Legal Blog Faces Defamation Liability for Mischaracterizing Prior Legal Proceedings–Huon v. Above the Law
Plaintiff, a lawyer, was charged with assault in 2008 and charged in 2009 for cyberstalking and witness harassment (based on one of his blog posts?) involving the same alleged victim. He was acquitted of both charges. His charges and trial received publicity. Popular law blog Above the Law wrote two stories about plaintiff’s brush with the legal system.
First, in 2008, it published a “lawyer of the day” post that linked to a Madison County Article that first noted the charge for assault. In 2009, a blog called LawyerGossip posted about both the 2008 and 2009 charges (again, same complainant). Finally, on 2010, ATL published another article about the plaintiff. This article was titled “rape potpourri” and covered other topics, including the arrest of former Giants linebacker Lawrence Taylor. It also discussed plaintiff’s trial and linked to the LawyerGossip and Madison County articles, as well as an article in the Belleville News Democrat. After the plaintiff was acquitted, ATL added an update to the story reflecting this. The 2010 ATL story generated over 100 comments and replies.
Plaintiff sued ATL in 2011 for defamation, infliction of emotional distress and false light. The lawsuit generated additional coverage, including an article on Jezebel that talked about the acquittal and the lawsuit against ATL. The Jezebel article noted that plaintiff was suing ATL and also suing the law enforcement authorities for prosecutorial misconduct. This article generated many user comments as well. As a result, plaintiff added an assortment of defendants relating to Gawker Media, publisher of Jezebel.
The court dismisses the bulk of the lawsuit, but a portion of the claims against ATL survive.
Section 230: First, the user comments are all covered by Section 230. Plaintiff raised the range of expected arguments in an attempt to get around Gawker’s and ATL’s section 230 immunity: (1) the articles were “designed to incite” the posting of defamatory comments; (2) defendants “encouraged” such comments; (3) defendants highlighted defamatory comments; (4) some comments were posted by Gawker employees. The court easily rejects these arguments. Plaintiff cited to a news article talking about the Gawker structure for compensation generally and noting that Gawker bloggers are encouraged to promote their stories, but he did not have anything beyond speculation underlying his allegation that Gawker posted the comments. (The allegations vaguely brought to mind Cornelius v. DeLuca, but his allegations fell short of what was alleged there. See also the failed allegations in Levitt v. Yelp.) Plaintiff also argued that by linking to the Lawyer Gossip post, which plaintiff alleged was defamatory, ATL republished this and is liable. The court rejects this argument as well, noting that Section 230 also immunizes linking to third party content. (See also Vasquez v. Buhl.)
Claims against Jezebel: The court finds that the Jezebel article is not actionable. Plaintiff argued that the headline and placement of his photograph next to a screenshot of the ATL article headline implied that he was a rapist, but the court says that the statement is capable of an innocent construction when read as a whole and in context. (Indeed, that’s probably the only construction a reasonable reader could come to.) The Jezebel article also speculated that plaintiff was acquitted based on the testimony of a bartender who testified that the alleged victim asked “where to go to have fun” and the court says there’s nothing defamatory about this. Plaintiff had two other arguments about the Jezebel article but has luck with neither: (1) Jezebel’s supposed parsing of plaintiff’s complaint against ATL isn’t defamatory and its report is covered by a reporting privilege (it accurately summarized plaintiff’s complaint about ATL);(2) the Jezebel’s article’s jab about “google only taking you so far” was not a reference to plaintiff and the complainant in his case but was a reference to ATL’s possibly flubbed reliance on Google.
Claims against ATL: ATL isn’t so lucky. The court says the bulk of its article is not actionable. This includes: (1) reporting about plaintiff’s trial and summarizing some testimony and arguments (covered by the fair reporting privilege); and (2) additional commentary from ATL that introduces the summaries (these were either materially accurate or hyperbole). The post also suggested (facetiously) the use of sexual consent forms; this did not relate to the plaintiff and could not support a claim.
Finally, the court says one statement may be actionable. Later in the article, ATL suggested that plaintiff was charged with assault and harassment prior to meeting the alleged victim in question, and implied that if the alleged victim had Googled the plaintiff she would have found out about the earlier incident of assault and harassment. This is inaccurate and is not capable of an innocent construction, because plaintiff had never been charged prior to meeting the complainant. The article also suggested that plaintiff posed as a promotions supervisor in order to meet women. While plaintiff was alleged to have done this in relation to the complainant, the article made it sound like he had done so previously. The court says this amounts to an allegation that the plaintiff was charged with assaults and harassment on multiple occasions and, if false, is defamatory.
Other claims: Plaintiff also brought a few other claims, such as for invasion of privacy and tortious interference. Some of them fail altogether due to deficient allegations, but a few of them survive as to the possibly defamatory part of the ATL story. Plaintiff also asked the court to recognize a cause of action for cyberstalking. This would have been a stretch of the statute to begin with (a newsworthy blog post should not equal cyberstalking) but the court declines to recognize a private cause of action under the cyberstalking statute.
This is an instructive dispute for bloggers and raises a few always-recurring issues: (1) the risks when reporting on a criminal trial or indictment; (2) risks when reporting on other reporting. A question we often face as bloggers is whether we link to or quote from a story. One rule of thumb is that if you accurately describe or quote from legal proceedings you can rarely go wrong. Linking is also safe, given that it acts as a form of citation and any defamatory content at the link’s terminus is protected by Section 230. It also reminds us that litigation can be a slog and a drain on resources. ATL was sued in 2011, and is still—in late 2014—in the litigation quagmire. (It’s unclear to what extent a robust anti-SLAPP statute would have helped here; the Illinois statute is described as having been “narrowly” interpreted.)
I would have thought that ATL got it substantially right, and a seemingly minor error such as the chronology or the number of times someone was charged would not be enough to support a claim for defamation, but that is not the case. Ironically, the ATL post was making a dig about the viability of Google for the complainant in the underlying criminal case, but its own carelessness in Googling or sifting through links could come back to bite it. In contrast, Gawker is off the hook because it was materially accurate about how it described the criminal proceedings as well as plaintiff’s claim against ATL (despite including some unflattering details in its post).
The court’s resolution of the section 230 issue is nice and it’s helpful to have reaffirmation that liability cannot be premised on reader comments, despite plaintiffs’ creative attempts at workarounds. ATL did not get the benefit of Section 230 when it implied that plaintiff had been charged several times. Perhaps it could have receive Section 230 protection to the extent someone else made the error and it merely linked to it, but that wasn’t the case.
It’s tough to tell how this will resolve for ATL. This was just a motion to dismiss—one that for whatever reason took almost a year to resolve—so it has another chance to knock out the claims at the summary judgment phase.
[I’m a friend of David Lat & by extension a friend of ATL.]
Eric’s Comments: The fact that a web publisher isn’t liable for user comments is completely unremarkable. See my detailed 2011 post on that topic. Huon’s attempted workarounds, such as saying that making user comments more visible eliminated Section 230’s protection, were uninspired. As the court summarizes, “the fact that the defendants allegedly engaged in editorial functions such as determining the order of comments or making edits to them does not transform the defendants into “providers” of the comments for CDA purposes.”
Nevertheless, I think this is an important Section 230 ruling because Huon also alleged that Gawker employees posted comments under aliases. As Venkat cites, this bears some parallels to the confusing Cornelius v. DeLuca case. The court responds:
Nor does [the complaint] allege that the Gawker employees who allegedly posted comments did so within the scope of their employment, which is a required element of a respondeat superior claim in Illinois.
I see this as a helpful extension of the Delfino v. Agilent case, which similarly held that an employer could claim Section 230 immunity for an employee’s Internet activities that were unrelated to the employee’s job function. Following the logic of this ruling, a defendant can always assert Section 230 claims for employee’s online conduct outside their job scope. If other courts agree, this legal standard would help clean up the increasingly common plaintiff’s Section 230 plead-around of asserting that the defendants’ employees posted online content (see, e.g., the legions of such assertions against Ripoff Report). Unless that online content was part of their job functions, this allegation should fail on a motion to dismiss.
Case citation: Huon v. Breaking Media, LLC, 2014 WL 6845866 (N.D. Ill. Dec. 4, 2014).