Suit to Unmask Nasty Yelp! Reviewer Nixed by IL Court On First Amendment Grounds

With social media use apparently proliferating at breakneck speed, Brompton Building v. Yelp! Inc. (2013 IL App (1st) 120547-U)) is naturally post-worthy for its examination of whether hostile on-line reviews are actionable by the business recipients of the negative reviews.

A former tenant, “Diana Z.”, spewed some invective about an apartment management company where she questioned the management company’s business competence, integrity and people skills; especially as they related to billing and handling tenant rent payments.

The building owner (not the management company; by this time there was new management) sued Yelp!, the online review site, to unearth the reviewer’s identity through a Rule 224 petition for discovery so that it could later sue the reviewer for defamation and tortious interference with prospective economic advantage.  The court found the on-line review consisted of protected expressions of opinion and denied the petition for discovery. The plaintiff building owner appealed.

Result: Affirmed.

Rules/Reasoning:

Rule 224 allows a party to engage in discovery for the singular purpose of ascertaining the identity of one who may be responsible in damages.  The case law applying Rule 224 provides significant protection for anonymous individuals so that there private affairs aren’t intruded on.  The Rule’s mechanics: (1) the petition must be verified, (2) it must say why discovery is necessary, (3) it must be limited to determining the identity of someone who may be responsible in damages to the petitioner; and (4) there must be a court hearing to determine that the unidentified person is in fact possibly liable in damages to the petitioner.   ¶ 13.

The Rule 224 petition must set forth factual allegations sufficient to survive a Section 2-615 motion to dismiss (that is, does the proposed complaint state a cause of action?) in order to successfully seek pre-suit discovery.

In Illinois, defamation suits are defeated by the First Amendment to the US Constitution where the challenged statement isn’t factual (it’s an opinion, for instance) and the action is brought by (1) a public official, (2) a public figure, and (3) actions involving media defendants by private individuals.

There is no defamation for “loose, figurative language” that no person could reasonably believe states a fact. Whether something is sufficiently fact-based to underlie a defamation claim involves looking at (1) whether the statement has a readily understood and precise meaning, (2) whether the statement can be verified, and (3) whether its social or literary context signals that it is factual.  ¶ 20.

Illinois courts also espouse a policy of protecting site defendants like Yelp! from a potential torrent of lawsuits by recipients of negative postings.  In addition, the Federal Communications Decency Act (47 U.S.C. § 230) usually insulates a website like Yelp! from liability for publishing third party comments.

Here, the plaintiff failed to allege actionable defamation against Yelp!  While the court conceded that Diana Z.’s statement that the property manager was a liar and illegally charging tenants were factual on their face, when considered in context – the plaintiff couched her rant in hyperbolic speech – the statements were (protected) expressions of opinion. ¶¶ 29-30.

Since the plaintiff couldn’t make out an actual defamation claim against the anonymous Yelp! reviewer, its petition for discovery was properly denied.

Take-aways:

This is but one of many lawsuits involving vitriolic on-line criticism of businesses. In Illinois, the law is clear that to get a court to order a website operator to unveil an anonymous reviewer’s identity, the plaintiff must make a prima facie showing that the review is defamatory or had a tendency to cause third parties to dissociate from it and take their business elsewhere. Failing that, the court will deny a petition for discovery and the plaintiff will be left without a defendant or a remedy.

Attorney’s Intrusion on Seclusion and Cyberstalking Claims Against ‘Above the Law’ Blog Dismissed – IL ND

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In Huon v. Breaking Media, LLC, 2014 WL 6845866 (N.D.Ill. 2014), an Illinois attorney sued law blog Above the Law (ATL) and womens’-interest blog Jezebel.com, for reporting on the plaintiff’s arrest and subsequent trial on sexual assault and witness intimidation charges.

The plaintiff was criminally charged after he met a woman responding to a Craigslist ad where the plaintiff claimed he was a talent scout for a modeling agency.  (Now that doesn’t sound sketchy at all!!) (Cough.)

While the sex assault charge was pending, the plaintiff was separately accused of witness tampering.  The plaintiff was eventually acquitted of both charges after a three-day trial.

Plaintiff sued the two blogs after they published articles discussing the charges’ underlying allegations and the eventual trial result.

The plaintiff claimed the various blog articles and some hostile user/reader comments to the articles impugned his integrity causing him to lose clients. The plaintiff sued for various privacy tort and cyberbullying claims and the blog defendants moved to dismiss all counts. The Northern District dismissed most of the plaintiff’s claims.

Rules/Reasoning:

Intrusion on Seclusion

To state a claim for this tort, the plaintiff must allege (1) an unauthorized intrusion or prying into a plaintiff’s seclusion; (2) the intrusion is highly offensive or objectionable to a reasonable person; (3) the matters upon which the intrusion occurred were private; and (4) the intrusion caused anguish and suffering.

Prototypical examples of this tort include opening a person’s mail, searching someone’s wallet or safe and reviewing a person’s banking information. *14.

The court found that Plaintiff’s intrusion on seclusion claim based on user comments to the defendants’ article were protected by the Communications Decency Act, 47 U.S.C. 230(c)(1)(CDA), a statute that immunizes websites that simply republish information supplied by third parties.

Since the user comments – while offensive – couldn’t be attributed to the defendants under the CDA, the intrusion claim failed.  The court noted that in relation to the readers who posted comments on the blog articles, the defendants were simply “online information systems” that are not publishers under the CDA (see 47 U.S.C. 230(f).

Plaintiff’s argument that the blog defendants “incited” offensive user comments also failed. The court found that a website doesn’t incite unlawful comments simply by providing a forum for content. In addition, both defendants had detailed written policies that outlawed defamatory comments. Taken together, these facts defeated plaintiff’s “incitement” arguments. **4-5

The Court also dismissed the intrusion claim since the plaintiff at most alleged irresponsible (“shoddy”) journalism practices. He didn’t plead that either defendant pried into his personal affairs or violate any of his physical boundaries – an indispensable aspect of the intrusion tort. *14.

Intentional Infliction of Emotional Distress

This claim also failed.  An intentional infliction plaintiff must demonstrate (1) extreme and outrageous conduct that goes beyond all bounds of decency in a civilized community, (2) the defendant intended to inflict severe emotional distress on the plaintiff or know there was a high probability that the conduct would cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress.

Where intentional infliction is premised on published statements, if those statements don’t rise to the level of defamation, they necessarily can’t meet the even higher extreme and outrageous standard. *15

Here, the claims against the Jezebel blog defendants didn’t rise to the level of libel or extreme and outrageous conduct since the Jezebel posts were protected by the fair reporting privilege and because some of the content consisted of opinions, not facts.

But plaintiff did state a colorable intentional infliction claim against ATL for falsely reporting that plaintiff was charged with sexual assault twice (instead of once). 

ATL’s false statement that plaintiff had multiple sex assault arrests was defamatory per se – a false statement imputing the commission of a crime – plaintiff adequately alleged a cause of action for intentional infliction of emotional distress against ATL (as well as defamation).

Take-aways:

– Intrusion on Seclusion requires physical invasion of the plaintiff’s space or private domain;

– An online republisher isn’t responsible for provocative reader comments where it has written policies that outlaw offensive content;

Inaccurate reporting doesn’t rise to the level of intrusion on seclusion or intentional infliction of emotional distress;

 

 

 

 

Recovering Court Costs In Illinois Litigation – What’s Covered?

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 Huang v. CNA, 2012 Ill. App. 1st 1112243-U provided a useful discussion of recoverable court costs in the context of a malicious prosecution suit.

To prove malicious prosecution, a plaintiff must show (1) the commencement or continuance of a criminal or civil proceeding; (2) the proceeding terminated in the plaintiff’s favor; (3) absence of probable cause; (4) malice; and (5) damages.

If the defendant had probable cause to sue or to file criminal charges, regardless of whether the suit or charges was successful, this will completely defeat a malicious prosecution claim.

“Probable cause” in the context of dropped criminal charges means a state of facts that would lead a person of ordinary caution and prudence to believe – or to have a strong suspicion – that the person committed a crime.

The key inquiry is on the state of mind of the one commencing the prosecution, not the actual facts of the case or whether the accused was guilty or innocence, that determines probable cause. As long as there is a an “honest belief” that the accused is probably guilty of an offense, the probable cause standard is met (and a malicious prosecution claim will fail). ¶ 40.

Here, the evidence reflected the defendant’s probable cause for charging the plaintiff with trespassing: He refused to leave the premises after his employer fired him.  The Illinois Criminal Code defines trespassing as a person remaining on the land of another, after receiving notice from the owner or occupant to depart. 720 ILCS 5/21-3(a)(3).

Based on the evidence that the plaintiff was belligerent and insistent (on staying), the court found the defendant had a reasonable basis to charge the fired employee plaintiff. ¶¶ 42-45.

The next issue grappled with by the court concerned what costs could the defendant employer recover after defeating plaintiff’s claims. Code Section 5-108 and 109 (735 ILCS 5/5-108, 5-109) work in tandem to govern recoverable costs in litigation.

Code Section 5-109 allows the winning party to recover costs. Case law interprets Section 5-108’s “court costs”  to encompass filing fees, subpoena fees and statutory witness fees. While court costs are recoverable, “litigation costs” (e.g. photocopying, research costs, etc.) generally are not.

Supreme Court Rule 208(d) also gives the trial court discretion to tax deposition costs where the deposition is “necessarily used at trial.” But where a case is disposed of before trial (like on a motion for summary judgment or dismissal), deposition costs aren’t properly taxed to the losing party. ¶¶ 49-50.

Here, the court affirmed the filing fees and subpoena fees but reversed the cost award for defendant’s depositions. Since there was no trial, the defendant’s deposition costs shouldn’t have been assessed against the plaintiff.

Take-aways:

– To establish probable cause in a malicious prosecution case, a defendant only needs to show an objective, honest belief that the plaintiff committed a crime;

– Deposition costs can be recovered by a winning litigant but only where the deposition is necessarily and actually used at trial;

– If a case is disposed of on a summary judgment or dismissal motion, the winner only can recover court filing fees, service/sheriff fees and subpoena costs.