The Volokh Conspiracy
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From the New York trial court decision (by Judge Terry Jean Ruderman) in P.D. & Assocs. v. Richardson:
Plaintiffs are an individual attorney and his law firm, who previously represented defendant Halana Richardson in a personal injury action she brought following a rear-end collision that occurred on September 17, 2002. That trial concluded on January 23, 2008 with a jury verdict against Richardson. Despite the adverse jury verdict, plaintiffs claim that they obtained a $20,000 settlement for Richardson.
After the settlement, the relationship between the parties ceased until June 14, 2017, when Richardson posted an unfavorable review of plaintiffs on Yelp.com …. Specifically, it is asserted that the review claimed that the attorney had lied about his fee, called an unrelated party to the witness stand in Richardson's action, and that he is a thief and a liar and a scam artist. Further the review criticized the attorney's height, compared him to a rodent, and called for his disbarment. While Yelp representatives removed it from the website, as well as a second review Richardson posted, plaintiffs assert that defendant went on to publish more unfavorable, allegedly defamatory reviews on Yelp, Facebook.com, internetcheaters.com, and pissedconsumer.com.
In another review posted on August 1, 2018, Richardson stated that plaintiffs sabotaged her lawsuit and "fixed" the pleadings in her case so as to claim that someone other than the driver of the other vehicle had struck her vehicle, and that plaintiffs were corrupt and were working with the adversary and cannot be trusted. While this review was deleted on Yelp it remains as a post on Richardson's Facebook page. In additional online statements, Richardson accuses plaintiffs of taking bribes from the opposing party in the personal injury case, intentionally losing the trial by putting an unrelated witness on the stand who falsely claimed to have been the driver of the other vehicle, and attempting to sue her for nonpayment, among other things. She goes on to repeatedly attack P.D.'s professional character as an attorney, criticize his height, and compare him to a squirrel….
[P]laintiffs [argue they have been libeled,] seek an order (1) restraining defendant from publishing any statements on any website concerning plaintiffs and plaintiffs' employees, (2) directing defendant to remove certain online posts — which plaintiffs refer to as a "takedown order" — and (3) sealing the instant case record. In support of their motion, plaintiffs contend that defendant's statements inflicted irreparable harm to their reputations as attorneys by targeting their internet presence, on which they rely to retain new clients….
Use of Pseudonymous Caption
Preliminarily, this Court must address plaintiffs' unilateral adoption of a caption that does not state their names. "In a summons, a complaint or a judgment the title shall include the names of all parties" … "[T]he trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it." If a litigant seeks to employ any means of identification other than his or her name, such relief may be sought by order to show cause when commencing an action.
"The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant." An action may not properly be brought pseudonymously if the plaintiffs have not "alleged a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings."
Some trial-level courts of this State have considered the showing necessary for a pseudonymous caption. "[C]ourts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party." "Embarrassment or economic harm to the plaintiffs is insufficient, but factors to consider as to whether plaintiffs' situation is compelling, involving highly sensitive matters including social stigmatization, or 'where the injury litigated against would occur as a result of the disclosure of the plaintiff's identity.'"
Plaintiffs suggest that the professional embarrassment and injury to their reputation warrants the pseudonymous caption. However, notwithstanding their desire to preserve their privacy, and to prevent further dissemination of defendant's criticisms and claims against them, this matter does not involve the type of truly sensitive and highly personal claims that create a "privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings."
It has been suggested [by a New York trial court] that "allowing plaintiff to proceed under a pseudonym does not significantly hamper the public's interest in open trials because the public will still have access to the court records for [the] case." Nevertheless, the failure to satisfy the controlling rule requiring "a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings" precludes a pseudonymous caption here.
Sealing the Court File
Plaintiffs also seek a sealing order, on the ground that the statements contained in the complaint are devastating to their reputation. A court may only order the sealing of court records upon a finding of good cause. "In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties." "The party seeking to seal court records must demonstrate compelling circumstances," and the court must then balance that compelling interest in preventing public access to the documents at issue against the presumption in favor of open trials. The mere potential for embarrassment, damage to reputation, or the general desire for privacy does not constitute good cause to seal court records.
Plaintiffs have merely established embarrassment and alleged damage to their reputation, and have therefore failed to demonstrate grounds to seal the court file in this matter.
The injunctive relief plaintiffs seek on this motion includes an order restraining the defendant from creating, publishing, and/or disseminating any statements concerning plaintiffs on any websites including, but not limited to, Yelp.com, Facebook.com, Internetcheaters.com, and pissedconsumer.com, for the purpose of defaming, denigrating, threatening, harassing, or attempting to injure plaintiffs in any way, including by attempting to cause plaintiffs emotional distress; they further seek a direction that defendant remove specifically named posts on Facebook, Yelp, pissedconsumer.com and internetcheaters.com….
The heightened standard for mandatory preliminary injunctions requiring the removal of posted materials from on-line platforms is discussed in Garcia v Google, Inc. (9th Cir. 2015). There, the plaintiff sought an order requiring Google to remove from all its platforms, including YouTube, a film called Innocence of Muslims, which included a five-second clip of a performance by the plaintiff for which the plaintiff claimed copyright protection. The Court explained that "this relief is treated as a mandatory injunction, because it orders a responsible party to take action, [and] as we have cautioned, a mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored." It elaborated that "[t]emporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints" and that "[p]rior restraints pose the most serious and the least tolerable infringement on First Amendment rights."
The particular concerns that arise with requests to enjoin a party from the on-line posting of highly critical statements about another party were recently addressed by … Brummer v Wey (N.Y. App. Div. 2018). There, the Court reversed a motion court's grant of the plaintiff's motion for a preliminary injunction order both enjoining the defendants from posting articles about him on line, and requiring the defendants to remove all articles they had posted about him. The Court initially observed that "[p]rior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." Because "to obtain such a restraint … [the applicant] must show that the speech sought to be restrained is 'likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest' [such as] an intent to commit an act of unlawful violence to a particular individual or group of individuals," even highly offensive, repulsive and inflammatory speech does not meet this exacting constitutional standard.
Importantly, the Court in Brummer v Wey emphasized that "although it may ultimately be determined that defendants have libeled plaintiff, "[p]rior restraints are not permissible … merely to enjoin the publication of libel."
In addition, while published statements that "charg[e] plaintiffs with a serious crime" or "tend to injure another in his or her trade, business or profession" constitute libel per se, the circumstances and context of the publication is important in determining whether a statement is actionable… "[T]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything goes writing style.'" In the context of on-line sites such as Yelp, Facebook, and pissedconsumer.com, where users post criticisms of professional services, even such assertions as calling a person a thief, a liar, dishonest, corrupt and a scam artist may be found to "amount to the opinions and beliefs of dissatisfied clients about their attorney's work."
While the portions of defendant's posted statements that use the words "law firm takes bribes" read as defamation per se, and while this Court does not question plaintiffs' professionalism, the falsity of the statement may not be assumed, but rather, must still be proved for it to constitute defamation. The same holds true for defendant's assertion that "the lawyer knew the individual rear ended me and did put someone else on the stand instead of the individual that rear ended me," which has the indicia of actionable mixed opinion that "implies that it is based upon facts which justify the opinion." Without a hearing, plaintiffs' denials of the asserted misconduct, in papers submitted at the commencement of the action on a motion for a preliminary injunction, even though unopposed, do not establish the truth of their assertions so as to justify a "takedown" order at this time.
[Foonote:] … New York courts have granted preliminary injunctions removing and precluding allegedly libelous internet postings (see Dae Hyun Chung v Google, Inc. (App. Div. 2017); Dennis v Napoli, (App. Div. 2017)). However, the Dae Hyun Chung case was decided solely on procedural grounds, and contains no discussion of constitutional concerns. The ruling in Dennis v Napoli is distinguishable from the instant matter, in that the information used by the defendant there to harass and defame the plaintiff had been improperly obtained through an intrusion into the plaintiff's own work email account and personnel file; moreover, there was no merit to the defendant's constitutional argument that "her unsolicited communications to plaintiff's professional colleagues, friends, and family about plaintiff's alleged sexual proclivities are constitutionally protected speech."
None of the foregoing precludes a determination that defendant's statements are defamatory. It merely precludes a grant of the preliminary injunction "takedown order" plaintiffs seek….