Miscellaneous – Page 2 – Attorney Evan Brown

August 19, 2010 Miscellaneous

New Jersey court gives a boon to local printed newspapers

Online edition of out-of-state newspaper not “printed and published” in state for purposes of providing legal notice.

Courier-Post v. County of Camden, — A.2d —, 2010 WL 3025108 (N.J.Super.A.D. August 4, 2010)

Like probably every other state, New Jersey has a statute that requires certain notices (like those for sheriff’s sales) to be published in the newspaper. A county government can place such notice in any newspaper that is “printed and published” in New Jersey. N.J.S.A. 2A:61-1

Camden County, New Jersey officials negotiated a favorable rate with the Philadelphia Inquirer to be the paper to publish the county’s legal notices. (That paper is widely read in Camden County, New Jersey.)

The local paper of course objected and filed suit. A New Jersey court of appeals held that the contract to publish legal notices in the Philadelphia Inquirer was improper because the Philadelphia Inquirer did not meet the requirement that the newspaper be “printed and published” in New Jersey.

One of the argumets that the Philadelphia Inquirer made was that its online version was available for viewing and printing in Camden County by internet users there. The court rejected this argument for a number of reasons.

It found it unlikely that a reader would print out an entire edition of an online newspaper.

The court also looked to a notion first articulated by Oliver Wendell Holmes when he was on the Massachusetts Supreme Court: the home office concept. Under this notion, a newspaper is published where it is “given to the world.”

The court went on to say some interesting things about publishing and the physical nexus between a place and its local news outlets. It raised concerns that a reading of the statute allowing out-of-state online newspapers to pass the “printed and published” in New Jersey test, then any newspaper around the globe would count.

Even more intriguingly, the court observed the perils of eliminating “the physical connection between the newspaper’s operation and the community.” That “physical connection is significant because a local newspaper is where people will ordinarily go for local news whether online or at the local newsstand.”

I bet the folks at places like Patch would take issue with that.

Photo courtesy Flickr user Valerie Everett under this Creative Commons license.

November 5, 2009 Miscellaneous, Privacy

Death scene photos posted on the web did not subject coroner to liability

Werner v. County of Northampton, 2009 WL 3471188 (3rd Cir. October 29, 2009) (Not selected for official publication).

Plaintiff’s son died in the family home. No one seems to know for sure whether it was an accident or suicide. Even Plaintiff gave conflicting statements to the court — in his complaint he said it was not suicide, but in a later-filed brief he said it was.

Do not cross this line and I mean it.

In any event, on the day the son died, the coroner came to the house to take pictures. Somehow the coroner’s son got a hold of the photos and posted them on the web with a caption “There is no better way to kill yourself.”

Plaintiff sued the coroner under 28 U.S.C. 1983 which, among other things, gives citizens a cause of action when their rights are violated by someone acting under the law. Plaintiff claimed the coroner committed a due process violation of Plaintiff’s liberty interests in his reputation by allowing the photos to be posted.

To succeed on his liberty interest claim, Plaintiff was required to satisfy the “stigma plus” test. The district court dismissed the complaint, finding Plaintiff’s allegations did not meet this standard.

A statement that is “stigmatizing” under this test must be (1) made publicly, and (2) false. In this cause, the court found that the death scene photos were the relevant statement. But there were no allegations in the complaint that the photos themselves were “false.” (What the court was probably saying here is that the photos had not been Photoshopped or otherwise changed in a way to make them not accurately portray the scene.)

The court made a fine distinction in the process of dismissing the case. In response to the motion to dismiss, Plaintiff argued that the thrust of his argument was that the website falsely suggested his son committed suicide. But the court found otherwise, carefully looking at the allegations of the complaint which, for example, said that the photos “fueled the false impression that the Plaintiff’s son committed suicide.”

There were no allegations that the photos themselves were the false statements. But what about the caption, “[t]here is no better way to kill yourself,” you ask? Though the opinion does not address this point, one is left to conclude that that language could not be attributed to the defendant coroner, since it was his son that posted the photos, and not himself.

Photo courtesy Flickr user Fabio Beretta under this Creative Commons license.

November 3, 2009 Miscellaneous

In New Hampshire, your landlord has to give you free* cable

Lally v. Flieder, 986 A.2d 652 (N.H. 2009)

Hey, let’s watch HGTV and get some ideas for the apartment! It’s not like we have to pay for it or anything.

Anyone who has ever been a landlord will think the New Hampshire Supreme Court may have lost its mind. Those who like TV and broadband access a lot may think otherwise.

Awesome apartment with guitars that kick even more ass, yo.

Here’s the story.

A tenant told his landlord that he wasn’t going to pay rent anymore. So the landlord sued for unpaid rent and to get possession of the apartment back. Six days later the landlord disconnected the cable service. Turns out that was a no-no.

The nonpaying tenant countersued the landlord under a New Hampshire law that provides:

No landlord shall willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to water, heat, light, electricity, gas, telephone, sewerage, elevator or refrigeration, whether or not the utility service is under the control of the landlord, except for such temporary interruption as may be necessary while actual repairs are in process or during temporary emergencies.

The trial court ruled in favor of the landlord, finding that cable service was not a protected utility and therefore by disconnecting the service, the landlord had not engaged in unlawful self help.

The tenant sought review with the New Hampshire Supreme Court. On appeal, the court reversed, finding cable service critical to the notion of “habitability.”

The court looked to the language of the statute and found cable service to be like the utilities specifically mentioned. The court observed that the specified utilities “all pertain to the habitability of a dwelling or a person’s well being.”

Right. In the middle of a brutal New Hampshire blizzard, nothing will keep you warm like a hearty dose of the Kardashians. And who doesn’t think the right to surf for porn is every bit as essential to a happy life as not having raw sewage backing up in your kitchen sink.

Apparently the members of the court really like watching TV and surfing the web using a broadband connection:

Modern cable television also pertains to the habitability of a dwelling and a person’s wellbeing. Indeed, many people access essential telephone service, the Internet, news information and entertainment by way of cable. Thus, the unlawful termination of a tenant’s cable television service would be a means of accomplishing a self-help eviction-the very evil the legislature meant to deter.

For these reasons, the court found that the landlord broke the law when it discontinued the nonpaying tenant’s cable service.

*Until the court kicks your ass to the curb.

Apartment photo courtesy Flickr user Jordan Roher under this Creative Commons license.

November 2, 2009 Miscellaneous

Relationship status and the law: it’s complicated

Online statements by mother were critical evidence in paternity case

Watermeier v. Moss, 2009 WL 3486426 (Tenn. Ct. App. October 29, 2009)

Under Tennessee law a man can petition the court to determine that he is the father of a child born to a woman who is married to someone else. (Better make sure there is good security in the courthouse parking lot!)

The court will consider a petition filed more than 12 months after the child’s birth untimely if : (1) the mother was married and living with her husband at the time of conception, (2) the mother and her husband “remained together” through the time the petition was filed, and (3) both the mother and her husband file a sworn statement saying the husband is the father.

Petitioner Watermeier asked the court to determine that he was the father of a child born to Appellee, a woman married to someone else. The woman and her husband opposed the petition. The parties did not dispute that she lived with her husband when the baby was conceived. The woman and her husband also both filed purportedly sworn statements that they were the parents of the child. The troublesome issue was whether the husband and wife had “remained together” through the time the petition was filed.

There was no dispute the two had separate residences. But they were not divorced and they testified they had no intention of getting divorced. In any event, the court found that the two had not “remained together” as provided under Tennessee law.

Among the important pieces of evidence the court relied upon in determining whether the two “remained together” were postings that the mother had made to an online dating service. On different occasions she had listed herself as “separated” and “divorced.” The court took these statements to “demonstrate that this is not an intact marriage and the parties have not ‘remained together.'”

So saying that “it’s complicated” might be an understatement, don’t you think?

Photo courtesy Flickr user debaird under this Creative Commons license.

June 16, 2009 Litigation, Miscellaneous

Domain name not tangible property that could satisfy judgment

Palacio del Mar Homeowners Assn., Inc. v. McMahon, — Cal.Rptr.3d —, 2009 WL 1668294 (Cal. App. 4 Dist. June 16, 2009)

A California state court entered a $40,000 judgment against defendant McMahon in favor of plaintiff homeowners association. The homeowners association tried to collect the money from McMahon, seeking a “turnover” of property McMahon owned. Among the items the homeowners association sought was the domain name ahrc.com, registered in the name of McMahon’s wife.

The trial court permitted the domain name to be turned over to the homeowners association to satisfy the judgment. McMahon sought review with the California Court of Appeal. That court reversed and vacated the turnover order.

The court gave several reasons for reversing the lower court. The most interesting reason, however, dealt with the very nature of domain names. The provision in California law allowing turnover of property limits itself to tangible property that can be “levied upon by taking it into custody.” Looking to the case of Network Solutions, Inc. v. Umbro International, Inc., 529 S.E.2d 80 (Va. 2000), the court held that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Even if the registration were property, it was not something that could be taken into custody.

September 2, 2008 Evidence, Litigation, Miscellaneous

Slamming Wikipedia’s reliability not enough in immigration case

Badasa v. Mukasey, — F.3d —, 2008 WL 3981817 (8th Cir. Aug. 29, 2008)

Illegal alien Badasa sought asylum in the United States. To establish her identity, she submitted to the Immigration Judge a “laissez-passer” issued by the Ethiopian government. Opposing the application for asylum, the Department of Homeland Security submitted a number of items, including a Wikipedia article, to show that a laissez-passer is merely a document issued for a one-time purpose based on information provided by the applicant. The Immigration Judge was not convinced that the laissez-passer established Badasa’s identity, and denied the application for asylum.

Badasa appealed to the Board of Immigration Appeals, which agreed that asylum should be denied. It soundly criticized Wikipedia’s reliability to establish the meaning of the document at issue, but found there was enough other evidence to support the Immigration Judge’s conclusion that Badasa had failed to establish her identity. But the Board of Immigration Appeals failed to discuss this other evidence, therefore running afoul of the administrative law textbook case of SEC v. Chenery, 318 U.S. 80 (1943).

So the Eighth Circuit sent the case back to the Board of Immigration Appeals to make additional findings. The court observed that the Board of Immigration Appeals found that “Badasa was not prejudiced by the [Immigration Judge’s] reliance on Wikipedia, but [the Board of Immigration Appeals] made no independent determination that Badasa failed to establish her identity.” In short, the Board of Immigration Appeals had focused only on why the use of Wikipedia made the case less “solid,” and did not address the lack of solidity found in any of the other evidence connected with the laissez-passer used to establish identity.

July 1, 2008 Computer Crime, Miscellaneous

Accused blogger did not cause substantial emotional distress

Ramsey v. Harman, — S.E.2d —-, 2008 WL 2415127 (N.C.App. June 17, 2008)

Defendant Harman maintained a blog on which she put up some posts accusing plaintiff Ramsey’s daughter of being a bully. Harman also posted this:

With all the bulling [sic] and harassing that goes on in our school system. Then the trouble that went on Friday at Madison Middle. The first student in that age group that came to mind was [plaintiff]’s daughter. Wasn’t this the student that harassed the Cantrell child? And we wonder why some kids hate to go to school…..

Ramsey apparently took great offense, filing suit against Harman for “stalking” under North Carolina law, and sought a “civil no-contact order” (like a restraining order) against Harman. The trial court granted the no-contact order and Harman sought review with the state appellate court. On appeal, the court reversed.

Harman argued that the lower court erred in finding that she had violated the state’s anti-stalking law (N.C. Gen. Stat. §50C-1(6)). She also argued the order violated her First Amendment rights. Because the court found there was insufficient evidence to support a violation of the statute, it did not need to rule on the constitutional issue.

The main question before the court was whether Harman’s blog posts were intended to cause, and indeed did cause, “substantial emotional distress” to Ramsey and her daughter. The court found there was no such showing. There were no threats of physical harm, and the only evidence as to the effect on the plaintiff’s daughter was that she was “embarrassed” when teachers at school were reading the blog posts. But there was evidence that the school had blocked access to the website, making the claim implausible to begin with. There were no communications directly between the defendant and the plaintiff, and the plaintiff’s daughter’s name was never mentioned. Moreover, there was evidence that the posts were made in retaliation over a disagreement between the Harman and Ramsey which had taken place on a political website, and over an alleged threatening phone call Harman had gotten from some of Ramsey’s family members.

June 27, 2008 Miscellaneous

Nominate one or more “Stars of the Blawgosphere” for upcoming Blawg Review

Jonathan Frieden over at E-Commerce Law will be hosting the Independence Day edition of Blawg Review which, in patriotic fashion will be themed “50 Stars of the Blawgosphere.” Go here to make your nominations.

On a related, nostalgic note, hard to believe that it was more than three years ago that Internet Cases hosted Blawg Review 10. John’s turn coming up on July 7 will be number 167!

June 18, 2008 Litigation, Miscellaneous

Negligence claim allowed in laptop theft case

Ruiz v. Gap, Inc., 540 F.Supp.2d 1121 (N.D. Cal. March 24, 2008)

In 2006, Ruiz applied for a job at the Gap and was required to provide his Social Security number. A vendor hired by the Gap for recruiting stored Ruiz’s information on a laptop which, as luck would have it, was stolen.

Though he was not (at least yet) the victim of identity theft, Ruiz sued the Gap for negligence. The Gap moved for judgment on the pleadings which the court also treated as a motion to dismiss for failure to state a claim. The court denied the motion to dismiss as to negligence (and granted the motion as to claims for bailment, unfair competition and violation of the California constitutional right to privacy). But Ruiz’s standing to bring the claim was tenuous.

The Gap had argued that Ruiz lacked standing. His only alleged harm was that he was at an increased risk for identity theft. The court’s analysis of the Gap’s objection to standing focused on the first element of the Lujan test (Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), namely, whether Ruiz’s alleged injury was “concrete and particularized.”

The Ninth Circuit has held for allegations of future harm to confer standing, the threat must be credible, and the plaintiff must show that there is a “significant possibility” that future harm will ensue. The Lujan case (which is the leading Supreme Court authority on standing) essentially creates a “benefit of the doubt” for plaintiffs at the pleading stage — a court is to presume that general allegations embrace those specific allegations that are necessary to show a particularized injury. Ruiz’s general allegations of the threat of future harm were thus sufficient to confer standing.

But the court gave a warning to Ruiz that the threshold of standing does not apply only to pleadings, but is an indispensable part of a plaintiff’s case throughout. In other words, he’ll have to come up with more later to keep the case in court.

So in denying the motion to dismiss the negligence claim, the court incorporated its standing analysis. The only issue on the point of negligence was whether Ruiz had suffered an injury. Ruiz’s general allegations were sufficient.

June 11, 2008 Miscellaneous

Internet law seminar this Friday in Chicago

This Friday (6/13/08) starting at 2pm at the Chicago Bar Association building [map], there will be an interesting 3-hour seminar titled “Management and Enforcement of Digital Rights on the Web.” The CBA’s Cyberlaw and Data Privacy Committee (which I’ll be chairing next year) is a co-sponsor of this event.

Topics include:

Trademarks online
Copyright online
Online terms and conditions
Conducting investigations online

Great faculty lined up:

The cost is $80 for CBA members and $140 for nonmembers.

Hope to see you there.