NationStates Jolt Archive

A judge in Texas has ordered the site Topix to reveal identifying information about 178 anonymous commenters who allegedly defamed two residents online.

The commenters had written about Mark and Rhonda Lesher, a Clarksville, Texas couple indicted last April for sexually assaulting one of Mark Lesher's former clients. Mark Lesher is an attorney and Rhonda runs a salon. The couple was acquitted last month.

But in the nine months that the criminal case was pending, people posted more than 25,000 comments to Topix message boards about the charges, according to the 365-page lawsuit. For instance, one commenter allegedly wrote: "Mark Lesher is a coward that hides behind women, when he is not drugging them and raping them," according to the complaint.

The Leshers sued 178 commenters for defamation and asked the court to order Topix to disclose any information that could identify them. A judge in Tarrant County granted that request and ordered Topix to comply with a subpoena by March 6.

Chris Tolles, CEO of Topix, said the company was still studying the court's order. "We take the privacy of our users very seriously," Tolles said. "We're trying to make sure that whatever is asked for here is reasonable and balances the need for freedom of speech against the needs of the court." He added that the site does not have commenters' email addresses.

Other judges throughout the country have faced similar requests, but most have not ordered Web sites to unmask commenters without first finding that the plaintiffs could potentially win a libel claim.

"There's been case after case after case where judges are showing a lot of respect for anonymous speech on the Internet," said Sam Bayard, assistant director of the Citizen Media Law Project.

Making that determination would appear to involve evaluating the evidence against each commenter individually, Bayard said.

Whether the Leshers can win a libel claim might depend on whether they are considered public figures--in which case they would have to prove that the commenters posted their statements with reckless disregard for the truth. Private figures in Texas need only show that their reputation was harmed by untrue statements that commenters made negligently.

http://www.mediapost.com/publications/index.cfm?fa=Articles.showArticle&art_aid=100173

Okay so let me get this straight, a couple is on trial for sexual assault for 9 months, during that time people flame about them and basically insult the hell out of them for being a possible sex criminals.

They're found not guilty and they turn around and sue all the people who flamed about them.

This is going to be a giant can of worms if this gets to court but I doubt it'll get that far.

---
And of course this would be in Texas.

http://www.mediapost.com/publications/index.cfm?fa=Articles.showArticle&art_aid=100173

Okay so let me get this straight, a couple is on trial for sexual assault for 9 months, during that time people flame about them and basically insult the hell out of them for being a possible sex criminals.

They're found not guilty and they turn around and sue all the people who flamed about them.

This is going to be a giant can of worms if this gets to court but I doubt it'll get that far.

---
And of course this would be in Texas.

I'm not sure why this is a "can of worms" at all. Defamation is a longstanding cause of action.

What a couple of assholes.

:eek:

Uh-oh....

I'm not sure why this is a "can of worms" at all. Defamation is a longstanding cause of action.

This is why I don't publicly state that you, Neo Art, are the father of one of the Bush Twins' bastard jeWASP babies.

More power to the couple.

They might not be sex offenders, but they did do WTC, dodged the draft, sold drugs to minors and denied the Holocaust in the meantime.

I know this because I am from the internet and everything on the internet, especially things posted by Anonymous Cowards, should be taken as 100% true and never questioned because it is impossible for anyone to lie or misrepresent themselves. I also need somewhere safe to store my Nigerian oil fortune but in order to do so I need from you $5,000 in an escrow account (USD only) and your bank account information so I can transfer your share of the pie. Of course, you should probably also give me your SSN just to be safe.

Honestly, anyone dumb enough to take comments posted on the internet seriously is a dumbass. If anything, people who read shitposts and believe them are the ones that deserve to be sued in to extinction, not the people posting them or the people trolled by them.

So what are they going to do? Sue a bunch of teenagers and trolls? Is this even news worthy?

Heh, this is like trying to break up Napster - Al Gore made the internet, and not only that, he made it invincible.

Looks like it's 180 IP addresses now.

Honestly, anyone dumb enough to take comments posted on the internet seriously is a dumbass. If anything, people who read shitposts and believe them are the ones that deserve to be sued in to extinction, not the people posting them or the people trolled by them.

And that could end up being the couple's downfall. As far as I am aware (this is on the basis of doing a New Zealand commercial law paper, US law may be different), to prove defamation, the reputation of the plantiff should have been reduced in the eyes of right thinking members of society. I wouldn't at all base my assumptions of someone based on what I saw on a Forum, especially Topix, and I don't think that right thinking members of society would either.

to prove defamation, the reputation of the plantiff should have been reduced
Certain statements are called "defamatory per se", in which case there is no need to prove damage to reputation. Accusations of criminal conduct, and claims that someone has a sexually-transmitted disease, are defamatory per se.

This is why I don't publicly state that you, Neo Art, are the father of one of the Bush Twins' bastard jeWASP babies.

I dont know since we use aliases if this is defamation.....


lawyer explain defamation

I think the idea that what is essentially a private debate over a public matter should not be something our courts are wading into

Wow... what a troll.

But then they have to get the Judge to force the relevant ISPs to give over the personal details of the people using the ISPs at the time. And that could just turn up Bob's Trusty Proxy Farm in Russia where they can't force him to give over the next set of IPs and so on. Either way this is going to take ages and is unlikely to actually result in prosecution.

In what way were their reputations harmed by these anonymous internet comments that weren't already caused by the sexual assault arrests and nine month trial?

The reason could be that they actually are guilty after all, but managed to defend in court, and now they want to shut the Internet vigilantes up to make sure they don't start an internet investigation.

A good for all sites not to logs IPs ever. Do it. You know you want to.

So it is ok for the newspapers to sensationalize but not some idiot online. Topix can't be too amazing as I have never even heard of it prior to this. hmm...wonder why this news item didn't come up in this forum...oh wait...prolly cause it didn't happen in Saudi Arabia;)

so this couple is so concerned about their reputation being sullied that they are willing to dredge it all up again and make it a national story this time. have it dredged up over and over again in each of 178 individual defamation trials.

what next? beg anonymous to go after them?

I dont know since we use aliases if this is defamation.....


lawyer explain defamation

No part of the elements of defamation require one to use their own name.

I'm a little concerned about this. Competing interests. With topics like this I always try to personalise it, to see how I would feel about being on one side or the other. So would I want people to be freely able to tell as many people as they can reach that I abuse my children? HELL no. Not in a coffee shop, not on the internet. That is not something I want anyone saying, or believing about me, and I would definitely want it stopped.

On the other hand, we talk smack. That's what we do. At what point does smack talking become defamation? Do we need to all learn to make statements like, "this guy is charged with sexual assault...if he did it, then he's a fucking piece of shit coward who hides behind woman when he's not drugging and raping them"?

I'm a little concerned about this. Competing interests. With topics like this I always try to personalise it, to see how I would feel about being on one side or the other. So would I want people to be freely able to tell as many people as they can reach that I abuse my children? HELL no. Not in a coffee shop, not on the internet. That is not something I want anyone saying, or believing about me, and I would definitely want it stopped.

On the other hand, we talk smack. That's what we do. At what point does smack talking become defamation? Do we need to all learn to make statements like, "this guy is charged with sexual assault...if he did it, then he's a fucking piece of shit coward who hides behind woman when he's not drugging and raping them"?

well I think the argument that it's an inherent "understood" that there's the implication of "if this is true" is an argument for the defense. As you said, if you call me a rapist, that's defamation. Doesn't matter if you did it in an office, or in a coffee shop, or on NSG.

well I think the argument that it's an inherent "understood" that there's the implication of "if this is true" is an argument for the defense. As you said, if you call me a rapist, that's defamation. Doesn't matter if you did it in an office, or in a coffee shop, or on NSG.

Rapist.

Rapist.

*sues*

so this couple is so concerned about their reputation being sullied that they are willing to dredge it all up again and make it a national story this time. have it dredged up over and over again in each of 178 individual defamation trials.
I think they're hoping to win money from this (To pay back the rape trial) And when the 3000+ more comments pop up insulting them for this they sue them as well.


what next? beg anonymous to go after them?I don't think they know about this yet. ED doesn't even have a mention of it.

Rapist.

I am a right thinking member of society, and this comment has diminished Neo Art in my view.

On the other hand, we talk smack. That's what we do. At what point does smack talking become defamation? Do we need to all learn to make statements like, "this guy is charged with sexual assault...if he did it, then he's a fucking piece of shit coward who hides behind woman when he's not drugging and raping them"?
We simply need to remove people's vocal cords and ban private ownership of communication devices.

Meh. What are they going to get. Odds are most are dynamic addresses. Then again they are probably the type of people who will go after big pockets. For example, some kid at a university decides to flame them and they will sue the university for allowing that happen.

People seem to get more soft skinned these days.

I used to post at topix all the time. I recommend it if you're looking for mindless kvetching with right wing nutjobs. It's swarming with them.

I used to post at topix all the time. I recommend it if you're looking for mindless kvetching with right wing nutjobs. It's swarming with them. Yes topix is always good for a laugh.

So...it's like a Republican version of Huffington Post or the Daily Kos?

Hey, what better way to pay off those Damned lawyers than breaking into the Lawsuit Racket?

No part of the elements of defamation require one to use their own name.

wait would it be my own name I had to use or the person's who's name i defamed ? Or both ???

I do not know the details of the alleged crime, the trial or the resulting 'defamation'

People do have a right of opinion, but it is not fair to be going and persecuting a (legally) innocent person over an alleged offense which had not been proven.

I blame the media. Biased reports.

I blame them for all the worlds problems - civil libertarians, The election of K.Rudd, and of course, global warming. (every page view on a news page with an article about gloabal warming uses enough energy to boil a jug of water!!!)

(Of course, the couple are just after money in this event. I'm sure if they wanted justice they'd go after the media)

There are two inherent flaws with this defamation suit.

The first is the actual claim of defamation. The couple was suspected of a crime. The media reported and the people who read about the crime posted their smarmy comments. Now, to say that the 178 posters who made trollish comments were defaming the couple would be wrong. The root cause is the article. It influenced the opinion of the posters, and led those people to make those comments. Without the article in question, the 178 would not have been influenced to make those comments.

If anything, the couple should be suing Topix directly. Yet, they have chosen not to sue the site (http://arstechnica.com/tech-policy/news/2009/02/texas-judge-orders-site-to-identify-anonymous-trolls-flamers.ars) (ArsTechnica). The site created the initial furor and led to the low opinion of the couple. The comments reflect the nature of the story. Additionally, the site is responsible for the content which shows up, but it still allowed for people to express their opinions freely.

Secondly, Even if the IP addresses of the 178 are released, the problem of actually identifying the person becomes difficult. There is no way of actually proving who was sitting at the computer at the time it was written. Especially if it is a wireless unsecured network. The judge in this case has proven that he is computer illiterate by ordering the site to disclose those IP addresses.

If it was possible to ID people based on their IP, wouldn't the RIAA have been successful, and not have to rely on the universities and colleges to give students the statement of claim? All the RIAA has is an IP address, and has to work from the bottom up.

Interestingly, the judge didn't follow precedent.

In 2005, the Delaware Supreme Court ruled that an anonymous blogger could remain anonymous after being sued by a local councilman and his wife. The blog in question had questioned the councilman's sexual proclivities, among other things, which the couple considered defamatory. A lower court granted the request to identify the blogger, but the Daleware Supreme Court overturned the decision. Then, in January of 2008, two female law students who were the target of vicious online attacks admitted that they had been unsuccessful in digging up personal information about a handful of anonymous posters, and had so far hit a dead end when it came to getting a court order.

One month later, a California appeals court reversed a previous decision that would have allowed Lisa Krinsky, COO of a Florida-based drug service company, to subpoena 10 anonymous Yahoo message board posters' real names. The court said that the commenters were allowed to exercise their First Amendment rights and speak their minds, even though some of the comments were quite scathing and potentially libelous.

There are two previous examples of people wanting the same type of information disclosed but being denied it. On the grounds of "first amendment rights".

There are two inherent flaws with this defamation suit.

The first is the actual claim of defamation. The couple was suspected of a crime. The media reported and the people who read about the crime posted their smarmy comments. Now, to say that the 178 posters who made trollish comments were defaming the couple would be wrong. The root cause is the article. It influenced the opinion of the posters, and led those people to make those comments. Without the article in question, the 178 would not have been influenced to make those comments.


If anything, the couple should be suing Topix directly. Yet, they have chosen not to sue the site (http://arstechnica.com/tech-policy/news/2009/02/texas-judge-orders-site-to-identify-anonymous-trolls-flamers.ars) (ArsTechnica). The site created the initial furor and led to the low opinion of the couple. The comments reflect the nature of the story. Additionally, the site is responsible for the content which shows up, but it still allowed for people to express their opinions freely.

Secondly, Even if the IP addresses of the 178 are released, the problem of actually identifying the person becomes difficult. There is no way of actually proving who was sitting at the computer at the time it was written. Especially if it is a wireless unsecured network. The judge in this case has proven that he is computer illiterate by ordering the site to disclose those IP addresses.

If it was possible to ID people based on their IP, wouldn't the RIAA have been successful, and not have to rely on the universities and colleges to give students the statement of claim? All the RIAA has is an IP address, and has to work from the bottom up.

Interestingly, the judge didn't follow precedent.



There are two previous examples of people wanting the same type of information disclosed but being denied it. On the grounds of "first amendment rights".

It's...really not at all that easy, for a few reasons. First, defamation is an intentional tort. It is so, because the underlying action (the uttering of a statement) was done intentionally, not negligently or recklessly. As such, as a general rule, there's no vicarious liability for intentional torts. Just because Topix created the board on which the defamatory statements were made doesn't make them liable for the tortious conduct of those who utilized it. Choosing not to sue the site is probably a smart move, as they have a strong, perhaps unbreakable defense that merely proving the space does not make them liable for the content therein.

Second, while identity of persons via their IP address is difficult, that's an argument for the defense. It shouldn't be an absolute bar on litigating the issue. Determining the absolute identity of the proper defendants can often be an issue in many lawsuits, and just because it might be a difficult process is not a sufficient reason to bar preliminary matters. Let the defense raise the issue of improper identification in pretrial motions.

Third, the first amendment does not create a blanket immunity against defamation claims. In fact, if it did, there'd be no tort of defamation at all, because it's impossible to defame someone without communication of some kind, so merely citing the first amendment doesn't grant total immunity to a defamation suit. if it did, there would be no defamation suits.

Fourth, while I agree that the article itself may have instigated the commentary, that's a problem for a few reasons. One, presumably, the article only reported true facts, IE the existance of a trial. it did not state that they were guilty. Truth is an absolute defense to defamation, and if all the article did was state true facts, it's not defamation. Additionally, and here's where the first amendment does come in, it's considerably harder to sue a newspaper than it is a private person. There's a whole lot of "freedom of the press" issues that get spawned with it. See The New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

It's...really not at all that easy, for a few reasons. First, defamation is an intentional tort. It is so, because the underlying action (the uttering of a statement) was done intentionally, not negligently or recklessly. As such, as a general rule, there's no vicarious liability for intentional torts. Just because Topix created the board on which the defamatory statements were made doesn't make them liable for the tortious conduct of those who utilized it. Choosing not to sue the site is probably a smart move, as they have a strong, perhaps unbreakable defense that merely proving the space does not make them liable for the content therein.

I know it is an intentional tort.

Topix is the one who is responsible for maintaining the commentary section. By not filtering the comments it is contributing to the defamation. By allowing a commentary section, it was accepting responsibility for maintaining the comment system.

By allowing an open comment system, it is responsible for ensuring rule compliance. If it instead opted for a closed comment system and moderated the comments, would this have happened? Likely no. Topix is much like digg... or any other open comment site. Some people will troll and generally act like assholes when there are no forms of repercussions because they believe they can get away with it. By being passive, Topix has allowed this to happen.

Fourth, while I agree that the article itself may have instigated the commentary, that's a problem for a few reasons. One, presumably, the article only reported true facts, IE the existance of a trial. it did not state that they were guilty. Truth is an absolute defense to defamation, and if all the article did was state true facts, it's not defamation. Additionally, and here's where the first amendment does come in, it's considerably harder to sue a newspaper than it is a private person. There's a whole lot of "freedom of the press" issues that get spawned with it. See The New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Which brings us to "reasonable". Would this have passed "the reasonable person" test? Would a "reasonable person" after reading the article and the comments have a lowered opinion? How many comments were there? We know that there were 178 who wouldn't likely pass the reasonable person test. But what about others?

Take for example Khadr; a Canadian who as a child was detained at Gitmo. The media has a profound amount of influence in the way it reports and the people who typically respond show incredible malice toward the individual based on what was written. Even if there is a certain amount of truth in reporting, there can be bias in the wording which can influence people's opinions.

Topix is the one who is responsible for maintaining the commentary section. By not filtering the comments it is contributing to the defamation. By allowing a commentary section, it was accepting responsibility for maintaining the comment system.

By allowing an open comment system, it is responsible for ensuring rule compliance. If it instead opted for a closed comment system and moderated the comments, would this have happened? Likely no. Topix is much like digg... or any other open comment site. Some people will troll and generally act like assholes when there are no forms of repercussions because they believe they can get away with it. By being passive, Topix has allowed this to happen.

As a moderator of a comment-esque system, this is a very interesting position to take. Interesting in the sense I've never seen someone try to not merely shoot one's self in the foot, but blow it clean off.

That sort of roundabout, dubious, logic is like saying if I decided to post child pornography on here - you would plead guilty to the maximum sentence under U.S law, or more likely; considering how much 'defamation' (under your guidelines) occurs on this board you yourself would not feel obliged to defend yourself if, for instance, George Bush decided to sue you for hosting such numerous comments doubting the existence of gray matter between his two ears.

I know it is an intentional tort.

Topix is the one who is responsible for maintaining the commentary section. By not filtering the comments it is contributing to the defamation. By allowing a commentary section, it was accepting responsibility for maintaining the comment system.

By allowing an open comment system, it is responsible for ensuring rule compliance. If it instead opted for a closed comment system and moderated the comments, would this have happened? Likely no. Topix is much like digg... or any other open comment site. Some people will troll and generally act like assholes when there are no forms of repercussions because they believe they can get away with it. By being passive, Topix has allowed this to happen.[/QUOTE]

No. It does not work that way. You say you know it's an intentional tort, but I'm not sure you appreciate what that means.

You can't "accept responsibility" for someone else's intentional tort, it doesn't work that way. Regardless of whether they created an "open" enviornment to post in, they can not be held liable for intentional torts committed in that enviornment.



Which brings us to "reasonable". Would this have passed "the reasonable person" test? Would a "reasonable person" after reading the article and the comments have a lowered opinion? How many comments were there? We know that there were 178 who wouldn't likely pass the reasonable person test. But what about others?

You're um...you're conflating a few issues here so I'm not sure which you're talking about. So allow me to try and clarify. There are three elements of a defamation suit:

(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.

Let's not bother going through the publication prong, that one is obvious. Therefore there are two issues. The first relates to a defamatory statement.

Now a statement is "defamatory" when two conditions are met. 1) it's false, and 2) it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation". Now, your argument seems to be that a "reasonable person" would not have a lowered esteem simply by a message board. Now that's a fair argument, and is one for the defense to make. Problem being is this nasty little catagory of "defamation per se". Those are statements which, by common law, are considered so defamatory as to be per se harmful to ones reputation. One of the big ones is "imputations of criminal conduct". In other words, if the defamatory statement is a false statement accusing one of a crime (as it was here) the "reasonable person" standard (which actually isn't exactly the standard used, but moving on) is inapplicable. It's per se defamatory.

as to the other prong, this is where the "reasonable person" standard is relevant. It's a test to determine if a reasonable person would have believed the statement to be false. If so, defamatory. But if a reasonable person would have believed it to be true, then that's a defense.

You're sort of conflating the elements here. The "lowered reputation" aspect does not use the "reasonable person" standard as you seem to be claiming. The first element requires a specific showing of actual harmed reputation except in the case of defamation per se. The reasonable care and diligance requirement relates to the third prong, not a "lowered reputation" test (indeed the lowered reputation test requires a showing far beyond mere "would a reasonable person have had his opinion of me lowered", and requires specific showing that it was lowered...except for per se defamation). And yes, that's a perfectly valid defense to raise, tha a reasonable person would have believed it to be true.

The problem with defenses is, there's a time and place to raise them. And a judge can't just throw out a case before the proper time to make the proper motion is made, just because he anticipates what might be a defense.

...Truth is an absolute defense to defamation, and if all the article did was state true facts, it's not defamation...

Not so in Australia and some other jurisdictions. (Yes, I know you are referrring to a US case - just providing info.) Loss of reputation is the test in our courts. Because of this, the Australian press operates under greater constraints than its American counterpart.

Not so in Australia and some other jurisdictions. (Yes, I know you are referrring to a US case - just providing info.) Loss of reputation is the test in our courts. Because of this, the Australian press operates under greater constraints than its American counterpart.

Loss of reputation is always an element in a defamation claim. To be a defamatory statement, the statement must be 1) false, and; 2 lead to a demonstrable loss of reputation (except for defamation per se).

If truth is not a defense to defamation in Australia, then you use a radically different definition than we do. A defamatory statement is, by definition in US law, an untrue one.

Loss of reputation is always an element in a defamation claim. To be a defamatory statement, the statement must be 1) false, and; 2 lead to a demonstrable loss of reputation (except for defamation per se).

If truth is not a defense to defamation in Australia, then you use a radically different definition than we do. A defamatory statement is, by definition in US law, an untrue one.

I may be mixing up defamation with breach of privacy. I need to do some research. Thanks for the prod.

I'm not sure why this is a "can of worms" at all. Defamation is a longstanding cause of action.
So does the context of the defamatory language matter? If you are slandered by someone that is generally held in disregard, or remains anonymous, is that the same as if you're slandered by someone more respectable? Does discussing a public person have some leeway given before the language is actionable? Would these people even be public persons because of the case?

Never mind. I think you've answered all these questions in one form or another already.

So does the context of the defamatory language matter? If you are slandered by someone that is generally held in disregard, or remains anonymous, is that the same as if you're slandered by someone more respectable? Does discussing a public person have some leeway given before the language is actionable? Would these people even be public persons because of the case?

Never mind. I think you've answered all these questions in one form or another already.

You asked a few questions, so let me give a general overview. As to your first question, there is something refered to as the "undefamable plaintiff". By which I mean, this would be an individual who is already held in such low regard that you can't possibly lower his reputation any further. For example, and at risk of a Godwin, I can't possibly defame hitler (ignoring the fact that he's dead,f or the moment). His reputation being so low that I can't really make it worse.

As for the "remaining anonymous" line, this is again related to the definition of a "defaming statement". To be a defaming statement it must be false AND lower ones standing. If I make it anonymously, it can't possibly harm your reputation. "This guy I know from the internet is a rapist" can't defame you.

It's very arguable whether I said "Myrmidonisia is a rapist" if that would be defamation, because while that's not "you" it IS how you are known in certain communities. I suppose it could be defamation, if you could prove that your identity as "Myrmidonisia" is of some pecuniary value.

As to the question about public persons...defamation gets kinda tricky when it comes to first amendment issues. Basically there are two questions you need to ask: 1) is the plaintiff a public person, and; 2) is the defendant media?

Depending on how you answer those questions is the level of analysis you use. The easiest case for a Plaintiff to win is when plaintiff is a private person, and defendant is not the media. The hardest (DAMNED hard, indeed near impossible) to win is when Plaintiff is a public person, and defendant is the media. This was the case in the seminol SCOTUS case on the issue The New York Times Co. v. Sullivan

I may be mixing up defamation with breach of privacy. I need to do some research. Thanks for the prod.

possibly, and this would make more sense. "breach of privacy" or "publication of private fact" is a cause of action in many, but not all, jurisdictions in the US. It's also damned near impossible to bring a successful claim of such against a news outlet, due to very strong first amendment issues.

Media has strong protections against defamation, it has near insurmountable protections when the fact is actually true

Let's see... 9 posts at $300 pr post... That'll be $2,700 please.

[/manager]

Media has strong protections against defamation, it has near insurmountable protections when the fact is actually true

Lucky old US media. In the UK, it's quite different. There is a defamation defence called 'justification' (sometimes called the 'truth' defence) but it's almost impossible to use. As The Sun found out when they printed a highly defamatory - but entirely true - story about footballer Bruce Grobbelaar.

So Errin may well have been correct about Australian defamation law - it could be quite unlike the US version.