Q2 2016 Quick Links, Part 3 (Defamation, Online Reviews, Section 230)


* Pritchard v. Van Nes, 2016 BCSC 686 (April 20, 2016):

Ms. Van Nes was responsible for the defamatory comments of her [Facebook] “friends”. When the posts were printed off, on the afternoon of June 10th, her various replies were indicated as having been made 21 hours, 16 hours, 15 hours, 4 hours, and 3 hours previously. As I stated above, it is apparent, given the nine reply posts she made to her “friends”’ comments over that time period, that Ms. Van Nes had her Facebook page under, if not continuous, then at least constant viewing. I did not have evidence on the ability of a Facebook user to delete individual posts made on a user’s page; if the version of Facebook then in use did not provide users with that ability, then Ms. Van Nes had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those “friends” began posting defamatory comments of their own. I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis….

What these factors entail is that once she initiated events through having made an inflammatory post concerning a matter of personal concern, Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. The “friends”’ comments were not unprovoked reactions; they were part of a conversation. And then, when they did comment, Ms. Van Nes – far from being the passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment. Those replies added fuel to the fire, compounding the chances of yet more defamatory comments being made.

In other words, I would find that the nature of the medium, and the content of Ms. Van Nes’ initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments. Her failure to do so allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically – with devastating consequences. This fact pattern, in my view, is distinguishable from situations involving purely passive providers. The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.

* Doctor’s Data, Inc. v. Barrett, 2016 WL 1086510 (N.D. Ill. March 21, 2016):

causing consumers to think less highly of a trademarked product or service—even if accomplished through false or misleading statements—is not equivalent to diluting the distinctiveness of that product or service


it seems likely that the Illinois Supreme Court would find that a hyperlink does not qualify as a publication” for defamation purposes

* Bittman v. Fox, 2016 WL 2851566 (N.D. Ill. May 16, 2016) (cites omitted):

According to the SAC, Kleinman “republished” the same allegedly defamatory July 8 video on both the Chicago Tribune and Edgar County Watchdogs websites. Although these websites may be accessible worldwide, it is reasonable to infer that their readership includes significant numbers of Illinois residents because they cover state and local news.

Even so, simply adding the allegations that Kleinman “republished” the July 8 video in the comments sections of two websites with (this court will assume) substantial Illinois readerships is not sufficient to confer specific personal jurisdiction over her claims. First, although the point is even more pertinent to the merits of Bittman’s claims, a reference to a hyperlink is not likely to constitute “publication” for purposes of Illinois defamation law. As this Court previously has noted: “[a] hyperlink…does not duplicate the content of a prior publication; rather, it identifies the location of an existing publication and, if selected, instructs a search engine to retrieve that publication.” Doctor’s Data, Inc. v. Barrett, 2016 WL 1086510, at *33 (N.D. Ill. Mar. 21, 2016). For this reason, several courts have concluded that displaying a hyperlink is not the same as restating the alleging defamatory material. For purposes of specific personal jurisdiction, Bittman’s claims must arise directly from Kleinman’s Illinois-based activities, but she can have no claim against him that arises from the simple posting of a hyperlink, which is not “publication” of material. Indeed, she does not appear to have broadened her defamation and false-light claims to include this alleged activity; she continues to focus only on the Republication Statement and the Gay-Hater statement.

Second, the interactive nature of online communication—which by its nature can be pursued from almost any location at any time—diminishes the jurisdictional import of those communications. Particularly with respect to a publication like the Tribune website, with a substantial national readership, posting a comment to an online article seems several steps removed from deliberating targeting tortious communications toward an audience in a particular state. Cf. NTE LLC v. Kenny Constr. Co., No. 14 C 9558, 2015 WL 6407532, at *3 (N.D. Ill. Oct. 21, 2015) (“[Visiting a website] is unlike other examples of minimum contacts because the act of visiting a website that is not situated in a specific geographical location does not purposefully avail the user of the protection and benefit of the server state’s laws.”); Gullen v. Facebook.com, Inc., No. 15 C 7681, 2016 WL 245910, at *2-3 (N.D. Ill. Jan. 21, 2016) (use of interactive software by millions of Illini insufficient to provide specific personal jurisdiction over Facebook).In the posts that Bittman identifies, moreover, Kleinman was responding to content posted by others, rather than reaching into the state to disseminate defamatory material.

Finally, Bittman’s vague and cursory descriptions of Kleinman’s conduct also diminish the jurisdictional import of her new allegations; Bittman simply does not give sufficient detail about what Kleinman said, or where, or when, to assess the degree to which the alleged comments are suit-related or reflect efforts to injure Bittman in Illinois. The hyperlinks included in ¶ 16 of the SAC shed no further light, as they do not support Bittman’s allegations. The one purporting to link to a Chicago Tribune article is defective. The link to the “Edgar County Watchdogs” website brings a post to which the commenter “safelibraries” posted a hyperlink to Kleinman’s original July 27, 2014, blog post with no further statements. This has no relevance to Bittman’s claims about the “gay hater statement” (Counts 8 and 9) and only a remote connection to the Republication Statement that is the subject of Counts 5 and 6. That connection is no stronger than the one in Advanced Tactical where directing emails to a list that included Indiana residents was deemed not to be behavior that “targeted” Indiana residents. Indeed, Bittman does not allege that Kleinman’s hyperlink directed any traffic to the Republication Statement; she instead complains that he made “comments” that are not further identified or explained in any way and that he linked to the July 8 video. If sending emails directly to residents of the forum state does not equate to “deliberate actions by the defendant to target or direct [himself] toward the forum state,” then it is difficult to conclude that the posting of undescribed comments in response to two online articles could do so….

Therefore, Bittman has not made a prima facie case that her defamation and false-light claims against Kleinman arise from conduct that he purposefully directed at the State of Illinois. Unlike the publisher in Calder, Kleinman had no reason to believe that his blog had a substantial Illinois readership that would lead to reputational harm to Bittman in her home state. (Indeed, Bittman still has not alleged that SafeLibraries has any Illinois readership.) From the links provided in Bittman’s SAC, it appears that Kleinman’s target audience is an echo chamber of fellow critics of the American Library Association’s open-Internet policies, not any particular regional constituency. Absent some plausible allegation that Kleinman, like the Enquirer in Calder, purposefully created and exploited his own contacts with the state in order to injure Bittman here, Bittman fails to sufficiently allege suit-related conduct by Kleinman that connects her claims to the forum state; her own forum-state injuries are not enough to provide that connection.

* Live Face on Web, LLC v. Five Boro Mold Specialist Inc., 2016 WL 1717218 (S.D.N.Y. April 28, 2016). No defamation because “the media vehicles used to disseminate the Publications – a WordPress blog, social media posts, and an unsigned press release complaining about litigation tactics – suggest to readers that they contain opinions, not facts, and they are written in an amateurish fashion.”

Online Reviews

* Washington Post: Doctors fire back at bad Yelp reviews — and reveal patients’ information online. My related article: Patients’ Online Reviews of Physicians

* Vocativ: Woman Gets Sued For Leaving A One-Star Yelp Review. Another example of a business trying to use a non-disparagement/gag contract. Fortunately, Paul Levy is on the case.

* FTC: “Practice Fusion, a cloud-based electronic health record company, has agreed to settle Federal Trade Commission charges it misled consumers by soliciting reviews for their doctors, without disclosing adequately that these reviews would be publicly posted on the Internet resulting in the public disclosure of patients’ sensitive personal and medical information.” More details.

* Apartment in US asks tenants to ‘like’ Facebook page or face action

* Rebecca: business challenges BBB’s claims about itself, lacks Lexmark standing

* Law.com: Mattress Maker Losing Sleep Over Website Reviews

Section 230

* Ross v. eLightBars LLC, 2016 WL 3460254 (N.D. Ohio June 24, 2016): The plaintiff makes emergency warning devices for first responders. The defendant runs a message board where emergency professionals “discuss emergency lights and sirens and similar items” (I know, try to contain your excitement). The plaintiff was unhappy about a user’s post, threatened to sue, and was banned from the site. He sued for defamation for the user post and for the banning. Citing Dimeo v. Max, the court concludes it “finds no genuine issue of material fact that Defendant is shielded from liability from Plaintiff’s claims in this lawsuit by the express terms of the CDA.” As a bonus, the court says the website’s user agreement–which the plaintiff apparently agreed to–waived any liability.

* Carnett v. WBBJ-TV, 2015 WL 10714008 (W.D. Tenn. Sept. 25, 2015) (showed up in Westlaw more than 7 months later):

Plaintiff now contends that an allegedly threatening comment on WBBJ–TV’s Facebook page, which was posted under his name and which WBBJ–TV reported that he allegedly made, was actually made by someone else. Pursuant to the Communications Decency Act, 47 U.S.C. § 230, the Media Defendants are not liable for comments made by third parties on the WBBJ–TV website or Facebook page.

* San Francisco regulation requiring AirBnB to verify its advertisers’ compliance with the law. My Forbes post explaining why I think it, and all other laws requiring online intermediaries to verify things about their users, violates Section 230.

* Rose v. Facebook, Inc., No. 16-2075 (E.D. Pa. May 23, 2016): Section 230 applies to suit over user posting.