Defamation, Libel and Slander

Judge Dismisses Libel Claim By Former NBC Reporter Who Intends to Appeal

August 23, 2013 | Peter S. Lubin and James V. DiTommaso

The old cliché of a journalist who will do anything for a story might not be too far from the truth if the claims in this case which caused this CBS reporter are in fact true. Such appeared to be the case for Amy Jacobsen when cameras caught her in a bikini at the house of a person of interest in a major case.

In April 2007, Lisa Stebic disappeared. She and her husband, Craig Stebic, were in the process of getting divorced when Lisa failed to show up to pick up her children, then 10 and 12 years old, from school. After she disappeared, friends and neighbors claimed that Lisa had been inquiring about a domestic violence shelter. She reportedly told one friend, “If anything ever happened to me, look towards Craig.”

After Lisa disappeared, neighbors of Craig Stebic’s house were told by a media consultant to have video cameras aimed at the house at all times in case they should catch anything suspicious. It was one of these neighbors who turned the video of Jacobsen and her children in bathing suits at Craig’s house.

According to Jacobsen, she was driving to the local swim club with her two sons on July 6, 2007, when she got a call from Jill Webb, Craig’s sister. Webb reportedly said she was upset about some of the network coverage of the case and asked Jacobsen if she would talk about the case with her at Craig’s home. Jacobsen said she agreed after Webb told her she could bring her children with her.

A few days later, CBS aired footage of Jacobsen and her children enjoying what looked like a pool party at Craig Stebic’s house. On July 12, Stebic was named a person of interest in his wife’s disappearance.

If Jacobsen is the type of reporter who will do anything for a scoop — a claim she denies in her libel suit –, it appears to have worked. She is one of only two reporters that Craig talked to during the investigation.

After the footage aired, Jacobsen was fired from her position as a reporter at NBC. One year later, Jacobsen filed a libel lawsuit seeking more than $1 million from CBS and the neighbor who shot the video of her at Stebic’s house.

In February 2009, a Cook County judge allowed four counts of defamation to be considered by the courts. Judge Elizabeth Budzinski determined that “the CBS newscaster presented the footage with statement made in the form of insinuations and questions regarding Jacobsen’s activities while at the Stebic home”. Such insinuations and questions, Budzinski wrote in her ruling, “suggest that Jacobsen used improper methods in cultivating sources and obtaining stories.”

A different judge however, Judge Jeffrey Lawrence, has recently dismissed the lawsuit, saying that the parts of the CBS report that Jacobsen complained about are “constitutionally protected expressions of opinion.” Additionally, Lawrence argued that Jacobsen and her attorneys did not provide sufficient evidence that the content in the CBS report was fabricated.

It is not time for CBS to relax yet, though. Jacobsen is intent on an appeal. Her attorney, Kathleen Zellner, said that they “had always figured there would be an appeal before this went to trial because there are too many issues.” Zellner went on to say that the appeal will rest on her argument that Jacobsen was not a public figure at the time that CBS aired the story and that Judge Lawrence’s explanation contradicts a ruling that a prior judge made earlier in the case.

Illinois Appellate Court Reverses Dismissal of Northwestern Professor’s Defamation Lawsuit, Remands for Further Proceedings – Mauvais-Jarvis v. Wong

August 22, 2013 | Peter S. Lubin and James V. DiTommaso

An appellate court in Illinois reversed a lower court ruling dismissing a defamation lawsuit brought by an associate professor at Northwestern University. Mauvais-Jarvis v. Wong, et al, Nos. 1-12-0070, 1-12-0237 cons., slip op. (Ill. App. 1st Dist., Mar. 28, 2013). The plaintiff claimed that the defendants committed libel against him in emails and other correspondence exchanged in the course of an internal investigation into data presented by the plaintiff for publication. The trial court dismissed all defamation claims, holding that the statements in question were subject to an absolute privilege because the defendants were investigating “suspected research misconduct.” Id. at 2. The appellate court accepted the plaintiff’s argument that the statements are only protected by a qualified privilege, and that the defendants had not established in their motion to dismiss that the privilege should apply.

The plaintiff, Franck Mauvais-Jarvis, is an associate professor of medicine at Northwestern University and the research director of the school’s Comprehensive Center on Obesity. Part of his research is funded by the U.S. Department of Health and Human Services (HHS). The court gives a comprehensive overview of HHS’ policies on “research misconduct,” which includes fabrication, falsification, or manipulation of data and research materials, as well as plagiarism. Id. at 4. Northwestern maintains an Office of Research Integrity (ORI) based on HHS regulations, which conducts reviews of alleged research misconduct.

Bengals Cheerleader Wins Libel Suit For Online Defamation

August 2, 2013 | Peter S. Lubin and James V. DiTommaso

Ever since the invention of the internet, it has been wreaking havoc on our Constitution’s First Amendment. People say hurtful and insulting things, particularly about people in the media, without ever considering the consequences of their words. This is especially true when people are able to make these statements anonymously. Frequently, there are no consequences but countless defamation lawsuits have been filed over things that have been said online and the decisions reached by the court are usually hotly debated. Another such case has recently emerged from a federal court in Covington, Kentucky.

The case involves Sarah Jones, a former Cincinnati Bengals cheerleader, and Nik Richie, the operator of thedirty.com, a gossip website. The jury found that posts about Jones on the website were substantially false. Additionally, the jury found that Nik Richie acted with malice or reckless disregard when he posted anonymous submissions to his website.

One such post claimed that Jones had sex with every Bengal player. Another said that she probably had two sexually transmitted diseases. In her lawsuit, Jones said that these comments were false and caused her severe mental anguish.

In his defense, Richie denied any malice in posting the comments and maintained that he was not required to fact-check anonymous submissions before posting them. David Gingras, Richie’s defense attorney, argued that Richie’s website and others like it are protected by the Communications Decency Act. That law was created in part to provide protection to website operators like Richie from liability for content which is originated by third parties.

Eric Deters, the attorney representing Jones, argued that Richie acknowledged that he screens submissions and decides which comments to post and he adds his own comments. This fact separates his website from others such as Facebook where people post their own comments without any sort of regulation.

The judge maintained that the Communications Decency Act does not protect thedirty.com in this case. The jury sided with Jones and awarded her $338,000 in damages.

As with many cases, the decision of this court could have far-reaching consequences. “I think it could put some limits on the ability of a website operator to feel free to post comments that might be offensive or controversial or even just critical,” said Jack Greiner, who specializes in media and free speech issues. “People might err on the side of caution and not take a risk, even if comments are acceptable.”

The decision reached by the judge has been highly contested. Gingras, who has won similar lawsuits, has said that, “There’s no question that his ruling is wrong”.
Nate Cardozo is a staff attorney with the Electronic Frontier Foundation, a nonprofit foundation which focuses on civil liberties and privacy issues in the digital age. He agrees with Gingras and said that the judge “got it dead wrong”. According to Cardozo, Jones could sue over the false statements, but “she can only sue the person who made the statements”. That becomes difficult however, when comments are posted anonymously, as is the case here.

Deters is happy with the verdict, saying he hopes that it will “reduce the number of defamation comments made on these types of websites.” Richie plans to appeal the ruling.

Does Facebook “Like” Button Give Rise to First Amendment Rights? Federal Appellate Court Set to Decide the Issue.

May 15, 2013 | Peter S. Lubin and James V. DiTommaso

Many of us use Facebook “likes” every day to express our feelings and opinions on the internet. In fact, according to Facebook, around 3 billions “likes” and comments are made on the social network site on a daily basis. However, it is still a relatively new form of expression and, as such, might not get the protection of the American Constitution’s first amendment.

The issue has been brought before a judge in Hampton, Virginia where a deputy, Daniel Ray Carter, was fired by his sheriff. Carter sued for violation of the First Amendment after he was fired, alleging that he was let go as a result of “liking” the Facebook page of his boss’ political opponent during the town’s 2009 sheriff election. According to the lawsuit, Hampton sheriff B.J. Roberts said to Carter, “You made your bed, now you’re going to lie in it – after the election, you’re gone.” About five months after Roberts’s re-election, Carter was fired, along with five other employees who either supported Carter’s opponent or did not actively campaign for Carter during the election.

U.S. District Judge Raymond A. Jackson dismissed the suit, saying that the U.S. Constitution does not protect clicking the thumbs-up button on a Facebook page. According to Judge Jackson, the “like” button is not substantial enough of a statement to be considered free speech. In his decision, he wrote, “Merely ‘liking’ on a Facebook page is insufficient speech to merit constitutional protection.”

An appeal by Carter and his former co-workers is being reviewed by the U.S. Court of Appeals for the 4th Circuit. The American Civil Liberties Union has also filed an amicus brief supporting the effort to overturn Judge Jackson’s ruling. To demonstrate the power that a single click can have these days, the ACLU cited re-tweeting, signing a petition, and donating to a campaign online as examples. If the appeals court rules against Carter, the ACLU argues that all of these actions will be ineligible for protection under the Constitution’s first amendment. Rebecca K. Glenberg, the legal director of the ACLU of Virginia, told the Washington Post that “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.” The ACLU argues that, as the technological world grows, we must protect the news ways of communication which will inevitably develop.

Facebook has also come forward in support of Carter and the ACLU, saying that a Facebook “like” is the modern equivalent of putting up a front-yard campaign sign. Facebook will get a chance to argue their side of the case before a three-judge panel of the 4th Circuit Court of Appeals. The social media company will be allowed three minutes of oral argument when the panel hears the case.

DiTommaso Lubin Prevails on Behalf of Client in Defamation, Libel and Cyber Squatting Case Involving Creation of Web Pages, YouTube Videos and Facebook Page Devoted to Criticizing a Chicago Area Used Car Dealer

May 10, 2013 | Peter S. Lubin and James V. DiTommaso

Our client David Bates created various web pages, YouTube videos and a Facebook page devoted to criticizing a local used car dealer that advertises extensively on the internet. The dealer sued Mr. Bates. Before our firm formally appeared, the dealership obtained a temporary restraining order restraining Mr. Bates from accusing the dealer of engaging in false advertising. Shortly after we appeared, we filed briefs arguing that Mr. Bates had a First Amendment right to criticize the dealer. We then obtained discovery proving that the dealer had filed a false affidavit to obtain the temporary restraining order because it had in fact engaged in false advertising in the past. We sought sanctions and the Federal Court entered a rule to show cause as to why the dealer shouldn’t be sanctioned for filing a false affidavit. A copy of that rule to show cause order can be seen by clicking here. A copy of our brief opposing entry of a prior restraint on Mr. Bate’s speech which we asserted would violate his First Amendment rights can be seen here. A copy of our sanctions brief can be seen here.

Following entry of the rule to show cause order, the case settled with the dealer providing Mr. Bates with a full release. The parties then headed to binding arbitration to decide if any of Mr. Bates’s videos were defamatory and thus should be removed from YouTube.

The Arbitrator ruled that none of the videos need to be removed as removing them would violate Mr. Bate’s First Amendment Rights. A copy of the brief we filed on behalf of Mr. Bates in the Arbitration can be viewed here. A copy of the Arbitrator’s decision ruling that none of of Mr. Bates’s videos were defamatory can be seen here.

With this decision, Mr. Bates has obtained a full release of all charges leveled against him and none of his material on the internet was censored. The Arbitrator ruled that minor errors in Mr. Bates’s videos do not make them defamatory because they are otherwise substantially accurate. The Arbitrator also ruled that the dealer failed to prove that its reputation had been harmed by Mr. Bates’s videos.

Public Citizen Defends Consumers’ First Amendment Rights to Criticize a Business On Yelp

May 9, 2013 | Peter S. Lubin and James V. DiTommaso

Our law firm is devoted to protecting consumers’ First Amendment rights to truthfully and accurate criticize businesses particularly businesses who advertise heavily on the internet. Consumers should be able to vigorously voice their opinions about car dealers and other businesses who engage in fraudulent advertising and other unfair business practices. Most big consumer businesses now force consumers to agree to secret binding arbitration of disputes in arbitration fora that often are stacked in favor of business or which business funds pay for. This makes online criticism more important as long as the critic attempts to be truthful and honest and isn’t acting a business in reckless disregard of the truth. In that regard with we were very interested to see a new posting by Public Citizen on the subject of protecting online criticism.

Paul Alan Levy reports about Public Citizen’s recent efforts in a defamation suit allegedly designed to stop citizens from criticizing a carpet cleaning business on Yelp:

You can’t live in the DC area and not encounter the pervasive advertising for Hadeed Carpet Cleaning, from mailed coupons and display advertising in the Washington Post that promise unbelievably low prices, to classic rock broadcast from the “Hadeed.com Studios” and advertising during Washington Capitals games. But regular users of pages about Hadeed on the Yelp web site quickly learn Hadeed’s dirty secret — more than thirty of the eighty-odd reviews posted there complain that the advertised prices are routinely not honored.

Even one of Hadeed’s Yelp admirers, who gave Hadeed four of five stars for the quality of its work, ridiculed the complainers in these terms: “I can give a life lesson to the people who only wanted the $99 special, there is no such thing! Every wall to wall cleaning company uses that as a way to lure you in but no one will charge you $99.” She also gives her secret about how to protect against unannounced price increases from Hadeed: pay in advance!
Apparently hoping to deter further criticism, Hadeed has singled out seven anonymous reviewers as defendants in a defamation lawsuit. It does not deny that its service staff routinely demand higher-than-advertised prices when they show up to do the work, but instead claims that it suspects, based on a mysterious review of some customer database, that these seven reviews were really posted by some unnamed competitor. Unlike some other ISP’s lately, Yelp is standing up for its users’ privacy, and so refused to comply with a Virginia subpoena because (among other reasons) Hadeed never provided any evidence that the gist of the reviews was false. Hadeed moved to compel compliance, and the trial judge, refusing to apply the otherwise-broadly-accepted Dendrite test, ordered compliance because it felt that it was enough for Hadeed to show that the statements “may be tortious.” And when Yelp refused to comply – because Virginia requires non-party discovery recipients to commit contempt of court to get the right to appeal — the court found it in contempt.

In an appellate brief that we have filed today on behalf of Yelp, we make two basic points. First, Virginia should agree with other states that demand both a legal and a factual showing that the lawsuit has merit. In that regard, read carefully, Hadeed’s defamation claim asserts only that the individual reviewers were not really customers, and Hadeed is not defamed by false statements about whether a given defendant was a customer. Nor, indeed, has Hadeed offered any reason to credit its supposition that the seven reviewers were not customers; what evidence there is in the record points in the other direction.

We also argue that a California company like Yelp should not be subject to a Virginia subpoena just because its web site is accessible in Virginia and because Virginia companies like Hadeed advertise on the web site. When AOL was based in Virginia, litigants in other states had to get Virginia subpoenas to demand identifying information about AOL users; by the same token, Hadeed should have to use the normal interstate discovery procedures when it wants identifying information about Yelp users from ISP’s in other states.

The work of Public Citizen to protect consumers’ free speech rights is commendable. If you cannot obtain a free legal defense to defamation suits, consumers must turn to a private attorney. Often times consumers home owners’ insurance provides coverage for defense costs when the consumer is sued for online reviews. We defend consumers in those suits and help them arrange for the defense costs to be covered by their insurance carriers.

Criminal Defense Lawyer in Drew Peterson Case Files Libel and Defamation Law Suit

April 22, 2013 | Peter S. Lubin and James V. DiTommaso

Far from solidarity in troubled times, the attorneys for Drew Peterson seemed to turn on each other as soon as their client was convicted. Each blames the other for the loss of the case and the dispute will now begin a legal battle of its own.

The plaintiff is Joel Brodsky, formerly the lead attorney for Drew Peterson in his murder trial, although he has since resigned from the legal team. Steven Greenberg, another member of the legal team who is still representing Peterson, is one of the defendants in the case. The lawsuit is the result of a 15-page letter, which Greenberg wrote and distributed. According to the lawsuit, the letter contains “false and misleading” statements which are allegedly an attempt to defame Brodsky as revenge for Brodsky attempting to fire Greenberg from Peterson’s case.

Among other things, the letter calls Brodsky a liar and an incompetent lawyer. One section reads, “You wafted the greatest case by ignorance, obduracy and ineptitude, … Your effort to blame me is suggestive of a six-year-old changing the rules of the game when he falls behind. … You are nothing more than a bully.” The letter also accuses Brodsky of “single-handedly” losing the trial and provides an unflattering description of his leadership, saying he insisted on the other lawyers calling him “coach”.

Allegedly, Greenberg developed a grudge against Brodsky after Brodsky told him to stop appearing on national television during the trial. The lawsuit alleges that this grudge caused Greenberg “to ignore the best interest of Peterson and become irrationally fixated and obsessed with destroying Brodsky”.

According to the lawsuit, the letter put Brodsky’s law office “in a false light in the public eye” which caused him to lose profits.

Brodsky also named the Chicago Tribune, its parent Tribune Co., Tribune reporter Stacey St. Clair, AOL Patch Media Corp., and Patch editor Joseph Hosey as defendants for publishing the defamatory letter.

Greenberg called the lawsuit “frivolous” and claims not to be worried by it because the “truth is a defense”. Tribune Editor Gerould W. Kern released a written statement which said, “We stand behind our reporting and our reporters, and we intend to defend this suit vigorously.
Walter P. Maskym, a Chicago attorney representing Brodsky in the case, said he is confident that Brodsky will win the case and “that his good name will be cleared and his professional reputation restored.”

In addition to defamation, the lawsuit is asserting claims for alleged false-light invasion of privacy and violation of the Illinois Deceptive Trade Practices Act.

Court Orders Customer to Take Down Customer Review on Yelp

December 12, 2012 | Peter S. Lubin and James V. DiTommaso

Biotechnology Company Files Product Defamation Lawsuit Against Financial Journalist

January 18, 2011 | Peter S. Lubin and James V. DiTommaso

As Chicago Internet product disparagement litigation attorneys, we were interested to see reports about a product disparagement lawsuit filed in early April against financial publication TheStreet.com and one of its reporters. Fierce Biotech reported April 7 that Canadian drug maker Generex has sued TheStreet and columnist Adam Feuerstein for libel, product disparagement and injurious falsehood. The lawsuit, filed in New York state court, seeks $250 million in damages for what Generex called “numerous defamatory statements” about the company, its leaders and its flagship product, an insulin delivery system allowing the hormone to be absorbed through the lining of the mouth, obviating the need for injections. In its filing (PDF), Generex said the statements caused its stock to drop nearly 8%, losing the company $12 million in market capitalization and the goodwill of third parties like investors.

Product disparagement laws prohibit outright false claims about another company or person’s products or services. In its April 6 press release announcing the lawsuit, Generex claims TheStreet and Feuerstein made such false claims, with the company’s general counsel saying they “[spread] categorical falsehoods” in articles “that go well beyond the expression of disparaging opinion or fair comment.” The company is referring to two articles authored by Feuerstein in March of 2010. In the first, he wrote that the company’s stock “is a total bust” because its product “is more fiction than science,” has not been tested sufficiently and would not be in demand. He also claimed the product had not been discussed in medical journals or presented at medical conferences, but TheStreet later retracted that statement when the company contacted it.

In the second article, Feuerstein went further and said the company’s work is “a ruse to perpetuate a 15 year-long stock promotion scheme.” He said the studies on its product, Oral-lyn, were extremely small and poorly designed. A Phase III trial in the United States, the first step toward FDA approval, was underenrolled and insufficient for FDA approval, he added, saying this showed that “Generex isn’t interested in seriously developing an oral insulin spray.” On the day Generex announced its lawsuit, TheStreet published a third Feuerstein article noting that approval of Oral-lyn was revoked by regulators in India — the largest country where it had been approved — about a year earlier, but that Generex had failed to notify investors. A fourth article dated April 29 faulted the company for mischaracterizing the FDA’s permission to use Oral-lyn experimentally as a “mini-approval.”
As Illinois online business libel lawyers, we believe winning this claim will be an uphill battle for Generex. To win, the company must convince a jury that Feuerstein’s articles were intended as statements of fact, not opinion. This could be difficult with the first article, because Feuerstein was responding in that piece to a direct question from a reader asking “What are your thoughts?” about Generex stock. The next sentence started with the phrase “I think…”, which seems to indicate that the following information was an opinion. The second article may offer more hope for Generex, because it doesn’t seem to contain any such clear statements indicating opinion. However, Generex would still have to show that the articles, which are intended as stock-picking advice, are not inherently opinion. It may also have to show “actual malice” by Feuerstein and TheStreet, which means reckless disregard of the truth or knowledge of falsity.

Newspaper Not Liable for Police Report Mistake Under Fair Report Privilege

August 31, 2010 | Peter S. Lubin and James V. DiTommaso

Our Illinois defamation attorneys and Chicago business law lawyers were interested to see a recent Second District Court of Appeal case affirming the fair-report privilege for newspapers accused of defamation. That was one cause of action in Eubanks v. Northwest Herald Newspapers, No. 2-08-0812 (Ill. 2nd 2010), in which plaintiff Carolene Eubanks also alleged false light invasion of privacy. Eubanks was upset at the Northwest Herald for printing a police notice that she had been arrested for retail theft and attempted obstruction of justice. In fact, another woman was arrested; the police had made a mistake in their original report. Unfortunately, the mistake was caught too late and the report went to print. The newspaper printed a retraction the next day explaining that Eubanks was not the person arrested.

Nonetheless, Eubanks filed a lawsuit against Northwest Herald Newspapers about five months later, alleging defamation and false light invasion of privacy. The newspaper moved for summary judgment, asserting that it was immune from defamation lawsuits under the fair report privilege. That privilege shields the media from lawsuits as long as they use official records or reports — including police reports — and fairly and accurately report that official information. The motion included an affidavit from the newspaper employee who received the original, incorrect police report via email, Brenda Schory, as well as the follow-up report correcting it. Because the matter took place on a New Year’s holiday weekend, Schory said, she didn’t open the second email until the incorrect report had already been published.

The trial court denied this motion for summary judgment, saying it provided no evidence of whether another employee might have opened the email before Schory could. In response, the newspaper made another motion for summary judgment, this time including an affidavit from the employee that maintains its computer system, Ben Shaw. Shaw said he had looked through computer records and was able to prove that no employee opened the second email until late in the morning the incorrect story had been published. The trial court granted summary judgment this time. Eubanks appealed, arguing that the fair report privilege does not apply to the article at issue, and that a jury should decide whether it recklessly abused the privilege.

The Second District first addressed the issue of whether the fair-report privilege applied at all. Illinois law says the privilege applies if the report is “accurate and complete or a fair abridgement” of the official information. Eubanks argued that the Northwest Herald article was not fair and complete because it did not contain the information from the second email. The Second disagreed. Relying on caselaw including Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 376 (1996), the court noted that the law asks only whether the publication was accurate, not whether the information contained in it is actually true. The newspaper had no obligation to report the contents of the second email until it opened that email, the court said. Thus, the privilege still applies.

Next, the court tackled the argument from Eubanks that summary judgment was inappropriate because a reasonable juror could find that the newspaper abused its privilege by acting recklessly. To support this, Eubanks argued that the newspaper could have covered police reports or checked email over the holiday weekend. In any case, she argued that this is inappropriate for summary judgment and a jury should decide. The Second dismissed this argument as well. Most qualified privileges in Illinois can be overcome if the plaintiff can show malice, the court said. But under Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 588 (2006), not even malice overcomes the fair-report privilege. That decision said the privilege can be abused only if the defendant’s report was inaccurate, for example, by omitting information or adding incorrect information. For that reason, there was no abuse of the privilege in this case, and summary judgment was appropriate.