Citizen Media Law Project

A successful defamation case in America requires proof that the offender had committed so called actual malice.

Only a subset of plaintiffs in defamation cases are required to prove "actual malice" (a specialized legal term defined below). The general law in the United States is

"Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official."

http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence

"The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense."

It's a debatable question in this case whether or not FunnyJunk's role in this litigation triggers the requirement to allege "actual malice" (it is certainly not a public official), so maybe FunnyJunk doesn't need to allege "actual malice."

"Actual Malice

"In a legal sense,…

U.S. bloggers: Note that Section 230 of the Communications Decency Act gives protection from defamation claims associated with anonymous comments. Quoting from the Electronic Frontier Foundation website (1):

...Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it...

The EFF page adds, "[Section 230] does not apply to federal criminal law, intellectual property law, and electronic communications privacy law."

The Citizen's Media Law project contains additional information about Section 230 and blogging (2):

Section 230 of the Communications Decency Act grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of "mixed content" that is created jointly by the operator of the interactive service and a third party through significant editing of content or the shaping of content by submission forms and drop-downs.

So what are the practical things you can take away from this guide? Here are five:

1) If you passively host third-party content, you will be fully protected under Section 230.

2) If you…

This sounds eerily familiar. Around a decade ago, a data analytics company called Pharmatrak was actually found guilty of breaking federal wiretapping statutes for doing something very similar. [1] In their case, they had built a network tracking HTTP GET requests to pharmaceuticals companies websites with a web bug [2] and attached cookie. But because some of the pharmaceuticals companies were using GETs as the method on HTML forms (remember, this was ten years ago), the users actually ended up making GET requests with personally identifying information in the URL encoded parameters. Since these GET requests were logged by Pharmatrak, and neither party (the users nor the pharmaceuticals companies) had consented to giving away personal information to them, Pharmatrak was found guilty of wiretapping.

Pharmatrak eventually won on appeal though, arguing that they had no intention of collecting personal information, which exonerated them because only intentional eavesdropping is a crime.

The company in the OP's article could make no such arguments though. I suspect that their main difference is that they make no assurances of confidentiality to the websites using their software the way Pharmatrak did. Which 1) is just really creepy, and 2) sets them up for trouble with users in California, because California's wiretapping statutes say that it's a crime unless both parties agree to it. [3]

[1] http://cyberlaw.stanford.edu/packets001737.shtml

[2]…

I used to be really into street photography[1] and this issue tends to creep up from time to time.

If you're on public property of any sort, you don't really have any expectation of privacy outside of the bathrooms or such.[2] That shouldn't be the surprise and that shouldn't be the title of this link. Hell, you can take photographs of people and things on private property as long as it's readily visible from public property and you're not trespassing on the private property.

But! Using said photographs commercially (generally, any use that brings in direct profit) can be a misappropriation of likeness and also a violation of one's right to publicity[3] -- the right to control and make money from the commercial use of his or her identity.

Being an asshole about it and changing every photograph on the site to hers is an interesting move. I'd really love to see what would happen if she pressed charges in response to that.

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[1] https://secure.wikimedia.org/wikipedia/en/wiki/Street_photography

[2] https://secure.wikimedia.org/wikipedia/en/wiki/Photography_and_the_law#United_States

[3] http://www.citmedialaw.org/legal-guide/using-name-or-likeness-another

Yes, in Portland this probably should be protected, see http://www.citmedialaw.org/blog/2008/nude-bike-riding-protected-first-amendment, for instance.

The relevant bit there:

We read the challenged ordinance as focusing on the goal of regulating conduct which the city council has determined to be injurious to health, safety and morals, i.e., the prohibition of public nudity or indecent exposure not intended as a protected symbolic or communicative act. Id. at 82.

In other words, the court specifically acknowledged an exception to the ordinance in order to protect symbolic or communicative acts (the other alternative would have been to declare the entire ordinance unconstitutional, as it's fairly well established that no-exception bans on public nudity violate the first amendment), which this clearly was, so he should be fine.

Of course, all bets are off since this happened in an airport, because terrorism.

I don't think every opinion is an assertion of fact in that true opinion is by its nature unprovable: "I think Apple makes lousy products" may be what I think (which I don't, by the way) but no one would take it as anything beyond that. Opinion is basically non-actionable under libel laws as long as it falls in the unprovable category.

You make an excellent point, though, in picking up on this issue. No less an authority than the U.S. Supreme Court (in the 1990 Milkovich case) expressly rejected what it called "the creation of an artificial dichotomy" between fact and opinion and held that statements couched as opinions can be libelous if they imply false and defamatory facts.

So, if you say, "In my opinion, politician x is a drug dealer," your statement could be found to be defamatory.

For a good discussion on this, see http://www.citmedialaw.org/legal-guide/opinion-and-fair-comment-privileges.