Category Archives: Defamation

Watch: Internet Takedowns and Domain Name Disputes for the Generalist In-House Counsel

As all aspects of business inexorably shift toward online, it is not surprising that intellectual property infringement, cybersquatting, and related internet abuses abound. Luckily, there are various procedures available by which aggrieved companies can seek relief short of litigation.

Joshua Jarvis, David Kluft and Anthony Rufo presented a webinar offering guidance for in-house counsel regarding internet takedowns and domain name disputes,… More

Are Your Consumer Contracts Being Invalidated By The Consumer Review Fairness Act?

On March 14, 2017, the Consumer Review Fairness Act (CRFA) will officially invalidate a whole bunch of consumer contract clauses that pertain to online reviews.

During the last decade, we started hearing reports about professionals using form contracts to prevent their clients or patients from publishing negative online reviews. Here’s an example of how it worked: You showed up for a dentist appointment and,… More

How To Disparage But Not Defame Your Wedding Planner

It’s March, which means that wedding season is nearly upon us. Let’s say you run your own wedding-related business with one employee: you. A customer gives you a review on the internet that is not only negative, but contains false statements.  Who is harmed by this false review: you, your business or both? And if you want to sue the former customer, what is your cause of action?… More

Blogger-Journalist Protected From Defamation Suit By Anti-SLAPP Statute

Are journalists protected by anti-SLAPP statutes?  Until last week, the likely answer would have been: “probably not,” at least in Massachusetts.  But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the “SJC”). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation.… More

A Trademark Year In Wine And Beer 2016: Our Holiday Buyer’s Guide To Disputed Beverages

trademark-year-in-wine-and-beerJust in time for the holiday season, we present our third annual Trademark Year in Wine and Beer, a wrap-up  of alcohol-related trademark and trademark-ish disputes dating back to December 2015, when we published our last edition. Our scope includes lawsuits brought in U.S. Courts, actions before the Trademark Trial and Appeal Board (“TTAB”), arbitrations pursuant to the  Uniform Domain Name Dispute Resolution Policy (“UDRP”),… More

Defamation Takes A Holiday: Slander And The Salem Witch Trials

witch-hillHypothetical: You go out for a nice stroll one Halloween only to have a neighbor emerge from his house with a pitchfork and accuse you of being a witch in front of the whole village. For the sake of argument, let’s say you are not actually a witch. Can you sue for slander?

For centuries, a civil defamation lawsuit has been available as a remedy —… More

The Death Of Alexander Hamilton And The Birth Of The American Free Press

Portrait of Alexander HamiltonAlexander Hamilton has more to do with American independence than you might think. His efforts as a Founding Father (the hottest Founding Father on Broadway, it should be noted) helped the United States achieve political independence from Great Britain.  But Hamilton also made a vital contribution towards helping the American justice system declare jurisprudential independence from the English courts, particularly with regard to defamation and free speech.… More

When Is Internet Speech Protected Petitioning Activity? Federal Court Grants Anti-SLAPP Motion In FIRE CIDER Trademark Suit

Free Fire CiderOn May 12, 2016, the District of Massachusetts held that that an online campaign in support of the cancellation of a registered trademark (FIRE CIDER) was protected petitioning activity, even though the campaign was organized and supported by the trademark owner’s competitors. Because the campaign activity was protected, the Court granted the competitors’ anti-SLAPP special motion to dismiss certain claims.  The case, Shire City Herbals v.… More

Sue-per Bowl Shuffle II: The Year in NFL-Related Intellectual Property Litigation

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Around this time last year, I started worrying about what would happen if someone at a Super Bowl party asked me to explain an NFL-related lawsuit, particularly one of those IP-ish lawsuits that I’m supposed to know about. So I put together the first Sue-per Bowl Shuffle, a guide to the year’s gridiron disputes over trademarks, copyright, the right of publicity and other matters with a First Amendment flavor.… More

Authorship Credit for Scholarly and Creative Works: The Elusive American Attribution Right

creditWhat if were to tell you that I jointly authored this article with a colleague, but that I’m not going to give her any credit or attribution because I don’t feel like it? Can she sue me for copyright infringement? No, because we are joint authors, so I have as much a right to publish this article as she does. If we lived in Europe, my colleague might have relied on her inherent right of attribution,… More

Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law

CaptureLast week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The suit alleges that Slater infringed Naruto’s copyright in the famous “monkey selfies” (taken by Naruto with Slater’s camera). The complaint requests that the Court order Slater to disgorge any profits he has realized from the distribution of the images and establish a trust,… More

Marshmallow Justice: 10 Tales of Legal Fluff and Other Stuff

FluffJust about one hundred years ago, Archibald Query of Somerville, Massachusetts invented the first commercial marshmallow cream, which he pedaled door-to-door in Union Square.  Around 1917, he sold the recipe for $500 to two candy makers in Lynn who had just returned from World War I, and their company (Durkee-Mower) still makes Marshmallow Fluff today. In 2006, Union Square boosters began celebrating Query’s achievement with the Fluff Festival,… More

Defamation and the Common Interest Privilege in the Construction Industry

Construction guyConstruction projects often involve a complex array of contractors, subcontractors, banks, bonding agents, architects, engineers and so on.  With that many parties depending on each other to complete a project, negative statements about the quality and integrity of other peoples’ work often arise. Such statements, if false, may give rise to defamation claims. However, even a false statement may be protected from liability by a “common interest” privilege.… More

Statute Criminalizing Election Campaign Lies Found to Violate First Amendment and Article 16

CaptureOn August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false statement in relation to” a candidate for public office or a ballot question. Violations of the statute were punishable by a thousand dollar fine or up to six months imprisonment.… More

Harry Potter Lawsuits And Where To Find Them

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On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless jealousies, countless imitators, countless parodists and countless pirates. The franchise has kept dozens if not hundreds of lawyers busy with precedent-setting copyright cases, trademark disputes, First Amendment battles over religious expression,… More

Digilante Justice: Defamation By Camera Phone

swEarlier this month, a man in Melbourne, Australia decided to take his very first selfie next to a Darth Vader poster at a local shopping center. A nearby shopper mistakenly thought that the man was taking pictures of her young children. Convinced she had espied a pedophile, the mother snuck a cellphone shot of the man and uploaded it to Facebook, along with commentary labeling him a “creep” and implying that he might be a “registered sex offender.” When word of the post reached the man,… More

The Bermuda Triangle of Online Defamation: Copyright, Clickwrap and the CDA

RippoffWe have written many times about attempts to use copyright law to do what defamation law can’t: take stuff down from the internet. Because Section 230 of the Communications Decency Act (“CDA”) prevents a defamation plaintiff from suing an internet service provider for merely hosting defamatory content, many allegedly defamed parties instead have attempted to use the Digital Millennium Copyright Act (“DMCA”) to “take down” the offending material.… More

Sue-per Bowl Shuffle 2014: The Year in NFL-Related Intellectual Property Litigation

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Heading into this year’s Super Bowl party season, there are two things every lawyer should be concerned about. First, why can’t your team get it together? Second, what do you do if you are asked to explain to your friends and neighbors some NFL-related litigation that you haven’t been following? We can’t help you with the first problem (although, as an Iggles fan living in the heart of Patriots Nation,… More

Massachusetts High Court Upholds Cyberharassment Conviction Based on False Craigslist Ads

CaptureThe Massachusetts Supreme Judicial Court (SJC) has upheld the conviction of an Andover couple for violation of the Commonwealth’s criminal harassment statute by, among other things, posting fake ads on Craigslist. In brushing aside the couple’s challenges to the statute, the Court emphatically held that the First Amendment does not provide a defense to allegations of criminal harassment simply because the defendant uses words to carry out the harassment. … More

Court Rejects Glenn Beck’s “Limited Purpose” and “Involuntary” Public Figure Theories in Marathon Bombing Defamation Case

CaptureThis week, Judge Patti B. Saris of the District of Massachusetts denied a motion to dismiss a defamation action that had been brought by Abdulrahman Alharbi against radio and television personality Glenn Beck. In denying the motion, the Court rejected Beck’s theory that Alharbi, by virtue of his attending the Boston Marathon and second-hand reports of “suspicious” behavior, had become a “limited purpose” or “involuntary” public figure with respect to the Boston Marathon bombing.… More

Ninth Circuit Knocks Down Unfair Competition Case against Yelp!

YelpFor those few of you who don’t know already, Yelp! (“Yelp”) is a wildly popular website where people can share their reviews, opinions, experiences, and ratings of businesses across the country.  This service is invaluable when investigating new restaurants, dog walkers, dry cleaners, etc.  However, it is important to take the reviews with a grain of salt because, no matter how great a store is,… More

Defamation From Beyond the Grave: Using Your Last Will To Get In The Last Word

CaptureHalloween is a good time to think about how you want to die. Do you want to leave the world peacefully? Or do you want to go down trash talking, making sure that your enemies know exactly what you think about them, and that everyone else knows what terrible people these enemies were?

Take, for example, this 1908 bequest of Garvey White, as recounted by Judge John Marshall Gest of the Philadelphia Orphans Court.… More

What is More Defamatory? A False Accusation of Homophobia or of Homosexuality?

1In July 2014, Judge Barbara Jaffe of the New York Supreme Court dismissed the defamation claims in Kramer v. Skyhorse Publications. Kenny Kramer, the real life inspiration for the beloved eponymous Seinfeld character, had sued comedian Fred Stoller and his publisher because Stoller had written that a guide on the “Kramer Reality Tour” was shouting the catch phrase “not that there’s anything wrong with that” at passersby in Greenwich Village,… More

How Not To Market Your Business Online (Even If It Works): Claims Against Fake Review Sites And Stolen Obituary Photos Survive Motion To Dismiss

1Despite celebrity endorsements from the likes of Dennis Miller and Alan Thicke, all that glitters isn’t gold when it comes to the marketing of precious metal investments. In March 2014, American Bullion, Inc., which is in the business of encouraging individuals to convert their retirement savings to gold and silver, brought suit against its competitor, Regal Assets, LLC, in the Central District of California, alleging a host of unsavory internet marketing practices. … More

Copyright As An Online Reputation Management Tool: A Round Hole For A Square Peg

So, how is copyright law doing as an online reputation management tool?

Capture1We have written many times recently about the use of copyright law to do what defamation law can’t: take stuff down from the internet.  A politician in California claimed copyright in her campaign photo in order to have a satirical blog deleted. Dental patients have been asked to sign away their copyrights to hypothetical future online reviews so the dentists can take down the ones they don’t like.… More

A History Of Massachusetts Anti-SLAPP Legislation As A Vehicle For Protecting First Amendment Petitioning Activity From Retaliatory Defamation Claims

Before the passage of anti-SLAPP legislation, citizens engaged in First Amendment petitioning activity often found themselves the targets of retaliatory lawsuits.  For example, a group of neighbors might speak out at a local zoning commission hearing to block approval for a new building development, only to find themselves defending against a costly lawsuit brought by the developer for, among other things, defamation or commercial disparagement.

This December will mark the 20th anniversary of the Massachusetts anti-SLAPP statute, … More

When “Slacker” Was A Dirty Word: Defamation And Draft Dodging During World War I

This summer marks the 100th anniversary of the outbreak of World War I.  The Archduke Ferdinand was assassinated on June 28, 1914 and, by the end of August 1914, Germany, Russia, France and the United Kingdom had joined the war. The United States entered the fray on April 6, 1917, by declaring war on Germany. This was when the word “slacker” suddenly became defamatory.

The Slacker Lists

The U.S.… More

Defamation Claim Against HBO Sports Documentary Proceeds; International Sporting Goods Supplier Not a Public Figure

 

On May 16, 2014, in Mitre Sports v. HBO, the Southern District of New York allowed a defamation claim brought by a UK company against HBO to proceed to trial.  In Capturedoing so, the Court ruled that Mitre Sports International, one of the world’s top sporting goods suppliers, was not a public figure.

Battle of the Rotten Subcontractors
The case was sparked by an episode of HBO’s Real Sports with Bryant Gumbel,… More

Communications Decency Act Forecloses Liability For “Amplifying,” “Endorsing” and “Adopting” Defamatory Statements With Hyperlink

Two weeks ago, in Vazquez v. Buhl, the Appeals Court of Connecticut affirmed dismissal of a defamation claim against CNBC for hyperlinking to an online report by journalist Teri Buhl. The Court held that, although CNBC allegedly “amplified,” “endorsed” and “adopted” the offending report, it was not a “content provider” under the Communications Decency Act (CDA).

The Sex and Money Scandal Rocking Hedge Fund Land

In 2012,… More

Catholic Priest Permitted To Conceal Non-Privileged Nature Of Defamatory Communication Until Statute Of Limitations Runs

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In a recent unanimous decision in Harrington v. Costello, the Massachusetts Supreme Judicial Court (SJC) held that the statute of limitations had run out on a Catholic priest’s defamation claim against his colleague, even though the colleague had allegedly fraudulently concealed the source of the defamatory statement.

Background

The plaintiff, John Harrington, was a priest at St.… More