An orgy yes, but no Nazi theme.

This is a pretty straightforward case, but the facts are memorable, to say the least. In March of 2008, the British tabloid News of the World reported that Max Rufus Mosley, the London-born president of the Fédération Internationale de l'Automobile, had hired five prostitutes to act out a Nazi prison camp fantasy. Mosley does not dispute that he had hired the ladies to help him act out certain fantasies - the report indicates that "the court was played covertly recorded videos that showed Mosley being bound and whipped, then relaxing naked with a cup of tea." The part that Mosley denied, however was the "Nazi" aspect:

Mosley told the court he had an interest in sadomasochism going back 45 years, but said he found the idea of Nazi sex fantasies abhorrent. He said he and the women acted out a German prison scenario, with no Nazi overtones.

Really, there's not much more that can (or must) be said with respect to the facts. Judge for yourself:



So why the blog? Because Mosley sued the News of the World, for invasion of privacy, and in part for falsely claiming that there was a Nazi angle to his, ahem, hobby. And, with a speed that would spin heads in an American court, the UK tribunal completed a trial and came down with a decision awarding Mosley $120,000 in damages and legal costs of about $1.7 million.

In the U.S., aspects of this case may well have turned out differently, as Mosley's prominent position in a popular sport would have made him a public figure, held to a higher standard for a defamation cause of action. Put up against an "actual malice" standard, it would be hard to say that the tabloid had acted with reckless disregard for the truth in using "Nazi" to describe a German prison scenario in which one participant wore a Luftwaffe jacket. Seriously, how big a leap must one make to get there from an abusive "German prison" fantasy? Does that not, by itself, bring Nazism to mind? In Mosley's defense, utterly bizarre as it is, at least the role-playing prostitutes suggest that he is in prison for committing an actual crime, rather than for his ethnic origin.

A final note - although U.S. law on the subject varies widely from state to state, many jurisdictions pose harsh penalties for surreptitious audiotaping. In Florida at least, the defendants would have been subject to a fairly stiff penalty - although not stiffer than the penalty faced by Mosley for being such a naughty prisoner!

A win for Wikipedia

Literary agent Barbara Bauer has lost a defamation action against Wikipedia, the volunteer-created internet encyclopedia. Bauer "alleged that Wikimedia Foundation defamed her by publishing numerous false statements, including one that said she was 'The Dumbest of the 20 Worst" literary agents and that she had "no documented sales at all'" - pretty harsh statements, so why did the judge throw out the case? Did Wikipedia successfully raise truth as a defense, and offer proof sufficient to defeat the claim? No, Wikipedia slid out through a side door - the Communications Decency Act (CDA).


Passed by Congress in 1996, the CDA is best known as the vehicle that tried to stop internet porn by preventing the posting of materials that might reach persons under the age of eighteen. However, one provision of that act was addressed to the defense of companies hosting blogs, forums, bulletin boards, and the like. This is Section 230, which immunizes everyone who is a "provider or user of an interactive computer service" from liability for posting content from some other source. The corporate entity behind Wikipedia, it should be noted, plays virtually no editorial role in the content of the site, only rarely stepping in to delete content after people have raised complaints about it.

However, potential defamers, don't take this as a license to go out and post defamatory content on Wikipedia! Bauer's case is still alive with respect to nineteen other defendants, and I would not be at all surprised of some of those were specific Wikipedia editors - the ones who posted the complained of content. The CDA does nothing to immunize individual creators of content against such suits, and it very well should not provide such immunity. The Internet provides the broadest means of communication to have ever existed, and Wikipedia is almost universally one of the top ten cites to come up when a search engine seeks out any person, place, or thing that is the subject of an article therein. Although Wikipedia has a policy of prohibiting editors from making legal threats, this policy does not effectively prevent any lawsuits (in fact it says "If you must take legal action, we cannot prevent you from doing so") - but sometimes legal action is the very thing called for to maintain the civility of our society.

As to the merits of Bauer's claims, this blog will not comment - but may very well report what the court has to say, when all is said and done.


All images used in this blog are from the Wikimedia Commons.

Hulk Hogan can not be defamed

Wrestler and sometime actor Hulk Hogan has been in the news a lot lately, and it has not all been flattering, but a few years ago, a court found that Hogan could not recover for some similarly unflattering commentary - the reason being that "Hulk Hogan" does not really exist. In fact the person pictured below was born Terry Gene Bollea, the son of Peter and Ruth Bollea of Augusta, Georgia. When Terry Gene Bollea entered the world of professional wrestling, he adopted a new name - no, not Hulk Hogan, not yet. First, he was Terry Boulder. Then, Terry "The Hulk" Boulder (although occasionally billed as Sterling Golden). According to wrestling magnate Vince McMahon, at some point between 1979 and 1980 McMahon's father indulged an obsession with Irish names by re-dubbing Bollea with the surname "Hogan."


We now flash forward twenty-five years to the case of the day, Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555, 558 (Ga. Ct. App. 2005). Bollea sued for defamation over comments another wrestler made on air which went outside of the script for an otherwise scripted fued between Hogan and the other wrestler. The court found:

Wrestling is a form of entertainment and the characters involved are fictional. ... During his "promo" speech, Russo never mentioned Bollea, only the fictional character Hogan. Further, according to Russo's affidavit, he made this speech solely as his on-air character to advance the story line and thus to lead in to the final match of the event between Jarrett and Booker T. In light of the above, the trial court correctly concluded that the allegedly defamatory speech could not be understood as stating actual facts about Bollea.

(Emphasis added). Id. at 558.

This decision is made on the premise that defamation must be "of and concerning" the plaintiff, the same basis for the rejection of cases alleging defamation of large groups instead of identifiable individuals. However, this case is truly a stunner (I could be so crass as to pun, and call it a "stone cold stunner"). There is precious little precedent to support this finding. In Perry v. Columbia Broadcasting System, Inc., 499 F.2d 797 (7th Cir. 1974), Lincoln Theodore Perry, the actor who had made his fame under the stage and screen name of Stepin Fetchit, sued the producers of a documentary which had Bill Cosby suggest that the character had damaged views of Blacks. There, the Seventh Circuit stated:

Perry contends that Cosby's statement was false in that he was neither lazy nor stupid, [and] that the characters he portrayed in the movies never shot craps or stole chickens.... The record shows that, first, Cosby did not say that Perry was lazy or stupid but that the characters he portrayed represented such a "tradition." Second, the commentary did not state that Perry shot craps or stole chickens...

Id. at. 799. In Feche v. Viacom Int’l, Inc., 233 A.D.2d 125 (N.Y. App. Div. 1996), where an MTV personality known as 'Kennedy’ called the plaintiffs "whores," the court found that the statement "was not 'of and concerning’ plaintiffs, and is therefore nonactionable as libel," because "[a]n average viewer would not, taking into account the context in which the remark was uttered, perceive that 'Kennedy’ was making a factual statement about plaintiffs, but rather was indulging in hyperbole and protected opinion about the fictional characters that plaintiffs were portraying." Id. (emphasis added).

However, in none of these cases can it possibly be contended that the "character" is as closely identified with the actual person as Hulk Hogan can claim to be. Indeed, in the very year that this case was decided, VH1 premiered its reality show, "Hogan Knows Best," identifying not only the wrestling star, but his entire family by the surname "Hogan." Although the children are really named Nicholas Allan Bollea and Brooke Ellen Bollea, the world knows them all as members of the Hogan family. Surely, therefore, the type of injury that is intended to be addressed by the law of defamation, particularly damage to standing in the community, is even greater when a defamer slanders "Hulk Hogan" than when the same commentary is announced towards the obscure persona of "Terry Gene Bollea"!


All images used in this blog are from the Wikimedia Commons.

The Basis of an Opinion

Here's an interesting recent decision, Lassiter v. Lassiter (the 6th Circuit has chosen not to publish the case, so no citation will be forthcoming here). The core of the dispute lies in a book written and self-published by Sharlene Lassiter, a professor of law at Salmon P. Chase College of Law at Northern Kentucky University. Ms. Lassiter recounts the alleged tribulations of her marriage to Christo Lassiter. also a professor of law (but at the University of Cincinnati College of Law).

The allegations that led to a defamation action were of "ongoing mental cruelty and abuse by her husband throughout the marriage," that her husband "physically assaulted her on two occasions," and that he "committed adultery during the marriage." The court lays out a number of quotes from the book which set forth these allegations, for example Ms. Lassiter's comments that "My husband exploded with rage. He grabbed me and dragged me down two and a half flights of steps, leaving me in a heap on the floor," and that "For the next two days, I repeatedly asked God whether my husband was committing adultery, as I admitted that I might not have heard the Lord clearly. Each time the answer was the same. Yes, Sharlene, he is."

The trial court found that Ms. Lassiter was not a "media defendant" despite the self-publication of her book, described as a "single publication of very limited circulation" and that Mr. Lassiter was not a "public figure." No First Amendment protections were implicated, but the court nevertheless found a lack of defamation, and the appellate court agreed. Why?

With regard to the alleged physical abuse (of which two specific instances were reported), the court simply found Ms. Lassiter to be credible. That is, they felt that it was as likely as not that she was telling the truth. As for the adultery, this would be defamation per se if it was defamatory at all. Ms. Lassiter had no direct evidence for it, so she was basically expressing her opinion that it had happened. An unanchored expression of opinion - that someone is "cheap" or "a jerk" does not render the utterer susceptible to a defamation charge. However, an expression of opinion that a person has done a specific act - that someone is unfaithful to his spouse, for example - may reap such liability.

The court quotes the restatement of torts: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion." In short, if I say that my opinion about someone is that they are an unfaithful spouse, the listener may presume that I know something about that person that leads me to think this. In this case, however, the trial court found "that defendant arrived at the conclusion that the plaintiff had committed adultery on the basis of rumor and circumstantial evidence which was persuasive to her. The facts on which she based the conclusion were disclosed in the book." Emphasis in the original. In other words, there is no presumption about what Ms. Lassiter might know - she set out exactly what she did know. It might or might not have been enough to persuade the next person, but there is no implication that she possesses hidden knowledge that would prove the claim.

This is certainly a sound principle, since people ought to be able to express opinions if they have a reason to believe the truth of them, but such reasons should be available for the public to scrutinize, lest more substantial evidence be imagined than is known to the speaker. It is interesting, however, that one item of evidence which weighed on Ms. Lassiter's certainty was the result of her prayers to God - and God's purported answers. Since the origin of thought, people have claimed to have received communications from higher powers, and it often seems that these communications have an uncanny knack for confirming what the receiver believes (or would like to believe) is the truth. It would be an odd legal world if any person could make a potentially defamatory statement of opinion against another, and be relieved of liability by asserting that the whole basis of this opinion was that "God said so."

Iran picks up China's tactic - sort of

The government of Iran is now threatening to sue Western nations for libel, because of the bad press it is receiving. See Iran threatens to sue Western nations. This is somewhat different than my recent posts on Chinese people suing for defamation of "the Chinese people," but would fail (in the U.S., at least) for the same reasons.

More to come.

Group defamation (of 1/5 of the world)

As I make the final preparations for an immanent trip to the People's Republic of China, I found by appropriate coincidence that a case has been filed which fits the theme of both my blog and my trip. One of the reasons for my travels is to get a sense of the state of intellectual property law being practiced in China (which, for my view, includes the state of defamation law). And here we have a suit being filed on behalf of China, CNN now sued for $1.3 billion - $1 per person in China.

The suit, in which the plaintiffs are a Chinese primary school teacher and a beautician, has been filed in New York (the story says the plaintiffs “filed a suit against CNN in New York” which I take to mean that the suit was filed in New York, and not simply against CNN’s New York bureau). The defamation alleged is that CNN commentator Jack Cafferty said that goods imported into the U.S. from China has included "junk with the lead paint on them and the poisoned pet food" and that the Chinese are "basically the same bunch of goons and thugs they've been for the last 50 years."

The New York plaintiffs are not alone in their outrage. The article relates that another suit has been filed in Beijing by lawyers incensed about the same remarks. The New York suit, I predict, will face a swift dismissal, because United States law rejects the concept of “group defamation.” An essential element of a defamation claim is that the defamatory comments must be "of or concerning" the plaintiff. The larger the group alleged to be defamed, the thinking goes, the less likely any particular individual will ascribe the defamatory commentary to the specific individual bringing the suit. Since the plaintiffs in this case sue on behalf of 1.3 billion people, this may well be the largest group on whose behalf such a suit has ever been brought (unless someone has, in recent history, brought a suit alleging defamation of all men or all women).

The defamatory comments alleged here, however, would seem to go more specifically against exporters of goods made in China, and the Chinese government, respectively. Thus, it would be very difficult to impute the defamation to be referring to a school teacher and a beautician who bear no responsibility in the governance of China and play no apparent role in the importation of goods therefrom.

The suit brought in China may have a different outcome, not merely because of possible home-court bias, but because the law differs from country to country. Throughout most of the world, defamation of a group is prohibited and may be remedied. It is therefore more likely than not that a remedy is available under Chinese law if Cafferty’s comments are found to be defamatory.

There has been scholarly discussion of whether group defamation should be a permissible cause of action in the United States, and commentators have suggested that the continued repetition of false accusations against a particular group, taken as a whole, can have the effect of causing non-members of the group to change their behavior towards even the most innocent member of the group (see, e.g. Racial and Ethnic Group Defamation: A Speech-Friendly Proposal by Professor Michael J. Polelle of the John Marshall Law School. This is certainly food for thought in light of historical situations in which groups such as Jews, and Muslims, Hispanics and Native Americans, and numerous other ethnic and religious denominations have been the subject of campaigns sponsored by governments and other powerful interests aimed at denigrating all members of the group.

All images used in this blog are from the Wikimedia Commons.

Defamation before the birth of the nation.

I have been posting on very recent cases, but I felt the urge to look to history a bit, to see how far back defamation cases reach in the annals of American causes of action. Unsurprisingly, they go back all the way. Here we have Respublica v. De Longchamps, 1 U.S. 111 (Pa. Ct. of Oyer & Terminer 1784), a case decided by the Supreme Court of Pennsylvania (then styled the Pennsylvania Court of Oyer and Terminer) in 1784 - three years prior to the ratification of the United States Constitution.

The case is one of assault and battery, as well as defamation. "Charles Julian De Longchamps, commonly called the Chevalier De Longchamps," had a dispute with "his Excellency the French Minister Plenipotentiary... François Barbé-Marbois." Marbois refused to provide papers acknowledging De Longchamps' service in the French military, and De Longchamps became irate. The court below found:

• that De Longchamps and Monsieur Marbois, having met in Market Street, near the Coffee House, entered into a long conversation, in the course of which, the latter said that he would complain to the civil authority, and the former replied, "you are a Blackguard."

1 U.S. at 111. The assault and battery, by the way, was occasioned by De Longchamps striking Marbois' cane with his own - in a manner that caused no injury to Marbois, but was one "in which the insult is more to be considered, than the actual damage." 1 U.S. at 114.

A jury convicted De Longchamps of the common-law crimes alleged, from which the appeal was taken. The Pennsylvania Supreme Court delivered a seriatim opinion in which the key issues of the allegedly defamatory content were addressed by the Chief Justice, Thomas McKean. A colorful character in American history in his own right, having earlier been a delegate from the state of Delaware to the First Continental Congress, which adopted the Declaration of Independence. For some odd reason he was permitted to simultaneously hold various offices in the state government of Delaware, while serving for over twenty years as Chief Justice of the Supreme Court of Pennsylvania. McKean's opinion asserts that "[t]his is a case of the first impression in the United States," and recites that:

• In actions of Slander, words were formerly construed in the mildest sense they would admit; but reason has superceded such forced interpretations, and words are now to be taken according to their ordinary import and meaning. Those expressed by the defendant, are evidently of a tendency so opprobrious and violent, that they cannot fail to aggravate the outrage which has been committed.

1 U.S. at 114. McKean concludes, in a directive voiced at De Longchamps:

• You then have been guilty of an atrocious violation of the law of nations; you have grossly insulted gentlemen, the peculiar objects of this law (gentlemen of amiable characters, and highly esteemed by the government of this State) in a most wanton and unprovoked manner: And it is now the interest as well as duty of the government, to animadvert upon your conduct with a becoming severity, -- such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the State, and maintain peace with our great and good Ally, and the whole world.

1 U.S. 111 at 117. Note, now, that this is a criminal case, one in which France actually sought to extradite De Longchamps to face punishment there (a remedy which the U.S. trial and appellate courts denied), and also sought to have De Longchamps imprisoned for such a period as to make amends for his wrongdoind (granted by the trial court and upheld on appeal). I blogged earlier about how some countries still have criminal libel; imprisonment of this type is a thing of the past.

A few other points worth noting. First, these were common law crimes, which are a rarity in this modern age of statutory criminal codes. Second, note that De Longchamps' insult was merely to call Marbois "a blackguard," which the court felt was exacerbated by Marbois status as a gentlemen. It generally remains a defense in the U.S. to say that the victim of a slander has so poor a reputation that the slander will do that person no harm; conversely, a person who can show their impeccable reputation prior to the slander will have an easier time showing that their reputation is susceptible to soiling in this manner.

However, the particular statement in this case would fail modern tests for slander on three distinct fronts. First, it is more readily understood as a statement of opinion than of fact (defamation must falsely assert a fact. Second, calling someone a "blackguard" really isn't much of an insult. It is akin to calling someone a lowlife or claiming that they are of bad character - far below the standards of the comment typically deemed defamatory today. Finally, Marbois was a widely know diplomat who would, in modern times, be deemed a public figure, against whom the higher standard of "actual malice" would apply in adjudging liability for defamatory comments. Of course, this standard is imported by the First Amendment, but the Constitution itself would not exist for three years after this decisions!

Under the standards of an 1784 court, then, De Longchamps was reasonably found guilty. But in a modern courtroom, Marbois would be laughed out of the chamber for raising this as a defamation.