Guide Through the Legal Jungle

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.

Executive Action

A Guide Through the Legal Jungle Trivia Question

Which acquaintance of former President Bill Clinton sued unsuccessfully for defamation after news of her alleged relationship with the then-governor surfaced in tabloid newspapers?

A. Monica Lewinsky
B.Gennifer Flowers
C. Paula Jones
D. Kathleen Willey
E. Zsa Zsa Gabor

The Sneaky Chef versus Deceptively Delicious. Defamation Charges Against Seinfeld Stronger Than Copyright Charges.

In a previous posting discussing copyright protection for recipes, I mentioned the copyright infringement and defamation lawsuit against Jessica and Jerry Seinfeld filed by Missy Chase Lapine.

Lapine’s Copyright Claim

Lapine is the author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals. Jessica Seinfeld is the author of Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food. In the lawsuit, Lapine claims Deceptively Delicious infringes The Sneaky Chef.