[IP] Arguing against pseudo-waiver of free speech rights
Begin forwarded message:
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: June 27, 2006 2:49:43 PM EDT
To: dave@xxxxxxxxxx
Subject: Arguing against pseudo-waiver of free speech rights
We have filed an appeal in a defamation case that presents a growing
national problem.
Very often, companies or individuals who are criticized online dash
off a threat of libel or other litigation, and it is not uncommon,
when critics receive such letters, that the first thing they hear
from a lawyer is, "take this down from the web while I figure out
whether there is a serious threat of legal liability here." There
have been a few judges now who have interpreted the removal of a web
site in response to a threat of litigation as tantamount to entering
a contract not to repost the criticisms.
In the case of Nevyas v. Morgan, we are representing a Philadelphia
area man who critiicized his lasik surgeons after surgery that left
him legally blind, and has been enjoined from even mentioning his
doctors' names on his anti-lasik-surgery web site, without any
finding that he made false statements, on this sort of "contract by
removal" theory. We argue that there are strict standards for
finding a waiver of the right to speak freely and that those
standards have not been met, and that it is bad public policy to find
such agreements too readily.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
Robert Yule 6/27/2006 11:38 AM >>>
PUBLIC CITIZEN PRESS RELEASE
For Immediate Release: Contact: Paul Levy (202) 588-
June 27, 2006 Robert Yule (202)
588-7703
Public Citizen Appeals on Behalf of Gripe Web Site Operator to
Protect Internet Free Speech
Court Ruling Endangers First Amendment Rights of Consumers Who Use
the Internet to Complain About Companies
WASHINGTON, D.C. - A Pennsylvania resident left legally blind by
lasik eye surgery should be allowed to identify his doctors on a Web
site warning the public about the risks of the surgery, Public
Citizen said in an appeal submitted today on his behalf in a
Pennsylvania state court.
The appeal, which was filed in Pennsylvania Superior Court in
Philadelphia, seeks to reverse an injunction against Dominic Morgan
forbidding him from criticizing doctors Herbert Nevyas or Anita
Nevyas-Wallace on any Internet Web site.
Morgan received unsuccessful lasik surgery in 1998 and created the
Web site www.lasiksucks4u.com in 2002. After he included criticism of
his doctors on the site, they threatened to sue him unless he
eliminated certain statements that they claimed were defamatory.
Morgan removed all of the criticisms of the doctors while he reviewed
the libel claims and decided what he could legally post. However,
when he added new material criticizing the doctors to the Web site
several weeks later along with documentary support of his claims, the
doctors sued claiming that his initial removal of the criticisms to
avoid suit constituted an agreement never to mention their names on
the Internet. The doctors claimed that because they had "agreed" not
to sue Morgan if he removed the criticisms, his temporary removal of
the criticisms constituted his acceptance of such an "agreement,"
which was binding on Morgan in perpetuity.
Companies routinely threaten consumers and Internet hosting companies
with libel, defamation or trademark infringement litigation in
response to legitimate criticism. With a short deadline for
compliance, consumers are often pressured into removing criticism
from Web sites and censoring their speech to avoid costly and time-
consuming litigation.
In his correspondence with his doctors' lawyer, Morgan did not
acknowledge that his claims were defamatory, nor did he promise to
refrain from mentioning the doctors in the future. In fact, he sent a
letter reserving the right to add new information about the doctors
on the site.
Judge Edward J. Maier of the Court of Common Pleas in Philadelphia
ruled that Morgan's initial removal of references to his doctors on
the original site, as well as subsequent correspondence between
Morgan, his lawyer and the doctors' lawyer, constituted an agreement
to waive Morgan's free speech rights concerning future criticism of
his doctors. He then enjoined Morgan from mentioning the Nevyases'
names on www.lasiksucks4u.com or on any Internet Web site.
The appeal argues that as a matter of First Amendment law, the
court's decision wrongly imposes a prior restraint on Morgan's speech
that ignores the established principle that purported waivers of free
speech must be found to have been clear and knowingly made and
narrowly construed. As a matter of contract law, the appeal cites the
fact that Morgan said nothing that could be construed as an agreement
or a waiver of his speech rights. Not only did he say nothing about
refraining from future criticism of his doctors, he expressly stated
his intention and reserved his right to do just that.
"This case typifies a common problem for consumers who use the
Internet to criticize companies," said Paul Levy, the Public Citizen
attorney who filed the appeal. "Consumers who receive threats from
companies often react by taking down the criticisms while they
evaluate their chances of defending a lawsuit. If the temporary
removal of criticisms from a Web site can be construed as an
'agreement' not to say anything about the company in the future, this
will have a chilling effect on Internet free speech and consumer
rights."
Carl Hanzelik of the law firm of Dilworth Paxson LLP in Philadelphia
serves as local counsel for Morgan.
Public Citizen has a record of defending the First Amendment rights
of Internet users. To learn more, visit http://www.citizen.org/
litigation/briefs/IntFreeSpch/.
To view the appeal, visit http://www.citizen.org/documents/Morgan.pdf.
###
Public Citizen is a national, nonprofit consumer advocacy
organization based in Washington, D.C. For more information, please
visit www.citizen.org.
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