HARVEY S. MARS - ATTORNEY AT LAW

Dear Site Visitor,

I have recently discovered that there are several web sites and blogs posted on the Internet that contain disparaging opinions about me professionally, as well as several of my clients. These opinions have been posted by or on behalf of Stephen Guy Polis a/k/a Guy Polis, a pro se litigant in a suit I had initiated against him in New York State Supreme Court on behalf of his former employer. The suit involved several tort claims, including breach of a confidentiality agreement he had entered into with this employer. I have recently published two articles addressing some of the provocative legal issues that these opinion postings have raised. These articles are set forth in their entirety below:

Allegro
Volume CVIII No. 5
May, 2008

Some Blogger Called Me a Jerk!

…but can I sue him for libel?

by Harvey Mars, Esq.

They say the Internet is the great equalizer. Anyone with a computer, regardless of who they are, may access and post information on it and potentially reach a worldwide audience. It is in a sense the greatest democratic platform we have ever known. Nonetheless, unlike more traditional public forums, such as newspapers and TV, there are absolutely no filters or thresholds to what may be posted. Thus, unwittingly, the Internet has become the permanent home for both fact and fiction. For this reason it has become a haven for litigation, especially defamation litigation.

A “defamation claim” exists where litigants can prove that they have been subjected to a false statement (written or spoken) by another which is not protected by some form of immunity and which has caused them damage, either financial or to their reputation (or both). False statements that tend to injure an individual in the course of their profession are considered “libel per se,” meaning that damages do not have to be proven. For instance, if someone contends that their doctor has committed malpractice when she has competently performed her professional responsibilities, this content is potentially “defamatory per se.”

There are several defenses to a defamation claim. One, of course, is that the factual contention is actually true. Another is that the contention is not fact, but is actually opinion. Whether an assertion is factual or not is one that is developed from the content and the context of the communication as a whole. If no reasonable reader would construe the statement in question as being an assertion of fact, then it is not actionable.

These common law principles are applied to the Internet. However, a whole new dimension is added when the communications are posted anonymously, as many postings are. Without knowing who the poster is, suit is often difficult if not impossible. Furthermore, pursuant to section 230 of the Communication Decency Act of 1996, 47 USC § 230, providers and users of an interactive computer service are not deemed liable for information provided by another information content provider. This law immunizes Internet service providers from liability from suit for false or misleading information placed upon their blog or through their web service. Therefore, if anonymous Internet users write something that is libelous, their ISP could not be sued.

Within this jurisdiction, there are two recent interesting decisions that demonstrate the limitations on suits involving Internet defamation. In Versaci v. Richie, 30 A.D. 3d 648 (1st. Dept., 2006), an attorney had sued a blogger for referring to him as a “so-called attorney.” The court dismissed the suit because the statement was deemed an opinion given the context of the communication: a gripe blog where individuals complained just about anything that they wanted to, since no reasonable person would construe the phrase as meaning that this individual was not an attorney in that context.

In Greenbaum v. Google, Inc., 18 Misc. 3d 185 (Sup. Ct., 2006), an elected school board member brought an action against an anonymous blogger and the Internet service provider that published allegedly defamatory comments. The plaintiff first sought discovery of the blogger’s identity. The court held that the ISP was immune from suit under section 230 and therefore could not be joined as a party. The court went on to examine the content of the communications at issue and found that they were not actionable because contextually they were opinion.

Due to the specific complexities of Internet defamation, it is easy to fathom that most claims will not be successful. Another factor militating against suit of course is the great expense involved. Before initiating suit, one most examine the net benefits versus the net costs involved. An individual with a credibly established fine reputation has little to gain from commencing suit against a malicious anonymous blogger or Web site owner. Very few reasonable people would give credence to negative comments in that circumstance.

In the final analysis, anyone distressed by Internet commentary should take comfort in the fact that while everyone may have access to the Internet, not everyone believes everything they read!

Most newspapers check facts and sources and allow editorials presenting differing points of view. If a blog or a Web site does not adhere to these standards, it simply speaks volumes about their credibility.

Future Website Of...



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Dear Site Visitor, I have recently discovered that there are several web sites and blogs posted on the Internet that contain disparaging opinions about me professionally, as well as several of my clients. These opinions have been posted by or on behalf of Stephen Guy Polis a/k/a Guy Polis, a pro se litigant in a suit I had initiated against him in New York State Supreme Court on behalf of his former employer. The suit involved several tort claims, including breach of a confidentiality agreement he had entered into with this employer. I have recently published two articles addressing some of the provocative legal issues that these opinion postings have raised. These articles are set forth in their entirety below: Allegro Volume CVIII No. 5 May, 2008 Some Blogger Called Me a Jerk! *…but can I sue him for libel?* by Harvey Mars, Esq. They say the Internet is the great equalizer. Anyone with a computer, regardless of who they are, may access and post information on it and potentially reach a worldwide audience. It is in a sense the greatest democratic platform we have ever known. Nonetheless, unlike more traditional public forums, such as newspapers and TV, there are absolutely no filters or thresholds to what may be posted. Thus, unwittingly, the Internet has become the permanent home for both fact and fiction. For this reason it has become a haven for litigation, especially defamation litigation. A “defamation claim” exists where litigants can prove that they have been subjected to a false statement (written or spoken) by another which is not protected by some form of immunity and which has caused them damage, either financial or to their reputation (or both). False statements that tend to injure an individual in the course of their profession are considered “libel per se,” meaning that damages do not have to be proven. For instance, if someone contends that their doctor has committed malpractice when she has competently performed her professional responsibilities, this content is potentially “defamatory per se.” There are several defenses to a defamation claim. One, of course, is that the factual contention is actually true. Another is that the contention is not fact, but is actually opinion. Whether an assertion is factual or not is one that is developed from the content and the context of the communication as a whole. If no reasonable reader would construe the statement in question as being an assertion of fact, then it is not actionable. These common law principles are applied to the Internet. However, a whole new dimension is added when the communications are posted anonymously, as many postings are. Without knowing who the poster is, suit is often difficult if not impossible. Furthermore, pursuant to section 230 of the Communication Decency Act of 1996, 47 USC § 230, providers and users of an interactive computer service are not deemed liable for information provided by another information content provider. This law immunizes Internet service providers from liability from suit for false or misleading information placed upon their blog or through their web service. Therefore, if anonymous Internet users write something that is libelous, their ISP could not be sued. Within this jurisdiction, there are two recent interesting decisions that demonstrate the limitations on suits involving Internet defamation. In Versaci v. Richie, 30 A.D. 3d 648 (1st. Dept., 2006), an attorney had sued a blogger for referring to him as a “so-called attorney.” The court dismissed the suit because the statement was deemed an opinion given the context of the communication: a gripe blog where individuals complained just about anything that they wanted to, since no reasonable person would construe the phrase as meaning that this individual was not an attorney in that context. In Greenbaum v. Google, Inc., 18 Misc. 3d 185 (Sup. Ct., 2006), an elected school board member brought an action against an anonymous blogger and the Internet service provider that published allegedly defamatory comments. The plaintiff first sought discovery of the blogger’s identity. The court held that the ISP was immune from suit under section 230 and therefore could not be joined as a party. The court went on to examine the content of the communications at issue and found that they were not actionable because contextually they were opinion. Due to the specific complexities of Internet defamation, it is easy to fathom that most claims will not be successful. Another factor militating against suit of course is the great expense involved. Before initiating suit, one most examine the net benefits versus the net costs involved. An individual with a credibly established fine reputation has little to gain from commencing suit against a malicious anonymous blogger or Web site owner. Very few reasonable people would give credence to negative comments in that circumstance. In the final analysis, anyone distressed by Internet commentary should take comfort in the fact that while everyone may have access to the Internet, not everyone believes everything they read! Most newspapers check facts and sources and allow editorials presenting differing points of view. If a blog or a Web site does not adhere to these standards, it simply speaks volumes about their credibility.



Competent or Not? By Harvey Mars, Esq. My column this month may seem a little unrelated to the day-to-day art of music, but there is a chance it may relate to the business or legal angle of your career. It’s about mental competency. If you’ve ever been involved legally with someone who may be mentally ill, you have been affected by the legal definition of competency. To explore this issue further, we have to look at where law and psychiatry come together. It’s a fascinating field known as forensic psychiatry. Forensic psychiatry is a sub-specialty of psychiatry involving physicians who are practicing psychiatrists. They’ve either earned law degrees or completed a specialized certification to qualify them to offer legal opinions. These psychiatrists apply their legal expertise to render opinions involving an individual’s mental status and capacity. Most often they are employed as expert witnesses to educate and persuade either a judge or jury. Quite recently, I retained one of the most well-respected members of this field, Dr. Robert L. Goldstein, M.D., J.D., to offer an expert opinion in litigation I was handling involving a psychiatric hospital’s improper disclosure of confidential patient information. Dr. Goldstein is presently a clinical professor of psychiatry at Columbia University Medical School and was the former medical director of the Forensic Psychiatry Clinic of the New York City Criminal Court. As a result of my experience with Dr. Goldstein, I thought it might be beneficial for union members to learn more about this field. One area where a forensic psychiatrist’s expertise is necessary is where a criminal defendant’s counsel asserts that their client is not competent to stand trial. If a criminal defendant is found not to be competent to stand trial, then he or she is immune from prosecution. Often the determination whether a criminal defendant is competent involves conflicting expert opinions concerning the issue. The trial judge is the final arbiter of this issue. Of the total amount of criminal deendants who will contest their competency to stand trial, roughly 75 percent will be found to be competent. In the law, there are many levels of competency, each requiring a varying degree of mental capacity. It is possible that an individual may be deemed competent for one purpose but not another. For instance, to execute a will, you must have “testamentary capacity.” That is, you must be able to understand the nature of your property and be able to understand the relationships among the people to whom you are bequeathing your estate. During the will writing process, it is imperative that there be witnesses present who can observe whether or not the person writing the will has testamentary capacity. Another area where mental status determinations are required is where an individual is determined to be“non compos mentis,” or, in other words, not having the mental capacity to manage their own affairs. This often becomes an issue for elderly individuals who may suffer from senility or dementia. It is also an issue with individuals who suffer from severe mental illness. The determination whether an individual is legally incompetent and requires a legal guardian depends upon the individual’s functional capacity and often requires a factual hearing. It is not uncommon for a forensic psychiatrist to offer an expert opinion on whether a guardian is necessary at such hearings. It is a well-established legal precept that individuals are presumed to be competent unless and until there is a formal judicial declaration that they are incompetent. Weed v. Mutual Benefit Life Insurance Co., 70 N.Y. 561 (1877). This concept is in accord with the great value our democracy places upon individual’s constitutionally protected right to liberty. Before an individual’s liberty is impaired, there must be due process. Likewise, it is well established that a person who suffers from mental illness but who is not declared judicially incompetent may sue or be sued and obtain the assistance of counsel in the same manner as any other person. Sengstack v. Stengstack, 4 N.Y. 2d 502, 151 N.E. 2d 887, 176 N.Y.S. 2d 337 (1956); Bryant v. Riddle, 259 A.D. 2d 399, 687 N.Y.S. 2d 108 (1st Dept. 1999). See also “Litigious Paranoids and the Legal System: The Role of the Forensic Psychiatrist”, Journal of Forensic Sciences, Vol. 32 No. 4, July 1987, Robert Lloyd Goldstein, M.D., J.D. (“The mere existence of a paranoid illness without more should not bar an individual from bringing a claim, leveling an accusation, or proceeding with his legal case.”) Denying a mentally ill, or any other handicapped individual, access to court when they have a arguable legal claim to assert is antithetical to the idea that all individuals may seek relief through legal proceedings. However, once a guardian is appointed, the individual will lose all his or her rights to act independently, including the right to bring suit in his own name. Prior to such a determination, it is thus essential that a forensic psychiatrist be consulted with to formulate an expert opinion regarding whether a guardian is actually legally necessary. Harvey Mars is one of Local 802’s lawyers. Legal questions are welcome from 802 members. E-mail them here. Past columns are available at www.Local802afm.org; click on“Local 802 News,” then “Publications and Press Releases,” then use the drop-down search menu to look up “Legal Column.” Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.



This same individual or someone on his behalf has also posted to various blog sites using my name. I disclaim any of the contents of these blog entries and note that my professional opinions are solely expressed in this site as well as my soon to be coming web site. For those who are actually interested in learning the facts concerning the claims asserted in the suit and how the suit was ultimately disposed of, the court file is available in the clerk's office in the New York State Supreme Court, 60 Centre Street, case file White Diamond, et al. v. Stephen Guy Polis, 111930/05.