Brent Marks Legal Thriller Series: Box Set Two

by Kenneth Eade

  Cyber-bullies spread lies and rumors about their victims, often anonymously, including pretending to be their friends (much like Russ and Gary did with me) in order to obtain personal information and photographs which they manipulate and post on blogs and websites. Bullying is also done by email and text messaging.

  In the days before the Internet, bullies, people jealous of your success, competitors in the workplace, or competing businesses were still out there; but their attacks were short-lived and soon forgotten. The Internet gives them the power to permanently destroy any reputation that is associated with any name that can be “googled,” and the results will outlast your lifetime. Questions like “Mom, was grandpa really a bad man?” may become commonplace in this cyber age.

  But cyber-bullies do not stop when they leave school. They become cyber-stalkers. The problem with cyber-stalkers is that they have more power when they are cloaked in anonymity, as well as less responsibility. If a cyber-stalker acts anonymously, it is harder to identify him and bring him to justice. Anonymous free speech has been upheld by the U.S. Supreme Court in Talley v. California, 362 U.S. 60 (1960). Of course, that was over 50 years ago, when there was no Internet; but it’s still a good law.

  So, as a result, you have cyber-bullies using modern technology to torture their victims to the point of despair and even suicide, and they have a constitutional right to say whatever they want, anonymously. Threats of violence, harassment of former romantic partners, and posing as the victim and posting private matters and photographs on the Internet is very common.

  A cyber-stalker will go to any length to try to cause you pain and ruin your reputation. As the name implies, they will virtually “stalk” you on the Internet, to no end. In the real world, this behavior would possibly be criminal and you could seek a restraining order against it. But in the online world, there is literally nothing to protect you, and the cyber-stalker will often hide behind a mask of anonymity to prey on his or her victims.

  Groups of cyber-stalkers will even organize together on Internet chat boards and help each other to harass a stalker’s victim, publishing altered photographs, threats, and personal information. These “cyber mobs” find validation in each other’s support, lose their sense of personal responsibility for their actions, and become even more aggressive when they believe they are supported and respected by the others in the mob. It gives them a false “authority” which they capitalize on by spending their time doing online “research” on their victims, which they see as a kind of “detective work.”

  The law of defamation varies from state to state, but essentially, in the common law, defamation is a false statement, published to another party, that causes injury to a person. If it is an oral statement, it is slander, and if it is a written statement, it is libel.

  If you are a public figure, you have to prove the additional element of malice, which is a “knowing or reckless disregard for the truth.” Public figures such as celebrities (and especially elected officials) are pretty much fair game. If they weren’t, Jay Leno would be in a lot of trouble.

  Defamation is, in most jurisdictions, a civil wrong, or a tort, but there are many countries, including Russia and China, where defamation is a crime.

  In California, the defamation law is essentially a codification of the common law. It is either libel or written defamation, slander or oral defamation. It is essentially a false statement, made to another person which causes harm to that person’s property, business, profession or occupation.

  Libel is “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes a person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” California Civil Code section 45.

  “Slander is a false and unprivileged communication, orally uttered, and also communications by radio or any mechanical or other means which: 1) charges a person with crime or having been indicted, convicted, punished for crime; 2) imputes in him the present existence of an infectious, contagious, or loathsome disease; 3) tends directly to injure him in respect to his office, profession, trade or business, that has a natural tendency to lessen its profits; or 4) imputes to him impotence or a want of chastity; 5) which, by natural consequence, causes actual damage.” California Civil Code section 46.

  California, like many other jurisdictions, also has defamation per se, where damages are assumed if the false statement accuses the victim of a crime of moral turpitude, a loathsome disease (such as a sexually transmitted disease), or accuses a married person of not being chaste.

  Pretty clear, isn’t it? Okay, so someone has published an untrue statement about you on the Internet, which has caused real damage to your reputation. Remember the Franciscan Monk? Attack!!! Ready, fire, aim!!! Wait a minute - not so fast. As my criminal law professor said the first day of class, “In the first semester, I’m going to teach you how to put the criminals away; but in the second semester, I’m going to teach you how to get them off.” There are defenses to defamation that you have to be aware of, such as privilege, truth, and opinion.

  Truth is an absolute defense to defamation. So, if your cyber-bully can prove that what he is saying about you is true, there is nothing you can do about it. There are also certain cases where you are protected from whatever you may say about a person. These are cases of privilege, and you generally have a privilege to say anything you want, no matter how outrageous or harmful it may be, in a judicial, legislative, or administrative proceeding.

  If a statement by your cyber-bully is an opinion about you, this is a defense to libel. For example, if he said: “I think Joe Blow is a jerk,” and he knows something about you from which he can formulate that opinion, the statement is probably not actionable. Likewise, if it is a “fair comment” or an expression of your opinion about a matter in the public interest, like Bill Clinton and Monica Lewinsky, for example (I purposely chose the most ridiculous example), the statement is probably not actionable.

  Okay, your cyber-bully or mob has published statements about you on the Internet, you’re not a public figure, the statements are false, they accuse you of a vicious crime or loathsome disease, and it has completely ruined your reputation and your business. So what? Even if it is libel or slander per se, you still have to prove damages. You may say, “But of course my business has been damaged. It’s ruined. My reputation is my business.” Fair enough, but it’s very hard to prove that you have lost a customer or client whom you don’t even know about. In a defamation case, you have to bring evidence of the damages you suffered in order to recover anything significant.

  Prosecuting a legal case is expensive, time-consuming, and it’s very difficult to be a litigant. The discovery process can be humiliating and can feel like an invasion of your privacy. Plus, you have to prove you had a good reputation to begin with. All of this takes evidence, which means that you have to locate witnesses who will testify about your good reputation before the defamation and witnesses who will testify that you had a bad reputation after, because of the defamation. It’s not as easy as you think. And that cyber-bully, the one who has all the time to post nasty things about you all over the Internet: remember him? He probably doesn’t have all that time on his hands because he’s rich and happily retired, getting bored counting his money, and just decided to trash you every day on the Internet. He probably has all that time on his hands because he is a loser with nothing else to do. How could he possibly pay you any damages, even if you're awarded them? These are all very important things you need to consider before you go out and hire F. Lee Bailey or Alan Dershowitz.

  47 USC section 223, known as the anti-cyber-stalking law, prohibits the interstate or foreign communication of “obscene communications” with the intent to abuse, threaten or harass any person, and “indecent” communications to persons under the age of 18. But don’t expect the FBI to take on your cyber-harassment case anytime soon. T
hey are too busy going after people who may have downloaded or watched any type of under-age pornography (another despicable activity).

  The federal law probably could be of some use if a member of a cyber-mob is posting personal information that could place you in potential danger. For example, if he or she posts your home address or telephone number, or your place of work, or information about where you may be and when, and implies or incites violence, this is a crime: and if you call it to the attention of the administrators of the website or blog where this is occurring, it is likely that the information will be removed. Likewise, if your social security number or private information is posted that could aid in the commission of identity theft against you, this is likely to be taken down if you complain.

  Several states, such as Alabama, Arizona, Connecticut, Illinois, New Hampshire and New York, have included cyber-harassment in their anti-harassment statutes, and Alaska, California, Missouri, Oklahoma, and Wyoming have defined communications made in cyberspace to be included in their anti-stalking laws. Texas has enacted a cyber-stalking law that is similar to the federal statute.

  But unless it’s a statement that incites violence, then no matter how untrue and no matter how cruel, don’t expect any Internet provider or even the mighty Google to do anything about it. Unless you can prove it’s a copyright violation, there is absolutely nothing that they will do about it, and they have the full backing of the United States government to do absolutely nothing.

  The Communications Decency Act of 1996 (“CDA”) was enacted by Congress before the beginning of the “dot-com bubble” with the intention of regulating pornography on the Internet. In 1996 there was no Google, no Facebook, and no Twitter. Cyberspace consisted almost entirely of pornography, which makes the Act already outdated by the technology it was intended to control. Ironically, the anti-pornography portions of the Act were stricken by the U.S. Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997), as a suppression of freedom of speech. The most notable portion of the Act that was left was section 230, which gives Internet Service providers (ISPs) immunity against any criminal action or federal intellectual property civil action with respect to any content that is posted on their site.

  Even though it is limited to federal criminal and intellectual property law, the landmark decision of the Fourth Circuit Court of Appeal of Zeran v. America Online, Inc., 129 Fed. 3d 327 (4th Cir. 1997) held that section 230 gave ISPs immunity from all civil liability with respect to content published on their sites whether or not that content was altered by the ISP.

  The Zeran case was an obvious case of cyber-harassment. In Zeran, a mob of cyber-bullies advertised T shirts and other items glorifying the bombing of the Oklahoma City federal building by Timothy McVeigh (such as “Visit Oklahoma…It’s a BLAST!”) and posted Plaintiff Kenneth Zeran’s home telephone number on the message. Zeran requested AOL to remove the content, which it initially did, but later it refused to remove additional, similar postings. Zeran received a barrage of threatening telephone calls and the threats of violence resulted in his home being placed under protective surveillance. While other courts around the country have rejected CDA immunity in cases where the ISPs contributed content, the U.S. Supreme Court refused to hear the Zeran case, so the result you may get in any particular case is determined by where your cause of action arose and, thus, what court you brought your lawsuit in.

  On February 12, 2013, President Obama signed Executive Order 13636, calling for the development of a Cyber Security Framework to protect systems and assets vital to the United States which could have an impact on security or national public health and safety. Some legal authorities have postulated that this may extend to publicly-held companies, and that it may be a sign of cyber security regulations aimed at identity theft, viruses or malware, and potential “advertising injury” which could include copyright infringement and defamation. See Insurance Cybersecurity Regulations – What Insurance Coverage Do You Need? http://www.jdsupra.com/legalnews/insurance-cybersecurity-regulations-wh-35583/.

  Now that we have determined that it is highly unlikely to succeed against an ISP for the defamatory content that appears on a particular site or sites, there is another hurdle to overcome. If you are in a state such as California, any lawsuit that is determined to censor or intimidate your cyber-bullies can be summarily dismissed, and you can be assessed with the cyber-bully’s attorney fees and costs of suit.

  They are called 'strategic lawsuits against public participation' (“SLAPP” suits), and 28 states have enacted legislation outlawing them, in different incarnations. They are Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont and Washington.

  The intentions behind the anti-SLAPP statutes are noble ones. The primary objective behind a SLAPP suit is to intimidate people who petition the government with grievances. Florida has the most restrictive anti-SLAPP law. It is limited to suits brought by the government in response to the right to peacefully assemble, instruct representatives, and redress grievances before governmental agencies, and also applies to homeowners with their homeowner’s association.

  California has the most strict anti-SLAPP statute. It applies to any action “arising from any act of that person in furtherance of the person’s right of petition or free speech” in connection with a “public issue.” (California Code of Civil Procedure section 425.16.) This is defined in the statute as any written or oral statement made before legislative, executive, judicial or other proceeding, any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, 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, or any other conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest.

  'In connection with a public issue or an issue of public interest' has been interpreted by some California appellate courts to mean any issue that applies to any person who, by their “accomplishments or mode of living”, create a bona-fide attention to their activities.” Hilton v Hallmark Cards, 599 F.3d 894 (9th Cir 2010), quoting Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639 (1995). This leads anti-SLAPP attorneys to argue that the public decides what a public issue is and, in this case, the “public” is your cyber-mob, because it’s something that they are all talking about. As my ex-mother in law used to say, “Only famous people are talked about.”

  Under the California statute, your cyber-stalker can make a motion to dismiss your case in its initial stages before you have the right to discovery to even find out who your defendants are (in the case of unknown defendants, who you may sue as “John Does”). This motion stays all discovery, and shifts the burden to the Plaintiff to provide evidence that proves a probability that he or she will prevail on the claim. This is almost impossible to do without discovery, making it a fait accompli. The winning of the motion signals the dismissal of the case, and you are assessed with your opponent’s attorney’s fees and court costs.

  For as long as you have been living, people have been judging you and sizing you up in almost every social capacity you have been involved in. This used to be done in person. A person would meet you, ask you questions, and get a feeling for what you were all about. In this virtual world, however, many relationships are made online. Before eyes meet, people have already exchange electronic resumes on some dating site or on Facebook. According to a study published in the Proceedings of the National Academy of Sciences, the percentage of married couples in the United States who met online is a staggering 35%. And, in a business or professional context, people used to go to a doctor or lawyer based on a personal recommendation. In this cyber world, they are more likely to let a Google algorithm do the recommending for them.


  Google’s search engine is the most popular in the United States, with a market share of over 65%, and is one of the most popular search engines in the world, operating in many different languages. When most people in the United States look for a business or service, they are most likely to do it using the Google search engine.

  The Google algorithm is a mathematical program that searches out key words on over 150 million Internet web sites and assigns a rank to each web page on which the key words appear. It is so widely used that the word “google” has also become a verb in American pop culture. “Google it” is a common answer you may hear to a question that requires research. And when people are trying to decide whether to use your services or patronize your business or hire you as an employee, they are likely going to “google” your name and use the information they read about you to make a decision.

  Is that a sound way to make a decision? Probably not. Just because something is printed about you on a website, or even ten or 100 websites, doesn’t mean that it is true. But it is what they are going to look at in making their decision, so you have to face it.

  The power to speak anonymously, once used as a political tool, can now be used by virtually anyone. An email account, Facebook account, or Twitter account can be set up for any fictitious person. Anonymous people chatting on Internet chat rooms or bulletin boards can be difficult, if not impossible, to trace, and the sites themselves that post libelous material have the immunity to do so thanks to the CDA. Gossip is becoming the equivalent of news. What used to be written on the bathroom wall about a teenage girl’s reputation can now be broadcast to thousands, and the record of it stays in cyberspace forever. The same teenage girl, when she becomes a mother, can look forward to her daughter reading, in explicit detail, how much of a slut she was when she was a teenager or, even worse, watching pornographic videos or pictures (possibly even manipulated) that may have been taken by a scorned lover or ex-husband.