A judge has dismissed a major portion of a defamation suit that grew out of blog posts involving two people who ended a short-term relationship, finding that most of the disputed posts and emails, though acidly worded, boiled down to non-actionable opinion.
In an estimated $1.25 million dollar defamation suit against Louise Silberling, John Wender submitted 31 exhibits of allegedly defamatory material, from online posts and emails he claimed she wrote about his purported infidelities, his alleged deficiencies as an architect and other issues. Silberling has denied she is the author of the blog posts and has argued that the comments are opinion and the claims are time barred.
In a July 8 ruling on Siberling’s dismissal motion in Wender v. Silberling, 160505/13, Manhattan Supreme Court Justice Anil Singh (See Profile) said of the exhibits, “many are not falsifiable and, hence, qualify as opinion, and many others, although they are vituperative, do not constitute libel per se.”
But Singh did conclude that an “autobiography” ascribed to Wender—mentioning “criminal acts,” drug use, sexually-transmitted diseases—was actionable.
“A literary impersonation that imputes facts to the person impersonated is sufficient to state a cause of action for defamation. Here, plaintiff alleges that defendant published the false, confessional autobiography attributed to plaintiff,” Singh said.
Defamation cases arising from statements made in cyberspace are increasingly common, said Shari Claire Lewis, a partner at Rivkin Radler and Internet and computer law expert who is not involved in the case.
Factors behind the rise include the “very freewheeling, very aggressive” tone of commenters, the lack of editorial filters and the fact that comments that would have been soon forgotten in other mediums were now locatable for years to come, she said.
In the underlying case, Wender and Silberling, an editorial associate for an academic journal on philosophy at Cornell University, met through the Internet and struck up a relationship in March 2011.
They met in person three times, and the relationship ended in January 2012.
In the months after the relationship’s end, Wender said in court papers that Silberling “engaged and continues to engage in a malicious campaign to utterly destroy plaintiff’s personal and professional reputation.”
The allegedly defamatory content took the form of blog posts and emails that were anonymously sent to Wender or his immediate family members.
In addition to denying authorship, Silberling said the statements were expressions of opinion and many of the disputed statements were past the one-year statute of limitations on defamation actions.
Besides, Silberling noted she had two email accounts, but neither were alleged to be the source of the material.
“Not having any clue who posted the alleged defamatory statements, the proper procedure was for [Wender] to move pursuant to CPLR §3102 (c) for pre-suit discovery. [Wender] did not do so because such a proceeding requires a showing that there is a valid cause of action,” which was absent here, Silberling said.
In his decision, Singh said just one item, a 2012 poem on her Facebook page, was time-barred.
He pointed to rulings from the Appellate Divisions of the First Department, Sandals Resort International Limited v. Google, 86 A.D.3d 32, and Second Department, LeBlanc v. Skinner, 103 A.D.3d 202, that scrutinized the contours of defamation on the internet.
Both courts observed that readers put less credence on allegedly defamatory remarks posted on the Internet than they might if the remarks appeared in other contexts.
Singh also looked to a 1999 state Court of Appeals decision, Lunney v. Prodigy Servs. Co., 94 N.Y. 2d 242.
In that case, a Boy Scout’s father had sued on behalf of his son after an imposter posted vulgar messages on an online bulletin board in the boy’s name. The court refused to hold Prodigy, the now-shuttered Internet service provider, liable for negligence or defamation, but said for the purposes of its holding, it would “assume that although he was not directly attacked, [plaintiff] was defamed by being portrayed as the author of the foul material.”
Noting Lunney, Singh said the alleged autobiographical wording, which showed up in two exhibits, was actionable.
Singh acknowledged Wender could have sought pre-action discovery or filed suit against an unnamed defendant. “However, that he did not do so is not a ground for dismissing the action, as this court must assume for the purposes of the motion that Silberling is the person making the postings,” he said.
If it turned out Silberling was wrongly named, Singh said her remedy would be a sanctions bid against Wender.
Steven D. Skolnik and Ralph N. Gaboury of Cox Padmore Skolnik & Shakarchy represent Wender. Skolnik did not respond to a request for comment.
Jared Lefkowitz of Manhattan represents Silberling and called Singh’s ruling “reasoned and thoughtful.”
“Other than the Facebook quote, the other articles cited by the plaintiff are anonymous blog posts, for which there was not evidence [Silberling] was the author,” he said.
Lewis said Singh’s ruling was “within the continuum of what the courts have been deciding, giving greater leeway” to assertions that might have had plausible chances to get past the pleadings stage if the statement was made in another medium.
Lewis noted more people are asking whether they had worthwhile Internet defamation cases. She said she is “reticent” to have clients bring suit. “The battle tends to be expensive with not a clear likelihood of recovery in sight,” she said.