Internet Defamation: What Lawyers Need to Know

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Transcript

Digital Detectives

Internet Defamation: What Lawyers Need to Know

04/18/2019

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Intro: Welcome to Digital Detectives, reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches; not theory, but practical information that you can use in your law practice, right here on the Legal Talk Network.

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Sharon D. Nelson: Welcome to the 102nd edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises, a digital forensics, cybersecurity, and information technology firm in Fairfax, Virginia.

John W. Simek: And I am John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is, ‘Internet Defamation: What Lawyers Need to Know.’

Sharon D. Nelson: Before we get started, I would like to thank our sponsor. We would like to thank our sponsor PInow.com. If you need a private investigator you can trust, visit pinow.com to learn more.

John W. Simek: Our guest today is Joe Meadows, a former DOJ Attorney and current partner with Bean, Kinney & Korman in Arlington, Virginia.  He focuses on Internet defamation, cyber attacks and business dispute litigation. In his 20 years of practice he has tried cases before Judges and Juries, arbitrated commercial disputes, and argued trial and appellate matters in Federal and State courts.

It’s great to have you with us today, Joe.

Joe Meadows: Hi John. Hi Sharon. Thanks for having me on your program.

Sharon D. Nelson: Well, we’re delighted you’re here, and Joe, we go back a little bit together, you might explain to our audience how we know one another?

Joe Meadows: Sure. We worked on an ABA Expert Witness Article it was called ”Responding to a Cyber Reputation Attack: A Game Plan and a Digital Forensic Expert” and after we worked on that article together we’ve kind of collaborated on anonymous online defamation cases and I’ve been grateful to use your guys’ forensic investigators.

John W. Simek: Well, that’s great. So how did you get into this particular practice area, Joe, and what are you doing now? I mean, like this whole cyber stuff certainly is hot and it’s fairly new.

Joe Meadows: Yeah, it is. It started with a jury trial back in 2011 and it was in a completely unrelated area of the law to what we’re talking about today.

I was working with David Hammond, a good government contracts lawyer at Crowell & Moring and he asked me if I knew anything about defamation suits against unknown John Doe’s, and does any good junior lawyer speaking to a partner knows to do. I’m sure I said, absolutely, I know all about that. But, actually I can’t remember what my response was to him, but I agreed to help Matt on a matter. It blossomed into a full-blown John Doe defamation case and actually continues onto this day since 2011, but because of that one case I really got interested in the issues and became a resource on defamation and John Doe defendants and have handled a number of related cases ever since then.

Today, I’m with the law firm of Bean, Kinney & Korman in Arlington, Virginia. It’s a full-service firm serving the DC metro area. I’m helping them grow their own practice of defamation and cyber attack matters on both sides of the “v.” plaintiff or defendant, and we like to defend names, brands and reputations where we can.

Sharon D. Nelson: Well, I think the first thing that I would want to know, if I didn’t understand the subject, is how do you define Internet defamation?

Joe Meadows: It’s a good question. It’s one that I’m asked quite a bit, but it’s a simple answer really. it’s defamation in the 21st Century. So, the first part, defamation, what is defamation? It’s the publication of a false factual statement tending to lower one’s reputation to a third party that was made either negligently or maliciously and causes harm.

The 21st Century element of Internet defamation brings into the hot issues today that deal with John Doe anonymous de-famers brings in the informality of the Internet forum and whether or not that would transform a statement of fact into a protected opinion. It brings into play where one may sue or be sued for defamation if a negative statement was just posted online, and it also brings in issues that I know websites and social media and Internet service providers are interested in, how they may or may not be responsible for defamatory statements.

John W. Simek: Well, I tell you, Joe, with all the social media and Internet activity going on you’ve got to be a really, really busy guy, certainly.

(00:05:04)

Joe Meadows: I am. I tell you I’ve got — I’ve been developing a lot of new cases and making a lot of new connections. I get emails and calls all the time and a lot of them are ones were for economic reasons we’re not able to do a lot because these folks are – they are in situations where they’ve kind of reached their plateau and what they are able to do legally, the law doesn’t provide any extra remedies for them in the civil context and sometimes I have to let them know that that might be something they need to talk to law enforcement about or even work with forensic investigators like yourselves.

John W. Simek: Well, are there any particular issues, Joe, that the lawyer should be watching out for?

Joe Meadows: Well, in this Internet defamation area I’d say we’re really dealing with all of them because we’re dealing with the complexities of the First Amendment. And I have to say as an aside I hated Constitutional Law in law school. You had to read way too many cases.

John W. Simek: Did you hate it more than math?

Joe Meadows: I actually liked math.

John W. Simek: See.

Joe Meadows: But the sitting there and reading of these old, old cases where you didn’t have a codified set of rules and it was all common law rules and structure, it was not interesting to me at least in law school, but I guess I don’t mind it now.

Sharon D. Nelson: Well, that’s good considering what you chose for a career.

Joe Meadows: Yeah, but I guess for purposes of our discussion and your listeners, I would single out a couple issues that really lawyers need to think about if they’re in an Internet defamation type of matter, and the first issue is defamatory impact. For a defamation case you have to have a statement that has a defamatory impact, meaning it lowers the estimation or view of someone in the community, reflects shame or disgrace upon them.

And if you have a statement that is accusing someone of committing a crime or engaged in immoral or unprofessional conduct, you actually have a subcategory of defamation called per se defamation and that can sometimes lead to automatic damages, but if you — and the defamatory impact issue here if you just have statements that are embarrassing, unpleasant, annoying or something that is pure opinionated, that’s usually not defamatory and courts are going to quickly throw out your case if you’re going to file one.

I’d say that the second issue that is of particular interest for purposes of our discussion is malice is a big issue. Malice means that you have to prove defamation by clear and convincing evidence that a statement was made with knowledge that it was false or that the person who made it made it recklessly disregarding its truth. Now, this issue of malice only comes up when the defamation plaintiff is a public figure or an official, I mean, you can think a politician or a celebrity, they have a higher standard when they bring defamation cases, but if you’re a private individual or you’re a private company and you weren’t out there thrusting yourself into the public on a public controversy then you only need to show that a defamatory statement was made negligently. Those would be probably the two issues.

Sharon D. Nelson: Yeah, and I’m sure people also would add to that that they get confused about where you can sue or be sued for Internet defamation particularly in the digital error.

Joe Meadows: You’re absolutely right, Sharon. I’ve seen a lot of cases recently on that exact issue dealing with personal jurisdiction. So here you are with an Internet defamation case and the complexities of the First Amendment, complicated issues dealing with malice or dealing with defamatory impact. And oftentimes the decision comes down to an old-school concept of personal jurisdiction whether a court has the ability to grant relief against someone who may be from out of State.

So I oftentimes tell folks that before you invest time and money pursuing a defamation case you want to make sure you’re not going to get tossed out on a technical jurisdiction ground. I have read a case it was called Hearts with Haiti and Maine, it was filed in 2013. It went to trial in 2015, a jury awarded the plaintiffs over $14 million at the trial level but in 2017 the First Circuit dismissed the case on jurisdictional grounds. So here you had these defamation plaintiffs and their lawyers investing time in a defamation case that I believe was born out of emails and they got a great result only years later to have it completely vacated, because they — there was a jurisdictional defect to the case.

(00:10:07)

So for at least when we’re talking about where you can see someone for Internet defamation, the location jurisdiction rule that I often follow is sue the defendant in their home state for an individual that may be where they are domiciled for corporations where they’re incorporated or make sure you sue the defendant where you know they purposely directed their statements, which — that’s where I’ve been seeing a lot of this in a case law this purposeful direction concept gets a little tricky there with Internet defamation when someone is simply posting something online, just the mere posting online is not going to subject the poster to the jurisdiction of each State where that information is read. You need a little bit more like the poster traveled to that jurisdiction, did business in that jurisdiction or made other statements or references that were clearly directed at the State where the case was filed.

John W. Simek: Well, before we move onto our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to the Digital Detectives on the Legal Talk Network. Today our topic is ‘Internet Defamation: What Lawyers Need To Know.’ Our guest is Joe Meadows, a former DOJ Attorney and current partner with Bean, Kinney & Korman in Arlington, Virginia. Joe focuses on Internet defamation, cyber attacks and business dispute litigation.

So, I don’t know about you, Joe, but I am always ruled by deadlines. So, is there a time limit for filing a defamation lawsuit?

Joe Meadows: Sharon, it’s basically and this would be the same in any kind of civil litigation, it’s the Statute of Limitations that’s going to govern your claim and that’s going to be different from State-to-State. They are for defamation as opposed to other claims pretty short. Most jurisdictions say you have one to two years from the statement’s publication or the injury to sue for defamation.

In the Internet defamation context, the limitations period can restart however if it’s republished in a different Internet forum. The interesting issue in this area is where you have later online publications that are tied to an earlier online publication and then when the limitations period began some jurisdictions say that the later one is tied to the earlier ones, they start with the earlier date. Some jurisdictions have not gone that way yet and to even complicate the matters further a later republication may never be tied to an earlier publication if it’s materially different in some respect.

But, the general rule is, if you’re representing a client, don’t even get messed up in these issues, avoid the complication, file your suit as soon as you can.

Sharon D. Nelson: That does seem the simple answer for a client, right?

Joe Meadows: Yeah.

John W. Simek: Well, Joe, there’s a lot of things that happen in cyber and — they — I know when we get Sharon — I get pretty juiced up when we read some of these security reports and — but the term that’s always there is trending, phishing emails are trending upward or ever but is there anything that that you’re involved with in your cases and your activities that you would say is basically trending cases?

Joe Meadows: Well, I do follow the trending cases quite a bit and there usually is something coming out every single day. I’ve been following the trending cases like the Pedo Guy defamation suit against Tesla’s Elon Musk, Johnny Depp has a defamation suit against his ex-wife that’s in our kind of a backyard of Fairfax County here. You’ve got the Summer Zervos’ and Stormy Daniels’ defamation suits against the President. I mean, it keeps going, you’ve got —

Sharon D. Nelson: Don’t go there. Just don’t go further into that one.

Joe Meadows: No, no. Well, I’ll go — I tell you what, some of these though they without getting into either the politics or the sensationalist facts that come out, they all do raise really interesting legal issues.

(00:15:04)

The Johnny Depp case putting aside the facts of that one, that raises personal jurisdiction issues. The case is in Virginia but both Depp and his ex-wife are from California. The cases involving the President deal with presidential immunity. So the President says he’s immune from that in his position as President, that’s going to probably go up to the New York highest Appellate Court.

The Daniels’ case that raises choice of law issues, I blogged about that one, this one’s interesting from a choice of law aspect and that Stormy Daniels filed her case in New York. That case then transferred — that court transferred the case to California, the California court then applied New York procedural law only to determine whether New York or Texas defamation law should apply. And in the end they decided Texas defamation law applied, but I mean, they do really raise interesting issues, all of them.

Sharon D. Nelson: So, what’s the one major case in this area in the past year?

Joe Meadows: Well, it’s not going to be one of the sensational Presidential Johnny Depp or Pedo Guy cases, that’s not the one I would pick. I would pick the Yelp case out in California. It deals with Section 230 of the Communications Decency Act, which generally provides websites immunity from defamation liability. It started with a lawyer Dawn Hassell. She had sued her ex-client Ava Bird for defamation. Bird had posted negative statements about Hassell’s legal service on Yelp.

Bird never defended against the suit at the Trial Court level and Hassell, the lawyer obtained a default judgment. In that default judgment Hassell included language requiring a takedown order against Yelp who wasn’t even named a party in the suit to remove the defamatory posts. Yelp then got involved, appealed, that went all the way to the California Supreme Court and the California Supreme Court agreed with Yelp that under Section 230 Yelp was immune from that takedown order. Hassell then appealed to the U.S. Supreme Court and only in this January the U.S. Supreme Court denied cert.

So, where that leaves us is the controlling highest court in California decision. It was a 4-3 plurality, so that kind of tells you that these issues are decided at a very close level, and that court basically says Section 230 provides very broad defamation liability for interactive computer users which means under the Statute Internet service providers and websites who really serve as a conduit for other people’s statements.

Sharon D. Nelson: Yeah, that’s been in the news a lot, just what’s going to happen with all that when there are conduit.

Joe Meadows: Yeah, and the real problem with that is, while I get that from the side of the websites and you want to encourage freedom of speech on the Internet, for someone who’s a victim of defamation, the defamed whether or not they have a true effective remedy if they cannot get a takedown order for something that has been adjudicated defamatory, that’s kind of the two issues that are competing right now.

John W. Simek: Well, Joe, I was kind of hoping that you’d talk about some of the juicy stuff, but are there any other issues like that?

Joe Meadows: Oh I can. If you like me to, I can. I can get into it.

John W. Simek: Sharon said, no, so I guess we have to listen to that. But, are there any other issues that you’re currently following?

Joe Meadows: There are. It’s really what got me into this case when David Hammond had asked me to look into John Doe anonymous de-famers and so I’ve kind of become someone who really is interested in that area and the First Amendment issues surrounding somebody who wants to remain anonymous yet speak online. From a legal perspective the standards to unmask a John Doe vary from State-to-State. They vary within the Federal and State court systems. This is yet another area where the U.S. Supreme Court like Section 230 has not yet weighed in.

Those standards generally have three common elements. The notice of your defamation claim to the John Doe, as the defamation plaintiff you have to show some level of proof of the claim whether it’s a good faith belief in your claim or whether you have enough evidence to override summary judgment with respect to the claim and then as the defamation plaintiff you have to show a legitimate need for Doe’s identity that outweighs any First Amendment anonymity interest. If all you want to do is unmask a John Doe that’s not going to get me very far in these John Doe cases.

(00:20:03)

So from the legal perspective those are kind of the main issues. From the kind of a forensic perspective, what I find interesting is working with folks like yourselves and trying to figure out do we already have enough information in terms of the content or timing or method of the statement where we might know who this John Doe is, and as you guys know, you can use IP addresses, geographic locators, cookies, username tracing and sometimes that can help you figure out who’s behind someone trying to hurt you.

Sharon D. Nelson: Well, we always loved the fact that the people who do this kind of thing, the people who do anything that is online, I think they are untraceable and there is a great deal of satisfaction in proving them wrong.

Joe Meadows: Indeed, indeed.

Sharon D. Nelson: And as long as those people exist we’re going to have a job. So I’m okay with that.

Joe Meadows: Well, keep up the good work.

John W. Simek: We’re not quite as solid though as the Collar ID used to be, but we’d like to have more solid evidence. It’s fun.

Sharon D. Nelson: It’s all fun, it’s all fun, and it’s fun to work with colleagues like you. So tell us we always — at the end here we always kind of wrap it up with, okay, we’re going to give you some tea leaves or some go to entrails or whatever you prefer and — or crystal ball, whatever you want, and tell us what you see in terms of future case development in this area.

Joe Meadows: Well, I thought about that because I was expecting you to ask me something like that. It’s probably three areas that I see there being some future development, and the last one that I’ll tell you about is kind of way out there in the more distant future.

The first kind of two would be weather and how the Supreme Court is going to get into this Section 230 website immunity from defamation. We are seeing more vocal critics of the breadth of that immunity. So we either will see voluntarily websites amending their terms of service or otherwise agreeing to take down orders or perhaps Congress is going to get involved and amend or revisit the Section 230 website or a statute, so that will be something that I’m looking for.

I continue to think we’ll see these personal jurisdiction cases continue to develop. I read a few months ago about a judge in Philadelphia who requested the High Court in Pennsylvania to reevaluate the traditional venue rules in defamation cases in light of the Internet in social media and technology of the modern era. So, I do think we’ll see some more development of those cases as we go forward.

And I said the last one is something in a more distant future and this deals with Artificial Intelligence. I do expect at some point we’re going to see the First Amendment law develop around Artificial Intelligence. As you know, Artificial Intelligence and speech — and AI is developing rapidly.

I read somewhere where experts are predicting that by 2024, AI is going to be translating languages, by 2026 AI will be preparing high school essays, by 2049 AI will be writing best-selling books. So that shows you how rapidly that’s growing. So we could even imagine a day when AI may sue and be sued in connection with its own non-human speech and course we’ll have to contend with AI’s claimed First Amendment rights, and I know it’s a little creepy but I can kind of see this becoming reality someday.

Sharon D. Nelson: Well, they’d have to make a more European Union kind of rights and responsibilities et cetera for AI because in this country at this point we would have to sue the person who produced the AI, not AI itself, but I can see that —

Joe Meadows: You are exactly right.

Sharon D. Nelson: But I can see the day coming, Joe, and I promise you, if that day comes we’ll have you back for round two.

Joe Meadows: I’m in, but I hope next time AI is not going to take my place though.

Sharon D. Nelson: Yeah; well, we could be interviewing Joe Meadows AI. That would be all right too.

Joe Meadows: Right.

Sharon D. Nelson: We want to thank you, Joe, for being our guest. This is a subject of course that we deal with a lot in digital forensics and tracking down where some of this stuff comes from is really — to us of course it’s completely fascinating. But I think it interests a lot of people out there because a lot of people find themselves, lawyers in particular, find themselves defamed on a fairly regular basis, and don’t know what to do about it, don’t know how it works, and you’ve given a very, very cogent and concise explanation of all of that and so that’s a lot of fun and I hope we get to continue to work together for a long time. So thank you so much for being our guest today.

(00:24:58)

Joe Meadows: Well, thanks Sharon and thanks John. This has been fun on my end too.

John W. Simek: Well, that does it for this edition of Digital Detectives. And remember, you can subscribe to all the editions of this podcast at legaltalknetwork.com or in Apple Podcasts. And if you enjoyed our podcast, please rate us on Apple Podcasts.

Sharon D. Nelson: And you can find out more about Sensei’s digital forensics, technology, and cybersecurity services at senseient.com.

We will see you next time on Digital Detectives.

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Outro: Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on legaltalknetwork.com and in iTunes.

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