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Censorship Your Rights Online

Criticize Online, Get Fined 470

Posted by CmdrTaco
from the well-that's-just-plain-creapy dept.
maxpublic writes "Yet another outspoken critic of corporate America has been SLAPP'ed - only this time, Dan Whatley didn't even know he'd been sued until he was presented with a $450,000 judgement. For those who don't know, SLAPP stands for 'Strategic Lawsuits Against Public Participation' and is used to silence people who openly criticize thin-skinned corporations." In this case the company doing to suing is Xybernaut, the makers of wearable computers mentioned here many times in the past. This article is a must read. And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies. This is a creepy run around the 1st Ammendment, and you should be aware.
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Criticize Online, Get Fined

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  • Another SLAPP. (Score:5, Informative)

    by dotderf (548723) on Sunday March 03, 2002 @10:07AM (#3101096)
    Mattel has been trying to kill this site [barbieslapp.com]. Now the guy turned around and is suing Mattel for $48 million for violating the ADA and some other laws. Glad to see the censorship by litigation people getting slapped back.
    • not exactly correct. (Score:5, Informative)

      by www.sorehands.com (142825) on Sunday March 03, 2002 @12:13PM (#3101498) Homepage
      Mattel had tried to kill http://www.sorehands.com/mattel [sorehands.com]. When the judge asked Mattel's lawyer what was libelous, Mattel's lawyer asked that their libel claim be dismissed. This was after having to file a 5 inche stack of legal briefs with the court.


      Since their libel claim was that they were libeled because I said that they violated the FMLA, ADA, MGL c.151B (the Mass. version of the ADA), I was able to bring this under those laws. Those laws specifically allow for punitive damages, where simple abuse of process does not.

  • bullshit taco (Score:5, Insightful)

    by Anonymous Coward on Sunday March 03, 2002 @10:09AM (#3101100)
    So this company is now on your list of "must avoid" companies? You mean, like the RIAA, MPAA and all the other products and companies you've encouraged everyone to avoid but then turn around and buy from and hand your cash to the instant they have something like an Akira DVD or an X-Box you want to buy?

  • harry potter (Score:4, Interesting)

    by Anonymous Coward on Sunday March 03, 2002 @10:11AM (#3101104)
    You know, I haven't seen Slashdot come to the aid of the thousands of teens and pre-teens who have harry-potter oriented sites and have been recieving cease-and-desist orders left and right by JK Rowling and WB and whoever else.

    I guess it's only important when the law is coming after adults. Screw helping the 12 year olds.
    • mod this post up! (Score:3, Informative)

      by lysurgon (126252)
      Excellent point. Here's a link [theregister.co.uk] that has some summary coverage. This is such corporate BS!
    • Re:harry potter (Score:2, Insightful)

      by Flower (31351)
      How about why don't the parents of these kids raise a ruckus and get some prime-time coverage? Something these cases will never receive. Unless Johnny is uploading copies of the books for everyone to read a fan site is going to be mostly fair-use.

      Harry Potter + Internet + Kids being treated badly = story.

      And how is /. coming to the aid of anyone here? Somebody tossed this place a link with some pithy commentary that an "editor" liked and it got posted so a bunch of us can comment on the issue. For most of the readership, this story will be old news and forgotten by Monday and not a single victim listed in that article is going to get an ounce of love from /.

      If the Harry Potter story is so dear to your heart, find a link, come up with some pithy commentary that will generate lots of discussion and post it. Take those recent stories about raisethefist.org (iirc.) That was about a kid not an adult.

    • Re:harry potter (Score:3, Insightful)

      by Performer Guy (69820)
      Think of is as a valuable civics lesson for the kiddies. They learn about the copyright law and how they can't simply steal the images and intellectual property created by others. Doesn't it just warm the cockles of your heart?

      Seriously though, at least the kids get the chance to take their site down before the judgement arrives on their doorstep, and the law is such that if Rowling doesn't protect her copyright she will lose it. This is the same reason Linus Torvalds gives when he charges companies six figure sums to use the Linux logo. He HAS to do it because if he doesn't the Linux trademark will enter the public domain and be abused.
    • Re:harry potter (Score:3, Insightful)

      by pgilman (96092)

      "You know, I haven't seen Slashdot come to the aid of (insert your favorite cause here)"

      "Screw helping the (insert your favorite oppressed minority here)"

      slashdot can't address every single injustice in life; they choose stories based on what they think is appropriate for the site. yes, it's arbitrary; it's allowed to be.&nbsp if you don't like it, make your own website.

  • by dirk (87083) <dirk@one.net> on Sunday March 03, 2002 @10:12AM (#3101107) Homepage
    I think it's pretty obvious someone is lying, but I wonder who it is. They claim he got a letter by registered mail, which means he had to sign for it. He claims he never got it. Seems like a simple thing to go back and check the receipt of the letter (if there was one) and see if he signed for it. I have a feeling he really did get the letter, since even the dumbest lawyer would be smart enough not to lie about something that easily checked in court, especially when you know the guy will challenge it when he gets the judgment (of course I could be wrong and the lawyer really is that dumb). I think finding out about the registered letter will clear up pretty much the whole case.
    • by davecb (6526) <davec-b@rogers.com> on Sunday March 03, 2002 @10:29AM (#3101147) Homepage Journal
      ... the Xybernaut lawyer handling the case against Whatley, said Whatley had been served notice of the lawsuit by certified mail. Note that he said certified mail, not registered mail. That means different things in different jurisdictions: I once used (Canadian) certified mail to put my landlord on notice, only to find that it didn't guarantee delivery, or provide me notification of non-delivery. If the same is true in Virginia, the lawyer could technically be telling the truth, while actually telling what logicians consider a "lie of omission".
    • by zmooc (33175) <zmooc@NosPaM.zmooc.net> on Sunday March 03, 2002 @10:41AM (#3101189) Homepage
      Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!
      • by Jay L (74152) <jay+slashNO@SPAMjay.fm> on Sunday March 03, 2002 @10:47AM (#3101204) Homepage
        Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!

        To sum up: Do the facts even matter? PANIC!
        • by ShaunC (203807) on Sunday March 03, 2002 @10:55AM (#3101226)
          >To sum up: Do the facts even matter? PANIC!

          A perfect candidate for "New Slashdot Motto" if I ever saw one!

          -s
        • Exactly. The facts are a post on a web forum. This can hardly be considered a publication; it's a forum, it's meant for discussion and therefore should not be censored (I consider this censoring) at any time. The best moral thing this company could have done is reply on the forum and saying politely that this guy is wrong and why he is wrong (if he was wrong). The company was part of the discussion (they must have read it somehow...), remained silent, went to a lawyer and sued the guy. Childish. Imagine MS doing this to us poor /.ers....
      • Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!
        Actually, it is very important if he got the letter. We don't know all the facts in the case. Everyone is going by the snippets of posts in the article, which I'm sure are far from the entire posts. The rest of the post may have been straight libel. The snippets we got are fairly clear in that he shouldn't have been liable for libel, but we can't say the same thing about everything else he said. Plus, you can say he shouldn't have been sued, because that violates his rights, but it also violates rights if you aren't able to sue someone when you think they did something wrong. The key is the person accused should always have the chance to defend themselves, which he may not have been given in this case.
        • Sure. He should have read the letter (if he did get it). My point was that the letter shouldn't even have been sent since the guy shouldn't have been sued because there was no libel. Libel requires a PUBLICATION. I think you can hardly consider a web forum a publication. It's a discussion. You can sue for libel because when something bad about you is publicized, you cannot respond to it in a fair way. This is completely different in an online forum. If something bad about you is said, just react and you've had your say.

          Anyway. IANAL but you don't have to be one to understand that what happened here is bad. And if the law allows this, then the law is bad. Easy.

    • by Reziac (43301) on Sunday March 03, 2002 @11:02AM (#3101241) Homepage Journal
      As to whether or not this guy received the notice of suit:

      In Montana, and doubtless in some other states, notice of suit is considered to be LEGALLY ACCEPTED BY YOU when it is recorded as having been mailed by the court clerk. Whether it was actually mailed or not is irrelevant -- and since there is no requirement that notice be done by trackable mail, there is no way to determine if it was ever actually mailed or not. If you don't show up because someone slipped the clerk a few bucks to "lose" the letter, too damned bad. (And yes, this IS the voice of firsthand experience.)

      Sounds to me like both sides here are full of a variety of crap, but be aware that failure to receive notice can and does happen, and is (literally) no defense in a lawsuit.

      Even so, no way in hell would I buy products from any company that files lawsuits over message board flames. That's the equivalent of jailing a 5 year old for a "hate crime" because the kid yelled "I hate you and I'm going to kill you!"

    • Check your facts- registered mail requires no signature at all.

      Signature confirmation, does. There are two levels of signature confirmation, one where the recipient is simply required to sign for it, and the other where the sender actually gets a postcard with the signature on it returned to him.

      Registered, Certified, and Insured all require no signatures at all, period. Geez, ask your postman!
  • by Bowfinger (559430) on Sunday March 03, 2002 @10:13AM (#3101109)
    And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies.

    Does Xybernaut even have any products that I can avoid? Will they ever have any products, or are they going into the revenue-by-lawsuit business?

    Sounds like someone needs to spend less time in chat rooms, more time at the drawing board.

    • Some of us saw a bright future in their technology and became shareholders. After Monday, I can proudly say I was a shareholder.

    • Well, I would suggest that you pull your stock now. Because when this guy fires back and gets a even larger settlement, then you will be losing your ass on those Dick Tracy watches.

    • And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies.

      I avoid Amazon, 'cept I keep my book wish list on there so that friends & relatives can see what computer books I want, and then they go somewhere else, like here [bestbookbuys.com] to find the best prices, usually not Amazon.

      I love features that I don't have to pay for. Yeah, yeah, Amazon knows my personal preferences, and they even send me notices about new books that are like those on my list, but they still don't get my money.

  • too many lawyers (Score:5, Insightful)

    by estes_grover (466087) on Sunday March 03, 2002 @10:14AM (#3101111)
    * Lawyers as a group are no more dedicated to justice or public service than a private public utility is dedicated to giving light.
    --David Melinkoff, Professor of Law, UCLA

  • Here We Go (Score:5, Insightful)

    by ScumBiker (64143) <scumbikerNO@SPAMjwenger.org> on Sunday March 03, 2002 @10:16AM (#3101112) Homepage Journal
    Yet another symptom of the corporatizing of America. If you have money, you win. Isn't this country "by the people, for the people"? Obviously, Xybernaut is a company losing money. Trying to "protect" your companies interests by suing potential customers is a *real* good way to piss off most of the rest. Personally, I will never, ever buy anything from this company. I will also never recommend it's products to anyone I know. Hey Newman (I'm sure you or one of your storm troopers, er, lawyers will be reading this). I have people asking me every single day about what tech items to buy. From corporate upper management to home owners. I'd say if your weren't percieved as being so incompetent, you wouldn't draw comments like the ones you sued Whatley over. Comments like this:

    "If Steve Newman was not a relative his job would consist of ... 'Would you like fries with that?'"

    heh. Now, you are a big item here and I'm sure a bunch of other forums and blogs. Good luck trying to sell anything at all.
    • Re:Here We Go (Score:5, Interesting)

      by NearlyHeadless (110901) on Sunday March 03, 2002 @12:03PM (#3101453)
      Yet another symptom of the corporatizing of America. If you have money, you win.
      Ummm...no. He lost because he didn't show up. That's true in any civil trial, no matter who has money.

      Instead of just whining about "corporate America", we could talk about reforms that might make a difference. For example, if it's true that he didn't know about the lawsuit, we could require that a process server deliver the notice in person, or that the notice be sent by the clerk of the court with a return receipt required.


      Or, in general, we could look at reforms that discourage meritless lawsuits. Most other countries have limits on judgments, rules where the loser pays the legal costs, or other rules. Of course, millionaire lawyers like Ralph Nader are against these rules. We won't mention how much money the trial lawyers give to the Democratic Party, because they're not big corporations, so they must be okay.


      This is not a new problem. In ancient Athens, there would be a large jury for a trial. If the plaintiff got over half the votes, he won. But, if he didn't get at least 10% (I think that was the percent) of the votes, he would have to pay the defendant.


      But, go on, whine about "corporatizing of America", whatever that means.

    • Re:Here We Go (Score:4, Insightful)

      by Lictor (535015) on Sunday March 03, 2002 @12:16PM (#3101513)
      This is going to be very unpopular (I can feel my karma approaching negative numbers)... but I think it has to be said.

      >If you have money, you win.

      This is true. You can stick your head in the sand and pretend its not, but the evidence is all around. O.J. Simpson anyone?

      On the other hand, why are we surprised? We have *intentionally* built a capitalist society. Many Americans will *proudly* tell you that they are capitalists.

      Capitalism works precisely because it starts on the base assumption that humans are greedy and selfish by nature (I'm not knocking Communism, which assumes humans are interested in 'helping their brother', but it has been less sucessful historically).

      The most important thing in a capitalist society is... *gasp* CAPITAL! Of course the system favours people with lots of money and large tracts of land... this is by design. Money == Power. Period.

      A side effect of this, of course, is that corporations (who have boatloads of capital) end up being far more powerful than individuals. Thats just the way it is.

      I'm not saying this is a good thing (personally I find it frightening that big corps have so much power), but I'm not sure there is a lot that can be done about it at this point. You also can't argue that its been rather sucessful. Most Western nations are capitalist to one degree or another (like all things policital, its a spectrum, not an absolute) and the U.S. is one of the 'most capitalist' of the lot. Is it a coincidence that its also so powerful and affluent? (Yes, its an oversimplification, but I think the underlying point is valid).

      Bottom line: we can't create a capitalist society and then turn around and pretend to be shocked when we see... a capitalist society.
  • by mindstrm (20013)
    They only give us one side of it, nobody tells us what he actually said... and he claims his certified mail was never received....

    Well.. that should be fairly easy to show in court, eh? If he *signed* for his mail, and ignored it, and is now claiming he never received it... (if) ...

  • First Amendment (Score:5, Insightful)

    by GMontag (42283) <gmontag.guymontag@com> on Sunday March 03, 2002 @10:16AM (#3101117) Homepage Journal
    This is a creepy run around the 1st Ammendment, and you should be aware.

    The First Amendment is a restriction on government, not on you, your neighbor or a business.

    This was a civil judgement not a criminal conviction, the First Amendment does not apply AT ALL.
    • Re:First Amendment (Score:3, Interesting)

      by j7953 (457666)
      The First Amendment is a restriction on government, not on you, your neighbor or a business.

      Uh, I read the first amendment like this: "Congress shall make no law [...] [making it possible for anyone to abridge someone else's] freedom of speech, or the press [...]"

      If a law enables companies to suppress free speech by allowing those companies to file SLAPP lawsuits, isn't that a law abridging the freedom of speech, even if only indirectly?

      • Re:First Amendment (Score:5, Insightful)

        by coyote-san (38515) on Sunday March 03, 2002 @12:17PM (#3101515)
        Let's think this through....

        If Congress can make no such law, the courts will not enforce such laws.

        Rights can't be signed away. That's part of their definition. Therefore contracts can't place any restriction on a person's speech either.

        Therefore you can't have NDAs, even when legitimate. You can't have trade secrets, even when legitimate. You can't have out-of-court settlements with a confidentiality clause.

        Taken to an extreme, you can't even assert doctor-patient or lawyer-client privilege. If your doctor wants to make you the butt of a joke he can.

        Maybe you're comfortable with this, but this is *far* from where the law is today.
        • Re:First Amendment (Score:2, Interesting)

          by cgray4 (39638)
          a = b
          a^2 = ab
          a^2 - b^2 = ab - b^2
          (a - b)(a + b) = b(a - b)
          a + b = b
          2b = b
          2 = 1

          There's a flawed assumption in the above argument, just as there is in yours. With a flawed assumption, nearly any conclusion can be reached. In your argument, it is that "rights can't be signed away." This hasn't been true since contracts came into the picture. What would have happened if some early contractor had said "hmm... I've got a right to not work on the colliseum and it can't be signed away." Hopefully he would have gone to the lions.

          Basically, a contract is the signing away of some rights by both parties. The right not to work on the colliseum is nearly as important as the right to freedom of speech.
      • Re:First Amendment (Score:3, Insightful)

        by dubl-u (51156)

        Uh, I read the first amendment like this: "Congress shall make no law [...] [making it possible for anyone to abridge someone else's] freedom of speech, or the press [...]"

        Wow! This style of inserting whole phrases at random points into the Bill of Rights [cornell.edu] could open up whole new avenues for the Supreme Court:

        Congress shall make no law [making it possible for anyone to] respect an establishment of religion
        Yep! The constitution doesn't just protect us from a state religion; it actually mandates blasphemy!

        If a law enables companies to suppress free speech by allowing those companies to file SLAPP lawsuits, isn't that a law abridging the freedom of speech, even if only indirectly?

        In a word? No. It's just an egregious misuse of the legal system. If the government were using or paying corporations to sue individuals because of their political beliefs or actions, then you'd have a First Amendment issue.

    • Yes, but once you bring a lawsuit, you are now asking the government to take action.

  • Criticize? (Score:5, Interesting)

    by Ivan Raikov (521143) on Sunday March 03, 2002 @10:20AM (#3101129) Homepage
    Well, the article said that the guy who got the $450,000 fine claimed that one of the company's senior executives (and brother of the CEO), "if [...] was not a relative his job would consist of ... 'Would you like fries with that?'" He also called them liars.

    Normally, I'm all for the little guy, but in this case, seems like the poster was a troll, not an "outspoken critic of corporate America."

    Now, if he had provided a deep insight into the company's workings, and if he had some facts to prove that the company management is incompetent, that would've been a questionable case. On top of that, he claimed he never received a certified letter, when it's very, very easy to have USPS check whether such letter was delivered or not. I don't think we're getting the whole story here.
    • Re:Criticize? (Score:5, Insightful)

      by Performer Guy (69820) on Sunday March 03, 2002 @10:42AM (#3101192)
      1) It's not a fine, it's a judgement, the money goes to the plaintif.

      2) If he had provided deep insight they might have had a real case against him, as the article indicates, simple troll is not actionable in many states. The other issue here is living in a state where the law protects you vs an action in another state where there is no statutory protection. Online flames aside there are individual protections to protect individuals against getting sued remotely like this.

      3) As for the letter, it's too late, he'll have to hire a lawyer to even raise the issue, but now he has no opportunity for a pretrial dismissal, this will get really expensive. He has to appeal this. If he ignored the letter it was the dumbest thing he ever did.
      • If he had provided deep insight they might have had a real case against him

        Why would have they had a case? If you make a statement, and support it with undisputable facts, wouldn't it be a lot harder for the company to win any suits they might file against you?

        As for the letter, it's too late,

        I understand that; my point was that instead of him merely claiming he never received the letter, he could have checked with the postal service, found out whether they delivered such a letter to him, and either say, "I'm a dumbass, I must have thrown the letter out with all my junk mail," or "The USPS has no record of such letter being sent and/or delivered. I have a good reason to appeal."
        • Why would have they had a case? If you make a statement, and support it with undisputable facts, wouldn't it be a lot harder for the company to win any suits they might file against you?

          The distinction is between information presented as fact and simple rhetoric and opinion.
          • Re:Criticize? (Score:3, Informative)

            by thelaw (100964)
            the quote in question sounded more like an insult to me than anything resembling slander or libel. but then again, IANAL. the key distinction, as performer guy mentioned, is that you can be held liable for slander or libel if you make untrue factual claims about the plaintiff. in such cases the defendant would have to show that the statement was NOT meant as a factual statement, but rather as an insult.

            jon
        • Actually, as has been posted above, he may not have recieved the letter. It was sent certified mail. I believe that the post office that the letter last went through should have a record of the letter arriving at the post office, but he did not have to sign for it and may never have recieved it. Only if the letter was sent with signature confirmation or return reciept would he have had to sign anything. While legally he is SOL, it is possible that the letter never arrived.
    • Re:Criticize? (Score:2, Informative)

      by pbur (88030)
      One small point about Certified Letters. No matter if you sign for it or not, once the USPS drops it off at your house, it is considered not only delivered, but also read. I had to deal with this when we kicked some parents out of a hockey rink. They refused the letter, but it was still held that they had read it. Granted, the USPS isn't supposed to give the letter to anyone except to whom it is addressed, so I too am guessing that we aren't hearing all of the story.

      Pbur
    • Normally, I'm all for the little guy, but in this case, seems like the poster was a troll, not an "outspoken critic of corporate America."


      So then you're saying that the 1st Amendment has a codicil in it somewhere saying that it doesn't apply to trolls and posters of flamebait? Can /. start SLAPPing
      -1 posters?

      Now, if he had provided a deep insight into the company's workings, and if he had some facts to prove that the company management is incompetent, that would've been a questionable case.

      Why would that be any more questionable than what we have? Are you seriously suggesting here that someone should not be allowed to post his opinion that a company is run by an incompetent bunch of lackwits without signed and notarized documentation proving that fact to a degree capable of withstanding legal analysis?

      That's simply insane. I agree with you about the certified letter, but that's a side issue. It's irrelevant. The fact that a summary judgement was issued against him because he didn't show up is completely secondary to the fact that the lawsuit was filed in the first place. If corporate America is allowed to go around SLAPPing private citizens with lawsuits for non-libelous, non-slanderous statements, then that clearly and obviously has a chilling effect on free speech, and the fact that that chilling effect is generated by corporate behavior rather than government behavior isn't tremendously relevant.
      • So then you're saying that the 1st Amendment has a codicil in it somewhere saying that it doesn't apply to trolls and posters of flamebait? Can /. start SLAPPing -1 posters?

        I don't think the First Amendment voids the libel provisions of English common law. Of course, we seem to be in disagreement about whether this is libel or not. I think it's up to the court to determine whether the statement "X is a jackass" is harmful to person/company X, but in this case the defendant didn't show up, hence the default judgement.

        If corporate America is allowed to go around SLAPPing private citizens with lawsuits for non-libelous, non-slanderous statements

        Again, I don't think this is a clear-cut case of whether this is libel/slander or not.
  • Legal Options? (Score:3, Interesting)

    by Alien54 (180860) on Sunday March 03, 2002 @10:33AM (#3101160) Journal
    I wonder what the legal recourse is no something like this. There are a number of cases where someone won by default, such as the coed vs the wild party girls tape folks [austin360.com]. Since it is not a criminal case, as such, what are the legal options.

    Obviously, IANAL

    • I wonder what the legal recourse is no something like this. There are a number of cases where someone won by default, such as the coed vs the wild party girls tape folks [austin360.com]. Since it is not a criminal case, as such, what are the legal options.

      As other people have pointed out, the plaintiff here won a default judgment because the defendant didn't show up. The defendant's position is that he was never notified of the lawsuit.

      It seems, then, that (assuming that he wasn't properly notified) Mr. Whatley can appeal on grounds of failure to give sufficient notice, which is doubtless a violation of the rules of civil procedure of whatever jurisdiction the suit was filed in (the article doesn't say).

      If this occurs, the appeals court would probably overturn the default judgment and remand the proceedings to a trial.

  • for a non usa-ian (Score:2, Interesting)

    by richmultijoy (558695)
    How would this affect someone outside of the US? If I were to write a scathing, bile filled statement of hatred for [insert favourite ceo here] below this post would I find myself subject to UK law or US law? If the US, how could they enforce it?
    • You would be subject to UK law, which sadly, has even less protection for you. For example, Greg Palast, a respected UK journalist published researched and factual articles in the Observer about Barricks, the gold mining company, and their unsavory activities in Africa, including allegations of murder by Anmesty International [amnesty.org].

      Barricks successfully sued the paper, so you can't actually read the articles in the UK, even though those same articles are 100% protected by US libel laws.
  • by lysurgon (126252) <joshk@NoSPam.outlandishjosh.com> on Sunday March 03, 2002 @10:39AM (#3101179) Homepage Journal
    I think these SLAPP lawsuits are worrysome in that they create a chilling effect on peoples ability to candidly express their views. Now, if your view consist of "These guys are dicks!" then you might have some libel issues, unless you can be specific about what sort of dicks they are and back it up with evidence.

    But honestly, we're talking about a day-trader message board here, right? I think this kind of "insider information" (accurate or not) is exactly what they should be facilitating. I used to live in Lower Manhattan, and if you go to any wall street bar you'll hear much more unvarnished and opinionated statements being made about potential investments. Of course, that's bar-talk and this is an online posting, but it seems to me that saying a company's management if full of it (even if you use creative langure) aught not to bring legal action.

    Of course, when you bruise a wealthy, powerful executive's ego, especially if you do it by hitting a little too close to home, you're liable (no put intended) to see some blowback.
    • These guys are dicks!" then you might have some libel issues, unless you can be specific about what sort of dicks they are and back it up with evidence.

      No, that is incorrect. That type of statement never has to be backed up with evidence or fact.

      Lets say instead of saying it like "these guys are dicks", you instead wrote: "I've been employee with CorpX for 6 years; I've seen the management of the company first hand - and let me tell you, they steal money from the corporate bank accounts to pay for kiddie porn. They truly are dicks".

      That would probably be libelous - assuming I hadn't been an employee and assuming I didnt have first hand knowledge of them buying kiddie porn with corporate accounts. Saying "These guys are dicks!" is an opinion - and it is presented as one.

      The only time a private citizen should really have to worry about libel is when he or she passes off an opinion as solid fact or out and out fabricates stories to the detriment of a company. That's bad, m'kay?
  • Libel and slashdot (Score:5, Interesting)

    by image (13487) on Sunday March 03, 2002 @10:39AM (#3101182) Homepage
    [Apologies for the slightly off-topic nature of this post. But it appears highly relevant because of the thread.]

    How long before Taco or one of the other Slashdot editors is accused of and sued for libel by one of the individuals or corporations that is commented on (and perhaps defamed) on the site?

    By the Lectric Law Library's definition [lectlaw.com], libel is:

    Published material meeting three conditions: The material is defamatory either on its face or indirectly; The defamatory statement is about someone who is identifiable to one or more persons; and, The material must be distributed to someone other than the offended party; i.e. published; distinguished from slander. [The 'Lectric Law Library]

    By the CyberLibel definition [cyberlibel.com]:

    A publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. [CyberLibel]

    I tried out the Libel Checklist [utsystem.edu] over at UTexas, and found that a good number of posts by slashdot editor's could at least be considered suspect of libel claims. However, I am anything but a lawyer, and would love to hear a lawyer comment on this.

    For example, if an editor posts a comment in response to an article saying something to the effect of "so-and-so's marketing practices are highly suspect and should be avoided by all good slashdotters." If the statement is not provably true, is not a fair report of an official and public record, is not a matter of public concern, is not merely abusive, is not consentual, and is not clearly an opinion, then such statements could, I believe, be intrepreted as libel.

    Furthermore, could the users of Slashdot also be sued for libel due to their comments?

    Or worse, could I be sued for libel for raising this very question about Rob and Slashdot? Uh-oh. Nevermind...
    • Actually, you're wrong. The comments posted on Slashdot are generally protected by the First Amendment of the United States Constitution and are made available under protection of The Communications Decency Act of 1996 (CDA) 47 U.S.C. 230 [techlawjournal.com] ("Section 230") and supporting case law.

      Both the statute (CDA's Section 230 provisions) and case law are very strong in the exemptions granted to the operators of a computer service from the duties and liabilities of a traditional publisher. Every direct challenge brought against an online service provider regarding speech contributed by a third-party has been defeated both at trial and in appellate court.

      • Zeran vs America Online. [gigalaw.com] U.S. Court of Appeals, Fourth Circuit ruled in favor of defendant, AOL, that defendant was NOT responsible for defamatory statements made via its service by a third party per 230 of the CDA. Subsequent appeal was denied by US Supreme Court.
      • Ben Ezra, Weinstein, and Co., Inc. v. America Online Inc. [aol.com] The US District Court in New Mexico held that AOL "clearly qualifies" for Internet service provider immunity under 230 of the CDA. The 10th Circuit Court of Appeals also upheld this finding.
      • Curzon Brown v. San Francisco Community College District [aclunc.org] Plantiff charged that TeacherReview.com was responsible for defamatory comments made on its web site about a professor at San Francisco City College. In settlement, plantiff abandoned claim and was forced to pay $10,000 to TeacherReview.com for legal fees.
      • Yes, so? The fellow who got sued for $450,000 was also posting on an online service. If they can't sue Slashdot directly, they'll just go after the individual editor. (I suspect that Michael would be a likely candidate for this type of suit, given the nature of the shoddy fact-checking and editorial slant found in many of the article comments he posts.)

        And even if a hypothetical case against /. as a whole does end up being thrown out, fighting it is still an undesirable expense for V.A. Whateverthey'recalledthisweek. If /.'s enough of a drain on their finances that they're instituting subscriptions, what about the financial burden of a lawsuit?

        Standard Disclaimer: IANAL (though I am a bit anal...)
    • by consumer (9588)
      I've also wondered about this, since a large number of the postings in the "Your Rights Online" section seem calculated to incite anger, boycotts, and worse. Businesses are assumed to be liars and ingenuine in all of their statements. There is rarely any consideration given to the fact that the actions being criticized in many cases could be the fault of a single lawyer and do not reflect a general evil on the part of all amazon.com employees, or whoever today's target may be. Sooner or later, this may all come back around.
      • I'd just like to point out that lawyers are essentially agents of parties petitioning a court. Here, the management of company X wanted to file suit against a cranky poster to a message board - It's not like some lawyer decided to file suit and then sold the idea later to company X (lawyers get disbarred over tactics like that). I don't see where it's inappropriate to blame the corporate entity of company X for the lawsuit, seeing as it's the plaintiff.

        You don't have a bogus lawsuit (or any lawsuit) without a plaintiff.

        -Isaac

    • To prove libel against a "public figure" (such as the officers of a corporation), you not only have to prove the statements were false and harmful to their reputation, but there also has to be malicious intent. Most of the editors comments are just ignorance, not maliciousness....
    • As long as what is said is either the truth or expressing your opinion, its not libel. Its only libel when you express a negative opinion and pass it off as a statement of fact.
  • An old story... (Score:3, Insightful)

    by ChaoticCoyote (195677) on Sunday March 03, 2002 @10:41AM (#3101188) Homepage

    ...for anyone who's been an activist of any stripe. SLAPP has long been used against environmentalists, indigenous peoples, and anyone else who spoke out for the rights of people over those of corporations. Simply put: Money is power, and when corporations pass a certain milestone financially, they have the resources to squelch anyone who opposes them.

    I didn't see RMS, ESR, or any of these other "freedom" luminaries rise up for environmentalists or Native Americans or the homeless or anti-pollution activists, so I have little sympathy that they're whining in their (free?) beer now about how mean, nasty corporations are picking on poor techies. Too bad, guys -- you lost the war when you failed to fight for others. Now that the fight is in your backyard, you care -- but it may be too late, because the rights were eroded long before the DMCA became reality.

    Freedom of speech isn't just about the GPL and software; it's about fundamental human rights and corporate control of government.

    • Re:An old story... (Score:2, Insightful)

      by Maul (83993)
      Just because the advocates of the GPL and Free Software in general are not advocates of every single
      cause out there does not mean that they don't believe
      in the rights of the advocates of causes that do not
      pertain to software.
    • Freedom of speech isn't just about the GPL and software; it's about fundamental human rights and corporate control of government.
      Absolutely. However, should we criticise the Red Cross for not standing up for Free software?

      I don't know if you appreciate how much work goes into activism. If someone spends their days coding and fighting for what they see as the freedom to code, they've precious little time to fight other battles. When they do,they're critisised for sticking their noses into subjects where they don't belong.

      Rights, as you say, were being eroded long before the advent of the DMCA. Would they be any less eroded if RMS went to a Nike factory? If ESR hosted a page on the plight of the Afghan civilians? Of course not.

      The population of this planet is over six billion. The reason that we've come as far as we have (in many areas) is that many of those individuals fight injustices as they see it, and inspire others to join them. Billions aren't in a position to do this, most of the rest don't bother, so the world relies on those who do. Doesn't matter how many fights they miss, it's what they do in the ones in which they're involved that counts.

      I've never written an open source accounting packaging. Are you wondering, then, how I have the temerity to describe myself as an open source advocate?
  • Wait and see if it is recorded that he signed for the letter ,(informing him of the slapp),before jumping on the corperate hate band wagon.No one here has posted the specifics of the case yet,as in if there was evidence or not that he recieved the letter.

    ""The postings (in question) are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings," Judge David O. Carter wrote.

    That's a pretty good description of the postings Xybernaut sued Dan Whatley over, according to a copy of the suit. The suit lists posts in which Whatley berates Xybernaut chairman and CEO Edward Newman and his brother Steve Newman, who is the vice-chairman. "

    Having said all that , what they seem to be suing the guy over seems to be ridiculus, basicly saying the managment of the company was incompetent and accusing the company of lying on a message board which every one knows are havens of 'truth and 'facts'.
  • If she did nothing illegal then she should have stuck to her guns. There are various free legal services she has access to, all she had to do was call her local public defenders office. IANAL BUT I do believe that she would have had the right to coutner sue (in her home state) for the company filing a false, misleading, or malicous (sp) suit.

    FYI, if the company that filed suit in the article said they delivered a letter via certified post, they probably have a signature card with SOMEONE's signature on it. Most lawyers won't goto court unless they have some documentation that they have made a "valid effort" to inform the defendant, or that a summons was delivered.

    The sad truth is that very few people wish to take the time to actually stand up for what they believe in. Hiding in the sand and ignoring a problem is more effective and less dangerous. If more people filed counter suits and fought these law suits they wouldn't exist.

  • Certified Mail... (Score:3, Interesting)

    by TraceProgram (171114) on Sunday March 03, 2002 @10:52AM (#3101220) Homepage
    It is entirely possible that Mr. Whatley did not recieve the certified mail. In a case like this it is up to the courts to serve the defendant with the notice of hearing. This is done with certified mail. The prosecution can only assume that the person receieved the letter. I have a friend who was doing much the same, except in his case he was suing a business. In his case the business did not show up and he won by forfeit. The company then came to the court claiming that the letter was not receieved. That was when the records were checked and found that indeed they had not recieved the letter. Of course it is also possible to refuse certified mail and by doing so make it appear as though you have not recieved it. Certified mail is no guarantee that a party will recieve a letter.

    This is all speculation though, since there is a lot of information we do not know. We can only hope that this is resolved properly, on the side of justice. Besides, $450,000 is an extremely large judgement, and an appeal is still possible.
    • Re:Certified Mail... (Score:3, Interesting)

      by Knobby (71829)

      I thought the idea behind certified mail, was that the letter must be signed for upon delivery. That means, if he sign for it, then the US Postal Service still has the letter, and probably a receipt for it, somewhere.

      • I've sent certified mail several times. I get back a little green card with the signature of who received it. Often times the signature is obscured. The Postal Service doesn't keep much record of it, and I don't think they have the signature at all. It's possible for the certified mail to be received, and the green card coming back to get lost (although that has never happened to me). If I had to prove that my mailing was received, I have to keep that green card.

        If I was suing someone and wanted to really screw them over, I could (and this is certainly very illegal to do) send them something else in the envelope, or even an empty one. Or they could screw me over (again, illegal) by claiming they got an empty envelope by certified mail. It's a flawed process. But mistakes can even happen. What if a new legal clerk in a law office is putting things together in envelopes, and mixes them up by mistake and ends up sending, by certified mail, the law firm's financial statement instead of the legal notice and summons. Now that summons is probably going somewhere else, but not by certified mail. That might get lost. Or the person receiving it might be one of the elder retired partners of the firm who dies the next day while their executor of estate opens it and just assumes it was just one of the cases he was working on and doesn't know it was supposed to be sent to the defendant. Stuff like this would be rare, but it can happen, either by mistake, or by malice.

    • Let me get the nit out of the way, first: they don't have prosecution on a civil matter; it's plaintiff and defendant.

      So if the plaintiff sends notice by certified mail (a process known to have occaisional flaws), the court is going to take care of it next using ... certified mail? As you point out, certified mail can be refused. What I think should happen is if certified mail fails, plaintiffs should be required to use a process server. Then if there is a no-show by the defendant, the plaintiffs should be required to show that everything was done properly, such as the correct address was the point of delivery, etc., before getting the default judgement.

      Appeals have a limited time frame (what is this in a civil matter? lawyers?). What if the appeal time frame has expired before the defendant genuinely finds out about the judgement? How do you appeal after that time frame? Or what different method is used to reverse the judgement?

  • by thesolo (131008) <slap@fighttheriaa.org> on Sunday March 03, 2002 @10:56AM (#3101229) Homepage
    Unfortunately, this is not the best example of SLAPP suits; it could be argued that someone in the process is simply lying about the certified mail.

    A much better example would be a few years back when a woman found out a business in her area was dumping waste behind a school. She notified the state agency to confirm it, and as a resident of that school's district, had a right to be on the property. As a result, she was SLAPP'ed, by the contractor who was hiding the waste. Now THAT is scary. What possible right could that contractor have for suing her, when he WAS guilty?? She was nothing more than a whistle-blower, I don't think any of us would argue with that.

    Suing someone over a troll-like post on a messageboard is childlike, and shows a company to be immature. Suing because someone exposed you for poisoning the planet is just downright low, even lower than dumping waste materials behind an elementary school in the first place.

    You can read more about SLAPP and that particular lawsuit here at ZeroWasteAmerica.org [zerowasteamerica.org]
    • Suing someone over a troll-like post on a messageboard is childlike, and shows a company to be immature.

      How can a company be immature? It's a legally recognized organization of (generally) three kinds, a partnership, a corporation, and a subchapter-S corporation. None of these has feelings, or "matures".

      It is peculiar how people anthropomorphize companies as "evil", "greedy", etc. Companies are run by officers. These themselves may be evil, greedy, charitable, etc. Corporations, for their part, "are" a club of investors, one of whom might be you, who "want" to make money as a result of their investment. They hire officers to run their corporation and to carry out their wishes. These make decisions corresponding to what they think the owners would want.

      Faceless companies are a myth, folks.

  • It'll be a cold day in hell before I boycott a company based on some flamebait kneejerk paragraph posted by CmdrTaco.
  • off of the xybernaut contact page [xybernaut.com] there are a few addresses to complain to. i'm sure i'm not alone in being a person who has considered purchasing their stuff, perhaps they should know how much they've pissed us off.
  • If sue-happy companies can follow their lead, and start trawling http://www.fuckedcompany.com/ [fuckedcompany.com], it would be open season... on our freedom of speech.

    Of course, you can't believe everthing you read on the internet [google.com].

    On the other had, maybe Taco can drop the whole subscription idea, and start suing AC trolls who post nasty things about his fiancee to keep /. afloat.

  • How to Fight? (Score:3, Insightful)

    by 1stflight (48795) on Sunday March 03, 2002 @11:24AM (#3101318)
    See this is the one thing about the Slashdot forums that utterly pisses me off.. I can read all day stories of corps just beating down the common man, my own government restricting my rights, tons of things that "shouldn't happen here" but nowhere do I see info on which organizations to support to oppose these things or which protests to attend, or anything.. it's like watching a mugging from the comfort my web browser and I'm sick of it. If anyone has sites, or info, hook me up, love to be more involved.
  • by Compulawyer (318018) on Sunday March 03, 2002 @11:41AM (#3101376)
    Contrary to popular beilef, judges LOATHE default judgments. They would much rather have the parties settle or decide the case on its merits. As an attorney, I can tell you that convincing a judge to let you win by default because of the other side's procedural slip-up is one of the hardest arguments to make.

    In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.

    It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.

  • Defendant Whatley said: If Steve Newman was not a relative his job would consist of ... 'Would you like fries with that?'"

    According to the company's Web site [xybernaut.com]:
    Dr. Newman is the former President and CEO of Fed American Inc., President and CEO of SANDCO American Corporation, and President and CEO of SAN Medical Corporation. A graduate of the University of Rochester School of Medicine, he also has degrees from UCLA and Brooklyn College. Dr. Newman's articles and presentations on the future of technology have been distributed worldwide.

    On the face of it, Whatley's statement is wrong, defamatory, and made with wreckless disregard for the truth. The only question is whether $450,000 is an appropriate penalty for what he said, that is, did Newman or the company suffer that much in damages or did Whatley's conduct need a substantial judgment to deter him in the future.

    The main line of Whatley's defenders appears to be that nobody should take what he says seriously, a curious position for people who claim the moral high ground over corporations.

    With so much true stuff that needs to be said, why would anyone waste their time on malicious nonsense?

  • by bobert3000 (545091) on Sunday March 03, 2002 @11:49AM (#3101411) Homepage
    You've got to be served by a constable or other officer of the court. You can't just file a suit, mail it out and collect a judgement when the defendant fails to show up. That being said, if you are sued, even if you are completely innocent of everything, it'll most likely cost 10-15k to prove that - and it's 50-50 whether you'll get that money back. That's only if you never go to trial. If you got to trial it'll be more like 50k. If it's inter-state more like 100k. That's why so many suits are settled and why the little guy generally loses unless he's got a brother who is an attorney.
  • Disbar any lawyers involved in bringing frivolous libel/defamation suits. Now, in this particular case, we don't have all of the facts, so it is hard to tell if it really is frivolous, or even if the guy is being truthful about not getting the letter. But the court system should have the tools necessary to make a determination of frivolity, and then punish the lawyers involved.
  • He was a short (Score:2, Interesting)

    by Anonymous Coward
    The article says that his online handle was dan7, which was a name that I remember quite well from the Raging Bull [lycos.com] boards. Dan7 was a short, plain and simple. His whole purpose for posting was to cause the stock to go down so that he could make money. In my opinion, he got what was coming to him. Do a search for his postings and see for yourself.
  • If he received the letter or not that shouldn't be the question. The question is, how could this kind of lawsuit stand in court? The judge should've laughed in their face and sent them back home.

    PS: The opinions expressed above may not be mine and I can't assume there responsibility. So if anyone is considering suing me, please don't.
  • Its pretty clear to me that these guys filed a meritless lawsuit to cover up their pathetic earnings...look at the companies annual stock record over the last year -- it parallels the track-record of Enron and more so Global Crossing: steadily down hill, with no end in sight, except for the big ch11. Anyone who'd buy stock in this company is nuts.

    Some asshole here said, "the first amendment doesn't apply in civil lawsuits"?? So, somehow you think the founding father's wanted rich corporations preventing people from speaking freely? Somehow, you think that just because its "only money" that's involved, that's less serious than being sent to jail on a criminal case? I'd rather go to jail for years than lose 400k.

    Defamation/libel lawsuits are nothing but a crock. All of them. Someone says something about you that's not true, and somehow that entitles you to their hard earned money? Bullshit. If its not true, put out a factual statement, with facts, testifying to its falsity. If people believe the liar over you, well then that's not the liar's fault -- its the fault of people who believe in gossip. While we're on defamation/libel, why don't they just sue people who gossip, as well?

    Lets face the facts -- libel/defamation suits are only used as weapons by the rich and powerful against the poor and powerless. They NEVER help out the average person. Overall, more harm is done by them than good. They should be abolished.
  • by Skapare (16644) on Sunday March 03, 2002 @12:57PM (#3101661) Homepage

    According to this story [wired.com] at Wired, Xybernaut's Mobile Assistant® V [xybernaut.com] product will be used [key3media.com] at COMDEX Chicago [key3media.com] by the event staff to reduce queues. I could envision two different ways that slashdotters could protest. If they are actually going to attend, they could wear something that states their position about the company and its practices. If they are not going to attend, but live in or near Chicago [cityofchicago.org] (big place [census.gov], should be a few around somewhere), they could do the usual protest thing on public property at the border of the convention (I'm sure the COMDEX people would never allow them in the convention area).

  • We have a long Wired article talking about poor Mr. Whatley and all the suffering he's going through, a quote here and there from the website in question, a single comment from Xybernaut's lawyer, but not a single link to Whatley's page for everybody to see exactly what was considered libelous. In fact, it doesn't look like Wired tried very hard (if at all) to get Xybernaut's opinion and mostly just wrote a little sob story about poor Whatley. Did I somehow miss the part where the article said "Xybernaut officials weren't available for comment?"

    Like it or not, libel is libel, and just because you're free to say what you want doesn't mean you're not responsible for what you say. Of what was shown of what Whatley said, it could very easiily be libelous.

    "I have been dealing with the Newmans and XYBR and they are the most incompetent management I have ever seen,"

    Wouldn't it be interesting if Whatley had had no dealing with Xybernaut prior to the lawsuit? How many managements has he seen in order to make this comparison?

    "If Steve Newman was not a relative his job would consist of ... 'Would you like fries with that?'"

    Has he seen Newman's resume? Has he even met Steve Newman face-to-face? Is Newman really a relative, or just somebody that happens to share a last name? Hell, has anybody even checked to see if there's a Steve Newman working for Xybernaut? Anyone?

    I have checked [xybernaut.com] and there is a Steve Newman on the executive board, and he does share the last as somebody else on the board, but since the bio links aren't working I can't find out if they're actaully related. However, at the very least the fact that Steve Newman has a doctorate suggests that Whatley's claims of his lack of education might be just a tad unfounded.

    If you simply believe everything you're told by the media, whether it be AOL/TW or Slasdot, you're no better than the mindless sheep you claim to despise.

  • With all of our negative comments, they will be sending us all a notice by certified mail pretty soon.

    (KNOCK ON DOOR)"I have a certified mail package for a Commander... what? Is this right? Taco?"

The use of anthropomorphic terminology when dealing with computing systems is a symptom of professional immaturity. -- Edsger Dijkstra

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