Written by Ryan Metheny and Mark Goldowitz
On the heels of Ryan’s post regarding arguably the worst decision under the California Anti-SLAPP law, we thought it appropriate to praise a great recent decision that properly applied the law, entitled Redmond v. Gawker Media, LLC (First Appellate District case no. A132785, 2012 Cal. App. Unpub. LEXIS 5879; 2012 WL 3243507). This case is especially significant for its contribution to the rapidly evolving area of online defamation law. The court, in a unanimous opinion by Justice Sandra Margulies, found that bloggers who express their opinions with reference to active links showing the source material they relied upon in forming those opinions, generally cannot be held liable for defamation. This is an important first for California courts, and significantly advances the First Amendment rights of bloggers and others who express themselves online.
Unfortunately, this decision has not been certified for publication, meaning that as matters now stand, future defendants in other cases will not be able to cite the case as precedent, despite the significant nature of the decision. That is why Prof. Eric Goldman of Santa Clara University has prepared a letter to the appellate court requesting publication of the decision. CASP has signed on to the letter, along with Bloomberg News, Yelp!, Avvo, Paul Levy of Public Citizen, Michael Barclay of IPDuck, and others. We invite anyone who has an interest in online free speech to contact CASP to learn how you can join in a letter of support of publication.
In Redmond v. Gawker, the plaintiff, Scott Redmond, started a tech business venture that caught the attention of bloggers working for Gawker (one of Ryan’s favorite sources of news, satire, and general entertainment), or more specifically for Gizmodo, the Gawker blog devoted to tech issues. Gizmodo wrote a post about Redmond’s business, which apparently promised some sort of major innovation in wireless networking, advancing the opinion that the whole thing was nothing more than a sham to lure investors, and that Redmond’s supposed innovation was technologically impossible. (You can still find the post here.) Redmond then sued for defamation and related claims, alleging that Gizmodo had made false assertions of fact regarding his business and thereby damaged his reputation, caused him economic loss, and so on.
However, in general, statements of opinion — as opposed to false assertions of fact — enjoy First Amendment protection. As the opinion in Redmond v. Gawker explains, even demonstrably false opinions usually cannot form the basis of liability in a lawsuit for defamation or related legal theories, so long as the opinion is only that and does not imply false facts.
Until now, not many cases had dealt with the special nature of opinion when it is found in online forums like blogs, discussion boards, and the like. (One good recent example is Summit Bank v. Rogers (2011) 206 Cal.App 4th 669 — a case which we also praised.) Redmond v. Gawker continues the evolution of the law in this area, recognizing what many of us already knew: that readers of blogs and online discussion boards do not treat these forums as reliable sources of factual information; rather, boards and blogs are places for freewheeling discussion and the airing of (often outrageous) opinions that invite consideration and possibly research by the readers. Where the reader does not expect unbiased assertions of fact, a court should be more reluctant to find that a blogger’s or poster’s comments were anything other than protected opinion. Redmond v. Gawker thus strengthens the First Amendment opinion defense for bloggers and other off-the-cuff online commentators.
In addition, the Redmond v. Gawker decision recognizes the significance of the now-common practice of providing active links to source material as a legitimate way of allowing the reader to make up his or her own mind regarding what the writer has asserted. In the words of the court’s opinion, “the article is completely transparent. The sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources—mainly Web sites and promotional material created and maintained by Redmond and his ventures. As the article states in its concluding paragraphs, ‘Peep’s background information is freely available online, and everything you see above was discovered with a few quick searches on Google.’ Having ready access to the same facts as the authors, readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies.”
This is a great case with major implications for free speech on the Internet. It is a case that should be published so that everyone who speaks online can benefit from the ways in which this case clarifies online defamation law and strengthens First Amendment protections for online speakers. Further, it meets the standard for publication under California Rule of Court 8.1105, as Prof. Goldman explains in his letter. Contact CASP to learn how you can join in our efforts to get this case published.
Article by: ABBY SIMONS , Star Tribune, Updated January 30, 2013 – 9:59 PM
Finding no harm done, justices toss out lawsuit by Duluth physician.
Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”
“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”
He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.
The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.
It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.
“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.
The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.
On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”
Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”
McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion’s statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion’s statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.
The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the “tool” statements also didn’t pass the test of defaming McKee’s character. He dismissed an argument by McKee’s attorney, Marshall Tanick, that the “tool” comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” Page wrote.
Tanick said the ruling could present a slippery slope.
“This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.
Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”
Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”
Full article:
http://www.startribune.com/local/189028521.html?refer=y
David McKee MD versus Dennis Laurion named a top Minnesota lawsuit of 2013 by Twin Cities Business:
This is extracted from:
TWIN CITIES BUSINESS
The Top Lawsuits Of 2013
by Steve Kaplan
December 20, 2013
Never Shout “He’s a Tool!” On a Crowded Website?
Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.
Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?
It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”
But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”
But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”
The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.
See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year
This is extracted from:
TWIN CITIES BUSINESS
The Top Lawsuits Of 2013
by Steve Kaplan
December 20, 2013
Never Shout “He’s a Tool!” On a Crowded Website?
Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.
Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?
It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”
But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”
But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”
The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.
See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year
“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.
David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.
McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”
The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.
Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.
McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.
Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.
McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.
Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”
McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”
Full article:
http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors
“A Portland dentist is suing a former patient for what the dentist claims are defamatory reviews in online forums.”
By Sam Stites, Willamette Week, September 3, 2012
Dr. Mo Saleh, of Dental Dynamics, originally filed suit against Spencer Bailey in Multnomah Circuit Court on June 26 seeking $300,000 after Bailey wrote about Saleh’s dental skills on Yelp, DoctorOogle.com and Google. In his lawsuit, Saleh says Bailey posts caused damage to his reputation, loss of profits and emotional distress.
The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”
According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.
Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)
As online commentary about all manner of topics has exploded, so too has the number of lawsuits unhappy targets have filed about such commentary. Saleh’s suit falls under what lawyers call a practice of Strategic Law Against Public Participation or SLAPP. SLAPP cases take aim at people making statements or publishing information that could be damaging to the plaintiff. Critics say these suits are sometimes little more than attempt to censor, silence and in intimidate the defendant.
In a similar case, a Washington County pastor sued a former parishioner in June, claiming an online review of his church was defamatory. The defendant’s attorney, Linda Williams—who is also representing Bailey, the dental patient—employed an Oregon anti-SLAPP statute passed in 2001 aimed at frivolous SLAPP lawsuits. The judge ruled in favor of the Washington County defendant and said that the statements were made “in a public forum and concern an issue of public interest,” according to KATU.
Earlier this month Bailey’s attornies filed a motion to strike Saleh’s lawsuit under the anti-SLAPP statute, declaring that Bailey’s online reviews are free speech in a public forum. “Spencer’s review was a protected opinion and the Plaintiff cannot prove their allegations,” Ross, Bailey’s co-counsel tells WW via email. “Nor can they prove $300,000 in damages for a post that was up for three weeks.”
A judge will hear the anti-SLAPP motion on Sept. 5.
http://www.wweek.com/portland/blog-29111-portland_dentist_sues_patient_over_internet_posts.html
A Texas school teacher is following the footsteps of doctors and dentists who sue for defamation.
“Texas Teacher Sues Two Students For Defamation”
Posted By Kristen Butler, UPI, May 13, 2013
May 13 (UPI) — High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an “oral storytelling” lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.
The complaint states that Ethredge “mentioned to her students that they might be able to help recover her son’s property.” She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.
Ethredge claims the two students only brought it up months later, in March of this year,
when she sent them to the principal’s office for disruptive behavior and a dress code violation.
“Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal’s attention on plaintiff,” the complaint states.
As further evidence of the students’ alleged “deliberate and malicious intent to injure plaintiff’s reputation,” the complaint shows that one student posted a message to Facebook during school hours that said, “Hey Ethredge, “I threw stones at your house” what you got for me big bada**? Case closed!”
The second student named in the suit commented on the post, saying “Hahahahah
[expletive] ain’t got [expletive]!”
Days after the cited Facebook posts, the Board of Trustees of the Waller Independent
School District proposed termination of Ethredge’s employment.
Ethredge seeks punitive damages for defamation and intentional infliction of emotional
distress.
Source: http://www.upi.com/blog/2013/05/13/Texas-teacher-sues-two-students-for-defamation/3031368455783/