Defamation and Privacy Online

Katie Sunstrom

Lorance & Thompson, PC

Overview

• Defamation– What is defamatory?– Defenses– Single Publication Rule– Fault Standards (actual malice; negligence)– Section 230 of the Communications Decency Act– Anonymous Speech– Damages

• Invasion of Privacy– Intrusion Upon Seclusion– Public Disclosure of Private Facts

Defamation

Defendant:(1) published a false statement; (2) that was defamatory concerning the plaintiff; (3) while acting with negligence regarding the truth of the

statement; (if Plaintiff is a private individual). WFAA-TV, Inc. v. McLemore

, 978 S.W.2d 568, 571 (Tex. 1998); or(3) while acting with actual malice (if Plaintiff is a public

official or figure). Huckabee v. Time Warner Entm't Co.

, 19 S.W.3d 413, 423 (Tex. 2000)

http://www.dmlp.org/legal-guide/examples-public-and-private-figures

Defamatory?

•  Statement in which the words tend to damage a person's reputation, exposing him to public hatred, contempt, ridicule, or financial injury. Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.)

• Per se v. per quod

Defamatory?

• Defamation per quod- requires reference to additional facts to ascertain the defamatory nature of the statement, and requires proof of actual damages.

• Defamation per se-itself gives rise to a presumption of damages and requires no independent proof. Shifts burden of proving truth to the Defendant.

Is online speech less reliable?

• Dietz Development v. Perez- Bad contractor, Yelp review.

• Horizon Human Services v. Gary Austin

Defenses

• Truth• Opinion• Fair and accurate reporting of a governmental

proceeding• Neutral reportage• Fault defense; the First amendment• Communications Decency Act• Death• Statute of limitations- 1 year.

Single Publication Rule

• A libel action accrues upon publication: “the last day of the mass distribution of copies of the printed matter.”

• Accrues upon the first online publication.

Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007).

• Nearly all courts reject the “continued publication” argument.

Negligence Standard

• the defendant did not act with a reasonable level of care in publishing the statement at issue.

Courtney Love Settles Twitter Rant Lawsuit http://www.cbsnews.com/8301-31749_162-20039218-10391698.html

Actual Malice

• Knowing falsity or reckless disregard as to truth or falsity;

• If not made in good faith but with serious doubts as to truth.

Actual Malice

• Private speech about matters of private concern vs. public concern

• Obsidian Finance Group v. Cox

Section 230 of the Communications Decency Act

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 USC  § 230(c)(1).

Section 230 of the Communications Decency Act

 47 U.S.C.S. § 230(c)(1) of the Communications Decency Act barred negligence claims filed by a mother whose minor daughter was sexually assaulted by a man she met online through an interactive teenage website because the website was not required to employ age verification software to detect predators by screening member profiles for truthfulness.

Doe v. MySpace Inc., 528 F.3d 413, 417 (5th Cir. Tex. 2008).

Section 230 of the Communications Decency Act

In this case, the undisputed evidence shows that Defendants provide a broad choice of categories from which a user must make a selection in order to submit a report. See Pl's Appx. at 264, 335-337. While some categories are negative, such as the category entitled "corrupt companies," other categories are neutral, including categories entitled "restaurant," "business consulting," and "internet providers." Pl's Appx. at 264, 335-337. Based on this undisputed evidence, the Court finds that the magistrate judge correctly found that Defendants did not lose immunity under the CDA by requiring posters to chose from a wide range of categories.

GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. LEXIS 1445, 13-14 (N.D. Tex. Jan. 9, 2009)

Section 230 of the Communications Decency Act

Parents’ defamation-related claims barred by CDA 230. Defendants transferred the information to their online database without changes.

Prickett v. Infousa, Inc., 561 F. Supp. 2d 646 (E.D. Tex. 2006)

Anonymous Speech

• Journalists’ Qualified PrivilegeTex. Civ. Prac. & Rem. Code § 22.021 et

seq

• First Amendment

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (U.S. 1995).

Anonymous Speech

“Thanks for the invitation to visit you…but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the Internet over to your house – have you done it before, or do they usually invite you to the house?”

Stone v. Paddock Publs., Inc., 961 N.E.2d 380, 388 (Ill. App. Ct. 1st Dist. 2011).

Anonymous Speech

To obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiff's control.

In re Does 1-10, 242 S.W.3d 805, 822 (Tex. App. Texarkana 2007) (quoting Best Western Int'l v. Doe, 2006 U.S. Dist. LEXIS 56014, 4-5 (D. Ariz. July 25, 2006).

Judge Throws out $14 million Libel Verdict

Damages

• Reputation damages-establish a link between specific evidence and the harm to Plaintiff’s reputation.

• Special Damages

• Exemplary Damages

College Network, Inc. v. Moore Educ. Publrs., Inc., 378 Fed. Appx. 403, 405 (5th Cir. Tex. 2010).

• Default judgment against Hunter Moore for

Invasion of Privacy

• intrusion upon one’s physical solitude or seclusion;• public disclosure of private facts;• false light; and• appropriation.

• 2-year statute of limitations

Invasion of Privacy

• Requires proof of the following elements:(i) "an intentional intrusion, physically or otherwise,

upon another's solitude, seclusion, or private affairs or concerns," which

(ii) "would be highly offensive to a reasonable person," and

(iii) resulted in injury.Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.

1993) .

Invasion of Privacy

Key logger placed on wife’s computer to spy on her email communications.

Langston v. Langston, 2011 U.S. Dist. LEXIS 101184, 1-2 (E.D. Tex. Aug. 31, 2011).

Invasion of Privacy

“Intrusion upon seclusion is typically associated with either a physical invasion of a person's property or eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying.” Texas Comptroller of Public Accounts v. Attorney General of Texas, 244 S.W.3d 629, 636 (Tex. App. — Austin 2008, pet. granted).

Public Disclosure of Private Facts

To establish a claim for the tort of invasion of privacy based on the public disclosure of private facts, the plaintiff must show that (1) publicity was given to matters concerning his private life; (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern.

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex. 1995).

Lowe v. Hearst Communs., Inc., 487 F.3d 246, 250 (5th Cir. Tex. 2007)

Questions?

Katie Sunstrom Lorance & Thompson, P.C. 2900 North Loop West, Suite 500 Houston, Texas 77092 P: 713.868.5560 F: 713.864.4671 C: 713.502.3049

E: ks@lorancethompson.com

@beingkatie

@stalkerlawyer