Jerk.com: Invitation to Slander or Free Speech?

While online defamation has existed since the Internet was first made accessible as a public computer network, the threat presented by such libelous content has been exacerbated by the advance of the Internet as an everyday reporting and social media tool.

The rise of websites such as Jerk.com, which openly encourage readers to post defamatory content about both public and private individuals, has raised very thorny legal and socio-political issues about defamation and bullying, and are testing the outer limits of free speech in an online world.  

Specifically, Jerk.com call itself:  "Public Service personal news." It "reports" not only on public figures engaging in public activity (e.g., WIll Smith slapping an overly affectionate reporter); it also reports on private individuals, allowing writers to call them "home wreckers," "army sluts" who "sleep around with married men," "racists," "meth-heads," "drunks," and the like.

The Legal Difficulties With Proving Online Defamation

Much of the difficulty that surrounds successfully winning an online defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statements were factually and objectively false and written with the intention of causing damage, and not just reflecting a subjective opinion.

Generally, the elements that must be proved to establish defamation are a publication to one other than the person defamed; a false statement of fact that is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.  If the plaintiff is a public figure, he or she must also prove actual malice.

Therefore, since truth is an absolute defense to any defamation case, a plaintiff who purports to have been defamed and injured opens himself up to a wide berth of discovery into his otherwise private conduct.

Further, identifying a specific individual that has posted a defamatory comment online can prove difficult.  It is possible to geolocate a computer that was used to publish a statement or post content online through the use of geolocation.

However, with Internet access offered anonymously in Internet cafes, libraries, businesses, and other public areas, this can make it difficult to find the true source of the illegal content.

Legislative Solutions

The Communications Decency Act of 1996 (CDA) was created in a bid to combat indecent as well as defamatory content found on websites and online publications.

Section 230 of the CDA attempts to legislatively address an Internet Service Provider's liability to content that is stored on its servers.  Although it does not specifically address all possible circumstances, it does broadly provide that an ISP is not legally held responsible for the information published by their users unless and until they are informed of any specific infringement; at that point, the ISP should act to remove the content or face legal action themselves.

The Communications Decency Act of 1996 can be viewed in full at the FCC website: http://www.fcc.gov/Reports/tcom1996.txt

Some commentators have suggested that the online world has evolved dramatically since the CDA was passed in 1996, and that it is due for an overhaul.  What do you think?

China Accuses U.S. of Waging an "Invisible War" on the Internet

The Chinese government has demanded that the U.S. cede control of the Internet, accusing it of waging an "invisible war" against its enemies on the web.

In an article appearing in China's official newspaper, China accuses the U.S. of conducting a "pre-emptive strike" by refusing to give up control of the Internet in the name of protecting what it calls a “global resource.”

China claims that the U.S. has taken unfair advantage of its control over the Internet to launch an "invisible war" against its enemies, and to intimidate and threaten other countries.

The article cites as an example how, during the Iraq war, the U.S. government in 2003 asked ICANN to terminate all services related to Iraq’s TLD “.IQ” leading to all websites linked to such domain names disappearing overnight.

The article also points out that 10 of the Internet's 13 root zone servers are located within the U.S., allowing the federal government to "supervise the Internet for national security reasons" under U.S. laws.

By doing so, however, China argues, the U.S. federal government actually gains access to all information transmitted online while "other countries can do nothing about it."

As a "big country on the Internet," China says that it "opposes the U.S.' unreasonable and unilateral management of the Internet" and seeks to work with the international community to "build a new Internet governance system."

Internet Scammers Target Sophisticated Law Firms

A creative and sophisticated Internet scam has targeted sophisticated law firms.

Indeed, the Gioconda Law Group PLLC was targeted by this type of scam artist, but (thankfully) we were able to recognize it very quickly.


It works like this:  A potential foreign client that appears to be legitimate will send an unsolicited e-mail inquiry seeking legal assistance in collecting a relatively modest commercial debt that it claims is owed to them.


For example, a Taiwanese company that supplies parts and equipment to electronics vendors will contact a New York law firm, claiming that it sold $1.2M worth of goods to a New York-based electronics business.


The company will provide a variety of written documentation to the law firm that appears totally legitimate, including signed contracts, supply agreements, purchase orders and invoices.


The company will gladly sign a formal lawyer's engagement letter and agree to pay the lawyer for his time and effort in seeking to collect on the debt.

The company will eventually send an e-mail to the lawyer saying, "Great news!  The debtor has agreed to pay for the goods and send you the settlement check for processing.  Please deduct your fee and send us the remainder by international wire transfer."


If the lawyer doesn't catch on by then, he may indeed deposit the settlement check, and wire the funds to the company.

However, the check he deposits is counterfeit, and the law firm is left holding the bag for the missing funds that it wired to the foreign company from its trust account.

Sound implausible?  

Some of the biggest law firms in the country have been suckered into writing trust account checks or wiring money to bank accounts based on funds they thought had cleared their trust accounts, only to later learn that the check deposited with the law firm was a forgery.  The result is that the law firm ends up on the hook for hundreds of thousands of dollars, while the recipient of the money has disappeared.

Minnesota law firm Milavetz, Gallop & Milavetz (MGM) fell victim to such a fraud three years ago.  Founding partner Robert Milavetz says that when MGM got an email from a 40-year old Korean woman seeking to collect a $400,000 judgment owed her for an accident, the firm thought nothing of it: "We do this kind of thing every day," he says. "We help people get settlements. That's what lawyers do."

In one recent case, a pair of foreign nationals are facing criminal charges for allegedly having duped 70 U.S. lawyers and law firms out of $29M and of having tried to make off with another $100M from 300 more.

Lawyers must implement and consistently utilize a high level of due diligence when taking on new clients, especially ones that are self-introduced through online channels.

Ask for tax returns or other official documentation demonstrating that the client has been a solvent business for at least the previous two or three years.  Ask for professional references or other credentials, and don't let your zeal to take on a new matter cloud your judgment.

The moral of the story is, if the deal sounds too good to be true, it probably is.