Topic: Legal

Legal side of Reputation Management

Twitter Defamation Claim Defeated by a Question Mark–Boulger v. Woods 0

Screen Shot 2016-02-21 at 10.05.27 AMThis is a defamation lawsuit brought against James Woods by a woman (Portia Boulger) who was wrongly identified as a Nazi supporter online. In March, candidate Trump had a rally in Chicago. The Tribune posted a photo of a woman at the rally giving the Nazi salute. The next day “@voxday” posted the photograph, along with a photograph of plaintiff identifying plaintiff as “Organizer (Women for Bernie).”

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Woods followed up Voxday’s tweet with the one below:

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The woman in at the rally was later identified as “Birgitt Peterseon”. Woods tweeted a correction, although he did not delete his original tweet.

Boulger sued Woods in District Court in Ohio. Woods filed an answer, a motion for judgment on the pleadings, and after the time for service had expired, a motion for summary judgment or for dismissal for failure to perfect service.

The court first says that Woods waived his defense of insufficient process and lack of personal jurisdiction by not raising in his motion for judgment on the pleadings. The court’s discussion is probably of interest to Rule 12 geeks, but I’ll spare the rest of us.

Moving on to the merits, the court says that the key question is whether Woods’s tweet constitutes a statement of fact. Ohio courts employ a totality of circumstances analysis where the author is charged with knowing the perspective of the reasonable reader. The court says that the question mark is decisive:

Were it not for the question mark at the end of the text, this would be an easy case. Woods phrased his tweet in an uncommon syntactical structure for a question in English by making what would otherwise be a declarative statement and placing a question mark at the end. Delete the question mark, and the reader is left with an ambiguous statement of fact . . . But the question mark cannot be ignored.

The court says “inquiry itself . . . is not accusation”. That is not to say that a question will automatically insulate the author. But the court says the First Amendment requires the author to receive the benefit of any plausible innocent interpretation. (Interestingly, the court footnotes and rejects an argument that the term “Nazi” is “not actionable as a matter of law”. The court distinguishes the tweet here in that someone is being accused of literally being a Nazi.)

The court also says that the context matters. However, the court struggles with whether readers should automatically be charged with reviewing Woods’s other tweets during this time-period, or his tweets generally. The court says that a reader would not review an entire twitter account in chronological order. In some situations, authors flag that they are making a series of tweets (“1/x”—a tweetstorm!) but typically a reader is exposed to a “changing, disjointed series of brief messages on multiple topics by multiple authors.” Ultimately the court says that context is not determinative and the court can’t reach any conclusions regarding it. However, at least some of the readers could interpret the tweet as not being a declarative statement of fact. This further points in the direction of the tweet not being actionable.

The court also dismisses the invasion of privacy claim on similar grounds.


It’s ironic that Woods, who himself sued a twitter user over being called a “cocaine addict” by an anonymous and hyperbolic twitter user, benefited from the context rule. Background on Woods’s lawsuit from Popehat and Eriq Gardner.

We’ve blogged a bunch about courts’ treatment of defamation claims premised on online content. Twitter in particular lends itself to a medium where people understand statements to include rhetoric and hyperbole. This case brought to mind Feld v. Conway, where the court said that calling someone “fucking crazy” in a tweet was not actionable.

Twitter defamation cases are fascinating, simply because of the nature of the medium itself. Woods could have used the Retweet button. He could have also used an emoji. 🤔

Case citation: Boulger v. Woods, 2:17-cv-186 (S.D. Oh. Jan. 24 2018)

Related posts:

Twibel Ruling: Tweeting That Someone is “Fucking Crazy” is Not Defamatory

Hyperlinking to Sources Can Help Defeat Defamation Claims–Adelson v. Harris

Using Links as Citations Helps Gizmodo Defeat a Defamation Claim–Redmond v. Gawker Media

Protip: Don’t Send Emails Threatening to “Inflict the Maximum Amount of Financial Pain” Allowed By Law

Want To Avoid Defaming Someone Online? Link To Your Sources (Forbes Cross-Post)

Social Media Rant Against Airline Employee Wasn’t Defamatory But May Be False Light–Patterson v. Grant-Herms

Calling Out Scraper for “Stealing” Data Is Not Defamatory – Tamburo v. Dworkin

A Twitter Exception for Defamation?

9th Circuit Issues a Blogger-Friendly First Amendment Opinion–Obsidian Finance v. Cox

Source: Eric Goldman Legal

How to Remove Defamatory Content From 0 is an online consumer advocacy website where users can post reviews and opinions on businesses, independent contractors, and other professionals. Learn how to remove false and defamatory content from Consumer Affairs and restore a damaged reputation in this article.

The post How to Remove Defamatory Content From appeared first on Minc LLC.

Source: Aaron Minc

Copyright Owner Can Serve DMCA Counter-Notifier by Email–Epic Games v. Mendes 0

DMCA counter-notifications are rare, and litigation over them is even more rare. So my curiosity is piqued that this is the second 512(g) case I’m blogging in a week (the other: DMCA Counternotification Doesn’t Create Personal Jurisdiction in Copyright Owner’s Home Court–Real v. Matteo). Must be something in the water.

Epic Games makes videogames, including Fortnite. Rak, a Russian, made a Fortnite cheat and posted a YouTube video advertising the cheat. “Epic Games alleges that Mr. Rak’s cheat and video violates Epic Games’s copyrights and trademarks and intentionally induces other players to modify the game and thereby induces those players to violate Epic Games’ copyrights and trademarks as well.” Epic got some press for the quoted legal position when it sued a minor and mom publicly scolded them. In this case, Epic sent a DMCA takedown notice for Rak’s video to YouTube, which complied. Rak submitted a counter-notice to YouTube.

The counter-notification statute requires the counter-notifier to include their “name, address, and telephone number, and a statement…that [they] will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” Rak’s notice said he lived in Russia, listed his Gmail address, and said he would accept service. Epic located Rak’s email address used for his Fortnite account in its database and sent emails to both the Gmail and second email accounts including a cover letter, a copy of the summons and complaint, and a service waiver request (all in English). Rak did not reply.

Epic now wants official permission to serve the complaint by email. The Hague Convention and postal mail aren’t options in Russia. FRCP 4(f)(3) allows email service internationally unless barred by treaty, which is not the case in Russia. A few other cases (the court cites Ultra Records v. Teoh and Xcentric v. Karsten) have allowed email service to counter-notifiers in similar cases, so the court green-lights Epic’s request. However, the court says “Epic Games must provide a certified translation into Russian of the complaint, the summons, and its cover letter and cover email to Mr. Rak.”

Even if Epic serves Rak, what will it do with the judgment? Enforcing it in Russia sounds arduous. My guess is that Epic just wants the default judgment so it can go back to YouTube and get the video permanently removed. Even if Rak isn’t likely to be writing checks to Epic, for anyone considering counter-noticing a takedown notice, this case is another reminder that such a decision has legal consequences–you can and sometimes will be sued, so be prepared.

Case citation: Epic Games, Inc. v. Mendes, 2018 WL 582411 (N.D. Cal. Jan. 29, 2018). The complaint.

Related Posts:

Federal Court Authorizes Service of Process via Twitter

Another Federal Court Rejects Service of Process via Facebook – Joe Hand Promotions v. Shepard

Federal Court Doesn’t ‘Like” Service of Process via Facebook — Joe Hand Proms. v. Carrette

Bank Can’t Use Facebook for Service of Process — Fortunato v. Chase Bank

Source: Eric Goldman Legal

Twitter Didn’t Cause ISIS-Inspired Terrorism–Fields v. Twitter 0

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

The Ninth Circuit issued its ruling in Fields v. Twitter, the first appellate ruling to address if and when social media services like Twitter, Facebook, and YouTube can be liable for terrorist acts committed by terrorist organizations (or individuals inspired by them) who have accounts on their services. The lower court issued a decisive ruling in favor of Twitter; that ruling made my list of top 10 Section 230 cases of all time.

Perhaps disappointingly, the Ninth Circuit completely sidestepped Section 230, leaving it applicability for another day and another court. Instead, the court ruled against the plaintiffs solely on causation grounds. While I would have preferred this opinion decisively applied Section 230, this ruling is still a strong win for defendants in these cases because plaintiffs may never have the facts to satisfy the court’s causation standard. Accordingly, I think this ruling will accelerate the demise of the growing number of cases trying to hold social media sites liable for terrorist attacks.

The Court’s Holding

The court plainly states that Anti-Terrorism Act (ATA) cases require proximate causation, not just but-for causation or foreseesability: “to satisfy the ATA’s “by reason of” requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts.” If you’re not sure what “direct relationship” means, join the club.

The court offers up some policy justifications for a higher proximate causation standard:

Not requiring that this provision of support have some direct relation to a plaintiff’s injuries (1) would make it extremely difficult to attribute damages to the provision of material support as distinct from other intervening factors, (2) would force courts to develop complicated damages-apportionment rules to avoid multiple recoveries, and (3) would create these difficulties needlessly, because victims injured more directly by the provision of material support would not be prevented from recovery by a “direct relation” requirement….

Communication services and equipment are highly interconnected in modern economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause ripples of harm to flow far beyond the defendant’s misconduct. Nothing in § 2333 indicates that Congress intended to provide a remedy to every person reached by these ripples; instead, Congress intentionally used the “by reason of” language to limit recovery. Moreover, we are troubled by the seemingly boundless litigation risks that would be posed by extending the ATA’s bounds as far as foreseeability may reach.

The court says the plaintiffs didn’t allege sufficient causation against Twitter:

At most, the SAC establishes that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But the SAC does not articulate any connection between Twitter’s provision of this aid and Plaintiffs-Appellants’ injuries….Though we do not diminish the tragedy of the events that led to this lawsuit, we hold that Plaintiffs-Appellants have not pleaded that Twitter’s provision of accounts and messaging services to ISIS had any direct relation to the injuries Plaintiffs-Appellants suffered.


Further Proceedings. If I were the plaintiffs, I would seek a rehearing en banc and, if that didn’t work, then appeal to the Supreme Court. Judges have very different views about causation. I personally doubt that the plaintiffs will find a more receptive audience in further proceedings, but I’d be surprised if they don’t try. There’s way too much money on the table.

Consequences for Other Cases. I haven’t carefully scrutinized all of the similar lawsuits (there are probably a couple dozen by now). However, of the complaints I have read, I believe most of them effectively only allege that the defendant’s “provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts” and thus will fail to satisfy the standards articulated in this case. I’m skeptical any of the plaintiffs can show that the social media sites had a “direct relationship” to the terrorist attacks. What would that look like? Maybe if the terrorist cell swapped planning messages discussing the specific attack on a social media site? However, I don’t recall seeing cases alleging those facts. Furthermore, if the facts did, Section 230 would so clearly apply that a court can’t or won’t sidestep it. So I believe the court’s requirements for proximate causation makes it impossible for terrorism victims to win their cases against social media sites. Perhaps that will accelerate the demise of this litigation trend.

Service Provider Response. In parallel with the litigation, most social media sites have dramatically ramped up their anti-terrorist efforts. At the same time, it’s worth noting that much of the content they are deleting is covered by the First Amendment. While I defend the social media sites’ discretion to deny services to folks they consider terrorists, we should also acknowledge that those efforts are not wholly voluntary (i.e., they’re done at the behest of and under pressure from governments) and result in the deletion of socially legitimate and valuable content too.

Further Congressional Response? After Congress amends Section 230 to create a sex trafficking exception, it’s widely expected to turn its attention to the Section 230/anti-terrorism interplay. Interestingly, because this opinion doesn’t depend on Section 230, an anti-terrorism exception would not necessarily affect this ruling. Indeed, given the court’s requirement of proximate causation, Congress (if it were so inclined) would have to give careful thought about how it could draft a different statute to reach a different legal outcome.

Case citation: Fields v. Twitter, Inc., No. 16-17165 (9th Cir. Jan. 31, 2018)

Related Posts:

Section 230 Again Preempts Suit Against Facebook for Supporting Terrorists–Force v. Facebook
Fourth Judge Says Social Media Sites Aren’t Liable for Supporting Terrorists–Pennie v. Twitter
Another Court Rejects ‘Material Support To Terrorists’ Claims Against Social Media Sites–Gonzalez v. Google
Facebook Defeats Lawsuit Over Material Support for Terrorists–Cohen v. Facebook
Twitter Defeats ISIS “Material Support” Lawsuit Again–Fields v. Twitter
Section 230 Immunizes Twitter From Liability For ISIS’s Terrorist Activities–Fields v. Twitter



Source: Eric Goldman Legal