South Carolina Intellectual Property Litigation

Intellectual Property & Litigation SC

FaceBook Defamation – WARNING: you may not “like” this

Posted in Copyright, Defamation, General, Libel, Mediation, Policy, Slander, Trademarks

If this title, FaceBook Defamation caught your attention, chances are you already use FaceBook, Twitter, LinkedIn, Instagram, SnapChat or other social media platforms. Consider this, FaceBook alone claims as many as 968 million average daily users, and over a billion users on busy days. Yes, that is average daily FaceBook use equal to three times the 2014 U.S population of 318.9 million. How do you “like” that?

According to EbizMA, Twitter is second in users with over 300 million users, followed by LinkedIn, Pinterest, Google+, Tumblr and fast growing Instagram. You (or your business) could be defamed today by someone in a remote Asian village, or by an domestic online avatar. More likely, one of your so-called FaceBook friends will defame you. Online defamation also occurs in obituaries, comments to news / sports articles, Yelp reviews of your business, the RipOff Report, or anywhere on the Internet.

Let’s look at how defamation on FaceBook happens and on other social media platforms.

What can you do about Twitter / Internet / FaceBook Defamation?

Good question! In the U.S., the constitutional right to free speech effectively equates to the right-to-defame-and-be-sued. The comments may be malicious, stupid, reckless, rash, passionate, mistaken, negligent, etc., but they can give rise to an action for general, special, and punitive damages. There is a possibility of obtaining a permanent injunction with a final judgment of defamation, however, even then, the speaker could say the same thing in a slightly different way.

You may also ask the search engines (e.g., Google, Yahoo, and Bing) to De-Index the URL.

Assuming a court finds that follow up comments are defamatory and violate that court’s order, you could presumably have the speaker / writer placed in jail for contempt of court. However, ask yourself, when was the last time you read a story where this occurred in the U.S.? Likely “never!” The Seventh Circuit recently addressed the libel injunction issue to provide some clarity. As noted in the article by Professor Volokh in the preceding sentence, as was noted here before, the context of a defamation, particularly if per quod instead of per se, is difficult to address in a forward-looking rule that is necessarily “narrowly tailored.”

The Biggest Problem with most social media defamers

They have no accessible assets. Damnit you say. What about that big house in the gated neighborhood? mortgaged. Lakehouse? also mortgaged. Mercedez-Benz S-Class? leased. 401(k)? untouchable! Damnit you say again! Judgment proof? Practically, Yes, the average Joe or Jane has little to nothing to lose. When was the last time you “negotiated” with a 3-year old over a popsicle on hot summer day? As Churchill stated, “never engage in a battle of wits with an unarmed man.”

For this reason, the typical ‘Merican notion: “we’ll sue them into the next century, take every dime, then go after Grandma,” is ill-fated. No sensible attorney will take a defamation case on a contingency if the defendant is insolvent. So those with financial resources have an advantage, because they can afford competent counsel and pay hourly to pursue a case to judgment, or otherwise into oblivion.

If sued, an asset-free defendant may be wise to take a default judgment, confess to judgment on better terms, or even worse, they may answer and defend pro se. When was the last time you prepared for and travelled to a deposition only to discover the defendant / witness does not show up? At least you got to know the court reporter a little better.

Can I get some concrete options, please? Sure, Here are Seven (7) …

1. Do Nothing: Yes, that is right. We tend to think first about how everything affects us. Often what seems a mountain today is a mole-hill next week. Engaging in a dispute over these matters is will require a tremendous amount of emotional energy, time, money and more. Ask yourself:

(i) Does your son, daughter, or elderly parents need you?

(ii) Is there any fruit on the tree, or mostly just more despair and distractions?

(iii) How else can I come to terms with this?

2. Call and Speak to the Person: Many people cringe at this, however, if the defamation to an individual, much useful information can be obtained from a telephone call. This is information you might not ever from a an impersonal or threatening email or a letter. The whole affair could be a misunderstanding, which is likely if the statements are from a friend / former friend. The call may resolve the dispute and you have your friendship back, even better than before.

3. “Mediate” the Matter with a Mutual Friend / Respected Colleague / Minister / Counselor / Trained Neutral, etc.: This option is similar to #2 above, except you will be using the power of a mutually respected “mediator” to help you both resolve the dispute, misunderstanding, etc. The mediator must be able to help, not hurt the situation, and a professionally licensed and trained mediator, with clear ground rules is recommended. Face-to-face contact is not required, but reconciliation and apologies probably should be mediation goals.

4. Send a Cease-and-Desist Letter: As discussed above, this may just serve to kick the sleeping tiger who was growing tired of defaming you and cause them to go on yet another passionate tirade against you. This can be a very good option for a business defamation, or if the potential defendants have assets or possibly insurance to cover the defense of actions in question. many defamation actions will involve intentional conduct of the defendant and, therefore, will not (in theory) be subject to defense or indemnity by insurance.

5. File a Lawsuit: This may get the attention of the defamer, however, again, if they have no assets, they have nothing to lose and could simply take a default judgment, or worse, answer and defend the case pro se. Any injunction you may obtain will likely be too late and too narrow. If the defamation is to your business, the identity of the defendant (Jane Doe) may take months to discover, and could require legal action / subpoenas in multiple states.

6. Utilize Platform Policies to Request a Take Down of Offensive Comments: Sounds promising, however, platforms are only “required” to act on infringement of registered trademarks or copyrights. Defamatory comments, on the other hand, will only be taken down according to platform policy. Policing for defamation generates no $ and no liability (see CDA below), so it is not done. To get offensive comments taken down by FaceBook, Twitter, LinkedIn, Pinterest, etc., you need to show a defamation per se, false statements and respectfully ask for take down per their terms of service.

7. “Ask” the Search Engines to “DeIndex” the Offensive URL: This option was formerly the subject of published Google procedures, but now is left to their discretion, much like social media policies referenced above and discussed further below. The search engine may remove very specific URL’s adjudged by a court to be violations of law. Once a judgment is obtained (perhaps by default, confession, etc.), providing it and ask in as narrow a fashion as possible for DeIndexing the URL’s.

The URL’s may still be there on the “www” but if not reported in the search engine results, good luck finding them.

Social Media Terms of Service / User Agreements

The social media User Agreements / Terms of Service will limit liability contractually for content posted by third-parties, and will also reserve rights to take down material in violation of the User Agreements and / or Professional Community Guidelines (LinkedIn). As the cases show, even though the Communications Decency Act of 1996 (“CDA”) grant of “immunity from suit” is broad and almost bullet-proof, lawsuits continue attempting to expand upon / create further exceptions.

Twitter, LinkedIn and Pinterest terms of usage all specifically mention “defamation” or “defamatory” comments, however FaceBook does not. Instead, FaceBook’s Terms of Service provides more generally as follows:

  1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
  2. We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies.

As you can see, FaceBook maintains discretion to remove content that violates their policies, so you may get a remedy by convincing them that the statements about you violate the law or the rights of others and should be removed.

The Communications Decency Act – Immunity (from Suit) for Service Providers

It is almost impossible to sue the social media platform for damages relating to any defamatory or otherwise false information posted by a third-party. This is due to immunity from suit (not just damages) provided to the online service providers by the CDA. While this may seem frustrating and create unjust results in certain circumstances, arguably, this immunity was necessary to create the free exchange of information on the Internet and its growth since 1996.

It should be noted that there is an exception in the CDA for intellectual property rights, which some courts have interpreted to exempt only federally protected IP rights. Criminal acts, such as online obscenity and child pronography violations are not immune. Also, the ISP’s are not immune for defamatory content they post or republish, only content of third-parties. For this reason, what you get from social media is a platform / forum to communicate with other “third-parties.”

You don’t have to “like” it

The above list of options is not exclusive, and we would always suggest you consider any reasonable way to resolve your disputes without the need for utilizing options 4-7 above. Thinking creatively to resolve difficult disputes is what lawyers do, and you can too, even though you may not “like” it.

If the matter is still troubling you after careful consideration and consultation with trusted friends and relatives, causing loss of business or reputation, you may want to speak to a lawyer to explore the above options, or others. When the defamation is to your business online and can be viewed by potential clients or customers, your special damages could be accumulating so fast that you can’t afford not to take action.

If you believe you have been the victim of a defamation on FaceBook or otherwise, call our firm for a free initial consultation at 864-527-5906.



Blurred Lines v. Got To Give It Up: 7 Things you need to know about the Pharrell / Marvin Gaye copyright lawsuit

Posted in Copyright, Fair Use, General, Jury Issues / Trial

On March 10, 2015, a jury in Los Angeles returned a $7.3 million verdict in favor of the estate of Marvin Gaye against pop icon, Pharrell Williams (The Voice, Happy), and Robin Thicke for copyright infringement. The case involved the famous 1977 hit song by Marvin Gaye and made famous, at least in part, on the classic Saturday AM TV show Soul Train. Intellectual property lawyers and pundits have quite a bit to say about the verdict, its future validity, and implications for innovation in the music industry. Below are 7 things to consider about this case: Continue reading “Blurred Lines v. Got To Give It Up: 7 Things you need to know about the Pharrell / Marvin Gaye copyright lawsuit”