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Kim Kardashian Threatens Defamation Lawsuit Over Affair Accusation

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All I have been hearing about on the radio is Kim Kardashian’s “alleged affair” with NFL player Bret Lockett.  The news may soon leave the airwaves and come into the courtroom.

Kim Kardaashian has threatened to sue Lockett and In Touch Magazine for defamation, invasion of privacy and other causes of action.  In fact, Kardashian’s lawyer has already written a demand letter to In Touch Magazine, informing them of Ms. Kardashian’s intent to sue.

Now affairs are not uncommon in the life of the famous.  Many people think that Kim probably has cheated and is hoping the threat of a lawsuit will help save her image and engagement.  The fact that Lockett is claiming to produce physical evidence of their affair is not helping the matter.  All this buzz brings about the question of whether or not Kim will be able to prove herself a victim if the matter goes to court?

With defamation, a person basically needs to show some form of defamatory communication, harm to one’s reputation, and that the person intended to defame another, or did so with complete reckless disregard for the truth.  In other words, Kim is going to have to show that Lockett’s claim has harmed her reputation and that Lockett either purposely defamed her, or was reckless to the point that he should have known spreading false information regarding their “affair” would hurt Kim’s reputation.

Proving harm to her reputation by the “alleged affair” rumor will not be difficult because such a rumor is harmful to anyone’s reputation.  What Kim’s attorney will have trouble with is proving that Lockett purposefully defamed her, or did so with a reckless disregard to the truth.  Sure, they can claim that he is doing this purposefully for publicity or money, but how do you show this with proof in court?  They cannot go into Lockett’s head and steal his thoughts to present to the jury.  Kim’s attorney would have to produce proof of contracts with news channels or media agency showing a different and/or improvement in Lockett’s publicity after the rumor.  Also, Kim’s attorney would need to look for proof of monetary gain on Lockett’s part as a result of the rumor.  If the proof is there, it may not be too difficult to find; however, I am sure Lockett’s attorney will not make it easy either.

Additionally, with an invasion of privacy claim, a person needs to show some form of invasion to one’s privacy that a reasonable person would find offensive.  In this case, Kim is going to have to show that she was portrayed in a false or highly offensive manner by In Touch Magazine.  In my opinion, this should not be too difficult.  Claiming someone had an affair at the eve of the person’s engagement is definitely offensive to the person, as well as the person’s fiancé.  Kim’s attorney will have no problem in showing the offensiveness of In Touch Magazine’s article.

With both of these causes of action, if Kim is being truthful in never having had an affair with Lockett, winning on both these causes of action will still be difficult.  Lockett is claiming he has texts and voicemails as evidence of their relationship.  With technology, it is not hard to fabricate a text or voicemail.  However, proving that the texts or voicemails are fabricated is challenging.  For Kim to prove the falsity of Levitt’s physical evidence in order to prove her truth will be a challenging task.

This whole situation seems like it can turn into a huge legal mess.  Some may think that the smart thing for her to do is initiate a settlement.  With a settlement, both parties can move on with their lives.  However, if Kim does decide to bring Levitt into court, settling the lawsuit with money goes against the whole “I am truthful and am going to unveil your lie” principal.  Settling may give the impression that Lockett was right and Kim is trying to “hush things up” so she can move on with her wedding.  This move, in turn, will also be harmful to her reputation and image.

In the end, lawsuits take time and money.  Is Kim going to want to waste time and money over a lawsuit when she has a new season of her show on E! to handle, alongside planning a wedding?  Will she want rumors about her love life and alleged personal texts and voicemails exploited?    Even if she was faithful and wants to prove Levitt’s statements false, it will take a lot of time and money with no guarantee that justice will be hers in a court of law.  How this situation moves forward will be interesting to see.  One thing that certainly be said is that Kim’s reputation has already suffered harm, and no matter what path she chooses, she will have to endure a great deal of humiliation and harm to her reputation before she receives any sort of justice.

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Loose Talk Online has Real-Life Consequences

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I’ve said it before, and I’ll say it again: sometimes, words have legal consequences. You can commit serious legal wrongs (fraud, defamation, solicitation, conspiracy, etc.) using words alone. Furthermore, speaking without thinking can hurt your legal position in other ways, inadvertently defeating an essential element of a claim or defense in a civil case.

I should also note, again, that these legal consequences apply whether you say something in the real world, or on the Internet. And since anything you say on the Internet generally has the potential to reach far more people than something said in the physical world, you should generally be more guarded about what you say online. But, for whatever reason, most people seem to do the opposite – typing out the first thing that pops into their heads, for the world to see.

Today brings yet another case (also seen here) of somebody saying something online, and negatively affecting their legal situation. Though this one is a bit more amusing than most. This case involved a divorcee who was awarded $850 per month in spousal support, partly because she claimed she was unable to work, due to a back injury.

However, the court found out that she was very fond of belly dancing, which, from my limited experience, looks like it would be pretty physically taxing – not exactly something for people who can’t work (even as a legal secretary, which is what our friend did before all this) due to a back injury.

So, how did the court find out that she had recently taken up belly dancing? Why, her blog, of course!

She made posts about how she “swirled around,” “danced herself silly,” and the like. And, of course, either her ex-husband, his lawyer, or the judge found these posts (she must not have made much of an effort to remain anonymous online), and asked her to reconcile this with her claim that she suffered so much back pain that she couldn’t work as a legal secretary.

Rather than fessing up, she claimed that her activities were prescribed by her doctor, as a form of physical therapy. Her doctor was called in, and he testified that he had no idea she was belly dancing on the side. Good work!

In addition to denying her petition for an order of spousal support, the judge ordered her to pay her husband over $5,000 in attorney’s fees. Ouch. This is one of the more boneheaded examples of loose online talk getting people into some sort of legal trouble (or defeating a legal claim that they might have had).

However, it’s gotten to the point that people are so reliable in revealing personal information online, that many older “high-tech” investigative tactics are becoming obsolete.

For example, it’s still pretty common for insurance companies to hire private investigators to keep an eye on plaintiffs in personal injury lawsuits against the insurance company’s policyholders. Just a few years ago, the most high-tech investigative technique they had at their disposal was surreptitious videotaping. They’d set up a hidden camera outside the plaintiff’s house, and look at what type of physical activities they’re engaged in. If they see the person working out, moving heavy objects, climbing on a ladder, playing sports in the front yard, etc., they can be pretty sure that his or her injuries are not as severe as they’re claiming.

Nowadays, however, they sometimes don’t even have to bother: the people they’re investigating will voluntarily post incriminating statements, photos, and videos on Facebook.

What is it about the Internet that it creates this massive blind spot in our discretion in sharing our personal information? I really don’t know. Perhaps it’s the illusion of anonymity. Perhaps it’s the fact that everyone else is cavalier with their personal information online.

In any case, we’ve known for years that this type of carelessness can get us into trouble. Yet, it seems that most people have to learn the hard way just how much damage it can do in real life.

One would think that, the more time we spend online, the more we’d start treating it as we treat real life – you know, thinking about what we say, and what information we share. But it seems that just the opposite has happened: we’ve completely lost any expectation of privacy. Or, if we expect to remain private online, we do next to nothing to protect that privacy, and are for some reason surprised when people find out things about us that we might not want them to know.

I have no idea how to change this. And I think it’s a pretty serious concern. With the Internet, our whole attitude towards privacy is changing, and the long-term effects this could have on society are impossible to predict.

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Prozac Ad Model Sues Because She Doesn’t Have Depression, Irony Ensues

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Right next to celebrated artist, Armored Core pilot, and professional Guitar Hero player, one of the many failed careers lining the interior of my failed/never-attempted/impossible dream closet is modeling.  So what if I’m not over six-feet tall? Tom Cruise is barely 5′ 7” and he did fine, right?

Fortunately though, unlike the parents of the professional Guitar Hero player, mine were well aware that there was a good chance that the bottoms of my many ill-conceived dreams were likely to fall out and discouraged me accordingly with a combination of verbal and occasional physical abuse.  It worked out alright though; now I’m in the legal profession and I don’t have to worry about modeling related nonsense, like being hit on by creepy old people or waking up one morning to find that I’ve suddenly been pegged the world over as a sufferer of depression.

Just joking, by the way.  I never wanted to be a model… *sniff…  Any who, like with most awkward moments in my life, I simply barrel through one by drawing attention to another.  In this case, it’s the very real story of a Manhattan model by the name of Gwendolyn Bucci who recently found herself in that very situation.

Bucci’s image was used on advertising material distributed by the pharmaceutical company Eli Lilly & Company in order to market Prozac, the company’s anti-depression medication.  Bucci alleges she was unaware of her image being used for the advertising and states that she never authorized Eli Lilly to use it in their Prozac campaign.  You can probably guess what happened next.  Bucci orders Eli Lilly to remove her image, but, of course, the company refuses to do so.  And now she’s locked in a legal battle with them where she is suing Eli Lilly for $450,000 in damages.

The problem is that Bucci, in my opinion, has no chance of ever winning a dime of that $450k.

Though I haven’t had the chance to get a hold of her complaint, it seems pretty certain based on the facts that at least two of Bucci’s possible claims are for infringement to her right of publicity and defamation.

The right of publicity is a law that basically protects your image, likeness, voice, name or performance style from being used without your permission to sell or endorse a product.  To establish a claim under this law, one generally must prove three basic elements: (1) the image used is of you, (2) your image was used for commercial purposes to endorse or sell a product, and (3) the public must be able to identify your image.  Seems pretty straight-forward, right?

Bucci can easily prove the first two elements as the image is of her and that it also appears in a commercial advertisement for Prozac where viewers would likely infer that she used the drug and that it cured her depression (in essence, an endorsement).  However, the problem is the last element.  As painful as it is for any model/actress to hear this, it’s very unlikely that any court or jury would find that Bucci has any mass public recognition.  I mean, I had to Google her name and look through her IMDb profile to figure who she was, and even then I’m still not a hundred percent sure the profile I found is actually of her.

For most people suing under this law, this last element is where their case generally falls apart.  Because unlike when Tom Cruise and Nicole Kidman sued Sephora for using their images without permission to sell Sephora products, Bucci’s suit lacks the same teeth because most of the public have no idea who Bucci is and probably couldn’t pick her out of a police line-up.

Bucci’s other potential claim, defamation, is on equally shaky ground.  Defamation can be either slander, which is spoken statement, or libel, which is what it’s called if it’s done in print.  Of the two, libel is applicable in Bucci’s case since she alleges her image was used in a Prozac print ad.  In case you haven’t seen “The People vs. Larry Flynt,” defamation laws protect a person from having false and malicious statements or portrayals made about them to the public which injure that person’s reputation.

The elements to establish a defamation claim are very similar to the right of publicity.  Essentially, one must show that a false statement or portrayal of a person was communicated to a nonessential third party and that it was harmful to that person’s reputation.  Once again, this seems like a very simple analysis in Bucci’s favor, but like all things in law, problems are often more complicated than they initially seem.

Here, though Bucci once again has no problem showing the ad falsely portrays her as a depression sufferer and Prozac user, she’ll likely have issues showing that it actually harmed her reputation.  This is because once again the public has no idea who she is.  Though the law only requires that it be communicated to a nonessential third party, there likely isn’t any harm because anyone who knows her would probably also be aware that she’s a model and thus often has her image used to endorse all sorts of things.  Therefore, once again Bucci doesn’t have a leg to stand on.

However, on top of all this, Eli Lilly probably has a wonderful defense against Bucci’s lawsuit because more likely than not the company probably purchased the photos of Bucci from a modeling or advertising firm that owned and was authorized to sell her image for marketing purposes.

Though you still got to hurt somewhat for Bucci, even though she probably can’t prove harm on a legal level, no doubt it’s got to suck being the butt of your friends and family’s Prozac jokes.

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United Kingdom Legal Reform May Soon Put An End To Libel Tourism

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For all the injustices and seemingly endless unfairness that can permeate everyday life, it’s nice to know that the same life can sometimes eventually deal the everyman (or woman) a fair(er) hand.

Yep, that’s right folks – the United Kingdom may soon be putting an end to libel tourism; the awful and infuriating practice reserved only for the richest of the rich.  And I have to say that it’s about damn time.  That type of forum shopping is worst than how Tootsie Rolls taste.  Seriously, any candy that is purported to taste like chocolate should actually contain at least some chocolate inside of it.

Awful candy aside, libel tourism is a serious issue, especially for those of you who are like me and harbor a resounding hatred for all frivolous lawsuits.  The article I linked to does a pretty poor job of explaining the concept behind the practice to anyone whose last name isn’t immediately followed by Esq., so I’ll try to explain it sans the legalese.

Libel tourism is when a plaintiff attempts to sue a person or business entity (such as a magazine or newspaper) for libel in the United Kingdom in order to increase their chances of winning their lawsuit.  The reason that plaintiffs choose the UK courts to hear their libel lawsuits is because the UK’s libel laws are extremely plaintiff friendly.

Unlike in most countries, the UK’s defamation laws are very board.  Essentially all a plaintiff must do to win a libel (written defamation) or slander (oral defamation) lawsuit is prove that a comment said or article written by the defendant about the plaintiff would be likely to make the average person think worse of the plaintiff.

Now, while this may initially sound like a good standard to measure defamation, the problem is that, in practice, from a legal perspective this could theoretically encompass almost any negative statement.  For example, if a magazine writer writes that Kate Hudson looks dangerously skinny, anyone who reads that would probably think less of Hudson because the article insinuates she may have an eating disorder, and thus Hudson would be able to sue for libel in the UK and win.  Sounds crazy and impossible, right?  Well, it’s not.

To make matters worst, the UK’s defamation laws also presumes any negative statements made are false, meaning the burden of proof is on the defendant to show what was said or written about the plaintiff is true or a fair commentary.  This combined with the UK’s generous contingency fee agreements (plaintiffs pay no money to their lawyers unless they win), all of this creates the perfect storm for libel tourism.

By comparison, American defamation law for public figures as defined in New York Times v. Sullivan requires the plaintiff to prove that both the statement about the figure is false and that it was said or published maliciously.  This rule makes winning a defamation suit in America incredible expensive and difficult.  It also makes the UK the perfect place for celebrities and public figures the world over to flock to the country to sue anyone who pisses them off.

But, what you may be wondering now is how these people can sue a defendant if neither party actually lives in the UK.  Well, that’s the thing with suing people in a foreign country like the UK; as long as you can show you suffered harm there and the defendant was the cause of it, if the country allows it, you can sue under their law.  And the UK allows exactly that.

This is why libel tourism is so dangerous, because literally everyone and every press outlet can be liable to a wealthy person’s personal vendetta.  However, if the UK defamation reforms go through, this will all finally be a thing of the past.  The changes would essentially modernize the UK’s old defamation laws and jurisdictional rules to be more in line with other countries around the world.

This is a great thing because let’s face it, who other than rich celebrities and business people can afford to sue someone or some company in the UK every time they get pissed off?

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Joe Francis Defamation Lawsuit Against Piranha 3D a Bomb

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You may have heard of the film Piranha 3D. If not, here’s a trailer. It certainly looks like…something. Basically, it’s a campy, intentionally (I hope) funny horror movie about Piranhas. And it’s in 3D.

One of the characters in the film is supposedly based on Joe Francis, the creator of the Girls With Low Self-Esteem Girls Gone Wild series of videos. The Piranha film portrays him in, how should I say, a negative light (contains some crude language, depictions of fish doing really bad things to people, and possibly spoilers). The movie does all of these horrible things to the Joe Francis stand-in, and apparently portrays the character in such a way as to give the audience the impression that he deserved to have all of these things happen to him. Apparently the film depicts him using illegal drugs, and filming underage girls.

Well, Francis’ lawyers have taken notice, and they’ve sent the studio making the movie a letter threatening to sue if the studio, or anyone else involved in the movie, takes any further action suggesting that the fictional character is meant to represent an accurate portrayal of Francis. The studio probably didn’t help their case when they didn’t immediate put a lid on the actor who plays the character saying in an interview “I get to play Joe Francis! Oh. Wait. For legal reasons, I’m supposed to say ‘I play someone loosely based on Joe Francis.’”

To be honest, if Francis does decide to sue over this, his claim might not be entirely frivolous. Defamation-in-fiction cases like this aren’t unheard of. Just a quick refresher – defamation is a false statement of fact about a person which is likely to cause them harm.

Works of fiction which are alleged to be based on real people, and portray those people in a bad light, have been grounds for defamation lawsuits in the past. The key question in such cases is whether a reasonable person, watching or reading the work of fiction, be likely to believe that the character is based on a real person, a case for defamation exists.

So, what about this case? Well, the movie involves the producer of a series of videos called Wild Wild Girls, and the character’s personality traits, and a few details of his biography, appear pretty similar to those of Francis (if a quick browse on Wikipedia is any indication). After laying this groundwork, it portrays the character engaging in illegal and despicable activities (according to the articles – I haven’t seen the movie yet). It wouldn’t be a huge stretch for somebody to watch this movie and think that the character is based on the real person, if they know anything about the real person.

Unfortunately for Mr. Francis, who may well have a real case for defamation, he has a bit of a track record when it comes to suing people who say not-very-nice things about him. After a news and gossip blog gave him a dubious award, he sent a rather nasty letter, which, in addition to legal threats, contained quite a few personal insults. Joe, you should probably let your lawyers do the talking.

Anyway, this whole case raises some interesting issues about free expression, and where parody ends and outright libel begins.

There’s generally nothing wrong with parodying a person in a work of fiction. And if that person is publicly-known, it’s almost certain to be constitutionally-protected, and plaintiffs in such cases have to jump a very high hurdle to prevail: they have to show that the speaker acted with “actual malice,” meaning that they knew the statement was false, or acted in reckless disregard for the truth (basically, they could have very easily confirmed or disconfirmed the facts in their statement, but chose not to).

In this case, there have for years been widespread rumors that Francis engaged in many of the activities that his supposed movie surrogate engages in (minus being eaten by mutant piranhas, presumably), so it would be hard to argue that the depiction of the character in the movie, if he is indeed meant to portray facts about Francis, was created with actual malice.

In the end, though, it always comes down to practical concerns. This guy has made himself fairly publicly-known, and he’s in a business that many people think is quite unseemly – he’s going to be made fun of in the media. I’ve said this before: when you file a defamation lawsuit, the chances are very good that you’ll simply draw more attention to the claims that you’re suing over, and more people will hear them as a result. Let’s all say it together now – think before you sue.

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