Nissenbaum Law Blog

Can impersonating someone and posting inflammatory comments about them on a fake Facebook page result in prosecution?

In November 2011, a Superior Court Judge sitting in Morristown, New Jersey refused to dismiss an indictment charging Dana Thornton with identity theft for impersonating her ex-boyfriend on a fake Facebook page and posting inflammatory comments about him. After an investigation by law enforcement, Ms. Thornton was indicted in August 2010 on one count of fourth-degree identity theft. She pleaded not guilty but if convicted she faces up to 18 months in prison.

The investigation originated when the Morristown prosecutor’s office was informed about a Facebook page that was set up without Lasalandra’s (Dana’s ex-boyfriend) permission. The prosecutor’s office then conducted an investigation and found that the Facebook page contained photos and personal information about Lasalandra. The page also contained comments made by Lasalandra in which he allegedly admitted using drugs, hiring prostitutes and having herpes. According to the prosecutor’s brief the posts included comments like “I’m a sick piece of scum with a gun” and “I’m an undercover narcotics detective that gets high every day.”

Ms. Thornton’s attorney defended by asserting that the indictment should be dismissed because identity theft does not include “electronic communications.” However, the Court disagreed and held that the law was “clear and unambiguous.” In other words, although the law did not specify the “means” by which the injury from identity theft might occur, that would not undermine the fact that a crime was committed.

Accordingly, the Court ordered that the lawsuit proceed.  It should be noted that the New Jersey legislature is reviewing an amendment that would specifically add electronic communications to the identity theft law. The proposed amendment can be viewed at http://www.njleg.state.nj.us/2012/Bills/A2500/2105_S1.PDF

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What does it take to prove Cyberbullying?

Cyberbullying occurs when one person repeatedly uses information technology such as blogs, chat rooms, cell phones, e-mails or instant messaging to deliberately threaten, harass or intimidate another person(s). Cyberbullying also includes cyberstalking; sending sexually offensive messages to the victim; monitoring the victim’s online activities; sharing private or intimate information about the victim with others; and/or intentionally infecting the victim’s computer with a virus. Technology has created the opportunity for new forms of harassment in a variety of ways and from any distance. With the rapid spread of social networking sites and other Internet communication forums, there has been a tremendous increase in the Cyberbullying cases both in the federal and state courts.

Cyberbullying is not just confined to children. Adults working at large companies or educational institutions can also be victims. Cyberbullying can not only result in hurt feelings but also in severe harm to the victim, up to and including precipitating a suicide.  In many states, there are statutes passed by the Legislature that outlaw Cyberbullying.

Unfortunately, in the absence of such a statute, the common law does not generally recognize Cyberbullying as an independent tort. However, the victims of Cyberbullying can often bring a garden variety cause of action for defamation or intentional infliction of emotional distress when they are the victim of such behavior.

To prove intentional infliction of emotional distress, the victim has the burden to show that the harasser’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. American Home Prods. Corp, 58 N.Y.2d 293 (1983). The victim also needs to prove that the victim suffered sustained financial, physical or psychological injury due to the harasser’s conduct.

To prove defamation, the victim is required to show the following:

1. The defendant made defamatory statement regarding the plaintiff
2. The defendant published the statement to others; and
3. Injury resulted to the plaintiff.

Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991).

Thus, there are potential common law remedies for Cyberbullying even in the absence of a specific statute providing relief.

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Should Appropriation Artists Be Protected By Fair Use?

Appropriation artists deliberately copy images and present them in a new version or context.  This art form has become a popular form of creative expression. But is it legal?

The United States District Court for the Southern District of New York recently faced that question and determined whether appropriators of images belonging to others are entitled to use the defense of fair use against a claim of copyright infringement. Cariou v. Prince, 784 F.Supp. 2d 337 (S.D.N.Y. 2011).

The plaintiff in that case, professional photographer Patrick Cariou (“Cariou”), had spent six years in Jamaica. After gaining the trust of the Rastafarians, he had been permitted to take their portraits. In 2000, Cariou published a book of his photographs. The book contained those portraits as well as landscape photos he had taken throughout Jamaica. According to the book’s colophon page and his testimony, Cariou was the sole copyright holder of the images that appeared in his book.

The defendant, Richard Prince (“Prince”), was a well-known appropriation artist who had shown his work at several museums. During an exhibit at a hotel in St. Barts between December 2007 and February 2008, Prince showed a collage entitled “Canal Zone (2007)” which included 35 photographs that had been taken from Cariou’s book. Prince painted over some portions of the photos. Some were displayed in their entirety, while others were only partially shown. Prince intended to use “Canal Zone (2007)” as a means of introducing characters he intended to include in a planned series of artworks. Cariou eventually claimed that Prince had infringed on his copyright, but Prince asserted that his works were protected by the defense of fair use.

The principle that photographs are protectable by the our copyright laws is over 100 years old. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Cariou clearly possessed undisputed ownership of a valid copyright in the photos.    

The Court then considered whether Prince’s use of Cariou’s copyrighted work should be protected as a type of fair use. When determining whether a particular use of a copyrighted work qualifies as fair use, courts will consider four factors:

1)      the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2)      the nature of the copyrighted work;

3)      the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4)      the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. §107. 

First, the Court considered the purpose and character of Prince’s use of the photos. It found its purpose to be substantially commercial, and interpreted Prince’s failure to obtain permission (and the co-defendant Gagosian Gallery’s failure to inquire as to whether Prince had obtained permission) to constitute bad faith. Cariou at 350-1. Thus, it determined that the first prong weighed heavily against Prince. In other words, it weighed against a finding that the doctrine of fair use applied. 

Second, the Court found that Cariou’s photos were highly original and creative (as opposed to factual or informational). Again, the Court held that the use of such works without permission also weighs against fair use. Id. at 352.   

Third, the Court considered the amount and substantiality of the portion of Cariou’s photos used in Prince’s works. It found that, in the majority of his works, Prince appropriated central figures that went to the very heart of Cariou’s works, and that this factor also weighed heavily against a finding of fair use. Id.

Finally, the Court found the fourth factor also weighed against fair use because Prince’s secondary use “unfairly damaged the original market for [Cariou’s] [p]hotos and, if widespread, would likely destroy any identifiable derivative market for [them].” Id. at 353. Because none of the four factors considered supported fair use, the Court found that the defendants were not entitled to the defense of fair use. Id. Accordingly, Cariou prevailed.

The Court’s decision in Cariou provides a framework for how other courts might treat appropriation artists who claim their alleged copyright-infringing behavior should be protected by fair use. This decision suggests that courts are less likely to accept a fair use defense when an appropriation artist produces a highly-commercial work that features the heart of the original work but the artist does not obtain the permission of the original author.

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Does Google’s Keyword Advertising Constitute Trademark Infringement?

Proving that a mark was used in commerce has long been a requirement for plaintiffs claiming trademark infringement. After all, there is no need to protect a mark that is not being used.

But the case law concerning the definition of “use” was decided before the advent of the Internet. Accordingly, there are a host of new issues that Courts are wrestling with in the modern era. One of them is whether employing a word or phrase in what is called, “keyword advertising” is a “use in commerce” that may violate trademark protection.  

Keyword advertising concerns the way people find relevant content on the Internet. When a person performs an Internet search, two types of search results arrive on the page. First, the search engine provides a list of links to websites that it determines to be relevant to the term that is searched. Second (and more important in this case), the search engine provides context-based advertising that includes links to products correlated to the user’s search. Advertisers are permitted to bid on keywords that users might enter into searches. When a user enters a keyword that has been purchased by an advertiser, the website of that advertiser will appear as a sponsored link on the search result page.

In a 2009, the United States Court of Appeals for the Second Circuit addressed this issue in Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2d Cir. 2009). The plaintiff in Rescuecom, a computer-related services company, had registered the term “Rescuecom” for trademark protection. As part of its advertising strategy, it purchased keywords from Google to promote its services. However, when it attempted to purchase the keyword “Rescuecom” from Google, it realized that Google had already sold the keyword to one of the plaintiff’s competitors. As a result, when Google users entered “Rescuecom” into a search, the competitor’s links would show up alongside the search results, in addition to the link to the plaintiff’s site.

Rescuecom alleged that Google’s sale of its trademark as a keyword constituted trademark infringement. The United States District Court for the Northern District of New York decided in Google’s favor and held that Rescuecom failed to allege any facts indicating that Google’s actions constituted a “use” of the trademark. Rescuecom appealed.

In order to prevail on a claim for trademark infringement, a plaintiff must establish that he or she:

1) has a valid, registered trademark that is entitled to protection;

2) that the defendant used the mark;

3) that the use was in commerce;

4) that the use was in connection with the sale or advertising of goods or services; and

5) that the use was without the plaintiff’s consent.

1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400, 406 (2d. Cir. 2005) (citing 15 U.S.C. § 1114(1)(a)).

The Rescuecom Court reversed the lower court’s decision and held that Google’s actions did constitute “use” of the plaintiff’s trademark. The Court found that “what Google is recommending and selling to its advertisers is Rescuecom’s trademark.” Rescuecom at 129. It stated that Google “displays, offers, and sells Rescuecom’s mark to Google’s advertising customers when selling its advertising services.” Id. Additionally, it “encourages the purchase of Rescuecom’s mark through its Keyword Suggestion Tool.” Id.

Google had argued that the inclusion of a trademark in an internal computer directory could not be considered trademark use. However, the Rescuecom Court held that if that were the case, “the operators of search engines would be free to use trademarks in ways designed to deceive and cause consumer confusion.” Id. at 130. The case was remanded for further proceedings.  

Rescuecom is generally in line with the decisions made by the courts of other jurisdictions when hearing similar cases. In 2010, the Tenth Circuit held that a “use in commerce” existed where the plaintiff’s mark was used to promote a defendant’s services and consumers were provided with a link to a website where it could purchase products from the defendant. 1-800 Contacts, Inc. v. Lens.com, Inc., 755 F.Supp. 2d 1151 (D. Utah 2010). Other circuits have relied upon and agreed with the Rescuecom decision. See Fair Isaac Corp. v. Experian Information Solutions, Inc., 645 F. Supp. 2d 734, 760 (D. Minn. 2009); Network Automation, Inc. v. Advanced Systems Concepts, 638 F.3d 1137, 1145 (9th Cir. 2011).

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Electronic Service of Process: Are Social Networking Sites replacing the Traditional Methods of providing notice of a Lawsuit?

With the advent of technology and massive use of social networking forums, it is only a matter of time before electronic service of process starts replacing the traditional methods of service of process.

Recently, a Judge in Minnesota was faced with the challenge of serving a husband with divorce papers where the wife had not seen her husband in years and had no physical address to serve him. The wife asked the court if she could send the notice by general delivery. According to the Judge, it did not make any sense to use general delivery as it would only result in waste of postage. Furthermore, the Judge did not trust publication of notices in legal newspapers because it is unlikely that someone would look at a legal newspaper to learn that their spouse wants to get divorced.  

To resolve this, the Judge, authorized the wife to serve notice of process to her husband by email, Facebook, Myspace or any other social networking site. The Judge acknowledged the traditional ways of service of process but emphasized that the social networking sites provide a cheaper and more effective way.  This was a radical move because although electronic service of process is common in Canada, United Kingdom, Australia and New Zealand, it is extremely rare in the United States. Another example where the court authorized the use of electronic service of process was in a trademark infringing action where the defendant had neither an office not a home address. All it had was a computer terminal with an email address.

Lawyers across the nation have mixed reactions to this growing trend of using electronic service of process. Some believe that the traditional ways of communication have become obsolete in this world of social networking. Therefore, they believe that the courts should adapt to the new ways of communication. On the other hand, some have raised privacy concerns due to the broadcasting nature of these social networking sites. And some lawyer’s are concerned with the use of electronic service for pro se litigants. Many low-income people do not have home computers or email addresses. These people usually go to public libraries to access the Internet and not everyone is proficient to navigate the system. Therefore, the courts also need to address a reasonable way to deal with these litigants.

For now, all we can do is to just wait and watch the courts’ next move. And who knows, may be in the next few years the courts will also allow electronic service via text messaging.

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California Reader Privacy Law: A Privacy Key for the Digital Age

With the increasing use of digital books and online services to browse, read and buy books, it has become essential to have state laws that safeguard readers. Digital books now outsell paperbacks, and the popularity of e-readers in constantly growing.

The digital book services collect a large amount of personal information including the electronic notes made in the margins; the type of books browsed; and how long each page was viewed. The books people read reveal private, often sensitive information about their religious and political beliefs, their personal lives and their health concerns. Therefore, this data is highly personal and sensitive in nature. The existing California law protects book records of public libraries, but does not protect the book records of private libraries and book sellers. As a result, government and third parties can easily collect these reading records to monitor activists as well as use them in legal proceedings involving insurance disputes, divorce proceedings or custody battles.

California has long recognized the importance of safeguarding reading records and has taken an important step in this direction by passing the Reader Privacy Act of 2011 into law. The law, sponsored by Democratic state Sen. Leland Yee, prohibits government and third parties from disclosing or compelling disclosure of any personal information relating to users reading records. It prevents disclosure of data without a court order in a civil case or a warrant in a criminal case. The law imposes civil penalties on a book service provider for knowingly disclosing a user’s personal information to a government entity in violation of this law. It also requires the government or third parties to give notice to the bookseller as well as provide the bookseller with an opportunity to contest the order demanding the information. The booksellers are also required to prepare a report if they surpass 30 requests for information.

Clearly, this law is a key for updating privacy laws in the digital age.  It remains to be seen if this approach will gain traction in other states or on the federal level.

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What Is the Significance of Recent Patent Law Reform?

For the first time in almost sixty years, patent law is receiving a major update.

On September 16, 2011, President Obama signed the Leahy-Smith America Invents Act (the “Act”), providing the most significant change to patent law since the Patent Act of 1952. The Act (H.R. 1249) shifts the underlying legal framework for patents from a “first-to-invent” to “first-to-file” system. It  places a greater emphasis on the date of patent application is filed. By doing so, it puts United States law more in line with the patent laws used in other countries. The Act seeks to ensure that the first person to file the patent application and have it approved will be the owner of that patent.  

Under the “first-to-invent” system, companies generally wait until patents are close to marketability before they file applications for them. The new “first-to-file” system will alter incentives and expedite the process. Companies and individuals with sufficient resources will be more likely to file patent applications earlier during the development process. A company or individual that waits to file an application will now run the risk that another company or individual will invent and file for protection of the same product and thus be granted patent protection over it. The delay that had become common under current law should diminish when the new law takes effect. The Act will apply to patents with priority claims after March 2013.

The Act also eliminates the ability for plaintiffs to sue unrelated entities in a single case. Under previous patent law, plaintiffs were able to join in one lawsuit all defendants who allegedly infringed on the plaintiff’s patent. For cases filed after September 16, 2011, plaintiffs will only be able to join defendants if the alleged infringement is based on the same product or process.

In addition to the shift to a first-to-file system, the Act makes several other significant changes to the patent system. These include:

• Creating two additional ways for a person or company to contest an issued patent: post-grant review and inter partes review.
• Specifying who can file a false-marking lawsuit. Under the Act, either the United States government or a competitor who can prove actual injury can sue for false marking.
• Eliminating the “best mode” requirement. Under the Act, an applicant’s failure to disclose a “best mode” of accomplishing the invention is not a basis for invalidating an issued patent.
• Expanding the prior commercial use defense. The defense was previously only available for method claims. It is now available for any type of claim, so long as it meets certain time requirements.
• Scheduling the opening of additional satellite offices for the Patent and Trademark Office. Four offices are scheduled to open in the next five years, including an expected opening in Detroit.

The Act can be read in its entirety here.

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What Remedies Would Be Allowed If New Jersey Adopts the Uniform Trade Secrets Act?

New Jersey is currently one of just four states that has not passed a version of the Uniform Trade Secrets Act, but that could all change soon.

On September 19, the Senate Commerce Committee unanimously recommended passage of A-921/S-2456. An amendment included by the committee required the bill to be returned to the Assembly for final legislative approval after it is approved by the state Senate. It has now been submitted to the Governor, who is expected to sign it.

Under current New Jersey law, trade secrets are largely protected by common law and the Computer Related Offenses Act. N.J.S.A. 2A:38A-3(a). The adoption of the Uniform Trade Secrets Act would grant trade secret protection in a manner that federal law does not provide. Currently, federal law protects patents, copyrights and trademarks. In New Jersey, there is no statute that directly protects trade secrets. The adoption of this uniform law would provide plaintiffs with the opportunity to receive civil remedies under New Jersey state law if their trade secrets are misappropriated.

New Jersey, New York, Massachusetts and Texas are the only states that have yet to pass versions of the Uniform Trade Secrets Act. However, the law is pending in Massachusetts.

The law would allow plaintiffs the opportunity to seek the following remedies:

1. There would be damages for both actual loss suffered by the plaintiff and for any unjust enrichment enjoyed by the defendant as a result of the misappropriation. Damages may also include the imposition of reasonable royalty for unauthorized disclosure or use.
2. There would be injunctive relief for actual or threatened misappropriation of a trade secret. (Under certain conditions, an injunction may condition future use upon payment of a reasonable royalty.)
3. Where there is willful and malicious misappropriation of a trade secret, punitive damages in the amount of double the compensatory damages would be available under the statute to be awarded by the court;
4. The award of attorney’s fees would be authorized if
   1. Willful and malicious misappropriation exists;
   2. A claim of misappropriation is made in bad faith; or
   3. A motion to terminate an injunction is made or resisted in bad faith.

http://www.njleg.state.nj.us/2010/Bills/A1000/921_S2.PDF

The amended bill also states that if a public entity or employee is the defendant in any action brought for the misappropriation of a trade secret, the provisions of the state’s Tort Claims Act supersede any conflicting provisions of the bill. So the very short deadlines for providing notice of a claim against a governmental entity would apply to this cause of action. Additionally, an amendment to the bill removes the presumption in favor of granting protective orders in connection with discovery proceedings pursuant to section 4:10-3(g).

The passage of this bill would be significant for New Jersey businesses because it would provide both legal relief if there is actual misappropriation of trade secrets and also injunctive relief if one believes there might be an actual or potential misappropriation. Of course, this law has not yet been passed, and even if it is (as is expected), it would be wise for businesses to still consider whether to include language in service and employment agreements that account for how trade secrets and similar confidential information is handled.

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When Does Being Portrayed in a False Light Invade One’s Privacy?

The legal concept of invasion of privacy by false light could end up leaving the music network MTV in the dark.

In Savely v. MTV Music Television, the Federal District Court for the District of New Jersey denied MTV’s motion to dismiss a suit filed by a street musician. The musician asserted that he did not consent to having footage of his performance included in a documentary the network aired. Savely v. MTV Music Television, 2011 WL 2923691 (D.N.J.).         

Michael Savely, a drummer who performs daily as “Mike Alaska” on New York subway platforms, claimed that he was approached by MTV representatives during one of his routines last November. The representatives asked whether they could film his performance for use in an upcoming documentary. Savely reviewed a contract with which the representatives presented him. He then returned the contract; declined their offer to use footage of him; and told them he did not consent to being filmed. In spite of his refusal, a four-second clip of Savely’s performance was included in a program about the life and career of rap artist Nicki Minaj that debuted on November 28, 2010.

Savely filed suit against MTV asserting three claims of invasion of privacy. The Court granted MTV’s motion to dismiss two of Savely’s claims: (a) invasion by appropriation of name, likeness or identity and (b) invasion by publication of private facts. (A motion to dismiss generally allows a court to throw out prior to trial claims that are without legal merit).

However, the Court denied MTV’s motion to dismiss Savely’s other claims that the network invaded his privacy by false light. According to Savely, the inclusion of the footage of him in the documentary associated him with Minaj, an artist that he said – through her profane lyrics and provocative attire – glorified a lifestyle that was contrary to the image that he chose for himself as a performer and music teacher (drum lessons).

Under New Jersey law, the invasion of privacy can occur under a number of different circumstances. One of them is when “[o]ne who gives publicity to a matter concerning another…places the other before the public in a false light. This breaks down into two elements:

1. the false light in which the other was placed would be highly offensive to a reasonable person and 
2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

See Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J. 1981).

Savely asserted that the unprofessional quality and sounds of the footage included in the documentary reflected poorly on him. He also asserted that as a performer, the implied association between Minaj and him portrayed him in a false, unfavorable and disparaging light. In support of this assertion, Savely cited the facts that  the use of the footage caused (a) his fans to criticize him; (b) the parents of his students to terminate his teaching services;  and (c) sales of t-shirts with his image to decline. He said that part of his reason for declining MTV’s offer to be included in the documentary was his fear that association with the “wrong” artist would cost him significant business.

MTV argued,  in part, that the footage of Savely was not distorted in any way and that images of him were not distinctly linked to Minaj or any substantive themes of the documentary. However, the Court noted that a claim of invasion of privacy by placing the other before the public in a false light would not require that MTV’s action defamed Savely, but instead merely that the network’s action was “something that would be objectionable to the ordinary reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 334 (Law Div.1967).

The Court’s decision to deny MTV’s motion to dismiss does not mean the network is guilty for invading Savely’s right to privacy. Instead, it allows Savely’s claim that he was publicized in a false light to continue because the facts he alleged, if proven to be true, could support his claim. Additionally, the Court noted, the question of whether the documentary is capable of bearing a particular meaning that is highly offensive to a reasonable person is one for the Court to decide.

The Court’s decision not to deny MTV’s motion to dismiss is significant for entertainment companies and individuals that record the image and likeness of people for use during those individuals’ projects. Savely’s suit demonstrates the significance of receiving consent from those who are included during a television broadcast, movie or similar medium and the consequences of including those who refuse consent.

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Can the Contents of an Opinion Give Rise to a Defamation Suit?

In a recent decision, the New York Supreme Court made it more difficult for Plaintiffs to prove they have been libeled on the opinion page of a newspaper.

That case involved a suit brought by a Muslim state prison chaplain who claimed she had been libeled in a column that she said implied that she had radicalized inmates. Rashada v. New York Post, 2011 N.Y. Slip Op 32234U, 7 (N.Y. Sup. Ct. Aug. 11, 2011).

The case stemmed from an opinion column written by defendant Patrick Dunleavy in the New York Post on September 2, 2010 entitled “Converts to Terror”. The article focused on how four men accused of bombing synagogues in New York City had formerly been inmates before they had started attending a mosque in Newburgh, N.Y. Dunleavy concluded his article by recommending an investigation into the connection between the prison system, radicalization of inmates and the Newburgh mosque itself.

The plaintiff, Melody Rashada, was the chaplain of the prison to whom Dunleavy referred. She was also one of three imams at the Newburgh mosque. She alleged that Dunleavy and the Post libeled her both through the column itself and by implication, claiming that the article in its entirety implies “to a reasonable reader, the patently false accusation that plaintiff engages in the radicalization of prison inmates and encourages them to engage in acts of terrorism.” Id. at 3.  Rashada was not mentioned by name in the column.

The defendants moved to dismiss the complaint, claiming that the article was protected opinion and thus could not form the basis for a defamation suit. In a defamation suit, “expressions of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation.” Id. at 5. In order to determine whether Dunleavy’s statements were protected opinion, the Court considered:

1. whether the specific language in issue has a precise meaning which is readily understood;
2. whether the statements are capable of being proven true or false; and
3. whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ‘signal’…readers or listeners that what is being read or heard is likely to be opinion, not fact.

Gross v. New York Times Co., 82 N.Y.2d 146, 153 (N.Y. 1993).

The Court noted that both the context of the article itself and the larger social context of the article’s content strongly suggested the piece should be considered opinion. It appeared in a section of the newspaper titled “Post Opinion,” notifying readers the contents reflected the opinion of the writer. Additionally, the topic of the article was deemed to be “a topic which is intended to create much discussion and debate, and a topic on which a verifiable conclusion is neither expected nor delivered.” Id. at 6. “The article is plainly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates.” Id. at 7.

The Court’s decision is significant because it once again demonstrates the strength of the “opinion” privilege in defamation suits and the difficulty facing plaintiffs who bring such suits. That privilege grants authors great liberty to “raise issues” that a plaintiff might interpret as libel through implication.        

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