In October 2005, Eagle Broadband, Inc. brought a John Doe lawsuit for defamation, trade libel, and unfair competition under California law after anonymous users posted critical statements about it on a Yahoo! Finance message board. Shortly thereafter, the court granted Eagle leave to take discovery from Yahoo! regarding the identity of the anonymous posters. Eagle determined the identity of two of the posters -- Thomas Mould (Doe 5) and Richard Williams (Doe 4).

Williams and Mould moved to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The court granted the motion with respect to Mould and awarded him approximately $65,000 in attorney's fees. The court denied the motion with respect to Williams. On appeal, a California appellate court upheld the trial's court's rulings regarding Mould, but reversed the denial of Williams's motion and remanded the case with instructions to award attorney's fees to Williams upon proper motion.

Eagle voluntarily dismissed the action with regard to Doe 2 in October 2006. The case appears to be still pending against the remaining anonymous defendants.

In June 2007, Rachel Neuwirth, a journalist and political commentator who espouses strongly pro-Israel views, sued Washington-state blogger Richard Silverstein and university professor Joel Beinin for libel in a California state court. On November 27, 2007, the court granted Silverstein and Beinin's motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam, and the other made by Beinin on a listserv and subsequently re-published by Silverstein. In the first statement, Silverstein called Neuwirth a "Kahanist swine." The term "Kahanist" refers to a form of right-wing, religious Zionism, one of the central tenets of which is that all Arab Muslims are enemies of Israel. The Israeli Kahane Chai (Kach) party is barred from participating in Israeli elections and listed as a terrorist organization by Israel, the United States, Canada, and the European Union. Neuwirth argued that, by calling her a "Kahanist swine," Silverstein implied that she was a terrorist. The second statement was Beinin's, made on the "Alef" listserv, claiming that Neuwirth had made a death threat to him. Silverstein subsequently re-posted Beinin's statement on his blog.

In granting the motion to strike, the court determined that the anti-SLAPP statute applied because Silverstein and Beinin made their respective statements in a "public forum" and those statements related to an issue of public interest. The burden then shifted to Neuwirth to demonstrate a probability that she would prevail on her claim. The court found that Neuwirth had not met this burden, holding that she was a limited purpose public figure and noting that she had brought forth no evidence of "actual malice" for either of the two statements. With regard to Silverstein's "Kahanist swine" statement, the court further held that this was a non-actionable statement of opinion. 

Finally, the court held that Neuwirth's claim against Silverstein for re-publishing Beinin's statement was barred by CDA 230, which protects providers of interactive computer services from tort liability for publishing the statements or content of third parties.

The court awarded Beinin $1,840 in attorney's fees and indicated that Silverstein should make his claim for attorney's fees in a separate motion.  At the conclusion of the hearing in which the court delivered its decision, Neuwirth's attorney told the court that his client intended to appeal the ruling.

 

Update:

1/25/08 - Neuwirth filed a notice of appeal.

3/4/08 - The court ordered Neuwirth to pay Silverstein $7000 in attorneys fees pursuant to the anti-SLAPP statute.

2/9/2009 - The Court of Appeal of the State of California, Second Appellate District, reversed the trial court's ruling on the motion to strike, reinstating the claims against Silverstein and Beinin, except for the claim against Silverstein for re-publishing Beinin's statement.

7/19/2010 - Superior Court order denying Silverstein's motion for summary judgment, holding, inter alia, that "the law of the case doctrine requires this Court to find that Plaintiff has established the existence of libel per se."  

(NOTE: Joel Beinin is the Director of Middle East Studies at the American University in Cairo, where one of the authors of this database entry attended graduate school.)

The Lebanon, Oregon school district has been in turmoil for many years. On August 1, 2007, three members of the school board placed the superintendent on administrative leave pending an investigation. In response, an anonymous blogger going by "Lebanon Truth" ("LT") started a blog designed to give the public an alternative perspective on current events and access to information about alleged wrongdoing by school district employees (information that was supposed to be confidential, but that LT was able to confirm through a variety of sources). The blog claimed that the administrative leave action was both illegal and not helpful in resolving the issues facing the district.

LT also posted statements, self-described as opinions, about key players in the dispute, including the president of the local teachers union Kim Fandino, the athletic director, and the football coach, all of whom oppose the current district administration. LT also posted comments about board and audience behavior at school board meetings, rumors about the superintendent's alleged infidelity and why those rumors were not credible, and opinions on ways to resolve the conflict in the community.

Sometime in September 2007, Fandino apparently contacted local law enforcement officials claiming that the statements on the blog constituted criminal harassment and/or cyberbullying. According to the Lebanon Express, officials informed Fandino that the statements did not reach the level of criminal harassment or cyberbullying, but that the statements might violate civil libel laws or school board policy.

On September 28, Fandino filed a complaint with the school district, claiming that the blog was cyberbulling by a district employee (although the identity of the blogger was not known) and asking the district to subpoena Google to reveal the identity of the blogger. After consulting with the district's lawyer, the superintendent declined to take up the matter on behalf of Fandino and advised that she retain her own lawyer.

Fandino then appealed to the five member school board. The item was scheduled for discussion at the November 5, 2007 board meeting. At the meeting, the board chair indicated that the district's lawyer had advised against pursuing legal action against the blogger and requested that the board postpone any further action until the members had a chance to meet with counsel on November 19. One board member moved to allow Fandino to address the board directly and another member seconded the motion, but the chair rejected the motion as out of order and adjourned the meeting.

On November 12, LT published a post on Oregon's anti-SLAPP statute (Or. Rev. Stat. § 31.150), indicating that it should help him/her to strike the complaint and recover attorney's fees in the event of a lawsuit by Fandino or the school district.

Krowne operates The Mortgage Lender Implode-O-Meter (ml-implode.com, mortgageimplode.com), a Web site that posts information about mortgage lending companies that have gone out of business or are expected to go out of business. On April 18, 2007, Krowne posted an e-mail from an anonymous source claiming to be a recently-laid-off employee of mortgage lender Loan Center of California (“LCC”). The e-mail stated that LCC was shutting down and that only a “skeleton crew” of employees remained to “clean up the mess.” It also accused LCC of fraud and various other improper business activities.

According to Krowne's case filings, an LCC attorney contacted him within hours of the e-mail's posting. Krowne says he was threatened with suit, and thus chose to remove the e-mail and all mention of LCC from his site. (For more information, please see the CMLP Database entry for the related email.) LCC filed suit nonetheless, bringing claims of defamation, unfair business practices, and interference with contract. Among LCC's allegations was that Krowne's actions directly caused the company losses in the form of disrupted lending arrangements, lost business, and harm to the company's reputation. LCC has asked for $50,000 in damages.

LCC included unknown defendants “Does 1-50” in its complaint. It noted that Doe 1 was the anonymous sender of the e-mail that Krowne posted on his site. LCC later determined Doe 2 to be Krowne Concepts -- Krowne's own company that runs the Implode-O-Meter site. It is unclear what Does 3-50 are alleged to have done, given that LCC's complaint does not mention them beyond naming them as defendants.

Krowne filed a motion to strike the complaint based on California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (Cal. Code Civ. Proc. § 425.16). The court denied the motion, determining that LCC had set forth a prima facie case of defamation. The court noted that Krowne had included his own statements with his posting of the e-mail, thus making protection under section 230 of the Communications Decency Act (47 U.S.C. § 230(c)) unavailable. Although it did not change the result, the court did find that Krowne's speech concerned a matter of public interest -- learning about mortgage industry issues.

Update:

12/30/2007 - The case settled. Under the settlement, Loan Center dismissed its claims against ML-Implode, without any admission of liability or any monetary payments. ML-Implode never divulged the identity of the former Loan Center employee who had provided the information "on the principle that the anonymity of news information sources is sacrosanct."

The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds. Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Barrett and Polevoy claimed that Rosenthal and her co-defendants committed libel by distributing defamatory statements in emails and Internet postings to various forums. Specifically, they alleged that Rosenthal republished two Usenet newsgroup messages "accusing Dr. Polevoy of stalking women and urging 'health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies." They also alleged that Rosenthal posted a message to a newsgroup stating that Quackwatch, the organization associated with Barrett's website, "appears to be a power-hungry, miguided bunch of pseudoscientific socialistic bigots," that it was "an industry funded organization," and that it was being sued by many doctors and health organizations. They claimed also that Rosenthal posted another message to a newsgroup referring to Barrett and Polevoy as "quacks."

Rosenthal moved to strike the plaintiffs' complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). She claimed that her statements were protected speech, and argued that the plaintiffs could not establish a probability of success on the merits of their lawsuit because she was immune from liability under CDA 230 (which insulates a "provider or user of an interactive computer service" from being held liable as the publisher or speaker of "any information provided by another information content provider"). She also argued that her statements were non-actionable statements of opinion.

The district court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and that all but one of the alleged defamatory statements were non-actionable statements of opinion. The only remaining statement appeared in an article that Rosenthal received via e-mail from her co-defendant, Tim Bolen. This article accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of the article on two newsgroups devoted to alternative health issues, not on her own discussion group. The trial court held that Rosenthal's republication of Bolen's article was protected by CDA 230.

The California Court of Appeal reversed the trial court, insofar as its decision applied to the statement about Dr. Polevoy's alleged stalking. It held that CDA 230 did not protect Rosenthal from liability as a "distributor" of the defamatory material under the common law of defamation.

In November 2006, the California Supreme Court reversed the Court of Appeal, holding that CDA 230 prohibits "distributor" liability for Internet publications. It also held that CDA 230 protects individual users of interactive computer services, and that it protects "active" republication as well as "passive" republication of others' statements. On the "distributor" issue, the California Supreme Court followed Zeran v. Amercia Online, 129 F.3d 327 (4th Cir. 1997), which also refused to draw a distinction between a "distributor" and a "publisher' for purposes of CDA 230. Both cases are widely regarded as important decisions standing for the proposition that, in the words of Eric Goldman, "no one is liable for other people's content online -- period (except for claims not covered under the statute -- IP, federal criminal law, ECPA)."

It is unclear from the docket sheets what the status of the lawsuit is with respect to the remaining defendants, but there has been no action in the trial court since 2004.

Update:

Tim Bolen reports that Judge Stephen Dombrink of California Superior Court, Alameda County, dismissed the case against the remaining defendants in March 2009.

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

On October 4, 2005, Vilenchik's attorney sent Gregerson a letter demanding that the webpage be removed or he would file a lawsuit for defamation.

Vilana initially sued Gregerson for defamation in Minnesota state court on October 24, 2005. Gregerson then filed suit against Vilana and Vilenchik in the United States District Court for the District of Minnesota on March 27, 2006, claiming copyright infringement. The Vilana state-court action was removed and consolidated with the federal action, and Vilana and Vilenchik counterclaimed for deceptive trade practices, trademark infringement (including cybersquatting), interference with business and contractual relationships, appropriation, and unjust enrichment. The defendants abandoned the defamation claim.

On August 15, 2006, the federal district court denied Vilana and Vilenchik's motion to dismiss the copyright claim and their motion to remand the state-law claims.

On September 18, 2006, Gregerson moved to dismiss the plaintiff's counterclaims against him, arguing that the counterclaims violated Minnesota's anti-SLAPP statute (Minn. Stat. § 554.01-05). The court denied the motion on November 17, 2006. Gregerson v. Vilana Financial, Inc., 446 F.Supp.2d 1053, 1059 (D. Minn. 2006).

On August 31, 2007, the district court granted Vilenchik's motion for summary judgment, holding that he could not be held liable in his personal capacity for Vilana's corporate actions. The federal district court granted partial summary judgment for Gregerson on his copyright claim against Vilana, holding that there was no triable issue of fact regarding Vilana's infringement of Gregerson's exclusive rights in his photographs, but reserving the issue of damages for trial. It also granted summary judgment for Gregerson on Vilana's counterclaim for trademark infringement and cybersquatting, holding that Gregerson's use of Vilana's trademarks as website metatags did not create a likelihood of confusion, and that Vilana failed to establish that Gregerson had a bad faith intent to profit by using its trademarks in a domain name. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Minnesota law provides a claim for deceptive trade practices when a person, in the course of a business, vocation or occupation, disparages the goods, services, or business of another by false or misleading representations of fact. The federal district court denied summary judgment to Gregerson on Vilana's deceptive trade practices counterclaim, find that there was evidence that Gregerson had posted comments on his website, and allowed others to post comments, indicating that the defendants were thieves, members of the Russian mafia, and actively engaged in fraudulent business practices and predatory lending. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

The court also denied Gregerson's motion for summary judgment on the interference with business and contractual relationship and appropriation of likeness counterclaims. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Updates:

8/15/2006 - The federal district court denied Vilana and Vilenchik's motion to dismiss Gregerson's copyright claim.

11/17/2006 -The federal district court denied Gregerson's motion to dismiss Vilana and Vilenchik's counterclaims based on Minnesota's anti-SLAPP statute.

8/31/2007 - The federal district court granted summary judgment for Vilenchik, case dismissed as to him;

8/31/2007 - The federal district court granted partial summary judgment for Gregerson on his copyright claim and on Vilana's counterclaim for trademark infringement, cybersquatting, and unjust enrichment, and denied Gregerson summary judgment on the the deceptive trade practices, interference with business and contractual relationships, and appropriation of likeness counterclaims.

2/15/2008- After a bench trial, the court awarded Gregerson $19,462 on his copyright claim and denied all counterclaims against him.

Jonathan Sykes is a professor and practitioner of plastic and reconstructive surgery at the University of California, Davis Medical Center in Sacramento. He performed a series of facial cosmetic procedures on Georgette Gilbert in February 2003.

Gilbert was unhappy with the results. She sued Sykes for malpractice and created a website relating her experiences with Dr. Sykes (including before and after photos). Her website was not simply aimed at criticizing Dr. Sykes, but also offered information and advice for those considering plastic surgery.

Dr. Sykes filed a cross-complaint in the malpractice action, alleging that the statements on the website constituted defamation, and that Gilbert's actions constituted intentional and negligent interference with economic advantage and intentional infliction of emotional distress.

Gilbert brought a motion to strike the cross-complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The district court denied the motion, finding that the Sykes had shown a probability of prevailing on his defamation claim. In January 2007, the Court of Appeals of the State of California, Third Appellate District, reversed, holding that Sykes was a limited purpose public figure and therefore had the burden of making a preliminary showing that the statements on the website were false and published with actual malice. The court found that the before-and-after photos on Gilbert's site were not misleading, and that various other statements were substantially true and not subject to a defamatory meaning. The court held further that Sykes's claims for intentional infliction of emotional distress and interference with economic advantage failed automatically due to the dismissal of his defamation claim because those claims were based entirely on Gilbert's protected speech.

DePlume's blog, Think Secret, published a report about a new $500 monitor-less iMac, new iWork software, and the price and features of the Mac Mini days before MacWorld 2005. In January 2005, Apple sued DePlume and his company for misappropriation of trade secrets, seeking an injunction to bar publication of its proprietary information, money damages, and discovery of the identity of DePlume's sources. Apple's claim was unusual because DePlume was not an Apple employee and was not bound by any confidentiality agreement. Apple argued that DePlume should nevertheless be held liable because he encouraged leaks of confidential information through an anonymous email system and a voice-mail tip line.

On March 4, 2005, DePlume filed a motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The motion remained pending for years, but the court did not issue a decision on it.

In December 2007, Think Secret announced that the parties had settled the case. Under the agreement, the full terms of which are confidential, ThinkSecret agreed to cease operations. DePlume never revealed his sources.

Related case:

Apple also sought disclosure of documents and information from Think Secret in a case relating to its "Asteroid" product. Apple initially obtained permission to issue a subpoena requiring Think Secret to produce documents identifying its confidential sources for reports about the "Asteroid" product. This subpoena was quashed in O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. Ct. App. 2006), in which the court held that various Apple-related news sites could block disclosure of their anonymous sources and unpublished information based on California's reporter's shield provision and the First Amendment to the US Constitution. (Please see the CMLP datatabase entry on the Apple v. Does case).