chain of causation

a series of events in the life of a lawyer

Archive for April 2009

Finally, Someone Who Understands The Streisand Effect

Written by William G. Pecau of Steptoe & Johnson, Gripe Sites: Sue or Stew @ http://steptoe.com/assets/attachments/3752.pdf

Finally, the target might seek to engage the operator of the gripe site to find out just what his/her problem is and see if it can be rectified. This would be the cleanest, easiest, and cheapest solution. It might not work, but it has little downside risk and might, if not immediately successful, attenuate the ferocity of the attacks and might in the long run hasten the end of the site, by causing its operator’s interest to wane.

Maybe I have not been jaded by years of practice yet, but isn’t this what the practice of law is all about – finding the most cost-effective solution that achieves your client’s goals (which may not necessarily generate the most billable hours)?

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Written by Vincent Kan

April 14, 2009 at 2:40 pm

Posted in Random

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Privacy on MySpace

Courtesy of Ars Technica comes an article about a college student, Cynthia Moreno, who’s MySpace rant about her small hometown stirred up quite a dust storm back home. The local high school principal had stumbled across this rant and sent it to the local newspaper as a letter to the editor in her name prompting a fierce backlash including death threats and gunshots that caused the student’s parents and sister to drop their 20-year old business and leave town.

The article notes that the invasion of privacy claim against the newspaper was quickly dropped (under anti-SLAPP laws) but was dismissed against the principal. This is not surprising given that the student voluntarily and of her own volition posted her rant on MySpace, which being on the Internet without access controls, became immediately available to the entire world. An intentional infliction of emotional distress claim survived appeal and was allowed to proceed.

Eugene Volokh of The Volokh Conspiracy was quite irate that the IIED claim survived on the basis that one should not be subject to liability for making known another’s public contrarian stance (such as being racist, sexist, anti-American, etc). While I agree in principle, procedurally this appeal was coming off a motion to dismiss. If everything Plaintiff had plead in her complaint were true and there was still no cause of action for IIED I would be obliged to agree. However, the appeals court found that Plaintiffs had met their pleading requirements, that a jury could reasonably differ (as opposed to no reasonable jury could conclude contrarily as a matter of law), and that the claim could proceed. This does not mean that the Plaintiff’s case neccessarily has merit, but that it has stated a claim sufficient to survive a motion to dismiss.

What is somewhat surprising is the lack of some other claims that are at least plausible from the armchair perspective. As against the principal and the newspaper there would appear to be some form of misappropriation claim as to the contents of the student’s rant. Copyright infringement does seem to fit the bill although the newspaper, depending on exactly how it reprinted the rant, may have a fair use defense. There would also be a potential for a fraud/misrepresentation claim vs. the principal – the articles are not entirely clear about how the rant was submitted and/or appeared in the newspaper but the student’s full name was added where originally published it did not. Finally, as much as I may disagree with another’s viewpoint, it does not give me license to grab a gun and shoot them. I do conceed though that small-town politics may influence the local police force to never find the perpetrator.

In short, be wary of what one posts on the Internet for it is effectively etched in stone (thanks to Google) and may come back to haunt you.

Written by Vincent Kan

April 9, 2009 at 10:19 am

Posted in Random

Leading By Example

One would think out of all workplaces that the Equal Employment and Opportunity Commission should have a fairly firm grasp of the nation’s labor laws. Apparently not, at least with respect to overtime. [Washington Post].

Written by Vincent Kan

April 4, 2009 at 4:41 pm

Posted in Random

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