Justice elusive for Chicago family defamed online
Jeffrey Loke
Justice elusive for Chicago family defamed online
Imagine that the first Google hit for your family name is a post calling members prostitutes, child abusers, thieves, and diseased lesbians—and that you have a federal court agreeing that the posts must come down. Now imagine you still can't get the lies removed. Welcome to one family's Internet nightmare.
By Nate Anderson | Last updated December 23, 2009 2:29 PM
What if the first Google hit for your last name called you a prostitute, an incestuous creep, a danger to children, or a diseased lesbian? And what if, despite a federal court injunction, you couldn't get the postings removed?
Welcome to one Chicago family's Internet nightmare. Is it "safe harbor" run amok, or just an unfortunate and rare side effect of an otherwise well-crafted statute?
A family matter
David and Mary Blockowicz have been married for 42 years, own a local accounting business, and have raised four adopted kids. One of those children, Megan, married a man named Joseph Williams back in 1992, then divorced him in 2000 after he was "physically and emotional [sic] abusive" to his wife. Williams' wrath then allegedly turned on the family, thanks to the magic of the Internet.
According to a federal complaint filed by the Blockowicz family back in June, Williams moved to Oregon after the divorce and began harassing the family from afar. He posted statements to various websites like Facebook, MySpace, and Ripoffreport.com, an online complaint site.
The statements, detailed in the court documents, are extreme.
- Defendants refer to David, Mary and [older sister] Lisa Blockowicz as Megan’s “scumbag family"
- Defendants falsely state that “Megan's father was an incestuous creep who forced all of his children to satisfy him sexually”
- Defendants spin a false tale about Mary and Lisa Blockowicz interacting with Nevada Child Protection Services
- Defendants falsely state that the Blockowicz family is a danger to Megan’s children
- Defendants falsely suggest that Lisa Blockowicz uses a number of aliases
- Defendants call Lisa Blockowicz a “Scumbag Con-Artist, Diseased Alcoholic, Compulsive Liar, Thief”
- Defendants state that Lisa Blockowicz is a lesbian, and is “diseased”
Hardly the behavior of a scholar and a gentleman, but was it defamatory? On October 6, after Williams failed to show up in court, federal judge James Holderman issued a default judgment against him, along with an injunction ordering him to take down the posts in question.
He did not.
Third party liability
A piece of one Ripoff Report post
So the Blockowicz family went to the various websites, injunction in hand, and asked them to remove the posts. (Note that the websites could not be sued directly, as they have "safe harbor" immunity under the Communications Decency Act for most material posted by users; the Blockowicz family did the right thing here and sued the speaker instead.) All the sites complied—except for Ripoffreport, which prides itself on never removing content.
So what to do? The postings are still up and, even with a federal court order in hand, the family could not get them taken down. The next step was to ask the judge to enforce the injunction, not against Williams but against Ripoff Report.
On Monday, the judge refused to do so. It's a basic premise of the law that judges cannot enforce orders and injunctions against parties which have not been "adjudged according to law," as the opinion puts it, and Ripoffreport was not a "party" to Williams' action. In fact, the Ripofferport terms of service disallow defamatory posts and the judge saw no evidence of the site "working in concert" with Williams to post the material. That meant he could not in good conscience enforce the injunction against the site.
It's a perverse conclusion to the case, even though all the decisions appear to follow the law. Even the judge was bothered by his ruling. "The court is sympathetic to the Blockowicz's plight," he wrote. "They find themselves the subject of defamatory attacks on the Internet yet seemingly have no recourse to have those statements enjoined from public view."
Reaction
To Ben Sheffner, a copyright attorney who covered the Joel Tenenbaum P2P case for us, this just highlights the fact that Communications Decency Act immunity is written too broadly.
"So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value," he writes on his blog. "That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, 'The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right'?"
Law professor Eric Goldman, last seen in these pages predicting the gradual death of Wikipedia, also finds himself troubled. Normally, there's no problem here, since most websites will remove content with a court injunction like the one the Blockowicz's obtained. But Ripoff Report won't.
"Although this is the right doctrinal result," he says, "the normative issues are still gnawing at me. I'm troubled that online content could be categorically off-limits from compelled takedown based on a service provider's choices. In some circumstances, continued publication may not be the right result."
To all those ready to scream about the "Streisand effect" (publicizing the very thing you want hidden by filing a lawsuit against it), it's worth putting yourself in the Blockowicz family shoes for a moment; a Google search on the family's last name turns up as its very first link one of the Ripoff Report posts claiming that daughter Megan is a prostitute and that her father is an "incestuous creep."
And that's before the news coverage of this ruling has even had a chance to get going; a Google News search on the family's last name turns up no hits at all at the moment.
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Jason Pufahl
I see this as a very difficult issue. I have another example for your consideration. If the courts were given the power to force a website to remove defamatory content they would be able to do the same in all cases. What if “the people” of the United States or anywhere else didn’t like a certain elected official and they posted their comments on similar websites. Truthful or not they are an individual’s opinion. What would stop our government from simply filing an injunction to have those comments removed? Even though they may not always work in our favor, the current laws also protect our 1st amendment right to free speech. This is not a trivial issue.
Jason Pufahl
Wisconsin Technology, LLC
1501 Elmwood Ave
Oshkosh WI 54901
Main: 920-651-9947
Mobile: 920-379-6971
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Jason Pufahl
I see this as a very difficult issue. I have another example for your consideration. If the courts were given the power to force a website to remove defamatory content they would be able to do the same in all cases. What if “the people” of the United States or anywhere else didn’t like a certain elected official and they posted their comments on similar websites. Truthful or not they are an individual’s opinion. What would stop our government from simply filing an injunction to have those comments removed? Even though they may not always work in our favor, the current laws also protect our 1st amendment right to free speech. This is not a trivial issue.
Jason Pufahl
Wisconsin Technology, LLC
1501 Elmwood Ave
Oshkosh WI 54901
Main: 920-651-9947
Mobile: 920-379-6971
Fax: 920-651-9948
From: r-n...@googlegroups.com [mailto:r-n...@googlegroups.com] On Behalf Of Jeffrey Loke
Sent: Monday, December 28, 2009
2:00 PM
To: 00 r-n...@googlegroups.com
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Andrew Ellis
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Under Illinois law, the elements of a defamation claim are:
- the defendant made a false statement about the plaintiff;
- there was an unprivileged publication to a third party;
- fault by the defendant amounting to at least negligence; and
- the publication damaged the plaintiff.
The elements of a defamation claim in Illinois are for the most part similar to the elements listed in the general Defamation Law section, with the following exceptions:
Defamation Per Se
Illinois recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Illinois, a statement that does any of the following things amounts to defamation per se:
- accuses the plaintiff of committing a crime;
- indicates that the plaintiff is infected with a loathsome communicable disease;
- indicates that the plaintiff is unable to perform or lacks integrity in performing his or her employment duties;
- attributes to the plaintiff a lack of ability or otherwise harms the plaintiff in his or her profession; or
- accuses the plaintiff of engaging in adultery or fornication.
Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).
*********************
Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).
Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can -- and often do -- vary from state to state. Accordingly, you should consult your state's law in the State Law: Defamation section of this guide for specific information.
Generally speaking, a person who brings a defamation lawsuit must prove the following:
- The defendant published the statement. In other words, that the defendant uttered or distributed it to at least one person other than the plaintiff. You don’t need to be a media mogul to be a publisher. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If you publish something on the Internet, you can assume that this requirement has been met.
- The statement was false. This means that statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion). Moreover, because truth is an absolute defense to a defamation claim, the plaintiff must prove that the specific statement at issue is false. This is not to say that every detail you publish must be perfectly accurate to avoid liability. If you get a few minor details wrong, this will not necessarily negate the truth of what you say so long as the statement at issue is substantially true. See the section on Substantial Truth for more information.
- The statement is about the plaintiff. The statement need not name the person explicitly if there is enough identifying information that those who know the person will recognize the statement as being about him or her. For more information, see the section on Who Can Sue For Defamation.
- The false statement actually harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade. For more information, see the section on What is a Defamatory Statement.
- The statement was published with some level of fault. Fault requires that the defendant did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official. The level of fault that must be proven is discussed in the Actual Malice and Negligence section of the legal guide.
- The statement was published without any applicable privilege. A number of privileges may be available depending on what the defendant published and the source(s) he relied on for the information. For more information, see the section on Defamation Privileges and Defenses in this guide.
Privileges and Defenses
Illinois courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, substantial truth, and the opinion and fair comment privileges. Illinois has neither recognized nor rejected the wire service defense and the neutral reportage privilege.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. See Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825 (Ill. 2006).
Fair Report Privilege
In Illinois, the fair report privilege covers reports of official government proceedings and information contained in public records. This includes court proceedings and matters contained in court documents, as well as police reports, verbal statements by governmental officials in their official capacities, and things like marriage and divorce records, birth and death records, and property records. The privilege protects you if your report fairly and accurately reflects the official information. As noted, the privilege is absolute, and cannot be defeated by a finding of malice or actual malice.
Neutral Reportage Privilege
The Supreme Court of Illinois has not recognized or rejected the neutral reportage privilege. Lower courts in Illinois do not agree on whether Illinois law recognizes the privilege. Therefore, its status remains uncertain.
Wire Service Defense
Illinois has only addressed the wire service defense in one case, Kapetanovic v. Stephen J. Productions, Inc., 30 Media L. Rep. 1786 (N.D.Ill. 2002), but that case is not binding legal authority because it involved a federal court. It is worth noting, however, that the Illinois federal court recognized and applied the defense in that case and Illinois state courts may decide to follow suit.
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Publishing the Statements and Content of Others
If you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, you generally will be shielded from liability for defamatory statements made by your users and guests under section 230 of the Communications Decency Act ("Section 230"). This important federal law protects you from certain types of liability, including defamation, associated with the statements and other user-submitted content you publish on your site.
Section 230 grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from liability so long as the information at issue is provided by a third-party. You will not lose this immunity even if you edit the content, whether for accuracy or civility, and you will be entitled to immunity so long as your edits do not substantially alter the meaning of the original statements. However, if you alter someone else's statement so that it becomes defamatory (e.g., changing the statement “Bob is not a murderer” to “Bob is a murderer”), you would be responsible for the content of the edited statement; and if it turns out to be untrue, you could be liable for defamation. In addition, if you add your own commentary along with the user-submitted content, you will only be shielded from liability for the material created by your user, not for your own statements. For more on this important protection, see the section on Immunity for Online Publishers Under the Communications Decency Act.
