Free Speech and The Internet: A Fish Story

[Jason Dunn]

<div class='os_post_top_link'><a href='http://www.buzzle.com/editorials/4-4-2002-15907.asp?viewPage=1' target='_blank'>http://www.buzzle.com/editorials/4-....asp?viewPage=1</a><br /><br /></div>This article scares the bejeebers of out me! 8O In a nutshell, people on a public discussion list began swapping stories about negative experiences they had with a certain vendor. The vendor is now suing the owner of the mailing list for upwards of $15 million. How long will it take for a Pocket PC OEM to come knocking on my door for the negative things said about them in the forums, or on the front page? It's a scary concept isn't it? What's the line between expressing your opinion and slander/libel? I'm not a lawyer, and I don't play one on TV, so I'm pretty much in the dark on this one...but this article made me wonder how long it will be until it happens here? It would be public-relations suicide for a Pocket PC company to sue Pocket PC Thoughts, but some companies don't care about what people think of them.<br /><br />Anyway, read the article and share your thoughts. But don't say anything bad about Buzzle.com or anyone else! :lol:

[don dre]

Let's hope he loses. So far the courts have been pretty reasonable if I am not mistaken. Of course, all it takes is one court. I just read an article on jury mandering where they talked about how lawyers are taught to pick jurors that know nothing abotu the particular topic. Moreover, they pick ones who are least liekly to understand what's at stake. In so doing, they hoep to manipulate the jury for large sums. anyways, here
s to hoping no one takes offense to this site.

[Jimmy Dodd]

Quick! Somebody slander me and I'll sue Jason for enough $$ for one of those HP 5450s. :lol:

[theonegod]

It is only slander if it is not true.

Oh, and in ref to In so doing, they hoep to manipulate the jury for large sums.

Jurys dont set sums. The judge does.

[Jonathan1]

It'll never fly. There is nothing illegal about swapping stories about bad experiences. And nothing illegal about baring someone from responding to a post.

And then there is this:
Novak attests that he tried to respond to the posts -- he'd been a subscriber to the list for a number of years -- but "APD maliciously blocked the e-mails sent to the mail list by the plaintiff thus not afford [sic] him an opportunity to defend himself."

WAH!!!!! Sounds like someone is playing cry baby. Is it illegal for my friends and I to discuss how crappy Microsoft’s business practices are without them defending themselves? LOL Remind me to invite Bill to my next ***** session

Ya know I'm starting to wonder if there should be new rules applied to lawsuits in that if the plaintiff doesn’t win the lawsuit they have to eat the defendants defense attorney bill. Might make idiots who brings such suits think about if their complaint is legit or not. (Coffee spilling woman anyone?)

[Vincent M Ferrari]

As owner of website where opinions are regularly espoused, this scares the hell out of me.

It's not whether or not I'm right, it's can I afford to defend myself. Truth be told, I doubt I would be able to, and I imagine a lot of you fit into that category as well.

Frankly, were Palm or Microsoft, or a politician ever to sue me, I'd have to beg for a settlement just because I wouldn't be able to afford an attorney, and that's probably what these dolts were hoping for when they sued the mailing list operator for 15 million dollars.

God, I hate being bullied... :twisted:

[VanHlebar]

It'll never fly. There is nothing illegal about swapping stories about bad experiences. And nothing illegal about baring someone from responding to a post.

Don't count on it, you never know what is going to happen in the American Court System. I love my country, but sometimes our people who live here are just plain stupid.
Ya know I'm starting to wonder if there should be new rules applied to lawsuits in that if the plaintiff doesn’t win the lawsuit they have to eat the defendants defense attorney bill. Might make idiots who brings such suits think about if their complaint is legit or not. (Coffee spilling woman anyone?)

If I am not mistaken this is how it works in England, or something similar. You have to remember though, that the laws are written by lawyers. Do you really think they are going to create a law that will have a negative effect on their earning potential?

-Eric

[theonegod]

As to the defendants bill yes just make a countersuit for your defense costs and if you win they will probably be forced to pay them. As to cost of defense...if you defend yourself the only real cost is time out of work and travel i suppose, but yeah it really sucks that people can win without wining just cause the defendant cant afford to pay for his defense.

[shindullin]

Truth IS an absolute defense in Libel and slander cases. Also, journalists and their publications (which your front page would presumably qualify as) have higher protections, they would have to prove not only that it was untrue but that their reputation had been irrevocably damaged AND that the inaccuracies were stated ON PURPOSE. A very difficult standard. As for the bulletin boards, I'm assuming you already have a disclaimer somewhere that the opinions stated are those of the user and not necessarilly thoughts. That's the RELAX part.
The real reason companies sue publications is to make them defend themselves in court. Lawyers, especially good ones, cost a LOT of money. Imagine spending $100k defending yourself from a $10million suit. Kinda makes you sad. The mere threat of litigation was so worrisome that it made 60 min's pull their anti-tabacco story until other journalists found out about it and shamed them into airing it several years ago. You may prevail, but it may be a pyrrhic victory. 8O

[Kati Compton]

Legally, I don't believe the suit has any basis. If I were one of the people sued, I would countersue. While it might be difficult to afford an attorney to defend themselves, I think an attorney might be much more interested with an easy countersuit, and might be convinced to do both for a cut of the countersuit.

[dh]

It's rather like the case recently when a company called PrintCafe took legal action against the website f--kedcompany.com to try to get them to reveal the identities of two people who had posted there. I guess PrintCafe believed they were employees who were posting confidential information on the message board.

The suit was not successful, but the amusing thing was to see the legal documents (which of course fc.com published on the site) refering to the two individuals "idiot and sucky_me" the defendants in the case.

So far freedom of speach on the Internet seems to be doing OK.

[sgyee]

This article scares the bejeebers of out me! 8O In a nutshell, people on a public discussion list began swapping stories about negative experiences they had with a certain vendor. The vendor is now suing the owner of the mailing list for upwards of $15 million. How long will it take for a Pocket PC OEM to come knocking on my door for the negative things said about them in the forums, or on the front page? It's a scary concept isn't it? What's the line between expressing your opinion and slander/libel? I'm not a lawyer, and I don't play one on TV, so I'm pretty much in the dark on this one...but this article made me wonder how long it will be until it happens here? It would be public-relations suicide for a Pocket PC company to sue Pocket PC Thoughts, but some companies don't care about what people think of them.

Anyway, read the article and share your thoughts. But don't say anything bad about Buzzle.com or anyone else! :lol:

This is another clear case of the legal system not being able to catch up with technology. I can say that I've never had a discussion like this when I went to journalism school...but then, the only way to access the web when I was in journalism school was through Gopher....(and that does date me....).

One of the things that helps safeguard sites like this one is that it's established itself as primarily a news site. News sites (and news organizations in general) are allowed a bit of editorial freedoms, and can get away with some occasional lapses....(not that I've ever recalled that happening here!)

The catch in the Pets Warehouse case is that it's not being reported via a news method, it was posted in a forum. This means that it's not being generated from a news source, but being generated via people's personal opinions.

The part that is alarming is this: If I get bad service in any retail situation, I have a right to the following:
1) I can tell others about my experience
2) I can render the opinion that other people should not frequent at retail store.

Mr. Robert Novak (PetsWarehouse.com owner) feels that we cannot tell others about our experience and will sue you to prevent you from doing so.

On top of that, he's suing ISP's (like CompuServe), search engines (Google), the Better Business Bureau, and even including John Doe and Mary Roe (common legal tactic to include anyone who he deems necessary that is sueable without naming them specifically) to prevent anyone from speaking out about their bad experiences.

To add insult to injury, one of the lead defendants was able to find his credit card information by changing the online invoice URL slightly. (http://www.libn.com/Column_details.cfm?ID=1249)

Now, to play Devil's Advocate - there is a fine line between opinion and libel/slander. If you can convince a court (and have deep enough pockets) that you were hurt financially because of the opinion, you can sue the opinionmaker. The burden of proof is on the plaintiff over the fact that you do need to prove that you did lose money.

In general: The web has grown to the point where we treat it as a part of every day life. Eat, drink, talk, websurf. Free speech on the internet should have the same privleges as free speech via your vocal cords or via print medium. It's very disconcerting that people like Mr. Novak here can do such things to web surfers when he doesn't have the wherewithall to sue people that verbally expose his alleged poor customer service practices.

[WyattEarp]

This is right up there with an airing of the Oprah Winfrey Show where a meat distributor claimed she said their meat had the mad cow disease. Slander is a touchy subject because almost everyone talks about bad experiences they had.

What has to be proven is that (1) it's false statements, (2) it caused a loss of business, and (3) it was intentional. None of which except the second seems to be true. The loss of business seems to be his own fault providing poor customer service. The worse part is that if every company started sueing because someone spoke about their poor service the market will be flooded with worse products than we already have and no one will know the good from the crap. :)

We can only hope a judge and jury are in their right minds and throw this frivolous lawsuite out. And BTW lawyers always look for people who will vote for their client even if they know nothing about the case (past experiences unfortunate but true).

[someppcuser]

..., but yeah it really sucks that people can win without wining just cause the defendant cant afford to pay for his defense.

Lately there was a story about a small compny suing every E-commerce site because they have patents on selling stuff in an electrinic form. Small attecked companies had to pay. We'll see what Amazon decides to do...

What's so scary is that I openly blame M$ for a lot of misconducts. I guess they could sue me for difamatory speech? I'll have to refer to them as M$ then, that one company that swalllowed the US ;)

[bdegroodt]

As owner of website where opinions are regularly espoused, this scares the hell out of me.

It's not whether or not I'm right, it's can I afford to defend myself. Truth be told, I doubt I would be able to, and I imagine a lot of you fit into that category as well.
Ditto! This is exactly the worst part of defending freedom of speech. It's not really free when you have to pony up for lawyers and such now is it? Might I take this opportunity to remind all of you about our friends at http://www.eff.org/? :!:

[Paragon]

My only comment is.......I should have been a lawyer.

Ah watch some bonehead lawer is going to sue me for that. :D......or that!

Dave

[shindullin]

There is nothing stopping him from suing anyone he likes. Whether he would win, of course, is a different question. This guy is clearly a bully and bullys have existed since the dawn of humanity. Only difference is that now they beat us down with money instead of with clubs.
Kati42 made an interesting suggestion that maybe the defendants in that case should countersue (maybe malicious prosecution?) and have a lawfirm take that case up on a contingency basis. That's a really interesting idea. 8) Get someone to do the work for free and if you win, the attorney will probably take most of the money but you get vindication. BTW, juries do set the damage amounts in some cases. They are the fact finders and so set the amount of both actual damages and punitive damages. Their decision is then subject to review by the appellate courts. Remember that old lady who sues McDonalds for hot coffee and won $10 million? That was the jury award (mostly punitive damages) and it was later reduced to some relatively small amount by the appellate court (don't remember exactly how much but it was like 20k or some thing like that - apparently she did have some pretty bad burns and had to get skin grafts).
In Europe, loser pays all the legal fees of the winner. Not too many sue because of that. It would be a chill on frivolous lawsuits, but it would also keep ma and pa Smith from suing big pharma for killing their kid with bad medicine. The US just decided it was more important to let David slay Goliath and this case is one of costs of doing that...
Not really sure where I stand on that.

[Sslixtis]

So where's the ACLU on this one? Maybe they could be convinced to take up the defense of Civil Liberties on this one? That would atleast give poor David a bigger stick.

We can also hope that atleast one of the members of the list/site are lawyers themselves and can help out.

As far as Mr. Novak is concerned, Hades will freeze over before I or anyone I know will buy anything from Pets Warehouse. :evil:

[Jhokur2k]

"The opinions expressed on this website are of the visitors and its members. They may or may not reflect the opinions of management or personnel of this website."

Sounds like one of my favorite shirts - The voices in my head are my own and do not in anyway reflect management or the voices in their heads.

*Not defending any company in any way here*
If the trial does proceed, the laywer better appreciate, understand, and express the differences between truth, opinion, and slander. The differences are clear cut and dry, even though opinion and truth may be the same. The problem with our system is telling someone a company sucks is opinion. Printing it can be considered slander, because it influences others who do not have a set opinion to create one, and there is viable evidence. Freedom of speech has become freedom to comply to a set thinking. Choose or lose, so to speak.

[sponge]

We'll see what Amazon decides to do...


No, you won't. That guy is simply going after all the little E-Commerce sites, knowing that they'll give in without a battle. It worked, for a while, but one small chocolate company is fighting back, and things are looking somewhat positive for now at least.

[someppcuser]

Hooray!!! Thanks for the update ;)

[ECOslin]

My Opinion:

All PDAs suck, but for different reasons and degrees. There is no way that one item, no matter what it is, will satisfy everyone. I could hand out 10 glasses of water to ten people and eight people would find something wrong with them and the other two are just being polite.

This model's D-pad is spongy, the LCD gets dusty, the frame makes squeaky noises, it doesn't have a feature, it has the wrong features, it has too many features. Activesync doesn't work right with it, this model of CF card doesn't work with this model of PDA, I can't make out the screen in sunlight. The sound isn't right, the right media player won't install, it won't run something, it won't install something, it won't display something.

You can't make everyone happy at the same time, and they're plenty of folks willing to make money off of that fact. You can't stop them, but you can countersue. :)

[vincentsiaw]

geez, better they don't make a product if they can't take any critism or make it a 100% satisfying product with no flaw, then i will stop my crtisim :roll:

[LarDude]

This article scares the bejeebers of out me! 8O .... How long will it take for a Pocket PC OEM to come knocking on my door for the negative things said about them in the forums, or on the front page? It's a scary concept isn't it? What's the line between expressing your opinion and slander/libel? I'm not a lawyer, and I don't play one on TV, so I'm pretty much in the dark on this one...but this article made me wonder how long it will be until it happens here? It would be public-relations suicide for a Pocket PC company to sue Pocket PC Thoughts, but some companies don't care about what people think of them.


As a precautionary measure, perhaps one could also spend a few hundred dollars to register as a "shell" corporation (e.g. Pocketpcthoughts Inc), and have the corporation "own" the website. At least one may then be able to limit one's personal liability should lawsuits/countersuits arise. In the event that the lawsuit/countersuit goes badly, the "shell" corporation could then just fold.

[Duncan]

It is kind of ironic that this sort of thing happens so easily in the US - where you have the Constitution, Bill of Rights and various ammendments clearly marking freedom of speech, freedom of opionion and freedom of the press - where it would be a lot harder for this to happen in the UK (not unheard of though - and sadly getting easier...) where freedom of speech and press etc. are (archaically) 'granted' by the Crown...

Anyway - anyone sued for opinions, or hosting opinions of others, has one simple defence to offer - opinion is free...

If I say 'Jason Dunn runs a poor badly put together website' (not, I hasten to add, an opinion I hold!!!) - that is clear opinion as it can't be proven. If I say 'Jason is paid by Microsoft to make the Pocket PC look good' - then I have made a statement claiming a fact that can be proven or disproven - so potentially libel. If I say (on this site) that 'HP deliberately release Pocket PCs with flaws' - that is my libel and not Jason's. He is clearly covered by his disclaimer - though it is not really needed.

BTW - in England and Wales (as distinct from the UK - Scotland has its own legal system) the losing side in any libel or slander case are usually made to pay their opponent's costs. Sometimes costs awarded can be deliberately low in order to make a point - one judge awarded costs of £0.01 to a celebrity who won a libel case against a newspaper that was a really petty one (something about him not being good in bed! :roll: )

[fyiguy]

Geesh if this were true and legal, I am surprised places like F***ed Company, Epinions, PriceGrabber, and many more sites like this have not been sued as well for posting the similar and even more damaging things...

If it is an honest experience or opinion, then you don't have much to worry about...

[Duncan]

For libel or slander to be 'proven' a company would need to show that the 'offenders':

a) Intended harm
b) Were lying (as opposed to mistaken)
c) Had not sufficiently 'qualified' their statements.

People get away with what is technically libel all the time. Mind you it isn't hard to get around libel laws:

'I heard that...'; 'I believe that...'; 'Allegedly...'; 'Some have said that...' - and you are no longer making a statement of fact but rather repeating a rumour or mentioning that 'some' hold a particular thing to be a fact! :wink:

[Kati Compton]

I have to wonder who is the legal representative of this company. I bet he/she is getting paid regardless of outcome. ;)

[Perry Reed]

What's really sad is that some of the defendants are settling rather than fight. It's a shame...

[Kati Compton]

It didn't say what they were settling for. While I might not out of principle, maybe they offered the guy $50 to leave them alone. Or it could be a friend of this person posing as a regular forum member. Then this person "settles", which might spur others to do so as well.

Or I'm being too devious and overthinking the situation. ;)

[Janak Parekh]

BTW - in England and Wales (as distinct from the UK - Scotland has its own legal system) the losing side in any libel or slander case are usually made to pay their opponent's costs.
I wish that were the case here. However, the existing system is too ingrained for this to happen anytime soon.

It didn't say what they were settling for. While I might not out of principle, maybe they offered the guy $50 to leave them alone. Or it could be a friend of this person posing as a regular forum member. Then this person "settles", which might spur others to do so as well.
Almost definitely for much less than the legal costs. Most legal skirmishes end in settlements. If you've never been involved in a lawsuit, you have no idea how expensive it is, even before you get to court -- depositions, legal advice, certified letters flying back and forth costs lots of $$ in legal fees.

--janak

[Pony99CA]

Truth IS an absolute defense in Libel and slander cases. Also, journalists and their publications (which your front page would presumably qualify as) have higher protections, they would have to prove not only that it was untrue but that their reputation had been irrevocably damaged AND that the inaccuracies were stated ON PURPOSE. A very difficult standard. As for the bulletin boards, I'm assuming you already have a disclaimer somewhere that the opinions stated are those of the user and not necessarilly thoughts.

My understanding of slander/libel laws is that there are three (maybe four) points you have to prove to win a lawsuit.

The statements must be untrue. This is what spawned the saying "Truth is an absolute defense."
The statements must be malicious. That's why comedians can't easily be sued for slander.
The statements must have caused damage to the reputation of the plaintiff. Saying "Osama bin Laden sleeps with goats" may meet the first two criteria, but would it really damage his reputation?
The statements must have caused an economic loss. This one was told to me by a lawyer, but I'm not sure if it applies to someone who isn't in business.

My understanding is that these apply to any defendent, not just journalists.

Steve

P.S. I'm glad I've never said that Robert Nowak of Pets &lt;deleted to avoid "trademark infringement"> is a freaking moron who should be castrated. :-D

[Pony99CA]

Printing it can be considered slander, because it influences others who do not have a set opinion to create one, and there is viable evidence.

Actually, that would not be slander; it would be libel. Libel is printed, slander is spoken.

Steve

[Pony99CA]

I have to wonder who is the legal representative of this company. I bet he/she is getting paid regardless of outcome. ;)
The article cited said that Nowak was representing himself "pro se", so he's acting as his own attorney. He may have legal advice, but he doesn't seem to be using it. :-)

It didn't say what they were settling for. While I might not out of principle, maybe they offered the guy $50 to leave them alone. Or it could be a friend of this person posing as a regular forum member. Then this person "settles", which might spur others to do so as well.

Or I'm being too devious and overthinking the situation. ;)
Or you didn't read the entire article. :-) Here's what they said:


Dan Resler agreed to pay $4,150, according to the "stipulation of settlement" as posted on the defendants' information site.

Resler was the person who made the original comment about not buying from Pets &lt;deleted to avoid "trademark infringement">.

There was also this:


Before the court had even officially accepted Novak's amended complaint, VanDersarl, along with a number of the original defendants, including Resler, settled. "I have three kids and bills to pay," says VanDersarl. "It's terrible when you believe in something so strongly, but you have to look at the reality of it, which is that I couldn't afford my own defense." She declines to mention a specific figure, but says that she has spent "in the thousands" out of her own pocket. As part of the settlement, she turned over the rights to her domain to Novak, because she'd shut down PlantedTank.com when she was named in the suit.

I didn't see information on any other settlements.

Steve

[Pony99CA]

Ya know I'm starting to wonder if there should be new rules applied to lawsuits in that if the plaintiff doesn’t win the lawsuit they have to eat the defendants defense attorney bill. Might make idiots who brings such suits think about if their complaint is legit or not. (Coffee spilling woman anyone?)
That's something I've suggested for a long time, but slightly modified. You make the loser pay the lesser of his legal costs or the other party's costs. That way a big corporation can't throw $2 million of lawyers at you to make you worry that you'll end up owing $2 million if you sue them.

Another reform I've suggested is having punitive damages (those intended to punish the defendent, not compensate the plaintiff for losses) go to charity, not the plaintiff as they do now. You can read more about my philosophy on my Web site (http://www.garlic.com/~shm/legal07291999.html).

Steve

[DavidHorn]

AS far as I know, you are only liable for libel (in this case) or slander if the things you have said are not true.

[sgyee]

I have to wonder who is the legal representative of this company. I bet he/she is getting paid regardless of outcome. ;)

The owner of PetsWarehouse.com is representing himself.

[Jhokur2k]

Actually, that would not be slander; it would be libel. Libel is printed, slander is spoken.

Steve

Eh I should have remembered that from Spiderman :P

[Kati Compton]

Or you didn't read the entire article. :-) Here's what they said:


Okay okay - you caught me. I only read page 1. :P I'm usually more thorough, but I was busy.

Plus, I figured the more I read the more upset I would be, and right now I need to reduce stress...

[Daniel]

Here's a word to keep in your vocabulary: allegedly. It's a good one, apparently is also good. :) You could also do this:

&lt;opinion>
It's a shame that this sort of behavior is tolerated by the courts in what appears to be (there you go, add that to the "it's an opinion" marker list) a baseless case. I guess the only thing that could make me side with the plaintiff would be that one of the people making comments on the site was working for a competitor.

I can't help but feel sad that the US seems to be so driven by money, in some cases this drive is what makes the US great in others it is cause for great concern. Not that the US is unique in this, just that it is so pronounced.
&lt;/opinion>

Daniel