Tuesday, May 12, 2009

Mekubal's points to ponder

mekubal wrote:

For those who readily wish Rabbi Dr. Eidensohn to press on despite danger of a lawsuit. You are giving him very dangerous advice. While I believe that he would be offered some sort of protection on account of Israeli privacy laws, on the other hand he can be in serious danger and here is why.

I realize that I asserted in a previous comment that I believed( and to a certain extant still do) that he has been trolled. However, given the way things have unraveled and that through phone conversations as admitted that he owns this blog, and that his only true defense would be to lie and say that he doesn't, something I don't believe he would do as an Orthodox Jew, we come down to the greater problem of his potential liability.

Having not fully navigated the Israeli system I will leave that out for now, in part because my knowledge there is lacking, and secondly because that is not the only place that he is liable to damages.

I will start with the US. Under US and European law libel is, "the printed communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image". Pursuant to that the Supreme Court Rulings of New York Times Co. v. Sullivan, Gertz v. Robert Welch, Inc, and Hustler Magazine v. Falwell, have served to limit and define the limits of free speech in printed media.

Furthermore Supreme Court decision Stratton Oakmont, Inc. v. Prodigy Services Co., as well as Congressional Act 47 U.S.C. § 230(the Cyberlibel law) did two primary things of which the owner of this blog has to concern himself. First it made owners of moderated blogs liable for the postings of their commentators as well as their own postings. Secondly it allowed for libel suits where ever said material was or had been viewable. In other words within the US you would be open to the possibility of being sued 50 separate times.

Then we can move on to Europe most especially nations such as England, France, and Spain which have Universal Jurisdiction laws, allowing plaintiffs who are not present within their borders to file complaints against those who are not present within their borders. All three also allow someone to be tried in abstentia for such civil cases. To put that into plain English a lawsuit can be filed there, and if R' Eidensohn is not able to make a defense in those nations he may be found guilty without ever being able to offer a defense.

Furthermore both in the US and England the person in question does not need to be specifically mentioned but only indirectly, but knowingly referenced.

If these things cannot be undeniably proven you have once again opened yourself to the possibility of lawsuit on an international scale if the referenced person truly wishes to pursue such action. As a moderated blog, even allowing comments like that to go up, you open yourself to the possibility of lawsuit, as you have to approve them. To elevate them to a main post with no substantial proof shows your endorsement and can be considered "real malice" as "real malice" is defined in US and European law as disregard for the truthfulness of the statement.

If you want to be successfully sued for libel than by all means follow the advice of Jersey Girl. Otherwise perhaps it is time to take more care in what commentators post
and what you as the blog owner allow them to post.

Perhaps these latest problems, though I will admit that there was an aspect of bullying to them, especially in the requirement to remove any and all mention, despite that though, perhaps it was Hashem's way of saying it is time to clean it up.


  1. The US slander/libel laws are noticably more lenient with respect to public figures. In this case the person being accused of slandering must be shown both to have had a reckless disregard for the truth and actual malice towards the person being slandered. Who counts as a public figure is something I'm not qualified to give advice on.

    I'd suggest looking at the Electronic Frontier Foundations section on free speach on the iternet as well as consulting a lawyer. Perhaps someone among our readership is a lawyer who can offer a pro bono consultation?

  2. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel.

    It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases—when they involve public figures—rarely prevail.

    Before this decision there were nearly US$300 million in libel actions outstanding against news organizations from the Southern states and these had caused many publications to exercise great caution when reporting on civil rights, for fear that they might be held accountable for libel. After the New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements. The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.

    Westmoreland v. CBS was a $120 million libel suit brought by former U.S. Army Chief of Staff General William Westmoreland against CBS Television for the televising of a documentary entitled The Uncounted Enemy: A Vietnam Deception, narrated by the investigative reporter, Mike Wallace. It was shown on January 23, 1982. This case was a follow-up to the landmark New York Times Co. v. Sullivan decision, which held that the government must meet a high standard of proof before it can violate the First Amendment by restraining the right to publish.

    Internet Free Speech Cases

    Right to Speak Anonymously

    * Alkateeb v. Does 1-15
    * Cahill v. Doe
    * Citadel Security Software v John Does 1-5
    * City of Memphis, Tennessee & Larry A. Godwin v. John and/or Jane Doe 1- 30
    * In re Cokinos
    * Dendrite International v. Does 1 through 14
    * Digital Broadband Networks, Inc. v. Does
    * Donato v. Moldow
    * Equidyne Corp. v. Doe
    * Gallucci v. New Jersey On-Line, LLC
    * Garrett v. Better Publications, LLC
    * Greenbaum v. Google
    * Hollis-Eden Pharmaceuticals, Inc. v. Does
    * Hritz v. Doe
    * Independent Newspapers, Inc. v. Zebulon J. Brodie
    * iXL Enterprises v. Doe
    * McMann v. Doe
    * Mobilisa, Inc. v. John Doe 1 and The Suggestion Box
    * In re Petition of MP
    * Pilchesky v. Gatelli v. Pilchesky and additional Does
    * Powermark Homes v. Doe
    * Swiger v. Allegheny Energy
    * Tendler v. Doe
    * Thomas & Betts Corporation v. Does 1 through 50
    * Video Professor v. John Does 1 - 100
    * WRNN-TV Associates v. Doe

    Greenbaum v Google was of interest to me because that is the Orthomom case.

    What you were threatened with is a SLAPP, A Strategic Lawsuit Against Public Participation ("SLAPP"), a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

    Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.

    Now an Orthodox Rabbi has withdrawn his halachic and haskafic opinions on conversion and intermarriage due to a threat of a lawsuit.

    Who REALLY controls Judaism, our Rabbis and the future of the Jewish people?

  3. http://www.citmedialaw.org/threats/greenbaum-v-google-blogger

    On October 23, 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce prima facie evidence on each element of its claim before a court will order discovery on the identity of an anonymous defendant. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim are plainly inactionable as a matter of law." Greenbaum v. Google, No. 0102063/2007, slip op. at 3-4 (N.Y. Sup. Ct. Oct. 23, 2007).

    Specifically, the court held that statements by Orthomom criticizing Greenbaum's views and indicating that Greenbaum had "no interest in helping the private school community" were not susceptible of a defamatory meaning and constituted protected opinion. The court held further that the statement of an anonymous commenter that Greenbaum was a "bigot and really should not be on the board" was protected opinion. In a footnote, the court noted that because this statement was not actionable, it did not need to reach the issue of whether CDA 230 (47 U.S.C. § 230(c)) protected Orthomom from liability.

  4. The practical point is that English, Spanish and for that matter Australian law may be applicable.

    You may need separate advice if you have practical exposure to any other country and the requirement of malice against a public figure is not applicable worldwide although other defences may be applicable.

    Also (can I break it to you gently) the U S constitution doesn't apply everywhere.

  5. The practical point is that English, Spanish and for that matter Australian law may be applicable. Also (can I break it to you gently) the U S constitution doesn't apply everywhere.This was a primary point of my OP. There is a great deal more to deal with than simply liability in the US. I know from painful experience that Britain retains universal jurisdiction over anything that can be viewed within their borders, my understanding is that France and Spain are also the same.

    In this specific area, even in the US it would be rather foolish to go off based on one's own understanding of what the law means. Or even much of the "go ahead and do it" advice you have on this blog. As at least two things so far have not been taken into account, the laws passed removing internet anonomisity on account of the Megan Meier incident. Also the recent passage of the "hate speech" laws in the US, which has severely limited what one can and cannot say and write.

    My actual advice is this. If you plan to post opinion, conjecture, or personal attack, or allow them to be posted on a moderated blog, than you should seek legal council to know when you run the risk of crossing the line.

  6. Jersey Girl said...
    Now an Orthodox Rabbi has withdrawn his halachic and haskafic opinions on conversion and intermarriage due to a threat of a lawsuit.

    Who REALLY controls Judaism, our Rabbis and the future of the Jewish people?
    This statement is pantently false. What was needed to be removed was, at least in part, a series of slanderous statements and accusations against a philanthropist who supported a Rabbi who did conversions(among many others).

    From whence a Rabbi recieves his support makes very little impact on either the hashkafic or halachic realities of his converstions. When that Rabbi is no longer recieving said support it has even less impact.

    If you were to take the time to look through this blog to see what has been removed, you would find that most of the vital discussion on conversion remains.

  7. Until Google opened an Israeli office, the alleged non libel would have occurred in the US and not Israel or any other country where people might "tune in".

    Google published the blog and Google would be the one sued for the "libel" and not RDE.


    However, there is a precedent in Israel where Google was forced to turn over the IP address of a blogger:


    Google was not subject to Israeli law until they opened an Israeli office.

    I would contact Google's office in Tel Aviv. They might give you an attorney for free because it is in their best interest to defend their blogger.

    If people in Israel are afraid to blog for fear of lawsuits, it is not good for their business.

    This is a high profile blog and I would imagine that Google would like the free advertising.

  8. The person who does not want to be mentioned in a blog and his billions of dollars are a critical element of the problem.

    We cannot discuss EJF without discussing the source of their money and Evangelical Christian haskafa.

  9. Jersey Girl said...

    We cannot discuss EJF without discussing the source of their money and Evangelical Christian haskafa.
    The source of their money is from Thomas Kaplan - it is has no need for other sources. In contrast the organization Nefesh b'Nefesh does get funding from Evangelical sources as do many other social service programs in Israel.

    Proselytization by EJF is not an evangelical christian hashkafa.


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