Failure to Delete Third Party Comments Supports a Malice Finding in Defamation Case–Tanner v. Ebbole

By Eric Goldman

Tanner v. Ebbole, 2011 WL 4425540 (Ala. Civ. App. Ct. Sept. 23, 2011)

Competitive animosity can be found in every industry, but it sometimes amazes me just how sharp it can. Today’s case involves competing tattoo shops located across the street from each other in Mobile, Alabama. The newcomer apparently wanted to knock off Ebbole, the incumbent, and therefore allegedly went on a campaign to smear its rival, including orally telling folks that the rival had communicable diseases. Also, Tanner, a business associate of the newcomer (an employee? an independent contractor? the case doesn’t resolve this characterization), allegedly made a MySpace posting questioning her skills. Ebbole sued for slander, libel and invasion of privacy. She alleged that the defendants’ campaign had hurt her bottom line, causing her income to drop from no less than $28k/year to $20k that year. (The defendants’ economics don’t look much better–the company claims a net worth of -$28k, its proprietor claims a net worth of $12k, and Tanner claims a net worth of -$3k. Aren’t they effectively judgment-proof???) It’s clear the tattoo business isn’t the most lucrative.

The jury found in favor of the plaintiff, but this is where things get especially weird. The jury awarded zero compensatory damages plus $200k in punitive damages against the company, $100k in punitive damages against the company’s owner and $10k in punitive damages against Tanner, the business associate. This is a rare jury finding of defamation. However, the award of punitive damages when there are zero compensatory damages poses some doctrinal problems, so the court ordered the jury to try again. Not surprisingly (especially given the updated detailed jury instructions on how to award nominal compensatory damages), the jury came back with $1 compensatory damages against each of the three defendants plus the same punitive damages awards.

Also odd was the court’s discussion of malice. The court ruled the plaintiff was a public figure, so the plaintiff had to show defendants’ malice to support the defamation claim. I am especially interested in its application to Tanner’s MySpace posting. The court quotes the posting and it looks pretty timid:

You have taken what I love and sh-t all over it … allegedly.

Current mood: disgusted

Category: blogging

I came across this video during my recent health inspection of all [things]. I was certified to do microdermal anchoring in October of 2008…. [Ebbole’s method] is disrespectful to what I do and what I love … allegedly. I ask you, people of the interweb … what should I do about it?

FYI: [Ebbole’s method] is NOT the method I use or would suggest to be used for any implant procedure.

I’m failing to see anything defamatory in this statement at all. Tanner says that Ebbole’s method is “disrespectful” and isn’t the method Tanner would use or recommend. The former seems like a straight-up opinion, and the latter appears to be a truthful statement of Tanner’s beliefs. What am I missing? The appeals court rejected Tanner’s arguments claiming protection as opinion because she didn’t provide any citations…hmmm. It’s unclear who posted the referenced video, but even if Tanner posted it, if the video truthfully depicts Ebbole at work then I’m not sure what’s the problem with it either.

In response to Tanner’s posting, some users made negative comments. For example, one comment said “I’ll be happy to kill [Ebbole].” A terrible comment, but not defamatory. However, other comments are arguably defamatory, such allegations that Ebbole didn’t properly do age authentication and had communicable diseases.

However, due to 47 USC 230, none of the user comments should be attributed back to Tanner, and unless Tanner made the video, any defamatory material in the video shouldn’t be attributed back either (if all she did was embed a third party video). Sadly, 47 USC 230 isn’t mentioned at all in the opinion, and I fear it was never raised in the lawsuit at all.

On the question of Tanner’s malice, the court continues:

The trial court was apparently of the view that malice could be inferred from Tanner’s failure, after receiving a demand letter from Ebbole’s counsel, to retract her statements or to delete the third-party comments that were posted on her Web page. That view has some support.

Ugh. Inferring malice from a site operator’s failure to remove third party comments should be preempted by 47 USC 230 because it treats the operator as a publisher/speaker of those comments. It’s disappointing the opinion doesn’t acknowledge the issue at all.

The court does remand the case back to the trial court to reconsider the defendants’ remittitur requests and whether the punitive damage awards are excessive in light of the nominal compensatory damages.

Blog coverage of other tats-related legal issues:

* Copyright and Tattoos: Hangover II Injunction Denied, But the Copyright Owner Got Some Good News Too–Whitmill v. Warner Bros. (Guest Blog Post)

* Tattoo Advertising/Human Billboards

* Copyright in Tattoos

Plus check out my 2005 contracts exam.

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