Wednesday, August 31, 2011

Truthful Blogging = Tortious Interference with Contract?

My apologies for the lack of blogging this week. My wife and I recently added a new member to our family so I have been a little (actually, A LOT) preoccupied. Now, back to your regularly scheduled blog entry...

The Minneapolis Star Tribune has some bad news for bloggers: Blogger Johnny Northside Must Pay $60,000 to Fired Community Leader. The short version of the fact pattern:
Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.
The lawsuit was based on a "tortious interference of contract" theory. Surely truthful criticism is protected by the First Amendment though, right? Prof. Eugene Volokh thinks so: "people are constitutionally entitled to speak the truth about others, even with the goal of trying to get them fired." As Volokh also points out, the Restatement (Second) of Torts addresses this issue:
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person . . . truthful information.
I'll note that a comment in the Restatement further clarifies (my emphasis added):
There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another.
Although the Minnesota state court disagrees in this case, my Pennsylvania readers can rejoice. In Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., the Pennsylvania Superior Court adopted the Restatement on this issue, concluding that " true statements may not be the basis for a claim of intentional interference with contractual relationships."

Bloggers and employment lawyers may want to keep an eye on this one. Volokh's sources tell him an appeal is forthcoming...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

2 comments:

  1. There is another Minnesota defamation suit similar to this one, in that a defamation plaintiff whose suit was dismissed has filed an appeal to have interference with business separately adjudicated.

    See:

    http://www.citmedialaw.org/blog/2011/60000-ruling-against-truthful-blogger-tests-limits-first-amendment (comments)

    http://www.citmedialaw.org/threats/david-mckee-v-dennis-laurion

    http://macsnc.courts.state.mn.us/ctrack/view/publicCaseMaintenance.do?csNameID=71108

    ReplyDelete
  2. ABBY SIMONS , Star Tribune, January 30, 2013

    [ Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father's neurologist. He expected at most what he calls a "non-apology apology. I really thought I'd receive something within a few days along the lines of 'I'm sorry you thought I was rude, that was not my intent.' I certainly did not expect to be sued."

    He was. Dr. David McKee's defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor's reputation.

    The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

    It's a frustrating end for McKee, 51, who said he's spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him -- likely from people who never met him. He hasn't ruled out a second lawsuit stemming from those posts.

    "The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress."

    The lawsuit followed the hospitalization of Laurion's father, Kenneth, for a hemorrhagic stroke at St. Luke's Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.

    On at least two sites, Laurion wrote that McKee said that "44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option," and that "It doesn't matter that the patient's gown did not cover his backside."

    Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the "tool" statements also didn't pass the test of defaming McKee's character. He dismissed an argument by McKee's attorney, Marshall Tanick, that the "tool" comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. "Referring to someone as 'a real tool' falls into the category of pure opinion because the term 'real tool' cannot be reasonably interpreted as stating a fact and it cannot be proven true or false," Page wrote.

    Tanick said the ruling could present a slippery slope. "This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse," he said.

    Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from "an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements," she said. "Rather, it's an endorsement that statements of opinion are protected under the First Amendment." ]

    http://www.startribune.com/local/189028521.html?refer=y
    Full article

    http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&sort=E&section=/local&page_nbr=2&ipp=10
    Comments

    http://patients.about.com/b/2013/02/11/and-david-mckee-fires-back-proving-the-point.htm
    Plaintiff remarks about the lawsuit

    http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
    Defendant remarks about the lawsuit

    ReplyDelete