libel

Private Information Posted Online? Here’s How to Fight Back – Alabama Consumer Rights Attorney Judson E. Crump

January 10, 2017 by Attorney Judson E Crump Leave a Comment

If Someone Posts Private Photos, Videos, or Documents Online, You Can Fight Back

in our last post, we discussed online defamation and what you can do about it if it happens to you. Today, I want to address the issue of online privacy and all the problems that can arise when that privacy is not respected. Now, there are two types of online privacy. One is the privacy of your data online: things like your financial information, your email login, your browsing history, your downloads, that kind of stuff.

But that’s not what I’m talking about today. Today I’m talking about a different kind of privacy: when somebody without your authorization posts or uploads private documents photographs or videos of yours. Now this type of online privacy violation typically brings to mind nude or intimate photographs and videos. But it doesn’t always have to be that it could be, for instance, a Social Security card, or a letter that you wrote to a friend or lover may contain sensitive private information. Or it could be an email describing your plans for the future of your business. All of these things are private information, and Alabama, like most states, recognizes the tort of intentional invasion of privacy.

Basically what this means is when somebody takes your private information and either uses it for their own financial benefit or recklessly or maliciously publishes it somehow, you can sue them for the damages that causes you. And as with most torts, if you can prove that this has been done to you willfully and maliciously then in addition to whatever financial or physical harm you might be entitled to recover money for, you may also asked the judge or jury to give you punitive damages. Punitive damages are extra damages that the court awards to punish the defendant for morally evil conduct.

Let’s take the most commonly reported example of this: a video of sexual activity that has been posted online without your permission. Now obviously, any sort of revealing photographs or videos of you are inherently private. Unless you are in the adult film industry, you can pretty much guarantee that if these sorts of things appear online, somebody has violated your privacy. If it was a former lover, and the video was posted for revenge or mockery, then that’s a good example of the sort of malice that would entitle you to punitive damages. If that video was posted in order to get money, then that is a great example of commercial exploitation of your private information, and that would entitle you to whatever financial benefits were wrongfully obtained using your information, and possibly punitive damages as well.

Identifying the Culprit

One of the most difficult challenges in addressing online invasion of privacy is identifying the perpetrator. Unfortunately, there are a great many websites that are not based in the United States and do not do business in the United States, and therefore are difficult to compel to respond to a subpoena. However, if you can locate the IP address of the person who posted the information, then you might be able to obtain their information through their Internet Service Provider. This is not easy. It requires that you file a lawsuit in court and submit a subpoena from that court to the Internet Service Provider, which usually must be domesticated in the home state of the Internet Service Provider. This also requires more court costs. And, of course, it will require attorneys fees. Now that doesn’t mean it isn’t worth it, because in a serious case such as nude photographs or videos, the damages could be substantial: thousands of dollars even.

But, as with any lawsuit, you will want to make sure that the person you are suing actually has money to pay you. If the person is unemployed, has no bank accounts, and has no property, then your judgment against him is not going to turn into money. And it is often impossible to hold liable the company operating the website or social media outlet where your information has been posted.

Of course, money is not the only consideration. It’s not even the first consideration. The most important thing is getting the information out of the public eye. Many websites will respect a request for removal under the Digital millennium copyright act. This is a law that protects intellectual property that is used online without authorization of the owner.

If you have been the victim of online dissemination of your private or sensitive information, then the first step you should take is documenting the extent to which your privacy has been invaded. This means gathering all of the evidence: screenshots, web addresses, URLs, IP addresses, requests for removal, page visit counts, website comments that might indicate the extent to which such information has been seen, etc.

the next thing you should do is make whatever out-of-court efforts you can to resolve the matter. This means sending written, emailed, or telephone requests for the removal of your sensitive documents, photographs, or videos. It also would be prudent to see if you can obtain the identity of the distributor or of your information without having to go to court. If you can accomplish this, it will save you a lot of money.

But the unfortunate reality is that in many cases you will have no other way to address the online invasion of your privacy then hiring an attorney and paying the money to address the matter in the courts.

If you live in Alabama and have been the victim of online invasions of your privacy, feel free to call our office at 251-272-9148.

Slandered online – What can you do about it? – Alabama Consumer Rights Lawyer Judson E. Crump

January 6, 2017 by Attorney Judson E Crump Leave a Comment

Social Media Has Become Our Primary Means of Communication

Facebook, Instagram, Twitter, Shapchat, Pinterest, LinkedIn. How many of these apps do you have on your phone or tablet? Most of us are connected in some way to at least one social media outlet or social network. And as we know from news headlines and, too often, from personal experience, the things people post online aren’t always true. What if somebody posts grossly false information about you? If they say you’re a thief or that you cheated on your spouse?

And then there are all the dating apps that represent a special consideration. What if somebody on Tinder or eHarmony or Grindr says that you are some sort of molester or have an STD? What if someone posts private or intimate photos online?

Traditionally, the law of defamation dealt with just two types of false statements: written or verbal. If someone went into the town square and shouted (falsely) that you were a thief, then they could be held liable for slander. If someone wrote an article in the newspaper saying (falsely) that you got fired for embezzlement, then you could sue them for libel.

Today, we still have these same torts: libel and slander. And for the most part, the law is the same, even though the world we live in is entirely different.

Online Defamation

You’re at work, minding your own business, when you get a text message from a friend

Friend: Please tell me it isn’t true. 🙁

You: WTH are you talking about?

Friend: Umm, Erica’s FB post about you having an affair with her.

You: WTF!!?? Hell No! She’s lying.

Friend: Well you better do something about it.

Is there anything you can do about this? Absolutely. If someone writes false information about you online, then you can sue them for whatever damages it causes. Using the example above, if Erica’s post that you’d hooked up with her caused your wife to divorce you, then you would have a case against Erica for libel. Please note, though, that you would not have a case against Facebook, even though it is their platform and website that contains the information. Courts have routinely held that those sorts of websites are more akin to community bulletin boards than independent publishers of information, and that they have no duty to police the truth or falsehood of the things that get posted there.

This can be a bigger problem than you think, because very often, the people who are the least responsible about their online commentary are also the lease financially able to pay a judgment. So if you got a $1,000,000 judgment against Erica, if she’s unemployed and broke, then your judgment isn’t going to get you any money.

How Much Money Can You Get?

So let’s say you have someone dead to rights guilty of slander. What can you get out of them? This depends greatly on the facts of the case. If they did the slander intentionally and refuse to retract it after a written notice, then you can sue them for punitive damages. Note that in Alabama, you have to write a retraction request before you can sue for punitive damages – see Ala. Code 6-5-186. If they refuse to publicly retract the false statement in the same manner that they published the false statement, then you can sue them for slander or libel and possibly obtain punitive damages. Punitive damages are damages over and above the actual harm that the slander caused you, and are designed to punish intentional wrongdoing. So if the lies were spread with malice, and caused you $10,000, then the judge or jury could award you an extra $30,000 of punitive damages. This is rare, though.

Some cases don’t require you to prove actual harm at all, because there are certain categories of slander that are considered defamation per se. This means that even if you can’t prove any financial harm came from the slanderous or libelous words, you can still recover a reasonable amount of money. Some examples of defamation per se are: false accusations of a crime of moral terpitude (i.e. theft, assault, murder, rape, fraud); impugning a woman’s chastity (yes this still counts); and lies that make you appear unfit to carry on your trade or profession. For example: if were a brain surgeon and someone falsely said that you had severe arthritis in your fingers, that would be defamation per se.

Truth is a Complete Defense

You may notice that I repeatedly use the word “false” in this article. That’s because it’s an essential element of a defamation claim. If someone says something nasty about you and it is true, then you cannot sue them for libel or slander, no matter now bad it is. For example, if someone accused you of theft, and you did in fact steal something, you can’t do anything about it.

Another related defense is statements of opinion. Since proving falsehood is an element of any defamation claim, a statement of mere opinion can’t be proven false, and therefore won’t get you anywhere. For instance, if a customer wrote a bad Google review of your business saying that “They did a horrible job cleaning my carpet,” that wouldn’t be slander or libel, because they are entitled to their own opinion about what is or isn’t a “horrible” job. By contrast, if they said “They came to clean my carpet and spilled ink and blood everywhere,” when in fact you did not spill ink or blood anywhere, then that would be slanderous, because whether or not you spilled blood or ink is a statement of fact – it is either true or it is false, and if you can prove it false (for instance, by having photos of clean carpet when you left the job), then you can recover for slander.

Next: Online Distribution of Private Photos and Videos

Caselaw Flashback: The Tattoo Parlor Slander Case – Alabama Consumer Rights Attorney Judson E. Crump

August 18, 2016 by Attorney Judson E Crump Leave a Comment

Tanner v. Ebbole – The Tattoo Parlor Slander Case

I can’t open Facebook without seeing blatantly false political “news” and other alarmist garbage every time I scroll down my news feed. And I know that politics and the health benefits of essential oils and saran wrap aren’t the only thing people lie about on social media. Which is why I am surprised that we don’t see more defamation cases nowadays. But today I want to talk about a case of defamation that occurred in social media and RL (“real life”).

Back in 2008, downtown Mobile’s Lower Dauphin St neighborhood (LoDa, as the lazy refer to it) was quite different. Fancy-food favorites like Noble South and Dumbwaiter and SaiSho weren’t there. But you know what was? LA Body Art and Demented Needle. These two tattoo parlors were neighbors: same block, same street, same side of the street. But they were not friends. Somehow an animosity developed between the two. Whether personal or competitive in origin, I don’t know. But apparently the folks at Demented Needle had such a low opinion of their skin-pricking brethren down the street that they told various customers, tattoo-artist job seekers, and others that the proprietress of LA Body Art had certain diseases of an alarming and scandalous nature. These individuals were so bold as to post their slanderous opinions on paper bulletins on the wall and, more unfortunately for everyone, on MySpace. (For those who may not know, MySpace was a crazy, disorganized predecessor to Facebook in the social media world. By the time you read this, it may no longer exist).

But some of the things these folks said about LA Body Art’s tattooista were not true. And if you make a public statement about someone which is false and portrays them in a negative light, then you can be held liable for defamation. Written defamation is called libel; oral defamation is slander. In other words, if you’re going to talk bad about someone, you need to be sure that what you’re saying is true. Or you may find yourself in court. Which is what happened to the folks at the Demented Needle.

A trial was held, and the jury found for the plaintiff. And though they awarded her only $1 in compensatory damages (meaning that they agreed with her side of the story, but didn’t think she proved any actual financial loss), they awarded punitive damages of $200,000 against Demented Needle, and separate punitive damages awards of $100,000 and $10,000 against two of the folks who worked at Demented Needle.

If she couldn’t prove any direct financial harm, why were the awards so big? Because they had accused the plaintiff of having veneral diseases, and this sort of insult is considered so serious that the law treats it as slander per se. And “when the plaintiff has proven slander per se, the law presumes injury to reputation and mental suffering.”Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 162 (Ala.2002). ”

A reputation is worth more than gold.

Of course,like all defendants who have been hit with a punitive damages judgment for doing bad things, these folks appealed. But the Alabama Court of Civil Appeals upheld most of the verdict. Which is the real reason this opinion is remarkable: the Alabama Court of Civil Appeals isn’t known for its friendliness to punitive damages verdicts, but they upheld a big punitive damages verdict against the defendants in this case. They even cited Shakespeare:

“Iago says to Othello:

“`Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.

Who steals my purse steals trash;

‘Tis something, nothing;

‘Twas mine, `tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him, And makes me poor indeed.’

“Othello, Act III, scene 3.”

You can read the full opinion here: Tanner v. Ebbole Opinion