But, now, by all accounts, it appears that Johnson has actually filed a defamation lawsuit in Missouri against Gawker (who is currently fighting a big (and much more important) lawsuit concerning the Hulk Hogan sex tape excerpt that it published). The lawsuit is equally as nutty as most things associated with Chuck Johnson, but go ahead and read it. The one thing that's important to note is that there hasn't, yet, been confirmation that it's actually been filed, but at the very least someone put work into it.
By all public appearances, the only reasons that this was filed in Missouri was because... that's where Johnson could actually find a lawyer willing to file something so ridiculous (the same lawyer who made the silly threats against Twitter) and, perhaps, because Missouri lacks a real anti-SLAPP law. It has one, but it only applies to petitioning the government. All the more reason to support a federal anti-SLAPP law.
We can go through all the reasons why the lawsuit is likely to fail, but, come on, we've got other stories to write as well, so we'll just pick out some of the highlights.
- Missouri?!? WTF? There is no legitimate reason to file this lawsuit in the state court in Missouri. Johnson is in California. Gawker is in NY. And no, the fact that it's kind of "in the middle" doesn't count. This lawsuit will almost certainly be thrown out over the venue choice. The rationale in the lawsuit is laughable: Because Plaintiffs have been injured in the State of Missouri, the matter is properly before a circuit court of Missouri. Venue is determined solely by statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). Because the matter alleges torts, including defamation and invasion of privacy, venue is proper in this Court. That's unlikely to fly. As Adam Steinbaugh notes in his write-up (the link above), the case will almost certainly get dumped for "lack of personal jurisdiction." At the very least it won't stay in state court as it meets all the easy criteria for removal to federal courts (parties in different states, over $75k at stake...). Steinbaugh also wonders if Gawker might try to jump into federal court and file for declaratory relief in a state where it can use an anti-SLAPP law, but that's not actually as easy as it may sound for a variety of reasons.
- The standard for defamation: As we've discussed many, many times, if you're a public figure, the standard for defamation is very high (as it should be). The statements need to be done with "actual malice," meaning that Gawker published false stuff, knowing it was false and that it would harm Johnson. That's not happening.
- That's not defamation: Among the things that Johnson complains about is a Gawker claim that he is the "web's worst journalist." That's clearly a statement of opinion. No court is likely to find that defamatory.
- Intermediary liability to the rescue: Johnson also claims that Gawker reporters "solicited" defamatory comments. That's protected by CDA 230 and should get tossed out. From the lawsuit: It is very common for initiators of writings (such as Defendants Howard and Trotter) to create content amongst other non-initiating content creators, and to directly respond-to and collaborate with non-initiating content creators, instigate and solicit responses from non-initiating content creators, and adopt the conclusions of or otherwise advertise or approve of the content of non-initiating content creators as signified through text content or by hyperlinking to additional locations on the same webpage or the webpages of other stand-alone writings. Yeah, that's not how the law works.
- False things about false light: The lawsuit makes "false light" claims in addition to defamation. There's a problem with that. For the most part, Missouri does not recognize "false light." It's not absolutely true, but mostly true, as noted in a recent Missouri Supreme Court ruling that notes that it has left open the possibility of false light in future cases, but that it absolutely will not allow attempts to just pile on a false light claim that is nothing but an attempt to allege defamation in another form. This is not false light and Missouri's courts have rejected basically all false light claims for decades.
Permalink | Comments | Email This Story
Indien u een sommatiebrief op de mat krijgt waarin staat dat uw domeinnaam dient te worden overgedragen, kan dit even schrikken zijn. Doorgaans bevat de sommatiebrief ook een onthoudingsverklaring die u dient te ondertekenen. Hoe gaat u hiermee om? Meteen een reactie schrijven, akkoord gaan met de voorwaarden uit de brief of toch eerst maar even juridisch advies inwinnen?
Een sommatiebrief bestaat doorgaans uit een aantal vaste elementen. De brief zal de feiten opsommen en uiteenzetten op basis van welke juridische gronden u inbreuk maakt op de rechten van de wederpartij. Deze juridische gronden zijn bijna altijd gebaseerd op het handelsnaam- en merkenrecht.
Daarnaast kunt u bij de sommatiebrief ook een onthoudingsverklaring treffen. In een dergelijke onthoudingsverklaring staan vaak een aantal voorwaarden waaraan u binnen een korte termijn dient te voldoen. Hierbij kunt u denken aan het onmiddellijk staken en gestaakt houden van de inbreuk, de (gratis) overdracht van de domeinnaam en de eis dat u in de toekomst geen vergelijkbare domeinnamen zal registreren. Maar dat is nog niet alles! Wij zien regelmatig onthoudingsverklaringen langskomen waarin een voorwaarde is opgenomen dat u binnen korte termijn verplicht bent om een aanzienlijk bedrag aan advocatenkosten te betalen. In veel gevallen, ook als u middels uw domeinnaam daadwerkelijk inbreuk maakt, hadden deze kosten makkelijk voorkomen kunnen worden door eerst rechtstreeks contact met u op te nemen.
Het is natuurlijk geen uitgemaakte zaak dat alles wat in een dergelijke brief en onthoudingsverklaring staat ook juridisch gezien klopt. Het komt vaak voor dat sommatiebrieven een hoog ‘blufgehalte’ bevatten en zodoende afschrikwekkend (proberen te) werken. Het valt dan ook aan te raden om eerst juridisch advies in te winnende, voordat u akkoord gaat met de (vaak onredelijke) eisen uit de sommatiebrief en onthoudingsverklaring.Gerelateerde artikelen
More Stingray secrecy. MuckRock has been tangling with Boston's police department for several months over the release of Stingray-related documents. So far, the BPD has managed to keep these out of MuckRock's hands.
The first response it offered when denying Mike Katz-Lacabe's request was filled with boilerplate and nearly nonsensical legalese. The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens. There's a healthy debate to be had about whether Stingray surveillance is in "the public interest," but that debate necessarily includes the public, and the denial of this request cuts the public out of the loop. Arbitrarily deciding whether or not a document is in the "public interest" shouldn't be left entirely in the hands of the agency seeking to withhold information -- any "prejudicing" of "possibly effective law enforcement" notwithstanding.
MuckRock appealed this decision. The state stepped in and told the Boston PD that it couldn't just issue boilerplate without explanation in response to these requests. Your response states that the Department is withholding the responsive records because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. However, this response does not explain how these requested records pertain to an ongoing investigation, confidential investigative techniques, or witness statements and also fails to demonstrate how disclosure of these particular records would prejudice investigative efforts as required by Exemption (f). With regard to Exemption (n), this response merely cites the exemption and does not address the security-related rationale needed to justify withholding records under this exemption.
As a result, the Department has failed to satisfy its burden of proving with specificity why the responsive records may be withheld in their entirety under Exemption (f) and Exemption (n). The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations.
Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Katz-Lacabe with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption applies to each record. Well, the Boston PD has fulfilled the letter of the state's order, and has provided Mike Katz-Lacabe with a more verbose answer, albeit one that is completely unchanged in terms of results. No documents will be released but, hey, at least the explanation runs an additional half-page! More specifically, disclosing the existence of and capabilities provided by the type of equipment/technology referenced in your request would reveal sensitive technological capabilities possessed by the Department, and other members of the law enforcement community, and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations. Additionally, the information contained within the requested documents could be used to construct a map or directory of jurisdictions that possess the investigative capabilities, thereby providing further information for potential suspects that could be used to evade detection.
Through public disclosures, the use of this technology will be rendered essentially useless for future investigations. In order to ensure that such and any information related to its functions, operation and use, is protected from potential compromise it is not subject to disclosure as a public record. As MuckRock's Shawn Musgrave points out, the BPD has dropped its unexplained (n) exception ("likely to jeopardize public safety") in response to the state's clarification orders, but it still is claiming the documents sought are "investigatory materials," even though they really aren't. Mr. Katz-Lacabe has already filed a subsequent appeal to the state. He contends that his request for fiscal documents and non-disclosure agreements — which all state and local law enforcement agencies are required to sign with the FBI prior to acquiring cell phone tracking devices — do not qualify as investigatory materials. And they aren't. The FBI issues a slightly-tweaked boilerplate itself -- the NDAs it forces local law enforcement agencies to sign. Fiscal documents reveal little about capabilities and, depending on the extent of the redactions -- very little about what, if any, equipment is in the possession of these agencies. None of the requested documents come anywhere close to providing specifics about past or ongoing deployments.
The BPD's extreme reluctance to release these documents could very well trace back to the non-disclosure agreement it won't release. It may also be concerned that fulfilling this request could result in the release of actual investigatory materials by mistake -- a concern many agencies share after FOIA requests have resulted in "oversharing" by inexperienced FOIA response staff. No matter what the rationale for the full non-disclosure, the BPD's reliance on these exemptions for these specific documents is clearly bogus.
Permalink | Comments | Email This Story