15 March 2008

Harvard Law School & Court case concur with KingCast & Brian Jesseman: Joe McQuaid and Union Leader must provide IP address of Jesseman impersonator.

So a week ago Union Leader Defense counsel Kate Sullivan said:

1. KingCast lacks standing.
2. Jesseman has no case.

The Court ordered briefs and said:

1. Maybe KingCast has standing.
2. Maybe Jesseman has a case.

KingCast will brief the standing issue later, but for now Harvard Law blog says Jesseman has a case because just as KingCast said, it's a case of identity theft.

Since I only graduated from Case Western Reserve University (The Harvard of the Midwest) I'll allow my purportedly superior brethren to explain, saying exactly what I've been saying all along -- read this post very carefully. It's all about that tool who assumed Brian's identity to proclaim that he supported HB 1428 Bruce McKay Highway for a rogue cop who endlessly harassed Liko Kenney and other youth and adults in Franconia until Liko shot him out of fear after McKay violated town protocol.

I
successfully sued to obtain the original VHS cruiser tape and will be reviewing that soon, thank you. And Judge Vaughn held that NH AG Kelly Ayotted acted ILLEGALLY in withholding Homicide investigation protocol from KingCast as well.
According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

Speaking completely hypothetically, does Frank have a cause of action against the bloggers too?
I think he does. It could be defamatory to attribute comments to Frank that he did not make, at least if they harm his reputation as a trustworthy scholar and blogger. And in states that recognize the tort of appropriation, the unauthorized use of someone else’s name for your own benefit is unlawful.


New Hampshire recognizes misappropriation and false light invasion of privacy. That having been said, I'll pretty much be on my way to address the standing issue, thank you.

Because if Brian Jesseman has no case, then we're all going wind up in situations kinda' like the one I describe herein, where folks can simply post up to KingCast, Daily Kos or wherever they plase that Union Leader Publisher Joe McQuaid said "Chris King thinks he's the Head Nigger in Charge!"

Related case: Fuzzy Zoeller sued Wikipedia one and two after some tool issue material lies about his actions, so even anonymous Defamation is not always protected. Chicken and collards for everyone!

Related post: Speaking of dishonest liars, didja' know Gregory W. Floyd's son Gregory P. Floyd is apparently a lying scumbag thief just like his father? Oh, yah read this post to see the rap sheets past and pending plus I know "Lady M" whom Gregory P. Floyd was basically stalking for a time; gave her the willies so bad she moved away for a bit. Can't wait to see her next time I visit Franconia to discuss this one.

I'm going off to sell some motorcycles today but I'll have the MacBook to check on the reaction to this post, and to cross-post it just about everywhere I can. Brian, I got your back, man. 'Cos I'm the head guy in charge.

12 comments:

Christopher King said...

Hey KingCast, aren't you worried that you "telegraphed" your shot to opposing counsel before the briefs are due on 20 March 2008?

In a word, no.

Remember it's like Stefan Edberg's high kicker to the ad court/backhand side: You know it's coming but you still have to beat it.

My backhand is the same way, especially the two-hander. Watch McEnroe, Edberg and KingCast all rip down-the-line winners past Joe McQuaid in this post.

I wouldn't have wanted to return that serve, and I wouldn't want to be Attorney Sullivan right now, either.

Anonymous said...

just a recollection of this blog in the earlier days of your coverage of 5/11 - and the increased frequency of misappropriation of screen names that took place.
it became annoying, and, along with other attending issues, evolved into the need to monitor comments.
since then, equilibrium has been restored....but notice that most of us post anonymously now, although probably for a variety of reasons.

pleased you have taken the matter of brian jesseman to accountability, given the obvious, intended use of his name.

Christopher King said...

9:10

Yah, those were crazy crazy days back then.

Kelly and Franconia's crazy days lie ahead.

Brian and I will be all right but whomever did this will not be.

The Harvard case is dispositive. The Court and opposing counsel wanted to see someone of authority substantiate my position.

Okay, been there done that.

Namaste.

Christopher King said...

HN34 The First Amendment is not intended to protect unconditionally all forms of expression. The right to speak anonymously is therefore not absolute. However, this right would be of little practical value if there was no concomitant right to remain anonymous after the speech is concluded. Those who suffer damages as a result of tortious or other actionable communications on the Internet are clearly able to seek a remedy.

See also:

Alvis Coatings, Inc. v. John Does One Through Ten, 2004 U.S. Dist. LEXIS 30099

Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328

Christopher King said...

Also better check:

Cantrell v. Forest City Pub. Co., 419 U.S. 245

In Time, Inc. v. Hill, 385 U.S. 374, the Court considered a similar false-light, invasion-of-privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law §§ 50-51 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for recovery....

Boo.

Yah.

Christopher King said...

And there's more.

Wait for it....

It is clear, however, that [HN1] both Ohio and West Virginia recognize a legally protected interest in privacy. E. g., Housh v. Peth, 165 Ohio St. 35, 133 N. E. 2d 340; Roach v. Harper, 143 W. Va. 869, 105 S. E. 2d 564; Sutherland v. Kroger Co., 144 W. Va. 673, 110 S. E. 2d 716. Publicity that places the plaintiff in a false light in the public eye is generally recognized as one of the several distinct kinds of invasions actionable under the privacy rubric. See Prosser, Privacy, 48 Calif. L. Rev. 383, 398-401; Restatement (Second) of Torts § 652E (Tent. Draft No. 13).

Horn Dog said...

I can see your point. How troubling it was for me, the one true Horn Dog, to have my indetity misappropriated some months back by ne'erdowells and like scoundrels. This is important work. Fare forward!

Christopher King said...

Yup.

And if Horn Dog was your God-given name, with a set of values attributable to you and broadcast to place you in a False Light then you may have had a case.

Word.

Christopher King said...

And IP addresses are pretty easy to obtain.

I'll bet that Attorney Sullivan's is:

24.128.101.193

There you go.

Christopher King said...

Nail in coffin:

Helen M. O'Neill v. Valley Regional Health Care, Inc. et al.

Civil No. 00-441-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2001 DNH 54; 2001 U.S. Dist. LEXIS 8992

D. False Light Invasion of Privacy

O'Neill alleges that Ellsworth's statements about her to her supervisors and subordinate employees were false and demeaning and presented her [*7] in a false light. The New Hampshire Supreme Court has addressed the tort of false light invasion of privacy only in dicta. See Hamberger v. Eastman, 106 N.H. 107, 110, 206 A.2d 239 (1964). This court has predicted that New Hampshire law would apply the elements of the tort which are provided in the Restatement (Second) of Torts § 652 (1977), as have other jurisdictions. 2 See, e.g., Young v. Plymouth State Coll., 1999 WL 813887, at *14 & n.9 (D.N.H. Sept. 21, 1999). Ellsworth contends that O'Neill has not alleged sufficient publicity of the allegedly false statements to constitute false light invasion of privacy.

The publicity element of false light invasion of privacy is defined as making a matter public "by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) of Torts § 652D cmt. a. (1977); accord Moore v. Big Picture Co., 828 F.2d 270, 273 (5th Cir. 1987); Robinson v. Caronia Corp., 92-306-B, at *26 (D.N.H. Jan. 4, 1996). HN3Courts that have interpreted the publicity requirement in the context of employment cases have decided that communications within the workplace among employees or to supervisors or officers of the employer do not constitute publicity. See, e.g., Frobose v. Am. Sav. & Loan Ass'n, 152 F.3d 602, 617-18 (7th Cir. 1998); Grossman v. Computer Curriculum Corp., 131 F. Supp. 2d 299, 2000 WL 33180431, at *9 (D. Conn. 2000); Jones v. Sabis Educ. Sys., Inc., 1999 U.S. Dist. LEXIS 19449, 1999 WL 1206955, at *8 (N.D. Ill. Dec. 13, 1999); Robinson, supra.

In this case, O'Neill alleges "Ellsworth publicized these false, demeaning and highly offensive accusations by conveying them to a substantial number of third parties [*9] which included the plaintiff's subordinate employees as well as plaintiff's supervisors at the hospital." Compl. P46. Given the highly deferential standard applicable to a motion for judgment on the pleadings, the court must take O'Neill's allegations as true and draw reasonable inferences in her favor. Therefore, since it may be inferred from O'Neill's allegations that Ellsworth made false light statements to third persons outside of the workplace community, O'Neill's claim cannot be dismissed for lacking allegations of publicity.

Christopher King said...

Ahhhh.... time for the Misappropriation of Likeness claim:

Thompson v. C&C Research & Dev. LLC, 153 N.H. 44 (2006)

In Remsburg v. Docusearch, 149 N.H. 148, 157, 816 A.2d 1001 (2003), [***9] we adopted the tort of invasion of privacy by the appropriation of an individual's name or likeness. See Restatement (Second) of Torts § 652C comment a at 381 (1977). Under our decision in Remsburg, HN3liability under this theory occurs when one "appropriates to [their] own use or benefit the name or likeness of another." Remsburg, 149 N.H. at 157 (citation omitted).

In Remsburg, we also recognized that such an appropriation "occurs most often when the person's name or likeness is used to advertise the defendant's product. " Id. at 158 (citations omitted).

Christopher King said...

Update after correspondence with Professor Pasquale:

"Mr. Pasquale does not need to sue anyone at this
point because the poster himself has admitted that it
was not him. That does not mean that Mr. Pasquale has no suit, only that he chose not to pursue one after
the poster fessed up."

....In this case the poster has not fessed up; we need to go in after him/her/them.