An attempt by Caribbean resort operator Sandals Resorts International Ltd. to force Google Inc. to turn over extensive information about the sender of an allegedly libelous e-mail criticizing the company’s treatment of native Jamaicans has been rebuffed by a New York appellate court in a decision that grapples with the nature of libel claims in the Internet age.
A unanimous panel of the Appellate Division, First Department, ruled in Sandals Resorts v. Google, 100628/10, that the online post, considered in its entirety, constituted an expression of opinion.
The decision, written by Justice David B. Saxe (See Profile), highlights the “freewheeling” nature of online communications, pointing out that readers generally give statements in private e-mails, blogs and other online media less credence than statements in traditional media, and are less likely to understand them as statements of fact. Courts, the judge wrote, must adjust their standards for libel accordingly.
The opinion approvingly quotes law review articles that made the case that online communications “are often the repository of a wide range of casual, emotive, and imprecise speech, and that the online recipients of [offensive] statements do not necessarily attribute the same level of credence to the statements [that] they would accord to statements made in other contexts” (55 NY L Sch L Rev 333, 335, 2010/11).
The judge said that his observation was “in no way intended to immunize e-mails the focus and purpose of which are to disseminate injurious falsehoods about their subjects.” However, he said the court should protect against business interests who use subpoenas to “enlist the help of [Internet service providers] via court orders to silence their online critics [which] threatens to stifle the free exchange of ideas” (43 J Marshall L Rev 1, 15 [Fall 2009]).
The case began last year, when Sandals filed a petition in New York Supreme Court for pre-action discovery so that it could begin building a libel case against the e-mail’s author, who accused Sandals of benefiting from state subsidies in Jamaica while hiring native Jamaicans only for low-paying, menial jobs. That author, identified as John Anthony, used the Google e-mail address firstname.lastname@example.org and sent the e-mail to numerous undisclosed recipients.
The e-mail contained links to numerous news articles and websites intended to contrast the wages and living conditions of native Jamaicans, especially those employed by Sandals, with the financial success of Sandals and its top employees. It suggested that Sandals, while receiving tax subsidies from the Jamaican government, reserved its high-skill, high-paying jobs for foreigners.
Sandals alleged the e-mail was false and defamatory in claiming that the company was racist. It said that an accusation of racism was inherently a basis for a libel claim, relying on the Appellate Division case of Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 (1995). In that case, a former MOMA employee claimed that she was falsely accused of making anti-Semitic remarks and then fired. The court ruled that the allegation of anti-Semitism was an example of “slander per se” and denied the museum summary judgment.
Sandals asked the court to order Google to turn over “all information concerning the Google account de-signated email@example.com, including but not limited to all e-mail, instant messages, text messages, buddy lists, address books, contact lists, account histories, account settings, profiles, mail boxes, folder structure, detailed billing, user activity records (log on and log off times), user identification records, phone number access records, ISP access records, and all information provided by the user at the time the account was created.”
In March 2010, Supreme Court Justice Alice Schlesinger denied the petition, ruling that the e-mail “does not contain assertions of fact, nor would a reasonable person construe that it does.”
Justice Schlesinger also noted that the e-mail’s numerous links to outside sources invited readers to draw their own conclusions and suggest “that the account holder’s words are meant to provoke either thought or discussion and are therefore protected speech.”
Finally, the judge said the company offered no evidence that it was harmed by the e-mail.
‘Exercise in Rhetoric’
The First Department agreed. Justice Saxe rejected Sandals’ argument that the e-mail was an accusation of racism and thus provided per se grounds for a libel claim.
“Herlihy is inapposite to Sandals’ claim,” Justice Saxe wrote. “Although implying that someone is racist is as libelous as representing someone as anti-Semitic, here, we are not dealing with a few oral statements that each stand on their own, but with a multi-page writing. Consequently, our inquiry must address both the words and the context of the e-mail as a whole, as well as its broader social context, to determine whether the content of the e-mail constitutes defamation.”
To evaluate the e-mail, Justice Saxe relied on the standard set by the state’s Court of Appeals in Steinhilber v. Alphonse, 68 NY2d 283 (1986). That decision held that a statement of opinion is not actionable as libel if it presents the facts on which the opinion is based, but is actionable if it suggests that it is based on facts known to the author but not to readers. The judge said that the e-mail could not qualify as libel under this standard.
“Considering the e-mail in question here as a whole, we find that it is an exercise in rhetoric, seeking to raise questions in the mind of the reader regarding the role of Jamaican nationals in the Sandals resorts located in Jamaica,” Justice Saxe wrote for the court.
He noted that the e-mail was “replete with rhetorical questions, asked either in relation to a link to an article about Sandals’ companies or executives or in relation to a link to a photograph from the resorts’ on-line public relations materials. Its apparent purpose is not to characterize Sandals Resorts as racist. It is to call the reader’s attention to the writer’s belief that the native people of Jamaica, specifically the taxpayers, are providing financial support for the resorts on their island, but are not reaping commensurate financial rewards for that investment.”
Justice Saxe also observed that “the tone of the e-mail, as well, indicates that the writer is expressing his or her personal views, in that it reflects a degree of anger and resentment at the idea that travel agents make money from the success of Sandals, and foreign nationals earn large salaries from the resorts, while native Jamaicans benefit financially only by being hired for service jobs at the resorts.”
Thus, he concluded that, “To the extent the e-mail suggests that Sandals’ hiring of native Jamaicans is limited to menial and low-paying jobs, a reasonable reader would understand that as an allegation to be investigated, rather than as a fact.”
Justices Angela M. Mazzarelli (See Profile), James M. McGuire (See Profile), Helen E. Freedman (See Profile) and Sheila Abdus-Salaam (See Profile) joined the opinion. Oral argument in the case was heard on Oct. 27, 2010.
David B. Newman of Day Pitney, who represented Sandals, could not be reached for comment.
Google was represented by Joshua A. Plaut of Wilson Sonsini Goodrich & Rosati. A Google representative could not be reached for comment.
@|Brendan Pierson can be contacted at firstname.lastname@example.org.