Norm Pattis wrote a post a few months ago entitled: Updated: Rakofsky: Is Internet Mobbing A Tort? charitably offering up to the Plaintiff in the Rakofsky v. Internet litigation the makings of a new nominate tort:
What interests me about the Rakofsky case is less whether he erred at trial. I assume he did. The judge’s words leave little doubt about it. What interests is whether the tort of mobbing, taking shape in the context of employment law, will find its way into disputes of this sort. It should.
Rakofsky sued for defamation, contending that the scores of folks who mocked him uttered untruths that damaged his reputation. But what if the initial press reports were accurate? What if the trial court did declare a mistrial for manifest necessity because of ineffective assistance of counsel? Does that mean that subsequent efforts to ruin his reputation, to fan the flames, as it were, are not actionable? It is one thing to report on a judge’s assessment of a lawyer’s performance at trial; quite another to saddle Rakofsky up and make him into you very own hobby horse.
The tort of mobbing recognizes that even truth can be turned to malicious purpose. We recognize this in the context of publication of private facts, and permit suit for invasion of privacy. But what about republication with malice of public truths? In the Rakofsky case, news organizations had every right to report the facts of this case as they saw them. Thereafter, did private writers cross a line the law is prepared to recognize by seeking less to report facts than to shame and humiliate him?
The common law recognizes a tort of outrage, or intentional infliction of emotional distress. To prove it, one need show an intent to inflict distress and the infliction of that distress. The speech supporting the distress can, in fact, be true. It is an open question whether there a tort of Internet mobbing can gain traction in the courts. The Rakofsky case might provide a means of testing it.
Ken at Popehat provides a witty rejoinder in his post: The Tort of Internet Mobbing Is Perfect For Suing The Internet:
So: don’t blame Rakofsky. He’s just got his finger on the pulse. But a dilemma remains: what is the nature of this newly invented tort of internet mobbing? What are its elements? Well, with the encouragement and help of Scott Greenfield, I think I have come up with a set of elements worthy of a jury instruction:
INTERNET MOBBING: ESSENTIAL FACTUAL ELEMENTS
[Plaintiff] asserts that [Defendants] have committed the tort of internet mobbing and hurt [Plaintiff's] feelings really quite badly. The law recognizes that this is a shame. To establish that [Defendants] have committed the tort of internet mobbing, [Plaintiff] must prove the following:
1. That [Defendant] joined a group of three or more persons [including co-bloggers, commenters, and sock puppets];
2. That some member of the group made some use of the internet;
3. That the use of the internet including writing something about [Plaintiff];
4. That something could be described in one or more of the following ways:
d. Uncomfortably true,
e. Emotionally distressing,
f. Bad for business and/or branding or Google rank,
g. Just not kind;
5. That deep and progressive thinkers believe that the right of [Plaintiff] to be free of any such comment outweighs the right of [Defendant] to speak;
6. That at least one other member of the group committed an overt act endorsing or acknowledging the writing through a link, tweet, cross-post, thumbs up, +1, or lol;
7. That [Plaintiff] is, in at least one person’s view, special, and thus deserving of the protection of the legal system from criticism or dissent.
Glad to be of help. There’s a whole internet of butthurt potential clients out there. Better get cracking.
Eric Turkewitz’s update reports that Rakofsky has now moved to further amend his pleading:
Joseph Rakofsky has not, quite apparently, put away his shovel. He is still digging. (Synopsis of case and my opinions before becoming local counsel, here.)
He has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.
In addition to the extraordinary damage claims, Rakfosky seeks to add Yahoo! and TechDirt into the lawsuit, among 15 new parties.
And he seeks to create a new cause of action for Cyber-bullying, or Internet Mobbing, due to the things people wrote about him after his ill-fated trial before JudgeWilliam Jackson down in Washington DC.
So what should one make of this new nominate tort of “internet mobbing” proposed by Pattis and enthusiastically embraced by the Plaintiff Rakofsky?
Here is the New York Supreme Court’s view:
“Insofar as the plaintiff’s counsel suggests that the posts constitute cyberbullying, the courts of New York do not recognize cyberbullying or Internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyberbullying as a cognizable tort action.”
Finkel v. Dauber, 29 Misc. 3d 325, 906 N.Y.S.2d 697 - NY: Supreme Court-Nassau County, 2010
[h/t: Roy A. Mura at Coverage Counsel blog]
It is refreshing for a well-known trial lawyer such as Pattis to offer his neutral, unsolicited musings concerning an ongoing case involving a large portion of the Blawgosphere. As the Zen proverb suggests: “Those who know don’t tell and those who tell don’t know.”
While the tort of “internet mobbing” may have superficial appeal to those who consider online bullying as a problem in need of a legislative or judicial solution; a thicker skin is the best protection against the cold, hard truth.
Tort law recognizes rights, obligations, and remedies that are applied by courts in civil proceedings to provide redress to individuals who have suffered harm from the wrongful acts of others.
If internet mobbing is a viable new tort, then it must also have an obverse.
What could it be?
How about the tort of maintenance?
“…is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse….
It is only when a person has an improper motive which motive may include, but is not limited to, “officious intermeddling” or “stirring up strife”, that a person will be found to be a maintainer.
Are you taking notes, Norm?
And now, a brief musical interlude: Bush, “Everything Zen”