On February 8th, 2005, Georgia Community Support and Solutions (GCSS), a non-profit organization that provides assistance to disabled adults and their families, filed a lawsuit against Shirley Berryhill for defamation and tortious interference with business relations over statements she made on a website for families of disabled adults and in emails to employees of the Atlanta Journal-Constitution and the Georgia Department of Human Resources.

According to court documents, GCSS placed Ms. Berryhill's mentally handicapped son with providers of personal care. Subsequently, Ms. Berryhill allegedly made statements in web postings and emails asserting that her son was suffering from poor treatment and care. GCSS sent Berryhill a cease-and-desist letter regarding the statements (see our database entry) and, after Berryhill refused to retract and apologize for the statements she made, the organization filed suit in Georgia state court.

Ms. Berryhill filed a motion to strike the complaint pursuant to Georgia's anti-SLAPP statute (GA. Code Ann. § 9-11-11.1(b), and the trial court granted the motion. The court concluded that Berryhill's statements satisfied the threshold requirement of the anti-SLAPP statute because they were made in furtherance of her right to free speech about an issue of public concern.

The Georgia Court of Appeals reversed the trial court's decision, ruling that the anti-SLAPP statute only protects statements made in connection with  official government proceedings. The Georgia Supreme Court affirmed the appellate court's decision, concluding that Ms. Berryhill's speech and acts did not fall within the scope of Georgia's anti-SLAPP statute.

The American Civil Liberties Union of Georgia, the Georgia First Amendment Foundation, and the Atlanta Press Club filed an amicus brief in support of Ms. Berryhill.

We have not determined what happened in the litigation following the Georgia Supreme Court's 2006 decision.

On October 8th, 2007, Quixtar Inc., a sister company of Amway Corp., sued thirty “John Does” for anonymous posts they made on blogs focused on Quixtar including freetheibo.com, theiborebellion.blogspot.com, and quixtarlostmycents.blogspot.com, and for anonymous videos posted on YouTube that the company considers disparaging and malicious. Quixtar seeks an injunction and damages of more than $25,000.

Quixtar claims two counts of tortious interference and one count of unfair competition. The complaint alleges the defendants have caused proprietary information to be disclosed and encouraged Quixtar’s distributors, known as “Independent Business Operators” (IBOs) not to buy certain products, to stop building their businesses, and to resign from the Quixtar business. Quixtar also claims unfair competition alleging the defendants misled current and prospective IBOs into believing Quixtar’s business practices are unethical, its products are not competitively priced, and it is operating contrary to law.

According to Quixtar’s official news blog called “Alticor Media Blog,” the lawsuit was filed in order to discover the identities of the bloggers and discern whether they are working in concert with Orrin Woodward, the subject of a separate Quixtar legal action Quixtar, Inc. v. Woodward, No. 07-08413-CK, slip op. (Mich. Cir. Ct. Aug. 10, 2007). An October 12th, 2007, blog post reflects this motivation:

We filed suit this week in Ottawa County, Michigan seeking to learn more about a number of “John Does” who have cropped up online since our dispute with Orrin Woodward and TEAM began.

Because we believe we can prove that some of their sites and posts were engineered or directed by Woodward, TEAM, their lawyers or their PR agency. And that those sites were purposely used to post material that violates a court order.

…So we are seeking to support the legal system – and not attack First Amendment speech. Tough line to walk, but we’ll walk it. Because we believe in both principles.

Some of the John Does filed a motion to dismiss the suit on October 15, 2007, arguing collateral estoppel in connection with the pending Quixtar v. Woodward case where Quixtar also seeks to discover the identities of the John Does and that Quixtar’s complaint violates the defendants' freedom of speech rights under the U.S. Constitution and article I of the Michigan Constitution.

In January 2008, literary agent Barbara Bauer and her company Barbara Bauer Literary Agency, Inc. filed a lawsuit in New Jersey State court against twenty-two defendants, including the Wikimedia Foundation. The complaint includes claims for defamation, tortious interference with prospective business advantage, and conspiracy. According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." The complaint also alleges that various defendants posted altered photographs of Bauer on the Internet and created YouTube videos, including "Crouching Snark, Hidden Draggon" and "Miss Snark's Happy Hooker Crapstravaganza," that allegedly defamed and belittle her.

With regard to Wikimedia, the complaint alleges that Wikipedia published false statements indicating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." It further alleges that Bauer informed Wikimedia about the allegedly false statements, and that the foundation "has refused to remove the statements from Wikipedia." Finally, it alleges that Wikimedia conspired with the other defendants to defame and interfere with her prospective economic advantage, without providing any details.

On May 1, 2008, Wikimedia moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act (CDA 230), the federal law that shields providers and users of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, bars Bauer's claims as a matter of law. Wikimedia's memorandum in support of its motion also argued that, even if CDA 230 did not bar Bauer's claim, the underlying statements are protected opinion under the New Jersey Constitution and the First Amendment to the United States Constitution.

On May 20, 2008, WritersNewsWeekly.com wrote that the court will hear Wikimedia's motion to be dismissed from the lawsuit on June 6, 2008.

Update:

7/1/08 - Court dismissed the case against Wikimedia Foundation, ruling that section 230 of the Communications Decency Act barred liability for publishing the statements of others. The court left open the possibility that Bauer could amend her complaint to state a claim against Wikimedia.

World Wide Association of Specialty Programs and Schools ("World Wide") is a Utah corporation that provides referral services, counseling, and recomendations with regard to schools and residential treatment programs for troubled and at-risk teenagers. In January 2002, World Wide sued PURE Foundation, Inc., Sue Scheff, and Jeff Berryman in federal district court in Utah after Ms. Scheff and Mr. Berryman made negative comments about World Wide on various Internet sites. The dispute arose when Scheff sent her teenage daughter to a World Wide-affiliated school, removed her daughter from the school, sharply criticized World Wide's practices on her website and various Internet chatrooms (allegedly in conjunction with Berryman), and then founded PURE, a competing service.

World Wide 's complaint alleged defamation, intentional interference with prospective economic advantage, and unfair business practices under the Lanham Act (15 U.S.C. sec. 1125(a)). After lengthy proceedings, the trial court granted summary judgment for Mr. Berryman and dismissed the case against him. World Wide's case against Ms. Scheff went to trial, and the jury found in her favor on all counts. World Wide appealed, and the Tenth Circuit Court of Appeals affirmed.

On February 6, 2008, Julius Baer Bank and Trust Company, a Cayman Islands banking entity, filed suit in federal court in California against Wikileaks, which is developing an "uncensorable Wikipedia for untraceable mass document leaking and analysis." Two days later, the bank and its Swiss parent company filed an ex parte application for a temporary restraining order seeking to enjoin Wikileaks from publishing or distributing copies of documents the plaintiffs claim contain "stolen or otherwise wrongfully obtained confidential and protected bank files and records."

On February 15, 2008, the court issued what it captioned as an "Order Granting Permanent Injunction." This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks' domain name registrar and web host, required that Dynadot immediately disable the entire wikileaks.org domain name and account and remove all DNS hosting records.

Later that same day, the court issued an Amended Temporary Restraining Order that enjoins Wikileaks and and "all others who receive notice of this order" from "displaying, posting, publishing, distributing, or linking to . . . all documents and information originating from [the plaintiffs' banks] which are internal non-public company documents and/or which contains private client or customer bank records."

As of February 28, 2008, the Wikileaks.org domain is still down, but the organization issued a press release through one of its mirror sites:

Transparency group Wikileaks forcibly censored at ex-parte Californian hearing -- ordered to print blank pages -- 'wikileaks.org' name forcibly deleted from Californian domain registrar -- the best justice Cayman Islands money launderers can buy?

When the transparency group Wikileaks was censored in China last year, no-one was too surprised. After all, the Chinese government also censors the Paris based Reporters Sans Frontiers and New York Based Human Rights Watch. And when Wikileaks published the secret censorship lists of Thailand's military Junta, no-one was too surprised when people in that country had to go to extra lengths to read the site. But on Friday the 15th, February 2008, in the home of the free and the land of the brave, and a constitution which states "Congress shall make no law... abridging the freedom of speech, or of the press", the Wikileaks.org press was shutdown.

On February 28, Julius Baer issued a press release stating:

It is not and has never been Julius Baer's intention to stifle anyone's right to free speech. Indeed, Julius Baer has specifically made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers. However, Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains.

Updates:

The court has scheduled a hearing on the injunction for February 29, 2008 at 9:00AM.

2/26/08 - Coalition of media companies filed an Amici Curiae brief primarily addressing the issue of prior restraints

2/26/08 - ACLU and Electronic Frontier Foundation filed a motion to intervene

2/26/08 - Public Citizen and the California First Amendment Coalition filed a motion to intervene that argues that the court did not have jurisdiction in the case, and therefore had no power to issue the injunctions

2/28/08 - Plaintiffs filed opposition to the motions by Amici and potential intervenors

2/28/08 - John Shipton, the owner of the wikileaks.org domain, filed a Notice of Intent to Appear and Joinder in Motions & Oppositions of Amici/Intervenors

2/28/08 - Daniel Mathews, a user of the site who was served with the TRO by the plaintiffs, filed a Memorandum in Opposition to TRO, Preliminary Injunction, and Permanent Injunction

2/29/08 - Court held hearing on the TRO; judge vacated the Permanent Injunction against Dynadot and tentatively denied the motion for a preliminary injunction.

2/29/08 - Court issued Order Denying Motion For Preliminary Injunction; Dissolving Permanent Injunction; and Setting Briefing and Hearing Schedule

3/5/08 - Plaintiff banks filed a notice of dismissal, without prejudice, as to all parties

Lisa Krinsky, the former president, chief operating officer, and chairman of the board of SFBC International, Inc., a Florida company, sued ten anonymous defendants over comments about her posted to a Yahoo! message board. According to court papers, the anonymous forum posters made "scathing verbal attacks" against SFBC, Krinsky, and fellow corporate officers. (For juicy details, see Ars Technica's article on the case.)

Krinsky filed a lawsuit in Florida state court in January 2006 (the exact date is uncertain), alleging defamation and intentional interference with contractual relations. She served a subpoena on Yahoo! in California, seeking the identities of the anonymous forum posters. After Yahoo! notified the posters, one of them -- Doe 6 -- filed a motion to quash the subpoena in California state court. The court denied the motion to quash, noting (quite strangely) that Doe 6's conduct "appeared to be similar to federal cases involving "'pump and dump' stock manipulation efforts," although no claim to that effect was in Krinsky's complaint.

In February 2008, a California appellate court reversed the lower court's ruling. It held that Internet users have a First Amendment right to engage in anonymous speech, but this right must be balanced against a plaintiff's legitimate interest in pursuing a valid legal claim based on constitutionally unprotected speech, such as defamation. In striking this balance, the court rejected the "good faith" standard applied in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." The court also declined to apply the test devised in Doe v. Cahill, 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."

Instead, the court adopted a test that requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that a prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her defamation and interference with contract claims, except for those elements that were beyond her control or dependent on the identity of the defendant.

Applying this standard, the court held that Krinsky had not made a prima facie showing on her defamation claim because the message board comments, viewed in context, constituted opinion protected by the First Amendment rather than statements of fact about Krinsky. The court further held that Krinsky could not make a prima facie showing on her interference with contract claim because this claim was based on the same constitutionally protected opinion.

On July 29, 2003, the Dallas Morning News published in print and on its website an allegedly defamatory article by financial writer Scott Burns about an accelerated mortgage program offered by Nationwide Bi-Weekly Administration, a company that provides mortgage payment services for borrowers. The article, among other things, accused Nationwide of engaging in deceptive business practices.

Nationwide filed a complaint in Ohio state court on July 28, 2004, asserting claims for defamation, tortious interference with prospective business relations, and business disparagement against the Dallas Morning News, its owner Belo Corp., and Burns. Nationwide did not, however, serve the complaint on any of the defendants until June 2005. Shortly thereafter, Defendants successfully removed the case to federal court in Ohio, whereupon the court transferred venue to the Northern District of Texas.

On May 30, 2006, Defendants filed a motion to dismiss, arguing that Nationwide had failed to state a claim upon which relief could be granted because Texas' 1 year statute of limitations for libel claims barred Nationwide's lawsuit.

On October 16, 2006, the court granted Defendants' motion, holding that Nationwide failed to exercise diligence in serving the defendants and that under the single publication rule, the limitations period expired in July 2004.

Nationwide appealed the decision and on December 21, 2007, the Fifth Circuit affirmed the dismissal, holding that

the continued availability of an article on a website should not result in republication, despite the website’s ability to remove it. Perhaps more important than the similarities between print media and the Internet, strong policy considerations support application of the single publication rule to information publicly available on the Internet. See Firth, 775 N.E.2d at 466 (discussing the “potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants” and warning of a corresponding chilling effect on Internet communication). We agree that these policy considerations favor application of the single publication rule here and we note that application of the rule in this context appears consistent with the policies cited by Texas courts in adopting and applying the single publication rule to print media: to support the statute of limitations and to prevent the filing of stale claims. See Holloway, 662 S.W. 2d at 691.

As to the business disparagement and tortious interference claims, which are normally entitled to a 2 year statute of limitations under Texas law, the court stated that when allegedly defamatory statements form the sole basis for a business disparagement or tortious interference claim, defamation’s one-year statute of limitations applies.

Xcentric Ventures, LLC, operates the Bad Business Bureau, which provides a forum in which consumers may accuse companies and individuals of various "rip-off" and "bad business" practices. This forum is located on a website that may be accessed through either of two domain names: ripoffreport.com or badbusinessbureau.com. The site solicits and receives complaints from all over the country and recommends tactics for writing “rip-off reports,” providing sample questions to ask companies, and advice for locating similarly situated consumers on the Internet.

On November 6, 2006, Energy Automated Systems filed a lawsuit against Xcentric and a site administrator, Edward Magedson, alleging defamation, interference with business relations, civil conspiracy, and violations of the Tennessee Consumer Protection Act. More specifically, EAS alleges in its complaint that it was listed on the website’s “Top Rip-Off Links” and has been the subject of various “rip-off reports.” Those reports have included titles, headings and editorial messages that, the plaintiff alleges, were created by the defendants, stating that EAS’s dealerships are a “complete” and “long running” “scam,” that EAS is a “damn scam ripoff business from hell,” that EAS’s Chief Executive Officer and other employees are “crooked” and “crooks,” that “EASI likes to threaten anyone that complains whether dealer or ex-employee” and that EAS has engaged in “fraud.”

On March 26, 2007, Xcentric filed a motion to dismiss for lack for personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Xcentric also raised the defense that section 230 of the Communications Decency Act, 47 U.S.C. sec. 230(c)(1), should mandate dismissal of the claims.

On May 25, 2007, the court held that Xcentric could not raise CDA 230 on a motion to dismiss for lack of personal jurisdiction. The court refused to convert the motion into a Rule 12(b)(6) motion to dismiss. However, the court stated that CDA 230 could still be used as a defense in a later summary judgment determination.

After the parties proceeded to discovery, the case appears to have settled. On December 12, 2007, the parties filed an Agreed Order of Dismissal.

An anonymous Internet user ("webmaster") created the website "RNN Sucks" and a related Yahoo! message board in order to critize New York television station WRNN-TV. A number of anonymous posters used the message board to criticize WRNN.

WRNN filed suit against Yahoo! and 10 anonymous posters, claiming libel and revelation of confidential business information. At the outset of litigation, the station filed a motion to compel Yahoo! to disclose the identities of the anonymous posters (including "webmaster"). The court initially denied the motion to compel discovery, but reversed itself when WRNN noted that Yahoo! had not opposed the motion. Yahoo! withheld the identifying information to allow the anonymous parties an opportunity to file a motion to quash.

At this point in the litigation, the parties settled out of court. Defendant "webmaster" agreed as part of the settlement to take down the site and forum and to refrain from putting them back online in the future. "Webmaster" also agreed to refrain from commenting about the settlement. In exchange, WRNN agreed to dismiss the lawsuit as to all defendants.