Articles Posted in Defamation

In an interesting case from the California Supreme Court, the court decided, in a 102 page split 4-3 decision, that an order compelling a writer to remove a post on Yelp cannot be used to compel Yelp to remove that post when the poster defaults or fails to do so.

The details of this case and its legal background are a bit beyond the scope of this post (and we did not fully review the 102-page decision), but we try to provide an overview of the facts and circumstances of this case.

Yelp and others like it are generally immune from lawsuits for third-party reviews and statements under the Decency Comminations Act (the “DCA”). Under the DCA, so long that Yelp simply acts as a passive bulletin board it is not seen as offending the rights of another, including with posts that are claimed to be defamatory. In this case, Ava Bird, a client of a law firm, allegedly posted negative reviews about the firm which it claimed were defamatory. Bird defaulted in the law firm’s suit against her, and the lower court granted the firm the main relief it sought ordering Bird to remove the posts. Included in the court’s decision was a directive to Yelp that if Bird did not remove the posts Yelp must. In issuing that order, the court recognized the limitations of the DCA but held that because Yelp was not found culpable or liable for any wrongdoing, his decision did not run afoul of the DCA. All the court required was that Yelp remove the posts if Bird did not, but nothing more. Yelp challenged the decision and sought its vacatur. Yelp argued that it was not a party to the lawsuit yet was required to do something, thus deprived of its due process in the lawsuit, and also claimed that the DCA shielded it from having to do anything. The court rejected Yelp’s arguments and stuck to its original decision. The appellate court affirmed, ruling that Yelp was not a publisher of these posts, had no right to be heard, and was not protected, in this setting, by the DCA. Yelp appealed to the California Supreme Court, where more than a dozen amicus briefs were filed in support of Yelp.

Gerald L. Cohen, D.D.S sought to force Cablevision to disclose the identity of an individual who posted negative comments to Cohen intended to use that information to commence a lawsuit for defamation against the poster. Previously, had been compelled to provide to Cohen the IP address of the poster, which lead Cohen to discover that Cablevision had set up the account at that IP address. With that information in hand, Cohen asked the Court to force Cablevision to disclose that person’s identity. The Court found that Cohen had demonstrated an injury and meritorious claim and was entitled to this information notwithstanding the ordinary expectation of a poster’s privacy. The Court would not allow unchecked speech, finding that the “use of electronic speech requires a balancing of the two interests, namely free expression versus the right to respond to such expression. Free speech in the electronic age is not unfettered.”

1260787_hand_on_keyboard.jpgThe Court of Appeals recently determined that defamatory postings to a blog do not create liability for the blog or its host. Ardor Realty Corp., headed by Christakis Shiamili, and the Real Estate Group of New York, Inc. (“REG”), controlled by Daniel Baum and Ryan McCann, competed in selling and renting apartments in New York City. REG operated a website and blog dedicated to the New York City real estate market. An anonymous poster to that blog made defamatory comments about Shiamili. After McCann highlighted that comment, additional defamatory comments were posted anonymously. Shiamili posted in his defense and requested that REG remove the post and comments. When REG refused, Shiamili filed suit, alleging not that REG posted the statements, but that it highlighted and hosted them.

The court’s threshold issue in Shiamili v. The Real Estate Group of New York, Inc., concerned the applicability of §230 of the Federal Communications Decency Act (the “Act”) to these facts. Although defamatory statements are actionable, a website or blog that simply allows others to post entries or comments, is immune from liability for those comments. The Act does this by determining that the host or blog is not “the publisher or speaker” of the defamatory statements. The Act also preempts any State from finding a host or blog liable. The court held that Congress determined that the Act balances the interests of free speech and defamatory speech by immunizing those that simply act as passive conduits for that speech, even if the speech is screened or modestly edited, and even if the blog or host highlights a post or comment, so long as it does not contribute materially to the post.

Applying this to the facts here, the court refused to hold REG liable, rejecting liability based on REG’s allowing open, anonymous posts or for highlighting the defamatory post.
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Apparently you can, but a Kings County judge won’t allow you to sue someone for it.

In a recent case, the plaintiff sued after being fired from her position as a hospital psychiatrist, with the termination reported to the New York State Office of Professional Medical Conduct, New York State’s regulatory authority. The plaintiff claimed that the termination was without basis. As part of her complaint, plaintiff sought damages for “compelled self-defamation.” Plaintiff alleged that because she was fired, she is required to reveal to prospective employers that a report of why she was fired was filed with the State. By doing so, plaintiff is compelled to republish the defamatory statements made by the hospital, thus self-defaming herself.

Citing to appellate authority that refused to recognize defamation where the plaintiff herself republishes the defamatory statement, the court reluctantly dismissed that claim. In doing so, the court noted that other courts, including Federal courts, have recognized a claim for self-defamation. In fact, the court cited some of those Federal court decisions and predicted that New York State will one day recognize this claim.

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