Unmasked Judge/Commenter Sues Newspaper for $50mm — Saffold v. Plain Dealer

[Post by Venkat]

Saffold v. Plain Dealer Publishing Co., Cuyahoga County Court of Common Pleas (filed April 7, 2010) [scribd]

A judge/commenter who was unmasked by the Cleveland Plain Dealer is reportedly suing the newspaper for 50 million dollars. (h/t ABA Journal) There are plenty of bad facts to go around, but I see an uphill battle for the plaintiff.

Background: Cuyahoga County Common Pleas Judge Shirley Strickland Saffold (or someone with access to her email, commenting as “lawmiss”) allegedly left some eighty plus comments on the website of the Cleveland Plain Dealer (at cleveland.com). Some of the comments included:

All of these criminals committing crimes against women must stop. None of them should get out of prison, EVER.

Rufus Sims (lawyer of Sowell and of a bus driver convicted of vehicular homicide) did a disservice to his client. If only he could shut his Amos and Andy style mouth … This was not a tough case, folks. She should’ve hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around, did not do it.

I’m confused. There’s three stories. The first accuses Saffold of being a bully and demeaning the presence of this reporter for no reason. The second indicates that she refused to allow the Plain Dealer reporters to view the proceedings today, and the last indicates that the defense attorneys and the prosecutors agreed that the court needed to find out who the leak was, but they disagreed about the leaking spoiling the pool. What did Saffold do that was wrong??

The Plain Dealer decided to “unilaterally . . . unmask” Judge Saffold and wrote an article about the unmasking. The Plain Dealer and Judge Saffold were not on the best of terms prior to this incident. While Judge Saffold allegedly commented on pending capital murder cases, her comment dealing with the mental health of a relative of Jim Ewinger, a Plain Dealer reporter, supposedly led to the unmasking. (Wendy Davis covered this in an article here: “Cleveland Paper Unmasks Judge As Commenter“.)

The Complaint: The Complaint asserts various claims based on the privacy policy (including a promissory estoppel claim), a claim for fraud, a claim for invasion of privacy/false light, and a claim for defamation.

Privacy Policy: The privacy policy claim is tough. For starters, the privacy policy is not clear that it guarantees anonymity. Second, claims for damages based on a breach of privacy policy are not very easy to make. Many recent cases rejected privacy policy-based claims for lack of actual damages (and some jurisdictions have a rule that precludes recovery for emotional damages unless a physical injury is involved). (See, for example, Pinero v. Jackson Hewitt; Bell v. Acxiom; Pisciotta v. Old National Bancorp [pdf].) There’s even a case which expressly rejects a claim based on the disclosure of an email address in violation of a privacy policy. (Cherney v Emigrant Bank) Of course, all of these cases are based on the view that disclosure in itself does not cause damage, and Judge Saffold’s case presents different facts. She will probably get past the damages hurdle, but she will have to deal with any provisions in the terms of service that the paper could use to undercut her claims or at least limit damages (disclaimers of warranty, limitations of liability, etc.). Her bigger challenge is to prove that the privacy policy actually guaranteed anonymity, and as Wendy’s article points out, the policy envisions that the newspaper would use personal information in a variety of scenarios, including for the newspaper’s own benefit.

Invasion of Privacy: The invasion of privacy claim is similarly tough because it will probably turn on whether plaintiff reasonably expected that her comments would remain anonymous. Anyone using the internet will tell you that there’s no guarantee of anonymity, and in addition to the ambiguity of any guarantee in the policy, the paper will likely argue that the policy made clear that there are a variety of circumstances in which any user’s personal information would be disclosed. Disclosure in response to a subpoena is obviously the classic example. Use of personal information for business purposes is another example.

First Amendment/Media Privilege Defense: At the end of the day, plaintiff will have a challenge proving that she reasonably expected some guarantee of anonymity, and even if the court finds that there was a guarantee, the newspaper could also try to invoke some sort of First Amendment/media privilege defense. It’s certainly newsworthy for a judge to have commented on pending cases. While this wasn’t what prompted the newspaper’s unmasking of the plaintiff, this could bolster the newsworthiness argument. The fact that the judge used the same online profile to supposedly comment on a case she was presiding over (!) is extremely problematic and will cut against the expectation of anonymity. A litigant in that case certainly has a shot at discovering the identity of the commenter in order to support a recusal motion, and once the litigant figures out the judge’s identity, the cat is out of the bag. The lawyers litigating the serial murder case Judge Saffold was presiding over (and allegedly commented on) are actually making this argument. (“After Web Post About Serial Murder Case, Judge Should Step Down, Lawyer Says“; “‘Lawmiss’ Comment on Accused Serial Killer Is Linked to Judge Overseeing His Case“) This makes the Judge’s expectation of anonymity argument that much harder. Had the newspaper found this information out from another source, the First Amendment argument would probably be a fairly strong one. However, given that the Plain Dealer doesn’t seem to have the cleanest hands, I’m not sure how much mileage this will get here.

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There are two strong facts on the other side, in the plaintiff’s favor. First, the paper seems to have been engaged in a feud with her, and the reporter may have had his own personal score to settle. This will not look good for the paper. Second, media entities can’t pick and choose. It certainly is arbitrary for a paper to say “we have a privacy policy and will protect your anonymity . . . except when your identity as a commenter is newsworthy, in which case we’ll exploit that to our benefit.” Newspapers are in a tricky position as far as commenter anonymity, and no one will reasonably think that media can have it both ways, which is what they’ll have to end up arguing. Finally, while the newspaper could have disclosed the Judge’s identity in response to a subpoena, that doesn’t mean the paper should voluntarily disclose it in order to publish something it thinks is newsworthy (or to settle a score).

The key question here, is how, why, and when the newspaper decided to check out the real identity of “lawmiss.”

When all is said and done, plaintiff will finally have to actually prove damages, and suffer the additional embarrassment of a very public dispute around her comments on a newspaper website. Discovery sure is not going to be pretty. (Interestingly, the complaint cites to many public statements made by the Plain Dealer. The Plain Dealer should have adhered to the “less is more rule,” when making statements about potential disputes.) Regardless of how the dispute plays out, I guess it illustrates that when interacting online, people need to keep common sense at the forefront. To the extent the she commented on a serial murder case she was presiding over, what was she thinking? On the other hand, what was the newspaper thinking when it decided to “check out the identity of a commenter?”

The case raises the issue of the ethical quandary inherent when a newspaper is the custodian of anonymity. To the extent the newspaper has access to the identity of commenters, there will always be the temptation to check out who particular commenters are. The newspaper in many situations ends up making the call on when to release the identity of the commenter, when to publicize it, and when to fight for anonymity. There will always be conflicting considerations and ethical issues present here.

A final note. Whether someone had the expectation of privacy when dealing with a website or social network is becoming an increasingly litigated issue. I question how useful it is to use the actual language of a privacy policy to determine the expectation of privacy. These are clunky documents that no one ever reads, much less understands. I cringe every time a court wades through a privacy policy, picking and choosing among language it thinks supports or detracts from an expectation of privacy. I blogged about a recent case where a court held that a newspaper website commenter did not waive the expectation of privacy based on language of a policy: Sedersten v. Taylor. Tom O’Toole makes a similar point in a post about another recent case, McVicker v. King: “Newspaper Website’s Privacy Policy Creates Expectation of Privacy for Commenters?

Update: I’ve added a few additional links below, and clarified that the comments were left with someone who shares the same email address as Judge Saffold. (Judge Saffold’s daughter is taking credit for the comments, or at least some of them.) The Plain Dealer reported that someone with the same email address as Judge Saffold left the comments, and verified some of the information behind its reporting through a public records request. It reported that its public records request revealed that someone used Judge Saffold’s work computer to access the paper’s website at the same exact time as when someone left some of the comments.

Additional Coverage:

Courthouse News has a post which provides some good factual background: “Judge Demands $50 Million From Plain Dealer

ABC News has a post which also contains some interesting background facts: “Judge Saffold Files $50M Suit Against Cleveland Newspaper Over Online Comments” (It looks like the Judge’s daughter who is or was a law student says she was the one who made some of the comments! An Ohio law professor is also quoted as saying it would have been a “major ethics violation” for the judge to have commented on pending cases.)

Cleveland Plain Dealer: “Cuyahoga County Judge Shirley Strickland Saffold files $50 million lawsuit against The Plain Dealer and others

Gawker: “Can Anonymous Commenters Be Outed if They Do Something Newsworthy?

The Newsroom Law Blog had a good post about the ethics of the unmasking: “Cleveland Newspaper Unmasks Anonymous Commenter” The post makes a good point about what this may mean for future anonymity arguments asserted by the Plain Dealer on behalf of anonymous commenters. [The Plain Dealer's John Kroll comments on the post . . . fodder for discovery?]