Blogger Wins Lawsuit Over Gripe Post–BidZirk v. Smith

By Eric Goldman

BidZirk, LLC v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007)

I have previously blogged about BidZirk v. Smith, a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger’s life. Fortunately, even though the blogger handled the case pro se, the court saw the case’s lack of merit and finally ended the case.

The case started when Smith blogged a lengthy post on his negative experiences with BidZirk, an eBay drop-off company. BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs’ counsel to boot.

Specifically, the court said:

* calling BidZirk’s founder a “yes man” was an opinion and therefore not actionable as defamation

* South Carolina doesn’t recognize the false light invasion, and even if it did, nothing portrayed the plaintiffs in a false light. Further, linking to a photo published on a third party website does not constitute a publicity rights violation

* Smith was immune from trademark claims because his reference to BidZirk was in the context of news reporting or news commentary. Though the court doesn’t equate bloggers and journalists generally, it gives Smith the same protection given to journalists

* BidZirk’s attorney filed a lis pendens on Smith’s condo, and the court sanctioned the attorney $1,000 because the attorney had no basis to claim a right against Smith’s property

As a result, BidZirk’s lawsuit should be over unless it makes the unwise choice to appeal to the Fourth Circuit (a distinct possibility given its past practices). But the really unfortunate part is that the court signalled that its disinclination to support the plaintiff’s claims very early in the lawsuit. A rational plaintiff would have taken the hint then. Instead, the plaintiff wasted everyone’s time, money and emotional energy pursuing a fruitless case.

Meanwhile, I’m not clear what, if any, of Smith’s counterclaims are still outstanding. Perhaps Smith will get some additional remedy beyond the moral vindication and $1,000 in sanctions. But even if he does, there really is no way to correct the fact that the plaintiff consumed the last year and a half of Smith’s life, forcing him to defend a lawsuit that was ridiculous and ill-conceived from the outset. (The court declined to award Rule 11 sanctions, saying it was a close call).

As the court says, “In essence, this is a case in which the Plaintiffs have sued Smith because he published articles on the internet critical of the Plaintiffs’ business.” Thus, on the surface, this appears to a cautionary tale to all bloggers that we live in peril of being dragged into court whenever we negatively critique businesses. Yet I see this ruling as a redemption of sorts–it takes a lot of courage to blog, and it takes even more courage for bloggers to stand behind their words when challenged, but we have a responsibility to make sure we can’t be bullied on either front. On behalf of bloggers everywhere, we applaud Philip Smith’s courage and determination to defeat this case.

UPDATE: Comments from the defendant himself, Philip Smith, as well as Sam Bayard.

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