Guide Through the Legal Jungle

When Does Cybergriping about a Business Cross the Legal Line?

If people are posting negative comments online about your business, can you do anything about it? It depends.

Not every negative statement posted online is actionable. Criticizing a person, product or service online is often referred to as cybergriping – and it is perfectly legal as long as the cybergriper sticks to the facts.

The First Amendment protects a customer’s rights to share with others the truth about any bad experiences he has had with a business. In many cases, the disgruntled customer may even use a domain name that mimics and parodies the business’ domain name – JonesCarpetCleaningIsAwful.com.

However, the cybergriper steps outside legal boundaries when his criticism includes false statements about the business and the business suffers harm as a result of the false statements. In that case, the business may have a valid legal claim that’s worthy of a lawsuit – or at least a cease-and-desist letter.

Seinfeld Case Emphasizes that Opinions Are Not Defamatory

I have previously blogged about the copyright infringement and defamation lawsuit against Jessica and Jerry Seinfeld filed by Missy Chase Lapine here and here.

From the start, I believed Lapine’s defamation claim against Jerry Seinfeld was stronger than her copyright infringement claim against Jessica Seinfeld’s cookbook. However, in the end, the court dismissed both the copyright and defamation claims. The defamation dismissal just took a little longer.

Basis of Seinfeld Defamation Claim

The defamation claim arose from comments Jerry Seinfeld made during an October 2007 appearance on the Late Show with David Letterman.

In the complaint she filed to initiate the defamation lawsuit, Lapine originally accused Seinfeld of characterizing her as a stalker, assassin, and mentally ill person. Interestingly, Lapine changed her defamation argument during the course of the lawsuit. Perhaps because the court said the transcripts and recordings from the David Letterman Show clearly demonstrate that Seinfeld did not make the statements that the complaint attributed to him.

In the court papers Lapine later filed to oppose Seinfeld’s dismissal motion, Lapine based her defamation argument on the fact Seinfeld said "that Lapine had fabricated opportunistic allegations of plagiarism against his wife." The problem for Lapine with this second argument is that Seinfeld's statement qualifies as an opinion.

Opinions Are Not Defamatory

A statement of opinion is constitutionally protected and can not be defamatory. However, merely labeling a statement as opinion does not automatically insulate the statement from being defamatory. For your statement to qualify as an opinion, your audience must realize that your statement is not meant literally.

In Seinfeld’s case, the court said it was inconceivable that a reasonable person would believe that Seinfeld's statements were conveying facts about Lapine. Seinfeld, a well-known comedian, made the statements in question primarily on the Letterman show, a late-night entertainment program, during a comedic interchange between Seinfeld and Letterman. His comments were statements of his opinion about the lack of merit of Lapine’s lawsuit and were, therefore, not actionable.

Is News-Reporting Via Twitter More Akin to a Haiku or a Bumper-Sticker?

No television cameras were allowed in the Connecticut murder trial of the men accused of killing the wife and daughters of Dr. William A. Petit, Jr. in Cheshire, Connecticut. Nevertheless, those unable to be present in the packed court room were able to stay completely updated on each trial development as it occurred.

That’s because at least half a dozen mainstream journalists tweeted the trial. One reporter referred to this method as “haiku journalism”. A commenter to a New York Times article on the topic, “A Grisly Murder Trial, in 140-Character Bits”, thought comparison to haiku was much too flattering and referred to this evolving news-reporting method as “bumper sticker journalism”.

Using Twitter for news reporting raises questions about voyeurism as reporters sent out all the grisly details of a horrific crime and the lack of editorial review for a news article sent out in tweets. I’ll add two legal questions to the debate over twitter as a journalism method.

Does Copyright Protect Tweeted News Articles?.

News articles are protected by copyright. Several newspapers have been battling to force bloggers, portals, and others to show proper respect for those copyrights in an online world.

Does news sent out via Twitter enjoy copyright protection? I would say yes. While a single 140-character tweet is likely too short to qualify for copyright protection, a stream of tweets that together comprise one coherent story should qualify for copyright protection.

A related question is how much control over that copyright does the reporter or news organization retain? When you post to Twitter, you retain ownership in your tweets. However, you give Twitter “a worldwide, non-exclusive, royalty-free license” to use the tweet in any way Twitter wants. That means Twitter can stream or share the tweeted news story with other online and offline outlets.

Does the Risk of Libel Increase for Tweeted Articles?.

The news stories most likely to be tweeted include those stories that are sensational and controversial. When reporters are tweeting the stories as fast as they can type and there is no editorial overview, twitter-journalism seems to introduce more opportunities for defamation claims as reporters, who are only human, get their facts wrong and “type without thinking”.

A Shirley Sherrod Lawsuit against Andrew Breitbart?

In an interview with CBS’ Early Show, former Agriculture Department official Shirley Sherrod said she would consider legal action against Andrew Breitbart, a blogger who posted an excerpt of the video clip leading to Ms. Sherrod’s firing.

The Clip Versus the Full Video

The video features Ms. Sherrod speech at the March 27 NAACP 20th Annual Freedom Fund Banquet. The clip posted by Mr. Breitbart suggests that Ms. Sherrod, who is an African-American woman, denied assistance to a white farmer who was about to lose his farm. The full version of the video shows that Ms. Sherrod actually helped the farmer save his farm and that Mr. Breitbart’s clip was taken out of context.

You can view the edited clip and the full version of Shirley Sherrod’s speech here.

Likely No Defamation Claim; But Maybe False Light Claim

While Ms. Sherrod may not have a good defamation claim against Mr. Breitbart, she might have a good false light claim.

Defamation. You defame someone when you make a false statement about the person and the statement harms the person’s reputation. Mr. Breitbart distributed a clip from a presentation given by Ms. Sherrod. That’s unlikely to qualify as a false statement for defamation purposes if the words heard in the clip are words actually spoken by Ms. Sherrod.

False Light. False light may be the better claim for Ms. Sherrod. You commit false light invasion of privacy when you publish information about a person which – although the information may be true on the surface – creates an inaccurate impression of the person. False light claims result from “half truths” when producers embellish a story or use a statement or photograph out of context.

As a public official, Ms. Sherrod might also be required to show that Mr. Breitbart acted with actual malice when placing her in a false light. Actual malice exists if Mr. Breitbart realized or should have realized that his presentation of the clip created an inaccurate impression of Ms. Sherrod.

Resolution of Seinfeld-Lapine Cookbook Lawsuit

I blogged about the Seinfeld-Lapine cookbook spat when Missy Chase Lapine, author of The Sneaky Chef, first filed a copyright and trademark lawsuit against Jessica Seinfeld, author of Deceptively Delicious and wife of comedian Jerry Seinfeld. My predictions for the case came true. I love when that happens!

Courts Grant Summary Judgment to Seinfeld on Copyright and Trademark Claims

First, the court confirmed that hiding vegetables in foods children enjoy is a basic idea and copyright does not protect basic ideas. Copyright infringement requires substantial similarity and the court found none between The Sneaky Chef and Deceptively Delicious. Lapine argued that the cookbooks have a similar organization, pattern, structure, and sequence in that both books have

• a cover and title conveying a concept of secretly getting children to eat healthy foods
• an introduction or forward by a doctor
• a personal narrative by the author describing her struggle, revelation, recipe testing and effects
• a discussion of appliances
• a list of essential ingredients
• instructions for making the purees in advance and storing them for later use
• a collection of individual recipes using those foods

However, the court found all these elements to be stock elements of cookbooks (i.e., they are elements one would naturally expect to find in a cookbook) and as such, copyright does not protect them.

The look and feel of the two books also differed in several ways. According to the court:

• Deceptively Delicious lacks the extensive discussion of child behavior, food philosophy, and parenting that pervades The Sneaky Chef.
• The Sneaky Chef uses primarily black, gray, and shades of brownish orange while Deceptively Delicious employs bright colors and more photographs.
• The Sneaky Chef assumes greater familiarity with cooking, recommends thirteen methods for hiding healthy foods, and provides recipes for multiple-ingredient purees, Deceptively Delicious instructs readers about only single-ingredient purees and contains more basic instructions.

The court also made short work of the trademark infringement claim finding that the images used on each of the cookbook covers were not similar.

Court Does Not Grant Summary Judgment on the Defamation Claim

In my previous posting on this matter, I predicted that Lapine’s defamation claims against Jerry Seinfeld for remarks Seinfeld made on the Late Show with David Letterman were actually stronger than her copyright and trademark claims. Note that the court allowed the defamation claim to stand. I don’t know the status of that claim but I would not be surprised if the Seinfelds ultimately prevail on the defamation claim. It’s just going to take longer.

Some Consolation for Lapine

Even though Lapine has lost most of her lawsuit, she can take some consolation that her book is outpacing Seinfeld’s in the marketplace. The last time I checked, Amazon ranked Lapine’s The Sneaky Chef at 1,183 in books and Seinfeld’s Deceptively Delicious at 8,740 in books.

Courtney Love’s Twitter Defamation Lawsuit

Dawn Simorangkir, aka Dawn Younger-Smith, aka Boudoir Queen is an up and coming fashion designer who was retained by singer Courtney Michelle Love. After becoming unhappy with their business relationship, Love posted some not-very-nice and profanity-filled online comments about Simorangkir.

Simorangkir has filed a lawsuit against Love for libel and related claims.

Why Is Everyone So Atwitter Over the Courtney Love Defamation Lawsuit

Everyone seems quite excited that this defamation action spawned from comments that Love posted on the popular social networking site Twitter. Evidently, the Love/Simorangkir lawsuit is the first defamation action connected to someone’s activities on the micro-blogging site. Note that Love also posted comments on MySpace and on Simorangkir’s etsy.com feedback page

Is This Defamation Lawsuit Really Special?

Outside of the use of Twitter, I would say this defamation lawsuit is not that special. However, it should serve as reminder that bad behavior is not immune from consequences just because the bad behavior takes place via the internet.

As a general review of how to avoid defaming people, you might want to listen to my recent One-Minute How-To – Challenge interview during which I gave a one-minute overview of How to Avoid Defaming People In Your Writing.

Is Courtney Love In Trouble?

Maybe. Much of Love’s internet musings are a rant which could be classified as Love’s statement of her opinion about Simorangkir or simply as name calling. Insults and name calling by themselves are normally not actionable as defamation.

However, within her rant, Love does make statements that a court might interpret as being offered as statements of fact. According to Simorangkir’s complaint, Love said Simorangkir sold drugs, is a drug addict, has a history of dealing cocaine, has a history of assault and burglary, has a record of prostitution, has committed grand theft, stole cash and goods from Love, has engaged in felonious behavior, lied, embezzled money, has committed blackmail, was deemed an unfit parent, lost custody of her child, is a racist and homophobe, has outstanding warrants for her arrest, and that the Austin police confiscated Love's property from her home.

If Love made such statements about Simorangkir and the statements are false, those are good grounds for a defamation claim.

Avoiding Defamation Claims – Explained in 60 Seconds

Podcaster George Smyth invited me once again to take the One Minute How-To challenge.  George challenges his guests to explain anything the guest chooses as long as the explanation takes only 60 seconds.

 

In my last guest interview with George, I explained “How to Determine if Creative Material Is Public Domain or Copyright Protected”  In this visit, I explained “How to Avoid Defaming Anyone in Your Writing”

Can You Use Real People in Your Book or Film?

I’m often asked by writers and producers if it’s okay to talk about real people in a book, film, or other creative project - if the names are changed.

Changing the Names Is Not Sufficient

“Do the names need to be changed?” is not the best question. The more relevant question is whether the real people mentioned in your creative work are identifiable. You can identify someone even without using the person’s real name. For example, your readers or viewers might be able to identify the person through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved.

If readers and viewers can identify the person discussed in your work, there is potential risk for defamation, privacy, and related claims. You should assess that risk and make your best efforts to minimize it.

Calculating the Risk of Using Real People

Your risk assessment will depend on several factors such as

• How did you acquire the information about the person?
• Are you adding fictional elements to any of the real-life events discussed?
• Are the portrayals flattering?
• Are the portrayals accurate?

Your risk assessment also depends on whether the people in your story are public figures or private individuals. Public figures have fewer privacy rights but stronger publicity rights. Also, to make a successful defamation claim, public figures must prove you made the false statement with actual malice. In contrast, a private individual need only prove you were negligent in making the false statement. While the distinction between actual malice versus negligence may sound like legal gobbledygook, the distinction often plays a pivotal role between winning and losing a defamation lawsuit.

My book, The Permission Seeker’s Guide Through the Legal Jungle, offers an in-depth discussion of defamation and privacy issues from the perspective of authors and other creative producers who want to stay out of trouble. The book also offers guidelines for minimizing the risk of defamation, privacy and similar claims through the use of annotated manuscripts, disclaimers, releases, and life story rights agreements. You can view the full table of contents for The Permission Seeker's Guide Through the Legal Jungle here.

Joe the Plumber: Unhappy With Some Media Coverage But Has Slim Chance of Success on Defamation and Privacy Claims

Poor Joe the Plumber, aka Joe Wurzelbacher.  He’s the Ohio citizen who was repeatedly mentioned during Senators Obama’s and McCain’s third presidential debate on October 15.

 

Mr. Wurzelbacher’s questioned Obama about income tax policies during a political rally and the exchange was caught on tape.  During the presidential debate, McCain referred to Mr. Wurzelbacher to illustrate the distinctions between the McCain and Obama tax plans.  Not only did both presidential candidates invoke Mr. Wurzelbacher’s name several times during the debate, each candidate also looked into the camera and spoke to Mr. Wurzelbacher directly throughout the evening.

 

The result.  Instant fame for Mr. Wurzelbacher.  At least fifteen minutes of it.  While his new-found fame may have an upside, the downside includes some unflattering comments made about Mr. Wurzelbacher in the media as well as media discussion of personal information Mr. Wurzelbacher would probably prefer not sharing with the nation.

 

Even if some of the unflattering comments were false and potentially defamatory, Mr. Wurzelbacher probably wouldn’t have much luck pursuing a defamation, privacy rights violation, or similar claim. That’s because Mr. Wurzelbacher’s surprise guest appearance at the presidential debate has made him an involuntary limited purpose public figure.  A limited purpose public figure is someone who is thrust to the forefront of a particular controversy or public matter.  That thrust sometimes happens by accident or contrary to the wishes of the individual.

 

As an involuntary limited purpose public figure, Mr. Wurzelbacher is held to the same standard as a public figure with respect to any statements on subjects relevant to the controversy or public matter.  For Mr. Wurzelbacher, those subject areas likely include politics, his tax and financial situation, and his job as a plumber.  The public figure standard means Mr. Wurzelbacher would need to show any defamatory statements made about him were made with actual malice.  In contrast, if he were considered to be a private citizen for defamation purposes, he would need to meet the much lower standard of showing that the media was negligent in making any defamatory statements.

 

There's a good chance any private or embarrassing facts released about him or violaitons of his privacy are "okay" per the First Amendment. 

Defaming the Houseguest

A Guide Through the Legal Jungle Trivia Question

In 1995, the National Examiner newspaper ran a headline relating to the O.J. Simpson murder trial entitled “COPS THINK KATO DID IT!”. The headline may have suggested that the police suspected Brian “Kato” Kaelin, Simpson’s infamous houseguest, of murdering Nicole Brown Simpson and Ronald Goldman. However, the actual story which appeared in the paper seventeen pages later discussed Kaelin’s alleged perjury. Kaelin sued the paper for defamation.  In whose favor did the court ultimately rule?

1. Kaelin, because the headline was based on mere conjecture and hearsay, and not on any factual allegation.


2. Kaelin,because the headline could falsely convey to readers that Kaelin had been accused of the murders.


3. The newspaper, because all news reporting is protected by the First Amendment.


4. The newspaper, because Kaelin was in fact accused of perjury by investigators and truth is an absolute defense to defamation.