18 March 2008

KingCast email to Union Leader's counsel Greg & Kate Sullivan on the KingCast/Jesseman case to obtain IP address of bogus poster.

See generally this Harvard law blog post, but check the case of Remsburg v. Docusearch, 149 N.H. 148 as noted in the comments. Yah, I know Attorney Gottesman, he's a State Senator and I'm going to tell him all about this case.

Date: Tue, 18 Mar 2008 04:04:21 -0700 (PDT)
From: "Christopher King" kingjurisdoctor@yahoo.com
Subject: Remsburg v. Docusearch
To: [Blankety-blank private email addy]
CC: kingjurisdoctor@yahoo.com


Look Mr. Jesseman or me or Judge Lynn straight in the
eye and tell us that the anonymous poster has not run
afoul of the Remsburg standard.....

From the Post Hearing Brief:

D: Summary
All you have in this World guaranteed are your thoughts. And once the Court allows people to steal those unique thoughts and to use them -- indeed misappropriate them for their own political or financial gain and not as satire, while falsely purporting to be the "signatory" -- we really have no reason to proclaim America to be the Land of the Free. People could just steal your thoughts under imprimatur of the Court and use them to promote the causes to which you are diametrically opposed. There’s no Court in the World that should condone that activity.

It's like pornography: Petitioners cannot define the line but we know when we see it; know when it has been crossed. To continue that analogy, there was no Literary, Artistic, Political or Scientific matter to the false post, and what political value it may have had….. was a lie.


Christopher King said...

Remsburg v. Docusearch, Inc., 149 N.H. 148 (2003)

“Tortious liability for appropriation of a name or likeness is intended to protect the value of an
individual's notoriety or skill. Thus, in order that
there may be liability for such appropriation, a
defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness.

The misappropriation tort does not protect one's name per se; rather it protects the value associated with that name. Appropriation is not actionable if the person's name or likeness is published for purposes other than taking advantage of the person's reputation, prestige,
or other value associated with the person. Appropriation occurs most often when the person's name or likeness is used to advertise the defendant's product or when the defendant impersonates the person for gain.”

And while you're at it you might as well brief the
LAPS test for pornography and the Falwell v. Hustler
parody case because I take you there in my Post
Hearing Brief.

The poster's comment had no Literary, Artistic,
Political or Scientific value, and what political
value it may have had..... was a lie.

Best regards,

Christopher King, J.D.
On behalf of KingCast.net

Christopher King said...

Cited by Thompson v. C&C Research & Dev. LLC, 153 N.H. 446 (2006).

Christopher King said...

And of course on the False Light claim KingCast has that all sorted too.

O'Neill v. Valley Reg'l Health Care, Inc., 2001 DNH 54 (2001).

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.


2 Section 652 describes the tort of false light invasion of privacy as "one who falsely gives publicity to a matter concerning another that places the other in a false light . . . if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) 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."

[*8] 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...

In comes Professor Pasquale:

Date: Tue, 18 Mar 2008 08:09:30 -0400
From: "Frank Pasquale" To: "Christopher King" kingjurisdoctor@yahoo.com
Subject: Re: Defamation/False Light/Appropriation and IP address cases

....I may be doing a program on the topic of web privacy soon and it does look like those posts and comments will be useful.

best wishes,


Also, it is highly possible that someone involved in LE did this, and that they did it from a public computer.

That would be Just Cause for termination, duh.

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.