote:

To allow discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford.   . . . [A] defendant who files a special appearance in a suit is entitled to have the issue of personal jurisdiction heard and decided before any other matter.  . . .  To allow witnesses in a potential suit to be deposed more extensively than would be permitted if the suit were actually filed would circumvent the protections. . .”

The court continued:

The Trooper cannot ignore this Rule 202 proceeding without losing his claimed First Amendment right to anonymity. By ordering discovery from Google, the court has adjudicated that claim. He has thus been forced to litigate the merits of an important issue before a court that has not been shown to have personal jurisdiction over him.

The Dissent

The problem with the ruling is that it will make it very difficult to unmask people online when you do not know their identity.  If the anonymous blogger does not have to at least reveal their state of residence, where is a defamation victim to go?  Four justices of the all-Republican Supreme Court dissented because “the Court requires a premature and impossible showing, in the process allowing an alleged tortfeasor to hide behind his anonymity regardless of whether the First Amendment allows it.”

The dissent explained:

In today’s case, involving the permissible scope of pre-suit discovery in Texas, the Court holds that the applicable procedural rule requires that personal jurisdiction be established over an anticipated defendant—even when that defendant’s identity is withheld—before such discovery may be granted. And it does so despite the fact that it would be impossible for a court to make the required minimum-contacts determination with respect to a potential party who refuses to reveal the jurisdictional facts (such as identity and domicile) that form the basis for that decision. This effectively abolishes a cause of action for defamation against a person who claims anonymity, particularly when the defamation occurs online.

In the context of an actual lawsuit, as opposed to a petition for pre-suit discovery, a defendant who claims they are not subject to jurisdiction is still subject to the discovery process.  The plaintiff can send discovery forcing the defendant to identify all of the defendant’s contacts with Texas generally and with regard to the specific incident.  Yet, in this case, it appears the anonymous blogger simply provided an affidavit that he had no contacts with Texas and there was no opportunity to dig further.  The dissent recognized this conundrum.

[A] court cannot conduct a minimum-contacts analysis while wearing a blindfold; when a party chooses to remain anonymous, a court is powerless to evaluate his connection to the forum state. Several federal district courts have noted as much, in the context of copyright infringement cases, when denying motions to quash subpoenas issued to Internet service providers to ascertain the identity of anonymous defendants. 

My two cents

From just reading the opinions, it is hard to tell how much information, if any, the anonymous poster provided other than a statement that he did not have any connection with Texas.  It seems to me there are sufficient safeguards in place that require at least some connection with the State before the discovery would be allowed — the victim of the defamation was in Texas which, in some circumstances, can be enough to establish jurisdiction for the actual lawsuit.  As the dissent points out, there are already tests in place to make sure the plaintiff has a valid complaint before the courts will allow discovery about an anonymous speaker.

Without some relief, what is the victim to do?  Where does he go to get the information he needs? Or, does he have to file a suit and follow the more formal and expensive process?  The rules do not allow lawyers to file suits unless we have done a good faith investigation of the facts and law.  Hence, the reason for presuit discovery.

Alas, all is not necessarily lost.  As pointed out by Strasburger’s Debra L. Innocenti, victims can still use out-of-court cyber-sleuths to help identify the defamer.  We are staunch defenders of the First Amendment, but we have been around long enough to know there is abuse of the ease with which someone can superficially damage people anonymously on the Internet, whether it be defamation, a competitor or a jilted ex.  The court has now taken away a standard tactic that helps people get redress when warranted.

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

http://www.youtube.com/watch?v=GvJzYGu548o

 

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.

We will keep an eye on this case.  You can listen to my interview with KRLD Radio in Dallas about the case here. facebook lawsuit with Mitch Carr – KRLD

 

 

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.

 

A frequent question we get is what can we do about the online posting about me?  Often times, the answer is not much.  Lawyers can only help when the online conduct crosses the line into a cognizable cause of action.  Figuring that out is the hard part.

The Threatening or Harassing Post

Is there an ex spewing hate against you on Facebook?  Is a disgruntled fan or customer telling the world what they would like to do you?  Many times, the First Amendment will protect their conduct.  Sometimes, however, the law can help.

Take for example, a “fan” of the New York Knicks who suggested the owner of the team needed to die with posts that included naked pictures of the poster with a gun.  The police arrested him.

Sports often bring out the worst.  I’ve seen some of it with my own sports teams with the Michael Sam story and the question of whether the Houston Texans will use the first pick on Johnny Football.

Most fan rants are protected by the First Amendment, but threats of immenint harm or immediate calls to illegal actions are not.   Jack Greiner of the Graydon Head Out of the Box Blog blog breaks down the law on threats versus free speech in this case here.  The oversimplification is that if a reasonable person would believe the speaker has an intent to cause actual harm, then it can become a threat and not mere protected speech.   Moreover, when the target of the threat is a sport figure or politician, it may not be realistic to think the person would actually act it out, but there are enough crazy people out there for law enforcement to take a close look at some of these cases.

In addition to threats, may states, like Texas, have online harassment laws.  Perhaps, your ex knows better than to make a physical threat, but continuously harasses you. In Texas, a person commits an offense if the person “uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site: (1) without obtaining the other person’s consent; and (2) with the intent to harm, defraud, intimidate, or threaten any person.”

It is also crime to: “send[] an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person: (1) without obtaining the other person’s consent; (2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3) with the intent to harm or defraud any person.”

Revenge Porn

The American Bar Association recently wrote an excellent article on revenge porn you can read here. For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles. There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject. But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

Civil Claims

Most of the examples so far deal with criminal complaints.  To do that, you need to get the D.A.’s attention.  What about a civil lawsuit?  What can you do if the police or the D.A. won’t act?

You can follow the lead of a woman who is suing Sprint for invasion of privacy, infliction of emotional distress and identity theft after a Sprint employee posted explicit pictures of the customer who turned in a phone for an upgrade.  You can read more about the case here.

Intentional infliction of emotional distress can be a tough case to prove and the invasion of privacy of laws differ in each state.

Parents are also taking to the civil courts to address cyberbullying.

Related Posts

For tips on handling consumer reviews, go here and here.

There has not been much activity on the blog because we have been engaged in a long copyright and misappropriation of trade secrets trial.  So, we share with you some of the articles we have been reading, but just haven’t had time to write about:

Bloggers entitled to same protections as journalists under the First Amendment.  The Ninth Circuit recently applied libel defense protections normally reserved to the “institutional press” to bloggers reasoning the First Amendment applies to all citizens and there has been a blurring of the lines between who and who is not a journalist.  You can read more about this important decision here.

We have our first Twibel verdict – no defamation in 140 characters.  In three hours, the jury returned a defense verdict saying Courtney Love did not libel her lawyers with a tweet that suggested her prior lawyers had been “bought off.”  The bad news is that during the trial Love stayed off of Twitter, and now, she is apparently back.  More here.

Yelp ordered to disclose identity of reviewers.  A court ordered Yelp to review the identify of seven “anonymous” reviewers who criticized a dry cleaning business in Virginia. The business claimed the reviews are fakes and do not match any of their records.  This is another example of how courts are trying to balance the interests of anonymous speech and a plaintiff’s right to combat defamatory speech.  More here.

Parents take to the court to combat cyberbullying.  Locally, there has been a lot of attention about a lawsuit filed by one set of parents against seven minors and their parents for libel and negligence.   More here.

Will there be more transparency regarding government requests for online data?   The Justice Department is relaxing the rules for technology companies like Google and Microsoft to disclose, in broad terms, the number of requests these companies receive from the government and the amount of data provided.  Tech companies have long reported the number or requests from state and non-national security related requests from the federal government, but this will be the first time they can release general information related to national security letters.  If the numbers are surprising, this could lead to even more push back against the government surveillance programs.  More here.

Supreme Court to consider online re-broadcasting case.  The U.S. Supreme Court will weigh in on the rights to re-transmit broadcast programs via the internet.  Aereo receives over the air broadcasts the old fashion way in a warehouse and then sends them to paid subscribers devices.  The broadcasters are arguing that Aereo is violating the “public performance” copyrights to the programming.   Aereo says what they are no different than the users receiving the digital signals on their own devices.  Both sides wanted guidance from the high court and this is one worth watching.  More here.

With the short Thanksgiving week, I thought we would touch on a few interesting stories developing over the last couple of weeks.

Photographer gets $1 million+ verdict from AFP and Getty for copied Twitpics

In my three part series on using images from the web for your news stories, we talked about the Morel v. Agence France-Press case.  Agence France-Press, the Washington Post and Getty used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  The Washington Post settled, but the case went to trial last week against AFP and Getty.  AFP thought they had permission from the photographer to use the images, but they did not get permission from the right person.

Previously, a judge rejected AFP’s argument that it could use the images because they were put up on Twitter. The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  In the trial, it turns out AFP did not follow their internal guidelines on the use of images or take immediate corrective action.  The jury awarded the upper end of the statutory damages.

If you have policies, follow them.  If you make a mistake, you fix it as quick as you can. You can read about the case here and here.

Engineering gift for girls’ video spreads on Facebook – lawsuit follows.

I have a daughter.  I liked this commercial.

http://www.youtube.com/watch?v=UFpe3Up9T_g

I assumed they had the Beastie Boys’ permission.  Apparently, they did not and the Beastie Boys sent a copyright cease and desist letter.  The people at Goldiebox fought back and filed a suit asking the court to declare the parties’ rights.   Is it a parody or do the Beastie Boys have to do this to make sure more people don’t use their songs in commercials?  You can read more about the case here with some legal analysis from the EFF here.  At least Goldiebox will get some more attention with the lawsuit at the beginning of the holiday shopping season.

Want to criticize me, it will cost you!

KlearGear’s terms of service state:

“In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.”

A Utah couple criticized KlearGear on RipOff Report.  Soon thereafter, KlearGear sent the couple a bill for $3,500.  KlearGear never sued, but did report the couple as delinquent to the credit reporting agencies.  We have talked about being proactive, but not too proactive, when it comes to online complaints.  Since the news of this broke, KlearGear has shut down its Facebook page and its Twitter feed to hide from the blow back.  You can read more here, here and here.  This is not the kind of press you want before the shopping season.

Update 11/27/13 –  a lawyer is now representing the couple and has sent a demand to KlearGear to remove the notation with the credit agencies or face a Fair Credit Reporting Act lawsuit.  Read about it here.

Reputable companies line up to support TheDirty.com

Finally, we update you on the Jones v. TheDirty case we have talked about before.  This is the suit by a former Cincinnati Bengals cheerleader against the website TheDirty.   A Kentucky judge allowed the case to proceed against the rumor and trash site despite Section 230 of the Communications Decency Act which normally provides immunity for website operators based on user generated content.  The jury awarded $380,000 and TheDirty.com appealed.

While some may believe the ends justified the means against this particular defendant, the refusal to dismiss this case flies in the face of almost every other Section 230 case.  In this case, 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.”  TheDirty.com asks people to “submit dirt.” Their submission form has entries for the “dirt,” and provides a link to upload photographs. The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Thus, no dismissal by the judge.

Section 230 has its place.  Imagine if Facebook, Google, or YouTube could be sued or had to police all of the user generated content.  I don’t think those services would exist.  That’s why many of them have filed amicus briefs with the Sixth Court of Appeals urging the court to reverse the ruling and dismiss the claims.  You can read more here about how and why the likes of Amazon, Google, LinkedIn, Google and Microsoft are asking for the reversal.

 

Last week, the Supreme Court of Texas heard oral arguments on whether a party can use a pre-suit deposition to identify an anonymous blogger.  The petitioner tried to use a pre-suit subpoena to force Google to identify a blogger that constantly railed on how bad the company and its owner was.   The trial court allowed the discovery, the court of appeals affirmed the trial court’s decision and now the highest court in Texas will have to answer the question.

The case is In re John Doe a/k/a Trooper.  You can read the case summary here and the listen to the oral arguments here.  We have talked about how to unmask the anonymous online tormentor before, but this case will shed some light on some of the more practical applications.

Jurisdiction

While the issue of anonymity is complex enough, the case also asks “whether Texas court rules governing discovery before a lawsuit is filed means that the trial court must have ‘personal jurisdiction’ over the ‘John Doe’ defendant–that is, the authority to hear a case against a person only after he has been served with papers notifying him of a suit–before his identity may be discovered.”  Much of the argument focused on jurisdiction which is  less sexy, but an equally important issue.

In Texas, under Rule 202, you can ask for discovery without filing suit to investigate the possibility of a claim.  The company’s chairman lived here in Houston so the company sought to use Rule 202 to force Google to provide all information about the blogger.

The blogger filed documents that not only challenged the ability to unmask his identity, but challenged whether the Texas courts had any jurisdiction over him.  If you do not have sufficient contacts with a state, usually you cannot be sued in that state.   The anonymous blogger provided an affidavit claiming he did not live in Texas and did not have any contacts with Texas.  When there is an actual lawsuit with an identified target, normally you are allowed to use discovery to challenge the assertions.  If the person is not identified, challenging the assertion is next to impossible.

Then again, the purpose of pre-suit discovery is to determine whether you have a claim before you file suit.  If you cannot file suit against someone with no contacts with Texas, then you should not be able to use the Texas courts to get information you may not be able to obtain in other jurisdictions.  Other than the chairman of the company being in Houston, there was no other connection with the state.  Plus, the blogger suggested the court should order the disclosure of only the IP address which could be tracked to a physical location.

Anonymous Speech

There is little to no dispute that before a court requires the disclosure of an anonymous blogger, the person seeking the identity has to provide some basis to seek the identity.  If the speech is purely political and protected by the First Amendment, it would be difficult to unmask the blogger.  If it is commercial speech advertising a product, then there is little to no protections.

If the court gets over the jurisdictional hurdle, it will then have to decide what level of proof or pleadings does someone need to present before a court will order the identity to be disclosed.  There are three standards: (1) a good faith basis for a claim; (2) sufficient pleadings to survive a motion to dismiss that assumes every allegation is true; or (3) a prima fascie case that would survive a motion for summary judgment that requires the right allegations and some proof.

The blogger wants the court to require pleadings and proof.  The party seeking the information says the standard should be lower, but then says it can satisfy any one of the three levels.

It’s possible, the court could rule on the jurisdictional basis in a way that would allow it to punt on the anonymity issue.  As often as it comes up and is likely to come up again, it would be nice to have some guidance.  We’ll be keeping an eye on this case and report on it when the decision comes down.  A lot of times, it is obvious — like when the sheriff seeks to unmask someone critical of the sheriff’s actions.  That blogger will almost always be entitled to protection.  The person that criticizes the company down the street based on a financial transactions and accuses the owner of accounting fraud deserves a little closer scrutiny.

 

Everyone supports the prevention of sexual predators texting illicit material to people under 17.  Everyone knows that revenge porn is a scourge on public decency.  But, can the law do anything about it?  Should it?

Texas Throws Out Law Banning Explicit Online Communications With Minors.

Yesterday, the Texas Court of Criminal Appeals (our highest court that hears criminal cases) reversed the conviction of a 53-year-old man who was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.  You can read about the case here and read the court’s decision here.

The overturned law, Texas Penal Code 33.021(b)(1) states:

A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

To be clear, you cannot solicit a minor for sex (conduct), but sending indecent, but not obscene materials (protected speech) is not illegal.  The court said criminal laws “may protect children from suspected sexual predators before they ever express any intent to commit illegal sexual acts, but it prohibits the dissemination of a vast array of constitutionally protected speech and materials.”  The court also noted there are several other statutes that criminalize other inappropriate conduct with minors.

For the constitutional lawyers out there, the court determined the  “sexually explicit communications” provision is facially unconstitutional because it is content-based speech regulation that could not withstand the strict scrutiny analysis.  Under that test, there needs to be a compelling state interest and the restriction on speech must be narrowly tailored.

While there is a compelling state interest to protect minors from sexual predators, the law covers merely indecent speech which is constitutionally protected.  In light of the many other laws that protect children (solicitation, child pornography, obscenity, harassment), the court said the restriction was too broad.

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking”* during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

*I will leave it for someone else to determine whether this is the first reference to “twerking” to make it into case law — a sign that the fad needs to go.

The prosecutors say they may appeal to the U.S. Supreme Court.

Revenge Porn – a perplexing topic for legislators

The American Bar Association recently wrote an excellent article on revenge porn you can read here.  For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles.  There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject.  But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While having the intent to cause severe emotional distress may avoid First Amendment scrutiny, over broad laws would cover the publishing of Anthony Weiner’s infamous photos. Here is a Wired article by Sarah Jeong arguing that criminal laws may not be the answer.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

UPDATE – NOVEMBER 1 – Ask a question and the Internet answers.  Professor Goldman directed me to one of his earlier tweets: