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Trouble in Cyberspace

By Megan Kinneyn | Feb. 2, 2007

Law Office Management

Feb. 2, 2007

Trouble in Cyberspace

Within the past few years, at least a dozen defamation suits have been filed over website content. By Susan E. Davis

By Susan E. Davis
      Edited by Martin Lasden
      Defamation takes on a whole new dimension.
      It's been a fool's paradise on the Internet for a long time," says Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. "People have assumed no one would bother to sue someone for website content."
      But they were wrong. In fact, within the past few years, at least a dozen defamation suits have been filed by both individuals and organizations over website content. This is forcing courts to try to draw lines between protected and unprotected speech, and in the process balance the free-speech rights of some individuals against the need to protect the reputations of others. Of course, that's a concern with most any defamation case. But what makes these cases special is the nature of the Internet and the way the applicable standards get parsed.
      In 2002, for example, the American Dental Association (ADA) sued San Diego?based plaintiffs attorney Shawn Khorrami for statements he posted on his firm's website about the alleged dangers of mercury amalgam fillings. (American Dental Ass'n v. Khorrami, U.S. Dist. Ct., Central Dist. of California, Civ. Case No. 02-3853.) At the time of the postings, Khorrami was representing plaintiffs in a class action against the ADA, claiming the organization had an economic interest in promoting these fillings, despite evidence of toxicity. (Khorrami had also filed suits against other dental organizations and practices over the same issue.)
      One question raised by the ADA's defamation suit against Khorrami was whether the comments on his website fell under the category of "commercial speech," which has weaker protection than "private speech." Khorrami claimed his comments weren't commercial because his website wasn't meant to be an advertisement. However, under Rule 1-400 of the State Bar's Rules of Professional Conduct, an advertisement is any message or offer to former, present, or prospective clients that the attorney is available?a definition that, if applied, would seem to give the plaintiff a huge advantage in this case.
      Another problem with these Internet cases is how geographically dispersed they often are, making it difficult to say which state's laws should apply. For example, in a pending Pennsylvania case filed last June, Pittsburgh attorney Todd Hollis sued Tasha Joseph, a Florida resident who created the website www.dontdatehimgirl. com. At issue is a posting that alleged Hollis was bisexual, unfaithful, and had a sexually transmitted disease.
      To be sure, such statements posted on the Web can do irreparable harm to an individual. But just as problematic is the chill that even the threat of defamation litigation can put on what might otherwise be considered legitimate free speech.
      In Khorrami's case, after filing what turned out to be an unsuccessful anti-SLAPP suit to get the ADA off his back, he fought the organization for four years before agreeing to a settlement. "I highly doubt that the lawsuit was motivated by anything but a desire to harass me," he says. "It's pretty transparent."
      "Reasonable people do differ on the dangers of mercury amalgam fillings," says the Silha Center's Kirtley. "But well-heeled plaintiffs are often determined to do whatever they can to silence their critics."

Megan Kinneyn

Daily Journal Staff Writer

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