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Twibel: How to Avoid Committing Libel on Twitter

Social media has completely changed the way we communicate. Perhaps the most profound novelty of social media is that it facilitates random arguments between complete strangers. You don’t have to spend much time on social media before you start to see the occasional snarky or even vicious comment. Consider this recent incident: during a series of discussions involving the sale of a horse, a random horse dealer inserted herself into the discussion by calling the horse’s previous owner, Mara Feld, “f***ing crazy” on Twitter. Offended, Mara filed a libel lawsuit.

TwibelLibel occurs when someone prints a false and malicious statement of fact about you that harms your reputation. Twibel occurs when someone commits libel on Twitter.

Feld sued the horse dealer for libel, claiming that her reputation was damaged by the dealer’s statement on Twitter as the whole world saw that comment.

The court ruled that since online discussions are often heated, one has to look at the context in which the comments are made. Looking at the transcript of the Twitter conversation, the court ruled that a reasonable person would not have thought that the tweet stated an actual fact, but instead, they would have taken it as an opinion or criticism. Libel only applies when someone says false and damaging statements of fact about you. Thus, the court ruled that libel did not occur in this case.

When Can You Be Held Liable for Twibel?

When dealing with a libel case, the court has to decide whether someone has made a malicious statement of fact. For example, in Cox v. Obsidian Finance, Cox called someone at Obsidian a “tax delinquent” and accused him of fraud and corruption on a blog. The court found Cox liable for the specific factual accusations, but declared that the rest and the majority of his accusations were simple hyperbole/figurative language. This was because Cox wrote in a stream of consciousness format and used “extreme language.” The fact that Cox was venting rather than making specific factual statements protected him from being held liable for all the statements. However, the court did hold Cox liable for certain malicious statements of facts that he made because those statements injured Obsidian’s reputation.

So, before getting into a particularly heated Twitter exchange, just remember to avoid damaging statements of facts and just stick to insults that can’t be proven.

How to Punish Donald Sterling without Censoring Free Speech

In the context of the Donald Sterling’s racist remarks, it is important to remember that all people have rights—even those who are bigoted and offensive. If we silence bigots, we would also be silencing political dissenters – and destroying free speech.

donald sterlingLos Angeles Clipper owner Donald Sterling made racist comments about African Americans to Stiviano, his alleged girlfriend (Sterling is married to another woman). Sterling told Stiviano he didn’t want her taking pictures with Magic Johnson or see African Americans at his games. Sterling’s comments have drawn criticism, even from his own wife. The NBA have announced they are fining Sterling $2.5 million for his comments, banning him from any NBA games, and forcing him to sell the team.

There is precedent for rich people losing their property rights if they express views which are perceived as bigoted. Sports leagues have suspended owners from management for making racist comments before, like former Cincinnati Reds owner Marge Scott. Powerful figures outside sports have also lost positions of privilege because of their views. Former Mozilla CEO Brendan Eich was essentially forced to resign after the public discovered he had donated money to support California’s Proposition Eight, the initiative which would have restricted marriage in California to a man and a woman.

Public Censorship

Donald Sterling is a relic of the past—which is to say, he is an easy target to mark as bigoted. Sterling is a rich white man who allegedly discriminated against black children by denying them housing, but who is willing to profit from black labor on basketball courts. Sterling is a cranky old man who doesn’t want to be associated with black people, but who is perfectly fine with rumors that he is having an affair with a partly black woman.

But that doesn’t mean the NBA should try to discipline him. Sterling still has the right to express himself, especially in a private conversation. Sterling would hire a wall of lawyers if the NBA took any action, and that would force the courts to intervene. Let me be clear: judges cannot approve suspension of Sterling’s property rights merely because of offensive and ignorant things he said privately to his mistress.

Yes, Sterling is a noxious racist who was accused of violating the Fair Housing Act by denying black children housing. During that case though, Sterling had violated a federal statute and there was no free speech defense. In this week’s scandal, Sterling was making private comments. We cannot take away people’s rights merely because we don’t like what they say. Those comments may end up hurting the Clippers and the NBA, but a lifetime ban and a $2.5 million fine will have to suffice.

On the other hand, if the economic consequences hurt the NBA, doesn’t the NBA have the power to boot Sterling since Sterling’s behavior will in turn hurt the NBA? The same applies to Brendan Eich. If people boycotted Firefox because of Eich’s support for Proposition 8, wouldn’t Mozilla be justified in terminating a CEO who was causing them to lose business?

The difference is that the government cannot be involved in anyway. The Mozilla firing is partly justified because the board of directors could take action without any government oversight. The forced Clippers sale will result in eventual court oversight. No part of the government, including the courts, can strip Sterling of his free speech rights, no matter how repulsive he is. The NBA needs to find a way to address the scandal without the power of the government.

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Don’t Be a Jerk.com

Being a jerk can get you into more trouble these days than you may think.

Jerk.jpgThe FTC has recently filed suit against “Jerk.com,” alleging that the website scraped information from over 73 million Facebook profiles for private information and photographs, then deceptively told users that if they joined the site for a $30 fee, they could customize their profile from “jerk” to “not a jerk” and rebut comments people had made about them. Moreover, the site charged a customer service fee of $25 if someone asked for their profile to be removed.

Jerk.com claims “Jerk” profiles were created by other jerks. However, the membership numbers of “Jerk.com” indicate otherwise (roughly 3,000 to date), leading the FTC to believe all of the profiles were created by Jerk.com personnel, who created sites on Facebook that would give them more access to users profiles.

It may seem excessive for the federal government to be stepping in, but with people’s privacy and online presences becoming more and more important, and with the rise of awareness surrounding cyberbullying, maybe this is exactly the kind of behavior we want the powers-that-be keeping in check.

If Jerk.com did in fact breach Facebook accounts to create about 78 million Jerk profiles, and then lead consumers to believe they could pay one of two fees to rebut allegations of jerkiness, then the website should be held accountable for deceptive business practices. While using deceptive practices to lure consumers concerned with their online presence into spending money is one thing, some of the vulgar and aggressive content posted about “jerks” on the site raises an additional concern: cyberbullying. These concerns are only heightened in “Jerk.com” was behind the posts in an effort to bolster membership.

With a rise of suicides and other psychological harm associated with it, cyberbullying is becoming more and more criminalized. While there is currently no federal law on point, at least 19 states have addressed the point. With each new law, the message is becoming clear – if you are going to verbally abuse someone on the Internet, you will be liable.

And with the lack of federal criminal authority on the issue, perhaps the FTC taking what may otherwise be a small-potatoes case to say one thing: don’t be a jerk, and if you are, prepare to pay for it.

Lawsuits Filed against Testosterone Gel for Causing Heart Problems

AndroGel and other treatments for low testosterone became widely popular for men with issues involving sex drive, weight gain, and low energy. However, many of the men taking these treatments were not warned about the harmful side effects, such as the possibility of developing serious heart problems.

androgel low testosterone lawsuitIn February 2014, four men filed lawsuits against Abbott Labs and its subsidiary, AbbVie Inc, after the men suffered heart attacks and strokes. The lawsuits allege that Abbott Labs deceived the public about AndroGel, a gel which purports to treat low testosterone in men.

The four men, Micheal Gallagher, Steven Myers, Steve Marino, and Kenneth Aurecchia allege that Abbott Labs released statistics and celebrity endorsements about the positive effects of AndroGel while hiding known adverse health risks. The FDA had approved AndroGel for treatment of hypogonadism, a condition where men have lower testosterone than normal.

However, Abbott Labs sold their gel as a means of treating low energy, sex drive, and weight gain. The problem is that these symptoms are often caused by conditions other than hypogonadism, like the normal aging process. Even worse, many doctors admit that they never test their patient’s testosterone levels before prescribing AndroGel. AndroGel sales were $1.3 billion per year after Abbott Lab’s marketing campaign.

Increasing Danger to Public Health

Unfortunately for the plaintiffs in this lawsuit, their timing couldn’t be worse. Last year, the Supreme Court announced in a 5-4 decision that FDA regulations completely preempt state laws regarding warning labels on drugs. In other words, if there is a conflict between state law and the FDA, the FDA must win.

When would this come up? The FDA only requires that generic drug companies have the same warning labels as the brand name version. If the label needs to be changed, it is up to the FDA to approve the change. The Supreme Court believed that the FDA, which regulates the drug industry across the country, would have a better understanding of drug safety than juries.

The problem is that the FDA, like all government agencies, makes mistakes. AndroGel is an example. The FDA approved AndroGel for public use. Of course, AndroGel was approved for use treating hypogonadism, but as the case shows, drug companies can be overzealous in their advertising once their product enters the market. The Supreme Court’s decision could shield the subsidiary, AbbVie Inc, from all liability.

The decision wouldn’t shield the parent company, Abbott Labs, from liability. Suing Abbott Labs has its own problems. Abbott Labs could claim that misrepresentation is unintentional, the men didn’t rely on Abbott’s advertising, that Abbott Labs had no knowledge that the drugs could be harmful, or any number of other defenses. However, Abbott Labs might settle any lawsuit that comes their way. The drug company has settled lawsuits based on misrepresentation before.

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Christian Louboutin: Lawsuits for Fashion

The renowned fashion designer Christian Louboutin is one of the first people in the fashion industry to adamantly enforce his branding and designs rights. Although he is often disparaged for his extreme litigiousness, it’s a fact that he’s setting a precedent for the other fashion houses and revolutionizing the fashion industry.

Christian Louboutin LawsuitChristian Louboutin is the owner of all red sole shoes and he would like the world to know it. He first started making red sole shoes over 20 years ago when he painted red nail polish on the soles of a pair of shoes. He is not afraid to sue other shoemakers and to develop a reputation of being a vexatious litigant.

This ownership battle started in April 2011 when Louboutin sued Yves Saint Laurent (YSL) for trademark infringement of his red soles. The specific shoe in question is a pair of monochromatic red pumps. Although he filed for trademark protection in 2008, YSL questioned its legitimacy. After all, Louboutin claims he is the owner of the color red and that no other shoemaker is allowed to use red.

During this 18 months lawsuit, Louboutin stuck to his beliefs even after Judge Victor Merrero denied his request for a preliminary injunction to prevent YSL from selling those monochromatic red shoes. Luckily for Louboutin, the case eventually went up to the New York federal appeals court, and the judge stated that he did indeed have a valid trademark for red soles but with a contrasting upper only. Thus, Louboutin can prevent others from making shoes with a distinctive red sole only when the shoe is not entirely red.

Louboutin has subsequently brought a string of similar lawsuits—some successful, other’s not so much. Even if you view such litigation as unnecessary or ridiculous, he is making the point clear that fashion trademarks actually hold legal significance. Other fashion designers can review cases brought by Louboutin to learn how to protect their designs from infringement.

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