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Free Speech | Defamation | Online Stalking | Social Media disputes | Anti-SLAPP

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Introduction

The world is digitally connected. It seems everyone has access to each other and to the world in general as a billboard to do or say anthing.  While free speech is certainly a consideration in our modern world, certain conduct and activities fall outside the gamut of free speech and become tortious leading to potential claims for injunction take-down notices, and at times for compensation for injuries suffered.

We are dispute resolution and civil litigation law firm and can help you in cases involving social media, internet and free speech issues. We can help you seek justice when online activity goes seriously wrong, whether this involves issues dealing with defamation, anti-SLAPP, free speech law, first amendment, copyright and trademark infringement or right of publicity violations and other online disputes.

10 types of “Cybertort” or First Amendment cases we may consider accepting:

  1. Cyber-bullying, cyber stalking & hate speech (intentional infliction of emotional distress)
  2. Right of Publicity cases (unlawful celebrity endorsement, misappropriation of name, image and likeness)
  3. Online defamation (ex. false and fraudulent speech, false online reviews on Yelp, BBB and other review websites including facebook or twitter) and free speech defenses including anti-SLAPP commercial speech exemption under CCP 425.17.
  4. Google, Amazon, and Etsy DMCA take down notices (DMCA cases) for copyright and trademark infringement
  5. Revenge porn (illegal posting of pornographic ex-girlfriend, boyfriend, spouse videos)
  6. Invasion of Privacy cases (ex. private drone photos, child photos, and adult sexual videos and pictures posted online, illegal video taping, illegal tape recording without consent)
  7. Copyright infringement (artists, photographers, musicians, authors, writers, videographers, software programmers and coders and other creative artists)
  8. Abuses involving computers, software, music and technology in educational settings (ex. claims of music infringement and illegal torrent downloads on campus or in dorm rooms)
  9. Facebook fights (where parents or guardians are sought to be held liable for kids online activity).
  10. Other internet related disputes involving online or computer activity such as California Penal Code Section 528 “false impersonation” / online impersonation cases.

Many of these issues pit the limits of free speech (whether commercial or non-commercial) vs. the rights of others who may be affected by the same.  This could involve pranks and jokes gone wrong, bad comedy, first amendment defenses and the like.

What is cyberstalking / cyberbullying online?

Cyberstalking can be consider a crime in California (See Cal. Penal Code 653.2) and could also trigger a civil lawsuit seeking damages for intentional infliction of emotional distress (See Video below).  As one California court noted:

“As a preliminary matter, we observe that “online bullying, called cyberbullying, happens when teens use the Internet, cell phones, or other devices to send or post text or images intended to hurt or embarrass another person.  Contrary to what cyberbullies may believe, cyberbullying is a big deal, and can cause a variety of reactions in teens. Many youth experience a variety of emotions when they are cyberbullied. Youth who are cyberbullied report feeling angry, hurt, embarrassed, or scared.” Children have killed each other and committed suicide after having been involved in a cyberbullying incident.  Cyberbullying is usually not a one time communication, unless it involves a death threat or a credible threat of serious bodily harm.  In studies of middle and high school students, the most common way that children and youth reported being cyberbullied was through instant messaging (also text messaging). Somewhat less common ways involved the use of chat rooms, emails, and messages posted on Web sites (ex. facebook, twitter). Cyberbullying has increased in recent years. In nationally representative surveys of 10–17 year-olds, twice as many children and youth indicated that they had been victims and perpetrators of online harassment in 2005 compared with 1999/2000.”

See D.C. v. R.R., 182 Cal. App. 4th 1190, 1218, 106 Cal. Rptr. 3d 399, 419–20 (2010), as modified (Apr. 8, 2010).

Watch this video discussing crossing the line from Free Speech into Criminal Threat (mainly dealing with Presidential threats)

cal free speech attorney
VIDEO:  Attorney Steve touches on the Kathy Griffin issue about the fine line between comedy and potentially improper conduct.  There is no insinuation that she is guilty of anything (all people are innocent until proven guilty) and no insinuation that she is civilly liable for violation of any laws.  Rather, this is good information for parents to discuss with their kids so they curb their activities online.  Make sure to SUBSCRIBE to our law youtube channel.  We are over 3,500 subscribers and 1/2 million video views.

CYBERBULLY RESOURCES:
If you or a loved one has suffered serious physical or emotional injury due to a cyberbully contact us to discuss whether or not an IIED claim can be asserted.

What are the elements that have to be shown in a Intentional Infliction of Emotional Distress civil lawsuit?

IIED cyberbullying attorney
VIDEO:  Click on the picture above to hear Attorney Steve describe what the burden of proof is in a civil case to show intentional infliction of emotional distress due to online bullying on internet websites such as twitter, facebook or even in chat rooms.  Make sure to click on the Red “V” for Victory to SUBSCRIBE to our trending legal youtube channel.  We are over 350,000 video views!!  As we like to say “Be Smarter Than Your Friends.

Is the California anti-SLAPP law a defense to cyberbullying?

In the D.C. v. RR case cited above, the Defendant having been sued for IIED for cyberbullying alleged that the harmful content was only “joking” and thus protected by the First Amendment free speech laws, and thus an anti-SLAPP motion was brought.  The Court, however, was not “buying” this legal defense
“As noted, the First Amendment does not protect true threats—“statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Virginia v. Black, supra, 538 U.S. at p. 359, 123 S.Ct. 1536.) “The speaker need not actually intend to carry out the threat.” (Id. at pp. 359–360, 123 S.Ct. 1536.) “ ‘A true threat is a serious one, not uttered in jest, idle talk, or political argument.’ ” (U.S. v. Fuller (7th Cir.2004) 387 F.3d 643, 646.) The First Amendment protects parody, rhetorical hyperbole, and loose, figurative, or hyperbolic language. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 849, 111 Cal.Rptr.2d 582; Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1; Hustler Magazine v. Falwell (1988) 485 U.S. 46, 51, 56, 108 S.Ct. 876, 99 L.Ed.2d 41.)
See D.C. v. R.R., 182 Cal. App. 4th 1190, 1218, 106 Cal. Rptr. 3d 399, 419 (2010), as modified (Apr. 8, 2010).  In this case, the Court did not find that any of the free speech grounds applied:
The anti-SLAPP statute applies where “a cause of action against a person arises from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1), italics added.).  As used in the statute, an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue ’ includes:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;
(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e),
The definition of ‘public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity “Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846, 53 Cal.Rptr.3d 256, citations omitted; accord, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479, 102 Cal.Rptr.2d 205.)
In general, “[a] public issue is implicated if the subject of the statement or activity underlying the claim
(1) was a person or entity in the public eye;
(2) could affect large numbers of people beyond the direct participants;
or
(3) involved a topic of widespread, public interest.” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814, 6 Cal.Rptr.3d 675; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1573, 92 Cal.Rptr.3d 227; Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 9, 92 Cal.Rptr.3d 249.)
To satisfy the public issue/issue of public interest requirement in situations where the issue is of interest only to a limited, but definable portion of the public, such as a private group, organization, or community, ‘the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.”  ‘The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute.
D.C. v. R.R., 182 Cal. App. 4th 1190, 1215–16, 106 Cal. Rptr. 3d 399, 417 (2010), as modified (Apr. 8, 2010).

We can help you ferret out free speech issues from defamatory speech and violations of the California Right of Publicity statute which does not allow “free speech” that is cloaked with the intent of misappropriating the name, likeness, and identity of another person.

What is the California revenge porn law?

Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 (9th Cir. 2009), as amended (Sept. 28, 2009) was one federal court case involving false websites, impersonation and revenge.  Here are some of the basic facts of the case:

 In late 2004, Cecilia Barnes broke off a lengthy relationship with her boyfriend. For reasons that are unclear, he responded by posting profiles of Barnes on a website run by Yahoo!, Inc. (“Yahoo”). According to Yahoo’s Member Directory, “a public profile is a page with information about you that other Yahoo! members can view. Your profile allows you to publicly post information about yourself that you want to share with the world. Many people post their age, pictures, location, and hobbies on their profiles.” Through Yahoo’s online service, computer users all over the country and the world can view such profiles.

Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.   In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, Yahoo had not responded but the undesired advances from unknown men continued; Barnes again asked Yahoo by mail to remove the profiles. Nothing happened. The following month, Barnes sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident.”
If you are involved in a case like this, contact us to discuss your legal rights.  To learn more about California revenge porn law click here.  Some potential causes of action to raise in a revenge porn case might include:
  • Intentional infliction of emotional distress
  • Invasion of Privacy
  • Misappropriation of name, image and likeness (right of publicity to draw commercial advertising revenue, for example, to monetize a youtube channel)
  • Fraud
  • Cyberstalking / Cyberharassment
  • Copyright Litigation (publishing photos that were the creative works belonging to the ex-wife or girlfriend)
  • Internet defamation if false statements of fact accompany the posting of pictures and videos

In these types of cases you may need to consider filing a civil lawsuit and seeking an injunction in addition to potentially filing a criminal complaint with the district attorney’s office.  We can help you investigate the case, explore potential civil damages and take other appropriate action.  In some cases, it might be possible to get an Order from a state or federal court ordering the removal of pictures and videos from websites such as Youtube, Vimeo, Google, Bing, MSN, facebook and twitter.

California tort of publication of private facts

This “tort” involves publishing private facts about a person when there is no socially useful reason to do so.  According to the California jury instructions, here is what the Plaintiff must prove to succeed on this cause of action:

CACI 1801. Public Disclosure of Private Facts

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] publicized private information concerning [name of plaintiff];

2. That a reasonable person in [name of plaintiff]’s position would consider the publicity highly offensive;

3. That [name of defendant] knew, or acted with reckless disregard of the fact, that a reasonable person in [name of plaintiff]’s position would consider the publicity highly offensive;

4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of legitimate public concern];

5. That [name of plaintiff] was harmed;

and

6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

In deciding whether the information was a matter of legitimate public concern, you should consider, among other factors, the following:

(a) The social value of the information;

(b) The extent of the intrusion into [name of plaintiff]’s privacy;

and

(c) Whether [name of plaintiff] consented to the publicity explicitly or by voluntarily seeking public attention or a public office; [and] (d) [Insert other applicable factor].

[In deciding whether [name of defendant] publicized the information, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge.]

If you have a situation where another business or individual posted photos, pictures, home movies or other highly embarrassing personal photos of you online, without your consent or permission, contact us to speak about the potential to bring an Privacy Invasion lawsuit.

Inclusion on seclusion and solitude under CA law

Intrusion on seclusion and solitude is another potential internet “cybertort” IF you can prove you had a reasonable expectation of privacy in a private secured area on the internet (ex. though a VPN possibly).  Here is the challenge posed by one Court:

“In the third claim, Jane Doe alleges that Defendants intruded upon her seclusion by downloading photographs from her “smugmug” account. The elements of this common law tort claim are:
(1) intentional intrusion into a private place, conversation or matter;
and
(2) in a manner highly offensive to a reasonable person. Sanders v. Am. Broad, Cos., 20 Cal.4th 907, 908, 85 Cal.Rptr.2d 909, 978 P.2d 67 (1999).
Jane Doe asserts that her “smugmug” account was personal, that she did not intend for any search engine to find the photos, and that she told very few people about her “smugmug” account. Defendants claim that there was no intrusion and no offensive conduct.”
a. Expectation of Seclusion
“To prevail on the first element of the tort of intrusion upon seclusion, a plaintiff must show:
(a) an actual, subjective expectation of seclusion or solitude,
and
(b) that the expectation was objectively reasonable. Medical Lab. Mgmt. Consultants v. ABC, 306 F.3d 806 (9th Cir.2002).
“Although the Complaint sufficiently alleges Jane Doe’s subjective expectation of seclusion, Jane Doe has not adequately alleged that Doe’s expectation of seclusion was reasonable because one cannot reasonably expect the internet posting of photos to be private. Other jurisdictions have found that there is no reasonable expectation of privacy in transmissions over the internet. See U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (stating that individuals may not reasonably expect privacy in transmissions over the internet); Guest v. Leis, 255 F.3d 325, 333 (6th Cir.2001) (holding that internet bulletin board users lacked standing to assert an expectation of privacy in materials intended for publication or posting on the bulletin board.). As a matter of law, based upon the circumstances in this case, Doe did not have an objectively reasonable expectation of privacy in the photos.”  See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1146–47 (S.D. Cal. 2005).

At any rate, if you can make a claim that your privacy was invaded, either online (or offline in a media tabloid publication) call us to discuss your legal rights.

California “false light” law

False light is similar to defamation, but in false light the statement may actually be TRUE (which of course “truth” is a defense to defamation, but NOT to a false light claim).  This potential cybertort was discussed in one case involving facebook:

Plaintiff has not stated a claim for defamation, libel, false light, or public disclosure of private facts because each of those claims presume a publication made by the defendant. Burrill v. Nair, 217 Cal.App.4th 357, 351, 158 Cal.Rptr.3d 332 (2013) (“Defamation requires the intentional publication of a false statement of fact that has a natural tendency to injure the plaintiff’s reputation or that causes special damage.”); Cal. Civ. Code § 45 (“Libel is a false and unprivileged publication.”); Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 1133, 212 Cal.Rptr. 838 (1985) (“An action for invasion of privacy by placing the plaintiff in a false light in the public eye is in substance equivalent to a libel claim.”); Taus v. Loftus, 40 Cal.4th 683, 724, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (2007) (establishing a “public disclosure” as an element of public disclosure of private facts).

Nor has he stated a claim for intrusion upon seclusion or intentional infliction of emotional distress because those claims require intent on the part of the tortfeasor. Taus, 40 Cal.4th at 724, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (specifying that intrusion upon seclusion requires an intentional intrusion); Christensen v. Super. Ct., 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79, 820 P.2d 181 (1991) (providing that, to prove intentional infliction of emotional distress, the plaintiff must show the defendant acted intentionally). In addition, he cannot maintain a claim for negligent supervision and hiring since, as pled, the claim relies on “republication” as the basis for Facebook’s liability “[Facebook] negligently failed to investigate the background of [Facebook] employees to prevent republication of sexual or otherwise unlawful content in [Facebook’s] website.”) See Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056, 1063–64 (N.D. Cal. 2016).

This case from the Northern District of California shows how some of the causes of action are all brought at the same time (to see if any “stick”).  Here are the California Jury instructions for False Light – CACI 1802.  This caselaw highlights some of the types of internet related reputation and brand protection cases our intellectual property law firm may be able to help you with.  Contact us below for a free initial consultation.

Attorney Steve PRIMER on the First Amendment and potential defenses

Free speech SLAPP lawyer California

VIDEO:  Click on the picture above to hear our video discussing what the first amendment IS and what it is NOT.  Make sure to SUBSCRIBE to our video channel which is growing fast!! Thank you for all your support!

Contact an Internet & Intellectual Property Technology Lawyer

We offer a wide variety of fee structures including potential CONTINGENCY FEES for some cases, FLAT RATE FEES for others cases, and at times either an hourly rate or a hybrid of any of these.  Contact us to discuss your case.  We handle cases throughout the state of California and Arizona and we have 5 offices.  We accept federal copyright and trademark infringement cases nationwide subject to Court rules.  We can be reached at (877) 276-5084.