Developments in libel, social media, privacy and the right of publicity

New York State Bar Association - Entertainment, Arts and Sports Law Journal

Spring 2021

By Neville L. Johnson and Douglas L. Johnson

Negative Reviews

Social media platforms, such as Yelp, can make or break a business, and law firms are no exception. It is important for attorneys to understand how to handle negative reviews by former clients because it implicates the duty of confidentiality that all attorneys hold.

The Los Angeles County Bar Association has stated that an attorney may respond to a former client's posting if the attorney does not disclose confidential information, or respond in a manner that will injure the former client in a matter involving former representation, and the attorney's response is proportionate and restrained. (Los Angeles County Bar Association Ethics Committee, Opinion No. 525, available at https://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-525.pdf, as of March 24, 2021.)

Attorneys dealing with a negative review, or who are advising a client about a negative review of the client, must appreciate the costs and challenges of bringing a defamation claim based on online posts. Defamatory posts are usually made by anonymous users. Courts often deny requests to subpoena a poster's identity from a host site. Some courts require the plaintiff to prove a prima facie cause of action to get the host site to turn over evidence of the poster's identity. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231.)

While a court may order the poster to remove the content, it cannot order the social media platform to do so. This on its own presents the costliest challenge because it is notoriously difficult to hold social media platforms accountable, as they are protected by Section 230 of the Communications Decency Act of 1996 (47 U.S.C. § 230), and California's Anti- SLAPP statute (Code Civ. Proc. § 425.16). (See Johnson, Johnson, Tweed and Smolla,Defamation and Invasion of Privacy in the Internet Age, 25 Sw. J. Int'l L. (2019).)

You should advise your clients to first attempt to amicably resolve the issue with the poster. It may be appropriate to report the content to the social media platform if it violates policies of the internet service provider. If this is ineffective, the next best remedy is to provide a rebuttal or response to the former client's post. The last step is to sue the poster for defamation, obtain a judgment, and then try to convince the platform to take it down.

Google, Twitter and Facebook have no public policies for taking down defamatory content after a judgment, but experience has shown they will sometimes do so. Finally, determine whether there is content may be subject to a takedown notice as it violates the Copyright Act. (17 U.S.C. § 512.)

A recent California Supreme Court case illustrates these challenges.

In Hassell v. Bird (2018) 5 Cal.5th 522, 234 Cal.Rptr.3d 867, the defendant, Ava Bird, approached Hassell Law group, owned by the plaintiff, to represent her in a family law matter. After email ecchanges, Hassell concluded that Bird was not happy with the firm's performance, and withdrew from representation, notifying Bird via email. Several months after the representation ended, Bird posted two scathing one-star reviews on Yelp under two anonymous usernames. Hassell, believing that both reviews were posted by Bird, filed a complaint against her, alleging libel, false light and intentional infliction of emotional distress.

The trial court held in favor of Hassell, awarded damages in the amount of $557,918.85, and ordered Bird to take down the reviews. The trial court also ordered Yelp to remove the reviews. Hassell notified Yelp, but it refused to remove the reviews. Yelp instead filed a motion to set aside and vacate the judgment, arguing that the order violated its due process rights, the removal order exceeded the relief requested in the complaint, and the relief imposed was barred by Section 230 of the Communications Decency Act, which shields online platforms from liability stemming from user-generated content.

Plaintiffs wanting to bring defamation claims against social media platforms, in addition to Section 230, face the costly burden of Anti-SLAPP statutes.

The trial court in Hassell denied Yelp's motion, after determining that Yelp had been acting as Bird's agent when it allowed Bird to post a review, aiding and abetting the defamation, and that Yelp could be held accountable. The Court of Appeal held that there had been no due process violation and that Section 230 did not apply because the removal order was not the same as holding Yelp liable for user- generated content.

The California Supreme Court reversed and held that the removal order against Yelp was barred by Section 230 because Hassell had attempted to intentionally bypass Section 230 by not naming Yelp as a defendant on the complaint. (Hassell, 5 Cal.5th at 540-545.) The Supreme Court reasoned that ordering Yelp to remove the reviews was treating Yelp as if it had written the reviews – and not as a platform that hosts speech – which is what Section 230 is designed to prevent. (Hassell, 5 Cal.5th at 540-545.)

Plaintiffs wanting to bring defamation claims against social media platforms, in addition to Section 230, face the costly burden of Anti-SLAPP statutes. For example, in Hassell, when Hassell served Yelp with a copy of the trial court's judgment and order to remove the defendant's posts, Yelp's response included a statement that if the plaintiff pursued a separate action against Yelp based on the publication of reviews, Yelp would seek a dismissal of the action and its attorney's fees under California's Anti-SLAPP statute. (Hassell, 5 Cal.5th at 530.) Although the case eventually resolved in Yelp's favor without having to address an Anti-SLAPP motion (the United States Supreme Court denied Hassell's writ of certiorari. (Hassell v. Yelp, Inc. (2019) 139 S.Ct. 940), Cali- fornia's Anti-SLAPP statute gives online platforms an additional layer of protection on top of Section 230. (Code Civ. Proc. § 425.16(b)(1).)

Anti-SLAPP statutes have become a powerful tool to dissuade individuals from bringing legitimate claims for defamation and to punish effectively those individuals by making litigation extremely costly and difficult. This is because an Anti-SLAPP statute allows a defendant to file a motion to dismiss a complaint for defamation entirely, so long as the defendant can show that the activity fell within the First Amendment rights to petition or free speech. (Code Civ. Proc. § 425.16.) Once the defendant has successfully asserted this defense, the burden shifts to the plaintiff, and the plaintiff must show that they have a reasonable probability of winning. (Id.) If the plaintiff fails, the complaint will be dismissed, and the defendant will be entitled to attorney's fees and court costs. (Id.) These fees can be enormous. It may be malpractice for an attorney not to advise a client about the dangers and expenses associated with social media-based litigation, Section 230 and Anti-SLAPP statutes.

Privacy Law

There have been some notable developments in privacy law. A California court recently added another nuance to the reasonable expectation of privacy analysis under California's criminal eavesdropping statute, Penal Code § 632. Section 632 prohibits intentionally recording confidential communications. In People v. Lyon (Feb. 24, 2021) 2021 WL 716696, 2021 Cal. App.Lexis 158, the defendant was convicted under Section 632 of California's Penal Code for secretly videotaping prostitutes at his residence without their permission. The defendant appealed his conviction, arguing that the prostitutes could not have a reasonable expectation of privacy. The defendant reasoned that his residence was more akin to a workplace because he had paid the prostitutes to be there to perform certain services, even if of an intimate nature. (Lyon (2021) 2021 Cal.App.Lexis 158 at *8.) The appellate court disagreed and upheld his conviction. A person's residence is still a private setting in which intimate acts may occur, which supports a reasonable expectation of privacy in such acts that is “not relinquished or forfeited simply because a prostitute is involved.” (Id., at *13.)

Perhaps the most significant development in privacy law in recent years is the advent of biometric data privacy laws. Biometric data is any data that relates to human features and is used in a variety of ways to establish an individual's identity. Some examples including iris scans, fingerprints and facial recognition. (Mark G. Milone, Information Security Law (2006) § 1.01.)

Illinois was the first state to enact legislation aimed at biometric data when it passed the Biometric Information Privacy Act (“BIPA”) in 2008. (Biometric Information Privacy Act, 740 ILCS 14, available at http://www.ilga.gov/legislation/ilcs/ilcs3. asp?ActID=3004&ChapterID=57, as of March 24, 2021.) The Illinois BIPA requires entities to inform individuals in writing that biometric data will be collected, how it will be collected and what it will be used for, and allows an entity to disseminate data under a limited number of circumstances. Under Illinois's BIPA, disclosure is permitted if the individual gives consent, the disclosure is required by law, or there is a valid search warrant. BIPA also requires entities to use the reasonable standard of care of the respective private industry to store the information, as well as using more caution for biometric data storage than other types of data internally.

Anti-SLAPP statutes have become a powerful tool to dissuade individuals from bringing legitimate claims for defamation and to punish effectively those individuals by making litigation extremely costly and difficult.

The Illinois BIPA is unique because it gives any individual plaintiff standing to sue for a violation, providing that an individual plaintiff is entitled to the greater of liquidated damages or actual damages based on recklessness or negligence, reasonable attorney's fees and other relief, such as an injunction. This provision of BIPA has allowed many lawsuits to proceed against entities using biometric data. (Natalie A. Prescott, The Anatomy of Biometric Laws: What U.S. Companies Need To Know in 2020, Nat'l L. Rev. (Jan. 15, 2020), available at https:// www.natlawreview.com/article/anatomy- biometric-laws-what-us-companies-need- to-know-2020, as of March 24, 2021.)

Two hundred cases were filed in the state of Illinois from 2018 to 2019 alone, and the number of cases is sure to rise. (Id.) These class actions can lead to large settlements. Facebook, for example, agreed to pay $550 million to Illinois users who had alleged in a class action lawsuit that the platform was unlawfully collecting biometric data. (Natasha Singer & Mike Isaac, Facebook to Pay $550 Million to Settle Facial Recognition Suit, New York Times (Jan. 29, 2020), available at https:// www.nytimes.com/2020/01/29/technology/facebook-privacy-lawsuit-earnings. html, as of March 24, 2021.)

California is following suit with the California Consumer Privacy Act (“CCPA”), which went into effect last year. It includes biometric data in its definition of personal information. (California Consumer Privacy Act, Civ. Code §§1798.100-1798.199.) The CCPA requires entities to provide notice of data being collected and to specify if the data is being sold or disclosed to third parties. A unique feature of the CCPA is that it requires entities to give consumers the ability to choose to opt out of their data being collected, request access to their data and also request that their data be deleted. As consumers become increasingly aware of what biometric data is and how it should not be used, the number of lawsuits and states legislating to address these issues is likely to rise.

Practice Note: Demand Letters

Much of an attorney's job is communication. Considering attorneys often write demand letters to opposing parties or may hold press conferences to vindicate their clients to the public, attorneys must always consider whether they or their client could become liable for these communications. This includes being well-versed in any case law that is referenced in the communication, and not calling the other side a liar. When communicating on behalf of a client, you should always ensure that the client has a legitimate legal claim, truly intends to litigate, and that the communication is functionally related to anticipated litigation. The following cases are illustrative of the issues that may arise from attorney communications.

In Flatley v. Mauro (2006) 39 Cal.4th 299, 46 Cal.Rptr.3d 606, the attorney-defendant Mauro sent the plaintiff, famed dancer Michael Flatley, a demand letter on behalf of his client alleging that Flatley had raped her in his Las Vegas hotel room. The letter urged Flatley to contact Mauro directly to negotiate a settlement; if not, the letter indicated that Mauro's client would sue Flatley for punitive damages, disclose the rape allegations in court and to the media, and that information regarding immigration and other matters would be “exposed.” (Flatley, 39 Cal.4th at 309.) The letter referred to an unspecified case in which a plaintiff was awarded $100 million for punitive damages, made abundant use of bold and capitalized fonts, and imposed a non-negotiable timeline of twenty-eight days to reach a settlement. (Flatley, 39 Cal.4th at 308-309.) Mauro badgered Flatley's counsel with numerous phone calls, threatening to “go public” with the story and “ruin” Flatley unless he agreed to pay Mauro and Robertson “seven figures.” (Flatley, 39 Cal.4th at 311.)

Flatley responded by suing Mauro and his client for various claims, including civil extortion. Mauro sought to strike Flatley's complaint with a motion under California's anti-SLAPP statute. (Id.) The California Supreme Court ultimately rejected Mauro's motion and allowed Flatley's lawsuit to proceed, reasoning that Mauro's letter was not protected by the anti-SLAPP statute because it constituted criminal extortion as a matter of law. (Id.)

In Malin v. Singer (2013) 217 Cal. App.4th 1283, 159 Cal.Rptr.3d 292, the attorney-defendant Singer sent restaurant and nightclub owner Michael Malin a letter on behalf of Malin's business partner Shereene Arazm, demanding that Malin return allegedly embezzled funds. Singer wrote that his client would proceed to file a lawsuit against Malin, which would not only allege that Malin had embezzled funds from the business, but also thatMalin used those funds to “arrange sexual liaisons with older men.” (Malin, 217 Cal. App.4th at 1289.)

Malin responded by suing Arazm and Singer for a number of causes of action, including civil extortion. (Malin, 217 Cal.App.4th at 1290-1291.) Singer and Arazam filed an anti-SLAPP motion to strike Malin's complaint alleging that the demand letter was protected speech. (Malin, 217 Cal.App.4th at 1290-1291.) The trial court denied Singer's motion, holding that Singer's demand letter amounted to criminal extortion and thus was not protected under the anti-SLAPP statute.

Singer appealed, and the Court of Appeal held that the anti-SLAPP statue applied. The appellate court distinguished Singer's legitimate demand letter from the extortionate demand letter in Flatley.

“Singer's demand letter did not expressly threaten to disclose Malin's alleged wrong- doings to a prosecuting agency or the public at large.” (Malin, 217 Cal.App.4th at 1298.) Singer's demand letter was not extortionate because the manner in which Malin used the funds was “inextricably tied to Arazm's pending complaint.” (Malin, 217 Cal.App.4th at 1299.)

In Dickinson v. Cosby (2017) 17 Cal. App.5th 655, 225 Cal.Rptr.3d 430, Bill Cosby's attorney, Martin Singer, sent demand letters to numerous media outlets, including Good Morning America, after Janice Dickinson appeared on “Entertainment Tonight” with claims that Cosby had drugged and raped her. Singer was trying to prevent the media outlets from airing follow-up stories. The letter stated that Dickinson's story was “fabricated and is an outrageous defamatory lie,” and explicitly threatened litigation if Good Morning America moved ahead with a follow-up story. (Dickinson, 17 Cal.App.5th at 662.)

Dickinson responded by suing Cosby and Singer for defamation. Cosby and Singer attempted to stop Dickinson's defamation suit with an anti-SLAPP motion. Cosby and Singer argued that Dickinson's suit could not prevail because Singer's demand letter was subject to the litigation privilege. (Dickinson, 17 Cal.App.5th at 667; Civ. Code § 47(b).) The court held that litigation privilege did not apply to Singer's letter because it was not written in good faith contemplation of a lawsuit; Singer had sent the demand letter to media outlets as a scare tactic to stop them from running the segment. (Dickinson, 17 Cal. App.5th at 684.)

On remand, Singer successfully asserted that the constitutional malice standard of defamation applied as Singer could believe his client was telling him the truth, and Singer was entitled to attorney fees, as this was a SLAPP motion. (Dickinson, 17 Cal. App.5th at 693.) The parties then settled: Dickenson did not appeal, Singer waived fees. Cosby, however, was unsuccessful in knocking the defamation case out, subjecting him to liability due to Singer's actions. (Dickinson, 17 Cal.App.5th at 693.)

Singer was also implicated in McKee v. Cosby (1st Cir. 2017) 874 F.3d 54, where Katherine McKee sued Bill Cosby for defamation over letters Singer sent to the New York Daily News attacking her credibility regarding an interview in which McKee accused Cosby of raping her. While the court dismissed McKee's claims on the basis that she was a limited public figure (McKee, 874 F.3d at 63), it is important to appreciate that McKee and Dickinson were the result of actions by Cosby's attorney, and not Cosby himself. Both of those cases underscore the importance of advising the client of the possibility of attorney fees being awarded under SLAPP, thus obviating a malpractice claim.

Remember this maxim from the Rothman court: “attorneys who wish to litigate their cases in the press do so at their own risk.”

Rothman v. Jackson (1996) 49 Cal. App.4th 1134, 57 Cal.Rptr.2d 284, is another example of what not to do as an attorney. After Michael Jackson was sued for molestation, he, his attorneys, and his investigator called a press conference in which they denied the charges and alleged that the plaintiff's counsel, Barry K. Rothman, and his clients had knowingly and intentionally made false accusations in order to extort money from Jackson. Rothman brought a defamation claim against Jackson, Jackson's attorneys and their law firms, and their private investigator, Anthony Pellicano. The defendants argued that they were not liable because of the litigation privilege, as the statements were made in anticipation of a possible criminal prosecution against Jackson. (Rothman, 49 Cal.App.4th at 1145.) The appellate court rejected this argument, holding that the litigation privilege did not apply because the statements had no functional connection with litigation, as they were made directly to the press. (Rothman, 49 Cal. App.4th at 1146, 1156.)

Obviously, in these situations where an attorney is named as a defendant, an immediate conflict of interest arises and the attorney will ordinarily be forced to withdraw as an advocate, so there are unwanted consequences even if the conduct of the attorney is vindicated. Remember this maxim from the Rothman court: “attorneys who wish to litigate their cases in the press do so at their own risk.” (Rothman, 49 Cal.App.4th at 1148.)