‘Blacklist’ of ModelMayhem Members Defeats Legal Liability–Brenner v. Hill

ModelMayhem facilitates matches between models and employers, such as photographers. We’ve blogged before about the risk that putative ModelMayhem employers are sexual predators, which led to a key 9th Circuit ruling that Section 230 doesn’t immunize “failure to warn” claims. I’m amazed ModelMayhem has survived despite such disquieting news about safety on its site.

In partial response to the risks, defendant Hill posted a “blacklist” of potential ModelMaybem employers to her Tumblr account. The blacklist included the entry “GPS Studios | Allan Brenner. Inappropriate. CA.” Defendant Prescott “reblogged” Hill’s Tumblr post, including the Brenner listing.

Brenner sued both Hill and Prescott for defamation, IIED and conspiracy. The trial court granted the defendants’ anti-SLAPP motion. The appeals court affirms because:

1) The blacklist relates to a matter of public interest–specifically “sexual harassment in the workplace (broadly construed to include the workplaces of independent contractors as well as employees).” Indeed, the blacklist is a microcosm of the recent widespread disclosures about dozens of men in power positions engaging in sexual harassment and abuse. This issue has emerged as one of the top headlines of 2017.

The court implies that the blacklist’s virality (it was liked and reblogged many times) might also indicate public interest, but the decision doesn’t turn on that.

2) Thus, the burden shifted to Brenner to demonstrate his case. Effectively, Brenner must show that he had never acted “inappropriately” with the models he photographed–in other words, prove a negative. The court provides Brenner with an easy escape hatches: to overcome the anti-SLAPP motion, he simply had to submit a declaration unambiguously denying the conduct. For reasons I don’t understand, Brenner failed to make this declaration, so the anti-SLAPP motion succeeds.

I’m not sure how often other courts will provide plaintiffs with this easy escape hatch to anti-SLAPP motions. I hope it’s infrequently. Otherwise, anti-SLAPP motions will rarely succeed.

Brenner’s non-declaration allows the court to sidestep the thornier question of whether characterizing Brenner’s behavior as “inappropriate” can be defamatory. Though the term “inappropriate” surely can’t be defamatory in isolation, the blacklist gave specific examples of what constituted inappropriate behavior, and those details may have made the term capable of being false. So even though the anti-SLAPP motion worked here, “blacklists” remain a legally precarious endeavor.

Case citation: Brenner v. Hill, 2017 WL 5589175 (Cal. App. Ct. Nov. 21, 2017)


Source: Eric Goldman Legal

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