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The Courts Censorship Your Rights Online

After Online Defamation Suit, Dismissal of Malicious Prosecution Claim Upheld 267

Christoph writes "I'm the Slashdot user who was sued for defamation (and six other claims) by a corporation over negative statements on my website. I prevailed (pro-se) in 2008. The court found the other side forged evidence and lied. In 2009, I sued the other party's lawyers for malicious prosecution/abuse of process (the corporation itself is dissolved/broke). One defendant had stated in writing their client was lying, but the trial court dismissed my claim for lack of evidence. I appealed, and this Tuesday the Minnesota Court of Appeals upheld the dismissal, completely ignoring the defendant's written admission (and other evidence). They further found it was not an abuse of process to sue to 'stop the publication of negative information and opinion.'"
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After Online Defamation Suit, Dismissal of Malicious Prosecution Claim Upheld

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  • Corruption (Score:5, Informative)

    by rsborg ( 111459 ) on Friday November 12, 2010 @07:56PM (#34212154) Homepage

    Plain and simple.

    We make fun of China and other places, but it seems that our judiciary is now pretty much bought in many places.

    Check out this article [] on how many businesses see corruption as a barrier to entry to markets.

  • Well done! (Score:5, Informative)

    by droopus ( 33472 ) * on Friday November 12, 2010 @08:00PM (#34212180)

    Smart move to proceed pro se. I just finished a few years in the feds, paid my attorneys middle six figures total, and they did nothing. Only when I started writing my own civil motions on collateral attack (specifically 28 USC 2255 []) did I get any traction at all. If I had to do it all over, I'd proceed pro se.

    Little tidbit: you are indeed entitled to counsel if you are arrested, while you are in criminal proceedings. But if you lose an appeal, and have to proceed with collateral attack, that is civil and you are NOT entitled to counsel. Many people sit in prison because they have only civil remedies left.

  • by John Hasler ( 414242 ) on Friday November 12, 2010 @08:06PM (#34212210) Homepage

    ...when hearing appeals in civil cases. They consider only errors of law.

  • Re:Well done! (Score:2, Informative)

    by Shakrai ( 717556 ) * on Friday November 12, 2010 @08:23PM (#34212342) Journal

    Civil lawsuits can be dragged on longer than criminal ones. I invoked my right to a speedy trial and all that jazz -- there were a handful of court appearances and the Grand Jury testimony. That was it. No discovery, no depositions, no battle of motions. All of those can run up the legal bill pretty fast in a civil trial but aren't as relevant in a criminal trial.

  • by droopus ( 33472 ) * on Friday November 12, 2010 @08:25PM (#34212354)

    Absolutely true, but that IMO allows extreme use of precedential law. I was arrested for something that did not involve the US in any way, nor any citizen or federal commerce. When I finally (three years later) was heard by my judge on my 2255 [] she did two things:

    1) Cited Gonzalez v Raich [] a 2005 medical marijuana case decided by the SCOTUS. In it they say: "In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding."

    In other words, if the court can "rationally decide" (a distinctly subjective thing) that something MIGHT affect commerce, the case can absolutely be federal. So, she decided that my offense was federal because it MIGHT affect commerce.

    2) Appeal to the Circuit, right? This is a slam-dunk. Nope. To proceed, the District judge must issue a Certificate of Appealability (COA). My judge decided that no Constitutional issue existed, and therefore chose not to issue a COA. I did appeal to the circuit for the COA, but apparently, if the district judge says no Constitutional issue exists, then it doesn't. Nothing for them to consider. Motion denied. Off you go then, there's a good lad.

    So, sure, they only consider errors of law. Subjectively.

  • by Grond ( 15515 ) on Friday November 12, 2010 @09:14PM (#34212660) Homepage

    This is not accurate at all. Appellate courts often review findings of fact, although they are reluctant to disturb factual findings, especially findings by a jury. To reflect this, there are different standards of review for matters of law and matters of fact. The usual standard for review of factual findings in Minnesota is the "clearly erroneous" standard. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. But make no mistake: appellate courts can and do review evidence.

    This kind of fundamental error, which was made by the poster and the 3 people who modded up the post, is why representing yourself is such a bad idea.

  • Re:Tough Call (Score:5, Informative)

    by dcollins ( 135727 ) on Friday November 12, 2010 @09:56PM (#34212886) Homepage

    "In the end, lawyers are held responsible for their--and even their clients'--actions all the time. We get fined, suspended, disbarred, held liable, and otherwise disciplined on a regular basis. Does it happen often enough? Sometimes I doubt that."

    For criminal prosecutors, as I understand it, not remotely often enough. Need some more of that:

    "Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only ten involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor." []

  • by Christoph ( 17845 ) <> on Friday November 12, 2010 @10:36PM (#34213086) Homepage Journal

    The other party claimed I did not create the photo I had a copyright registration for, and his attorneys claimed the real owner was a man the client met in a sauna and paid $850 in cash. This mystery seller had no address, no phone number, and was completely untraceable. When I subpoenaed the phone company for any unlisted phone number for this man, "Micheal Zubitskiy", the other side's lawyers tried to quash the subpoena. This is called "willful ignorance" under the law. The federal judge in the case ruled there was "no credible evidence to support the belief that Zubitskiy existed".

    If you bring a suit with no evidence, no personal knowledge of who created the photo, no basis to deny the other party's legal title of ownership, you lack "probable cause". If you didn't know if at first, they had 2.5 years to figure it out. Even after the notary lost his commission for notarizing the fraudulent sales agreement with Zubitskiy, they did not drop their claim he was a real person.

  • by Christoph ( 17845 ) <> on Friday November 12, 2010 @10:51PM (#34213160) Homepage Journal

    When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases. Plus, I save $100,000 or so in legal fees. At times, the attorneys and judges were less familiar with the law than me, since I'm devoting myself to one area of law, and one case, while they have many.

    And I did have several lawyers advise me. I just didn't have them write my briefs or make oral argument (represent me on the record).

  • Re:Context... (Score:4, Informative)

    by Dhalka226 ( 559740 ) on Friday November 12, 2010 @10:52PM (#34213176)

    It would be nice if we could just say, "well, obviously this corporation could not possible have believed it would prevail on the merits, and was just throwing money at the problem, so that's clearly abuse of process," but the standard of proof for intent is yet another obstacle that brings with it a host of other problems.

    We can say that, and indeed had he done so he probably would have prevailed at trial. The problem is that the people he should have sued--the corporation, ie, the people who actually lied--were bankrupt and he didn't feel it worth the time to sue them. He's probably right. But rather than go "this sucks but there's nothing I can do," he instead decided to look around for somebody who did have some money he could sue for and he went after their lawyers.

    Now you have an entirely different ballgame. Not because of some "judges protect lawyers" conspiracy, but because you're now suing a tangential party. Lawyers are their clients' advocates and they operate on an assumption of good faith. Proving the client lied is not enough; now he has to prove the lawyers knew, when they knew, and that they then acted in bad faith to the courts by continuing the case either without informing the respondent or by continuing a case that no longer had merit with the lies exposed -- all of which are tricky.

    He knows he sued the wrong people, he says as much in the summary when he mentions the corporation went bankrupt. He just seems to believe that their wrongdoing was also their lawyers' and is acting like a petulant child when two separate courts disagreed with him. What happened to him sucks. The fact that somebody can get away with it because he did it from behind the veil of a corporation sucks, and is, in my mind, the real issue to be gleaned from this situation and addressed. The ruling I'm fine with.

  • by brachiator ( 867046 ) on Friday November 12, 2010 @10:57PM (#34213194)
    Christoph, well done overall and I'm certainly on your side with respect to the copyright issue, but your position on the lawyers doesn't hold up as well.

    Attempting to quash a subpoena is almost standard procedure. Under precisely what law is that "willful ignorance"?

    Your response mixes together what the other party knew and did and what his lawyers knew and did. It also mixes together the court's findings-of-fact with what the lawyers knew, should have known, were told, and were required to do. Moreover, you are simply wrong about what the lawyers' responsibility was. Lawyers need not have "personal knowledge" of the facts claimed to be true. They need only believe the facts claimed to be true based on information from the client. We could certainly argue about whether that's good public policy, but that's the way it is. And finding out midway that the client's story may be false does not necessarily equate to malicious prosecution or abuse of process.
  • by Christoph ( 17845 ) <> on Friday November 12, 2010 @11:03PM (#34213226) Homepage Journal

    In Minnesota, they consider the application of law to facts. If a case is dismissed on summary judgment for lack of a genuine dispute, they consider whether the facts on the record amount to a material dispute or not.

    One potential error of law they did not speak to: one of the claims against me was dismissed as "purely speculative".
    Is that ruling by the first court sufficient, under the law, for me to go to trial on a claim it lacked probable cause? If not, then probable cause includes "pure speculation".

  • by Christoph ( 17845 ) <> on Friday November 12, 2010 @11:55PM (#34213456) Homepage Journal

    I allow free non-commercial use of my photos. I recently authorized a non-profit in Europe to use photos I took at factories in China [] to raise awareness of harsh factory conditions. They were difficult photos to shoot, and I authorized use free of charge. I have provided images to non-profits at no charge every time I'm asked.

    I object only to commercial, for-profit, advertising use of my photos without paying me the standard market rate. It might be like going after pirates who sell DVDs of a movie for profit, but granting permission for all other, non-commercial use.

    Somehow I don't think that will affect your position, but I think it's relevant to the issue you raised.

  • by Christoph ( 17845 ) <> on Saturday November 13, 2010 @12:10AM (#34213500) Homepage Journal

    That's a valid point. There are a few, rare exceptions. I prevailed in prosecuting a claim for statutory damages for copyright infringement, and removal of copyright management information, against the other party. I was able to use the courts to actually collect the judgment, too. And I did this pro-se, or I would have paid around 40k-60k.

  • by Grond ( 15515 ) on Saturday November 13, 2010 @12:40AM (#34213640) Homepage

    When I had lawyers represent me, I lost 50% of the time. When I represented myself, I've won about 7 out of 8 cases.

    You realize that proves nothing, right? Those were presumably different cases, so you're comparing apples and oranges. It could well be that the cases you took pro se would've been won with a lawyer and that the 50% of cases you lost with a lawyer would've been lost pro se. It could also be you had crappy lawyers.

    At times, the attorneys and judges were less familiar with the law than me, since I'm devoting myself to one area of law, and one case, while they have many.

    The judges would be less familiar with the law whether you were represented or not. Were the attorneys representing your or other side? Unless they were representing you, that's only to your benefit. If they were representing you, then you had crappy attorneys.

    Plus, I save $100,000 or so in legal fees.

    But lose the ability to sue for malpractice if you screw up. That's a big part of why people pay for an attorney: liability shifting.

    Anyway, kudos for largely succeeding when representing yourself, but let's not pretend for a moment that it's a sound strategy for most or even many people. Statistically it is a terrible idea.

    As I said, this is a silly post. People rarely get everything they want from litigation, your appeals are far from exhausted, and you won the bulk of the actual case anyway. Why did this merit a post on Slashdot?

  • by Kijori ( 897770 ) <ward.jake@gm[ ].com ['ail' in gap]> on Saturday November 13, 2010 @07:31AM (#34214820)

    Huh? He got screwed by a criminal corporation and a gang of corrupt attorneys. He's "entitled" to some redress for what they put him through. Do you have a problem with that?

    He didn't get screwed - the summary is (unsurprisingly, given that it was written by one of the parties) biased.
    There were three actions. The first was for copyright infringement, which he won and received $19,462 in damages, being $4,462 of actual damages and $15,000 of statutory damages. In response to this the other party countersued over comments made on his website and lost.

    This story relates to an attempted claim for malicious prosecution and abuse of process against the other party's attorneys. The judge effectively found that an attorney is entitled to rely on the sworn testimony of his client even if the other party says that testimony is untrue - and how could it possibly be otherwise without rendering litigation impossible? The poster has on his website a document he alleges to show that the attorneys knew their client was lying, but as far as I can tell it is not referenced in any of the cases - I don't know whether it was actually admitted as evidence. The appeal judge refers to the claim as being essentially that because in the end the claims were found not to be credible the prosecution must have been malicious - this is clearly something of a leap. Finally, the poster claims unfairness because he was denied his day in court by this summary judgement. But given that the judgement was given based on there being no chance of success it is difficult to see what the day in court could achieve other than inconveniencing his opponent - and allowing a claim for abuse of process in order only to harass the other party would be a ridiculous irony.
    If the claim of malicious prosecution was ambitious the appeal seems to have been consigned to failure from the beginning. The appeal judge notes that the appeal contained no disputes of law or of fact, so it is hard to see how he expected the decision to be reversed.

  • by Christoph ( 17845 ) <> on Saturday November 13, 2010 @11:37AM (#34215630) Homepage Journal

    The attorney's client stated, under oath, he had no evidence to back up his version of events, and no personal knowledge (as to who created the photo). See Appellant's brief [], p. 9. They ignored his admission to having no evidence and proceeded with the case. This is not because they "believed him", but if anything they didn't believe him.

    Before trial, they even admitted they were not challenging the truthfulness of anything on my website, but still proceeded to trial (and were allowed to do so). Same brief, p. 15.

    One of the claims against me was ruled to be "purely speculative" and was dismissed (Id. p. 13). Yet I can't go to trial because there is no hope of showing a "purely speculative" claim lacked probable cause. That's not most people's definition of probable cause.

Forty two.