Browsing the archives for the Streisand Effect tag.


Popehat Signal: Seeking Help In A Troublesome Massachusetts Defamation Case

Law

The Popehat Signal

It's time for the Popehat Signal. I'm looking for attorneys admitted in Massachusetts to represent both named and anonymous online commenters. They've been sued by a man named Jonathan Graves Monsarrat based on a series of LiveJournal posts and comments.

Monsaratt's lawsuit is here. You can see LiveJournal threads talking about the lawsuit here and here.

The lawsuit targets posts and comments about Monsarrat's January 2010 arrest. Various sources reported that police arrested Monsarrat when they found him at a loud Somerville party that featured (gasp) underaged drinking. The charges against Monsarrat were later dismissed. Monsarrat was already known locally. Some of his fame was benign — he ran a whimsical message board called the "Wheel of Questions" where people could leave notes and have them answered. Some of his fame, on the other hand, was not positive. In 2003 the MIT and Harvard student papers reported complaints by participants in a Harvard-MIT-Wellesley matchup program he created and operated; participants asserted that Monsarrat chose people he wanted to meet from the matchup he was running and persistently contacted them in a way they found harassing. He was quoted thus:

Monsarrat, who also participated in the matchup service, said that he had heard of complaints about his personal use of data from the service, but said “I kind of don’t get that. I signed up like everybody else. There was no privacy policy.”

These reports led to a certain amount of internet infamy, including an unflattering entry on Encyclopedia Dramatica.1 Monsarrat filed a DMCA notice against Encylcopedia Dramatica seeking to remove among other things, pictures of him they posted in the course of ridiculing him.

When Monsarrat's arrest broke in 2010, people began writing about it, and him, and his past, on LiveJournal. People writing about it referred to past stories about him in connection with the matchup incident, and other critiques of him. As is common online, many criticisms were vivid and accusatory and hyperbolic. That's the basis of Monsarrat's suit against two named defendants (a blogger and a poster on LiveJournal) and multiple anonymous commenters.

Monsarrat's complaint cites some statements made about him which, if untrue, could be defamatory. So why do I think this case is worthy of the Popehat Signal? It's because the complaint is overtly censorious and abusive of the legal process in multiple ways.

First, the complaint jumbles allegedly false statements of fact together with clear statements of opinion and insulting rhetoric. The former can be defamatory; the latter is protected by the First Amendment.

Second, the complaint jumbles together numerous defendants and suggests that they are all jointly responsible for each others' words. But under Section 230 of the Communications Decency Act content providers — like bloggers — can't be held liable for the words of their commenters. Moreover, Monsarrat's conspiracy theory appears to be a method to target people for protected speech (like insults or statements of opinion) on the theory that the protected speech was connected to non-protected speech (like false accusations of fact). Practically speaking, that theory means if you post an insult or opinion about someone in a thread that also contains a false statement by someone else, you could be sued for conspiracy to defame. The chilling effects are obvious.

Third, the complaint suggests that bloggers, and commenters, cannot report and comment based on stories published in newspapers. There can't be any dispute that a local paper reported on Monsarrat's arrest and that student papers reported on the matchup incident. Misstating what's in those articles can be defamatory, but suing people for repeating what was published in the paper — without any basis for asserting they knew it was false — seems overtly censorious, and faces substantial legal barriers.

Fourth, Monsarrat cites some commenters merely for linking to other sites, like Encyclopedia Dramatica and the Harvard student paper. But there is — thankfully — an emerging legal consensus that linking to content does not constitute republication of that content for defamation purposes.

Fifth, for some reason, it appears that Monsarrat has waited to the very ragged edge (if not beyond) of Massachusetts' three-year statute of limitations for defamation actions. That does not support the assertion that he was actually harmed; it appears tactical.

Sixth, Monsarrat's non-defamation causes of action appear highly dubious. His "common law copyright" claim is based on uses of content that are clearly intended to critique or satirize. His commercial claims seem to rely on the highly dubious proposition that the defendants were involved in commercial activity. In short, the other claims appear to be a kitchen-sink approach. And, of course, there's Butthurt In the First Degree, also known as Intentional Infliction of Emotional Distress.

The Streisand Effect may yield results that Monsarrat will regret. He needs to prove that the things said about him are untrue. A lawsuit like this seems designed to generate widespread publicity and encourage any witnesses that might support the defendants to come forward.

The complaint is highly vulnerable to attack. The named defendants need legal help. One of them — Ron Newman — helps maintain a LiveJournal community. Like many Americans, he's out of work, and like almost all Americans, he'd find it impossible to fund the defense of a lawsuit. Lawsuits are ruinously expensive to most folks — which is exactly why merely the threat of a defamation suit can silence people, and why plaintiffs can abuse the legal system to chill expression.

Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. Here Monsarrat's complaint, whatever elements of merit it might have, is framed in a way that should be of grave concern to anyone who values freedom of expression and opposes legal bullying.

So: if you are a Massachusetts lawyer, please consider helping the named defendants. I suspect that First Amendment lawyers across the country will be willing to offer support and advice. In addition, the anonymous commenters require counsel to help them oppose discovery calculated to pierce their anonymity.

Thanks, as always, for standing up to defend free speech.

265 Comments

Suburban Express Took The First Bus To The Streisand Effect. Have They Disembarked In Time?

Law

There are many rules governing sensible protection of your company's online reputation. The first is simple, if vague: to quote Wil Wheaton, don't be a dick.

If you've been a dick, there's no need to despair. Everybody has a bad day now and then, and the internet is basically a big old bag of dicks, so your dickery may quickly be forgotten. Redemption is within your reach.

Unless, that is, you double down, and triple down, and quadruple down.

"Doubling down" means that, when called out for being a dick, you retaliate by being even more of a dick. The infamous Charles Carreon doubled, tripled, and quadrupled down in his dispute with The Oatmeal and with a satirical blogger. Paul Christoforo doubled down. Craig Brittain of "Is Anybody Down?" doubled down. Ranaan Katz doubled down.

When you double, triple, and quadruple down on online dickery, you place yourself beyond easy reputational redemption, and instead face the full force of the Streisand Effect.

Illinois bus company Suburban Express learned this lesson over the past week. But even though they engaged in online dickery, and even though they doubled down, having caught a glimpse of the Streisand Effect, they are now retreating furiously from the precipice and avoiding the fatal triple- and quadruple-down. But has their change of strategy come soon enough?

Continue Reading »

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Be Aware That You Have Threatened, Tried To Blackmail And Accused Our Company Of SCAM With Your E-mail!

Law, WTF?

We get letters.

This week we heard from a reader who, to protect her privacy, I'll refer to as Rapunzel. Rapunzel had a bad experience with a piece of jewelry she'd ordered from an online merchant. It seems that Rapunzel had ordered a necklace, which she expected to look like this:

Television Whopper

What actually arrived looked like this:

Actual Whopper

But by the time this reached me, the necklace was not Rapunzel's problem. This is not a post about cheap cosmetic jewelry.

This is a post about baseless threats of suit to suppress a dissatisfied customer's speech, spurious allegations of crime, stalking, and  the most bone-headedly aggressive  customer service department on the entire world wide web.

"A bunch of mindless jerks who'll be the first against the wall when the revolution comes." — Douglas Adams.

This is a post about alwaysinfashion.com, the "Online Store of Polish & Russian Amber and Murano Glass Jewelry," whatever that is.

Now ordinarily I would not lift a finger to assist someone who had purchased a trinket online and found its appearance … something less than what was advertised. I would politely commiserate, then point out that I charge more to make one telephone call than the trinket is worth.

To her credit, Rapunzel did not seek my assistance in getting a refund. She had dealt with that herself. After sending an inquiry, she found that the company's return terms (a refund only if the offending merchandise is shipped first-class mail to Italy, at the buyer's expense) were unsatisfactory, and advised the company that she would write a negative review of the product, and her experience with the company.

That's when things got weird. That's when Rapunzel received this email, from "sales" at alwaysinfashion.com:

Mrs. Rapunzel,

We are a reliable and well known company and people on the internet talk about Us very positively.

You have received the items that You have ordered and paid for, that is it.

Thousands of customers are happy for the quality of our products and for our professionalism and We must suppose that You agreed with them since You have decided to place on order from our company.

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.

If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Sales Department
Alwaysinfashion.com (Emphasis in original)

This email brings several thoughts to mind.

First, it's good to know that Ignatius J. Reilly is alive and well, and working in customer service.

Second, the circular logic that leads alwaysinfashion.com to suppose that Rapunzel, a first time customer, "must have agreed" with the thousands of customers happy for the quality of its products and professionalism, before she ever received a product, is breathtaking.

Third, my co-blogger Ken has said, rightly, that vagueness is one of the hallmarks of a poor legal demand. When the threatening party cannot identify a specific defamatory statement, that's a sign of bullying and bluster. In this case, alwaysinfashion.com goes one better: The company threatened Rapunzel with litigation before she wrote a single word about its product.

Fourth, well, you'll see…

"When the going gets weird, the weird turn pro." — Hunter S. Thompson.

After receiving alwaysinfashion's thug-missive, Rapunzel replied, stating she would communicate with the company no more, but asserting her right to express her honest opinion of the product, as well as the fact that alwaysinfashion had threatened to sue her, to others. I believe she has done so at this point.

Later this week, unsolicited, this popped into Rapunzel's in-box.

Mrs. Rapunzel,

These are the facts:

1)You placed an order of two Amber necklaces ATN002 (realized with irregular beads softly rounded in matte and cognac color) promptly shipped and delivered to You.

2)You liked so much Our Amber necklaces that You have tried to get another couple for free adducing unfounded reasons.

3)After Our denial, your opinion about Our products and Our company suddenly changed:  Our necklaces became “sub par” items and We became scammers.

Objectively if You feel yourself victim of a scam, the only logical thing to do is to ask for product return instructions and surely not to ask for other two pieces of the same item. You also asked for an expedited shipping since you:” really wanted to have this amber for the trip”.

Moreover your scam allegations are based on your personal idea that beads color is  an evidence of Amber quality. Please show Us your credentials as jewelry expert or send Us a copy of the  documentation that certify your statements.

Mrs. Rapunzel You can be sure that We will leave reviews and post on social networks about your blackmail and threatens and We surely inform about this matter all the companies You work for in Oklahoma [REDACTED BY PATRICK]

This is our last warning to You Mrs. Rapunzel: If You keep on with your defamations and write false reviews or lies on blogs, forums or social networks, We will immediately start a lawsuit against You.

This is our last e-mail and We assure You, Mrs. Rapunzel that the next communication will be sent from Our lawyers along to a claim for damages.

Sales Department

Alwaysinfashion.com

Believe it or not, there is a charitable interpretation of this email.

I will assume, charitably, that the mastermind behind alwaysinfashion.com's sales team learned English as a second language.

And one could assume, charitably, that alwaysinfashion's threat to "leave reviews and post on social networks about your blackmail and threatens" is a poorly phrased way of stating, "We will post detailed rebuttals of your online criticisms of our products."

If one were charitable.

I'm not charitable, because the following threat, to contact Rapunzel's employer concerning her "blackmail and threatens," showing that alwaysinfashion had gone so far as to google Rapunzel and name an employer, is extortion in the moral sense of the word if not the legal: a threat to accuse Rapunzel falsely of a crime, and to jeopardize her livelihood, all in order to suppress her speech.

"This aggression will not stand, Dude." — Walter Sobchak.

By this time Rapunzel had contacted Popehat. Where initially she had considered alwaysinfashion's threats to be bluster, that the company had taken the trouble to search her employment history, in a dispute over a cheap piece of jewelry, was so off-the-rails scary that she felt she needed help.

Yesterday I sent the following email to "sales" at alwaysinfashion.com:

Dear Sir or Ma'am.

I am writing to inquire whether a series of threatening emails sent to your customer Ms. Rapunzel concerning Ms. Rapunzel's request to return an amber necklace represent your company's typical customer service.

As I believe you are aware, Ms. Rapunzel recently purchased an amber necklace from your website. She was dissatisfied with the quality of the product. She asked to return the necklace for a full refund. When you informed that she would have to pay shipping costs to return the product at her own expense, Ms. Rapunzel advised she would mention that fact, and her overall dissatisfaction with the quality of your merchandise, in a review of the product.

In response, you sent Ms. Rapunzel an email which contained the following threat:

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Later this week, although Ms. Rapunzel had not contacted you in the meantime, you wrote her again, threatening to contact a former employer about this situation, and to "leave reviews and post on social networks about your blackmail and threatens."

I write for a weblog known as Popehat, which can be read at www.popehat.com. We write occasionally on legal issues, as well as free speech and threats to free speech. I am an attorney, as are several of my fellow writers. Although I do not represent Ms. Rapunzel as her attorney, I do find it troubling that you would threaten a lawsuit against Ms. Rapunzel simply for exercising her right to express her honest opinion.

I plan to write about this situation. Before I do so, I would like to offer you the opportunity to comment on the situation. If my understanding of the facts is incorrect, please let me know. I would also appreciate it if you could answer the following questions:

1) How has Ms. Rapunzel "blackmailed" your company? Has Ms. Rapunzel threatened or attempted any criminal action against you, as opposed to expressing her honest opinion of the product and what appears, to me as well, to be atrociously poor customer service?

2) Is it usual for alwaysinfashion.com to contact employers of customers who complain about the quality of its merchandise?

3) Is it usual for alwaysinfashion.com to threaten to accuse customers who complain about the quality of its merchandise of crimes on "social networks"?

4) Do you understand that, in the United States as in most free nations, Ms. Rapunzel has an absolute right to express honest opinions, and to write honest reviews, of products and of merchants such as alwaysinfashion.com?  If you do understand this, on what basis do you threaten to sue Ms. Rapunzel?

5) Are you familiar with the term "Streisand Effect"?

For your reference, here are some posts we've written in the past at Popehat about people and companies who baselessly threaten litigation against others who, like Ms. Rapunzel, are simply expressing the truth or honest opinion:

[snipped]

Finally, while I do not represent Ms. Rapunzel at this time, I am an attorney. Naturally I know many attorneys, in California (where your company appears to base its American operations) as well as in Ms. Rapunzel's state of Oklahoma, and around the nation. I do want you to know that in the event alwaysinfashion, or any of its affiliates, files a baseless lawsuit against Ms. Rapunzel for exercising her constitutional right to free speech, we will do everything in our power to see that Ms. Rapunzel is afforded counsel who will vigorously protect her rights, including, if necessary, filing motions for sanctions under appropriate state law to recover her attorney's fees and costs.

I look forward to your response.

Patrick at Popehat

I've sent that email multiple times, with and without links. As of today my emails have been returned as undeliverable or have not generated a response.

I can't say whether alwaysinfashion will follow through on its threats to sue Rapunzel, but that isn't the point. By promising a suit, and by promising to contact her employers, alwaysinfashion has already shown it's willing to use the chilling effect of threatened litigation (and worse) to silence her.

All that I can do at this point is to speak for her, and to encourage her to continue to speak. I'll be the first to admit that I know nothing about jewelry, but even if I did, and I knew enough to say that alwaysinfashion sells the finest Baltic amber jewelry on the planet, I wouldn't use one of their necklaces to wring a chicken's neck.

Stupid defamation threats like those issued by alwaysinfashion, issued before an aggrieved customer even writes a review, threats of extrajudicial terror such as contacting employers, can and should be publicized far and wide. Alwaysinfashion's customers, and its potential customers, deserve to know that if they have a poor experience with the company and complain about it, they may receive the Rapunzel treatment: threatened litigation and threats to employment.

Caveat emptor.

sirenUPDATE: ALERT! ALERT! ALERT!

A representative of Always In Fashion has favored us with a reply.

But the reply raises more questions than it answers and, if possible, makes the company look worse.

 

153 Comments