June 10, 2005
Accusation That Former Employee Posted Offensive Content on Website Not Defamatory According to 7th Circuit
In Cody v. Taft Harris, the 7th Circuit has upheld a lower court ruling that a employer's statement that a former employee posted "offensive content" on its website is not defamatory even though the accusation turned out to be untrue. In 2001 Taft Harris, the general manager of radio station WPWX-FM fired sales manager Mark Cody for "failure to hire the sales team he had promised and failure to achieve the required sales budget...". After Cody left the station, "offensive content including some pornographic images appeared on WPWX.com", a domain name that the station had been interested in purchasing. Harris apparently believed that Cody was the culprit and said so to WPWX employees after a January 2002 sales meeting. "`This has got to be Mark Cody. I know Mark did this. I know he is responsible for this. Later, at another sales meeting, Harris commented to the sales staff that there was evidence pointing to Cody's involvement in posting the offensive content. Harris also told other WPWX executives that Cody was behind the situation."
Cody first sued in Illinois state court on various counts including defamation and interference with business relationships he had developed since his firing; the defendants removed to federal court. The district court dismissed all counts "related to Harris's statements in staff meetings and contract interference...." The court also dismissed Cody's claims of defamation concerning statements Harris had made to members of the media about Cody's performance as well as the website incident. Cody appealed both sets of rulings to the 7th circuit.
Applying Illinois state law, the 7th circuit examined whether Harris had defamed Cody by "accus[ing him] of lacking ability in his trade or doing something bad in the course of carrying out his job..." The court reasoned that on the contrary, "Harris essentially implied that Cody has a bad temper, is unable to control his anger, and lacks the integrity and judgment to resist getting revenge in an immature and vicious manner. All of these implications go to Cody's personal, rather than professional, traits....We see no reason to believe that managing the sales department of a radio station requires a degree of integrity above and beyond that required for any job. It is true that Harris's accusations suggest that Cody lacks certain qualities desirable in an employee, and the accusations might indeed make it harder for Cody to get a job. But the increased difficulty in finding employment would be due to Cody's perceived bad character traits, not tobecause of his perceived inability to do the job. Cody must plead and prove actual damages to recover for defamation, which he has not done."
1st Circuit Upholds District Court Decision In "Madonna Boyfriend" Case
The U. S. Court of Appeals for the First Circuit has affirmed the district court's ruling in Amrak Productions v. Morton, in which James Albright, "a former bodyguard and lover of Madonna, and his corporate agent, Amrak Productions" had claimed that the defendants "allegedly portrayed Albright as a homosexual by miscaptioning a picture of a homosexual individual with Albright's name in a book and magazines. The district court dismissed appellants' claims, finding that for the `photograph [to] make any kind of statement regarding Albright's sexuality requires the Court to pile inference upon innuendo, innuendo upon stereotype.'..."
While limiting the grounds upon which it upheld the district court's ruling, the appellate court found that the lower court judge was justified in finding that the photograph complained of was "not reasonably susceptible of a defamatory meaning. Nothing in Guitierez's appearance, particularly given the accompanying caption stressing Albright's heterosexuality (e.g., Madonna's "secret lover"), gives any indication that Albright is homosexual. To draw such an inference, the read--who would have to view homosexuals with "scorn, hatred, ridicule or contempt,"...--must follow Madonna and her cohort closely enough to recognize Guitierez as a gay man, but not closely enough to know Guitierez's name or what Albright looks like. Few, if any, readers would fall into this "considerable and respectable segment in the community."...The context of the text accompanying the photography further deflates any argument that the photo conveys a defamatory meaning. When we "consider all the words used" in the accompanying text...--including phrases such as Albrights' "long-time girlfriend," his "hot and heavy affair" with Madonna, their sexual encounters, and Albright's "fling" with a "girl at a club"--we find that no reasonable reader could conclude that Albright is homosexual....Given appellants' failure to satisfy the threshold question of defamatory meaning, we affirm the court's dismissal of the defamatory claim."
Read the decision here.
June 9, 2005
Sally Jessy Raphael Episode in Breach of Ofcom Standards
Ofcom, the UK broadcast regulatory agency, has found ITV in breach of guidelines for airing a Sally Jessy Raphael episode that had clips of one skydiver falling to his death and another meetingn with a particularly gruesome accident. The ruling, issued June 6, 2005, holds that "actuality footage of executions or other scenes in people are clearly being seen killed or about to die require exceptional justification." Said the agency, "We consider that the key issue here is that the footage of the death of one of the skydivers was used in an entertainment context...which did not provide the "exceptional justification" required by the Code." ITV had argued that "this clip was carefully contextualised and was not played gratuitously or in a manner likely to cause widespread offence."
Read the entire decision here.
June 8, 2005
Massachusetts Appeals Court Upholds Verdict for Authors
The Court of Appeals of Massachusetts has upheld a jury award of $22.5 million to Holocaust survivor Misha Levy Defonseca and an additional $9.9 million to Vera Lee, who was hired to co-write Defonseca's memoir of her experiences during the Second World War. The jury found for co-authors Defonseca and Lee and against their publisher Mt. Ivy Press and its owner Jane Daniel. The facts of the case are fairly complex, involving the establishment of additional corporations, secret agreements involving two of the parties but not the third which had the effect of driving "a wedge between Lee and Defonseca" in the words of the trial judge, the sale of foreign rights, and questions of federal preemption. Lee had sued "Mt. Ivy, Daniel, and Defonseca, alleging breach of contract, interference with contractual relations, fraud, violation of G. L. c.93A, quantum meruit, and unjust enrichment..."
The defense asserted that federal law preempts any copyright claims at issue here. However, in upholding the jury verdict, the appellate court found that "the dispositive factor is the nature of the claim asserted. Where the extra element renders the claim `qualitatively different' from a Federal copyright claim, the State cause of action will survive a preemption challenge....In determining whether a State law claim is qualitatively different from a copyright claim, courts look beyond the label and evaluate what right the plaintiff was seeking to protect or enforce and the theories on which the claim was brought." Here the court found that the private rights (contractual obligations) that Lee and Defonseca "sought to enforce...were qualitatively different from the exclusive rights provided by [section]106 of the Act." Further the court found that the "plaintiff's fraud in the inducement claims were not preempted."
Read the court's lengthy opinion here.
June 7, 2005
Photographer Loses Copyright Infringement Suit Against New York Times
U. S. District Judge Alvin K. Hellerstein has ruled that photographer Thomas Alexander Dallal cannot maintain a copyright infringement action against the New York Times for its use of his photographs in its internet edition during the period 1997-2002, even though he requested additional pay as early as 1997. "Plaintiff continued, however, to accept assignments as previously, at the same rate of pay...[p]laintiff continued, however, to complain orally about not being paid more, without being able to change the Times' position and without ceasing to accept assignments from the Times. Finally, on November 25, 2002, Plaintiff asserted a copyright position, demanding, by letter addressed to the Times' then-Picture Editor...that the Times cease using his photographs on its websites "without my permission," and accusing the Times of so doing "since 1997," and "in violationg of my copyrights." Plaintiff demanded that the Times "cease using my images on its websites immediately.""
The Times took the position that Mr. Dallal was equitably estopped from exercising his rights in this case. In order to prevail, it needed to persuade the factfinder of the following: "a) the plaintiff knew of the defendant's wrongful conduct; b) the plaintiff intended that his conduct be acted upon or acted in a way that the defendant had a right to believe it was so intended; c)the defendant was ignorant of the true facts; and d) the defendant relied on plaintiff's conduct to his detriment." Given the facts presented, Judge Hellerstein was persuaded that the Times was unaware until its receipt of the November 25, 2002 letter from Mr. Dallal of his clear position on the matter.
Read the opinion here.
District Court Dismisses Invasion of Privacy Claim Against Wenner Media, Rolling Stone
The United States District Court for the Middle District of Florida has dismissed an invasion of privacy claim brought by Ben Mills against Wenner Media and Rolling Stone magazine for an article published in the October 20, 2004 issue of Rolling Stone. The article, entitled "Bush Like Me: Ten Weeks Undercover in the Grass Roots of the Republican Party," and written by Matt Taibbi, recounted Taibbi's meetings with various "lonely people" whom he had met during his "stint with the Bush campaign". Mills objected to Taibbi's characterization of him in the article, particularly since Taibbi reproduced Mills' theories on the "benefits of having a society guarded by a clone army." Mills alleged that "[f]ollowing the publication of the article, [he] was subjected to ridicule by his family, friends and coworkers. For instance, coworkers circulated an e-mail with an attachment of Mills on a mock cover of a Rolling Stone with captions that included "Exclusive!, Ben Mills," "CLONING, does it work?," "We take you inside the mind of a MADMAN," and "America's Top 10 Portly Sheriff's Deputies." Mills subsequently filed this suit against Defendants seeking redress for mental suffering...."
After examining the four grounds under which one may sue for an invasion of privacy in Florida, and noting that the plaintiff did not identify which of the four he had selected, the court opined that he probably meant to select the publication of private facts tort. The court stated that "Mills' claim fails, first, because neither his physique nor his musings about the benefits of a clone army are private matters. Indeed, Mills shared his idea of a clone army with Taibbi--a stranger--outside the confines of his home. More importantly, Taibbi's article...clearly touches on matters of public concern." The court therefore granted the defendants' motion to dismiss with prejudice.
June 6, 2005
9th Circuit Reversal in Free Speech Coalition Case
The 9th Circuit has reversed the award of attorney's fees in Gonzales v. Free Speech Coalition (the Child Pornography Prevention Act case). Saying "[w]e conclude that reasonable minds could have differed over the CPPA's constitutionality, especially where four sister circuits, the district court below, one member of the Ninth Circuit panel, and three Ninth Circuit judges dissenting from denial of rehearing en banc all determined the CPPA to be constitutional before the Supreme Court ultimately struck two sections as unconstitutional", the court found that the district court subsequently relied too heavily on "hindsight" to justify the award. Read the opinion here.
BBC Objects to Forthcoming Ofcom Criticisms of Daytime Drama's Influence on Children
The Media Guardian reports that the BBC is already lodging objections to an upcoming Ofcom study of the influence that soap operas have on young viewers. The UK networks claim they have always been careful about the kind of language they allow on such shows and are apparently alleging that the report overstates the bad effects that watching shows such as the long-running and popular Eastenders has on children and teens. The UK discussion parallels the long-running US discourse over the impact of TV on children and young adults. The Ofcom report is due out later in the summer. It forms part of a more specialized report taken and refined from a broader review of all of UK television, which Ofcom has already made public. See that material here.