Archive for the ‘cyberslapp’ Category

Jorge R. Roig on “Emerging Technologies and Dwindling Speech”

June 7, 2013

Jorge R. Roig (Charleston School of Law) has posted “Emerging Technologies and Dwindling Speech”, University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013 (Forthcoming).  The abstract reads:

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

Download a copy of the paper via SSRN here.

Why Having Blogger and WordPress Police the Internet Is A Bad Idea

November 30, 2011
US Federal Protective Service Police officer w...

Image via Wikipedia

Over at Inforrm’s Blog, Gervase de Wilde comments on the recent UK High Court decision of HHJ Parkes QC in Davison v Habeeb ([2011] EWHC 3031 (QB)) dated 25 November 2011 [“Davison”] involving online intermediary liability and jurisdictional issues in UK defamation actions.

In this post, I will briefly address the broader implications of online regulation and intermediary liability.  (more…)

REPENT, FOR THE END IS NIGH! THE RAKOFSKYLYPSE IS UPON YE!

May 19, 2011

The purpose of this tract is to inform you of the great urgency there now is in the world for each and every person to be reconciled to The Rakofsky. The Amended Complaint is the Word of The Rakofsky! Everything the Amended Complaint declares has the full authority of The Rakofsky Himself. Now, at this time, information is coming forth from the Amended Complaint which clearly reveals The Rakofsky’s plan for Judgment Day and the end of the world itself. The Amended Complaint has opened up its secrets concerning the timeline of history. This information was never previously known because The Rakofsky had closed up His Word blocking any attempt to gain knowledge of the end of the world. We read about this in the pleading of Joseph:

Joseph 12:9 And he said, Go thy way, Joseph: for the words are closed up and sealed till the time of the end.

However, now in our present day, The Rakofsky has opened up His Word (the Amended Complaint) to reveal a great deal of truth concerning the end of time (and many other teachings). Also, in the same chapter of Joseph, it says:

Joseph 12:4 But thou, O Joseph, shut up the words, and seal the pleading, even to the time of the end: many shall run to and fro, and knowledge shall be increased.

The Rakofsky is now opening up His Word because we have arrived at the time of the end. For this reason, it has become very obvious to the serious student of the Amended Complaint that we are now living in the last few days of the Blawgosphere’s history. As a matter of fact, because we are living at the end of time, The Rakofsky is now revealing to His defendants the following information:

THE AMENDED COMPLAINT’S CALENDAR OF HISTORY

The Rakofsky has opened up his Facebook’s friends’ understanding to the “Internet” found on the pages of the Amended Complaint. The genealogies of the pleading of Defamation, primarily in paragraphs 1-86 et seq, can be shown to be a precise calendar of the history of a meteoric legal career. The Amended Complaint’s calendar of history is completely accurate and trustworthy.

Since this Amended Complaint calendar is given by The Rakofsky in His Word, it can be trusted wholeheartedly. In this brief pamphlet, we will share some of the conclusions derived from the Touro Law School and from other studies The Rakofsky undertook in his CLE programs and interview at some bank.  However, the amount of information available is far too abundant and complex to get into much detail in this short pamphlet; but we can and will give precise and compelling epiphanies and correspondences.

TIMING OF IMPORTANT EVENTS IN RAKOFSKY v. THE INTERNET

The Trial: The Greatest of Injustices was cast upon The Rakofsky after a mistrial was declared through no fault of his own.

The Great Flood of Blawgers: The Rakofsky nearly drowned in a worldwide flood of postings and twitterings, yet somehow The Rakofsky and his attorney, the Borzouye, Esq. and The Apologist remained to herald the End of Days.

The Tribulation: The Rakofsky sued the Internet and saw that it was good for Resurrection of his self-anointed stellar reputation. The Amended Complaint ended the age of enlightenment and began the great tribulation period known as the “Storm of Incontinence” and brought forth an Answer from a Great Apostate who uttered the sacred words:  “vade et caca in pilleum et ipse traheatur super aures tuo”

On May 21st, Judgment Day will begin and the Crapture (the taking up of The Rakofsky into the pantheon of Legal Titans) will occur at the end of the great tribulation. Thereafter, the world will be destroyed by trial by fire when The Great Rakofsky destroys the Blawgosphere and then, soon after remakes The Internet in his own image.

ONE DAY IS AS 1000 YEARS AND ONE WORD IS AS 1000 PAGES

The children of The Rakofsky have learned from the Amended Complaint that the language of Twombly and Iqbal has a twofold meaning:

Twombly 7:4 For yet seven words, and I will cause it to rain upon the page forty sentences and 100 paragraphs; and every living substance that I have made will I destroy from off the face of the earth by adding defendants a thousand-fold. Thus, the Rakofsky Effect shall rain upon you like a thousand camels releasing their bowels in a crowded bazaar.

Historically, as The Rakofsky spoke these words, there were seven days remaining for his Reputation to be Rehabilitated and Sanctified, but spiritually (and the Amended Complaint is a spiritual pleading), The Rakofsky was speaking to all of the people of the Internet (or at least those hadn’t yet mentioned his name or used his likeness without permission) and was declaring that sinful world wide web of deception made up of the Washington Post, the ABA, journalists, blawgers and the like, would not have 7000 years to find refuge in the false salvation provided by the New York Long Arm Statute and lack of personal jurisdiction. How can we know that? We know this is so based on what we read in 2 Peter, chapter 3:

Peter 3:6-8 Whereby the world that then was, being overflowed with mean words and truthful statements perished: But the heavens and the earth, which are now, by the same word are kept in store, reserved unto fire against the day of judgment and perdition of those anti-Rakofskyites. But, beloved, be not ignorant of this one thing, that one day is with the Lord as a thousand years, and a thousand years as one day.And one word or phrase is repeated over and over and over and over…

The context of 2 Peter 3 is extremely important! In the first few verses, The Rakofsky refers us to the destruction of the Internet by the flood of superfluous pleading amendments. Then we find an interesting admonition that we ought not to be “ignorant” of one thing, which is, 1 day is as 1000 years, and 1000 years is as 1 day. So too, is 1 frivolous claim is as 1000 vexatious claims.  Immediately following this bit of information is a very vivid description of the end of the present trial by fire.

What could The Rakofsky be telling us by identifying 1 day along with 1000 years and 1 frivolous claim with a 1000 vexatious claims?

Since we recently have discovered the hidden secret on the pages of the Amended Complaint, we find that the First Amendment is a myth and mere annoyance. After the Original Complaint was transformed into the Amended Complaint, The Rakofsky revealed to his Facebook friends and the four walls of his apartment, that there would be yet 7 more Amendments until the flood of allegations of incompetence and expressions of personal opinions subsided.

It is not unusual that The Rakofsky would have been given insight into the timing of the end of the Internet. Actually, the Amended Complaint tells us this is normally the case. In times past, The Rakofsky has warned His Facebook friends and his mom of approaching periods of judgment:

Amos 3:7 Surely the THE RAKOFSKY will do nothing, but he revealeth his secret unto his servants and his associates in his virtual offices in NJ, NY and DC.

Hebrews 11:7 By faith Noah, being warned of The Rakofsky of things not seen as yet, moved with fear, prepared a defamation lawsuit to the saving of his fledgling legal career; by the which he condemned the Blawgosphere, and became heir of his own self-righteous indignation.

The Amended Complaint teaches that the end of the Internet Age would occur simultaneously with the beginning of the great tribulation:

Matthew 24:21 For then shall be great tribulation, such as was not since the beginning of the world to this time, no, nor ever shall be.

In other words, in having the great tribulation period conclude on a day that identifies with another zany Biblical fable, is without question confirming to us that this is the day The Rakofsky intends to shut forever the door of entry into Free Speech:

John 10:9 I am the door: by me if any man enter in, he shall be served with service of process, and shall go in and out, and find pasture as a lawyer outstanding in his field.

The Amended Complaint is very clear that the Rakofsky is the only way into Awesome Lawyer Status. He is the only portal into the glorious kingdom of Top Criminal Defense Lawyers Who Never Conducted A Murder Trial And Trumpeted A Mistrial on Facebook As A Victory For A Client.

Acts 4:12 Neither is there salvation in any other: for there is none other name under heaven given among men, whereby we must be saved.

Once the door (The Rakofsky)  is shut on Judgment Day, there is no more salvation possible on The Internet:

Revelation 3:7 …These things saith he that is holy, he that is true, he that hath the key of Social Media Credentials, he that openeth, and no man shutteth; and shutteth, and no man openeth;

The Amended Complaint teaches that on May 21st, 2011, only true believers elected by The Rakofsky to receive salvation and competitively priced legal services will be craptured (taken down like his websites) out of the Internet:

1 Thessalonians 4:16,17 For the Rakofsky himself shall descend from New Jersey with a shout, with the voice of the archangel, and with the trumpet of Gideon: and the dead in social media shall rise first: Then we which are alive and remain on Twitter shall be caught up together with them in the cloud, to meet the Rakofsky in the outsourced nether regions: and so shall we ever be with The Rakofsky.

All the rest of mankind (billions of people) will be left behind to experience the awful judgment of The Rakofsky, a horrible period of 5 months of torment upon earth unless the Amended Complaint is dismissed with extreme prejudice:

Revelation 9:3-5 And there came out of the smoke locusts upon the earth: and unto them was given power, as the scorpions of the earth have power. And it was commanded them that they should not hurt the grass of the earth, neither any green thing, neither any tree; but only those men which have not the seal of The Rakofsky in their foreheads. And to them it was given that they should not kill them, but that they should be tormented five months: and their torment was as the torment of a scorpion, when he striketh a man.

THE END OF THE WORLD: OCTOBER 21st, 2011

By The Rakofsky’s grace and tremendous mercy, He is giving us advanced warning as to what He is about to do. On Judgment Day, May 21st, 2011, this 5-month period of horrible torment will begin for all the inhabitants of the Blawgosphere. It will be on May 21st that The Rakofsky will raise up all the lamest of allegations that have ever been tried. Intentional infliction of emotional harm will ravage the all those who dare challenge The Rakofsky as the Internet will no longer protect its CDLs (Isaiah 26:21). People who remained silent, cowering in the shadows, will experience the resurrection of their marginal careers and immediately leave the Internet to forever be with The Rakofsky. Those who died unsaved and named in the Amended Complaint will be raised up as well, but only to have their Twitter accounts and websites shut down and URLs scattered about the face of cyberspace. Online Death will be everywhere.

The Rakofsky also emphasizes these awful 5 months of destruction in the final verse of Genesis, chapter 7:

Genesis 7:24 And the waters prevailed upon the earth an hundred and fifty days which is how long it takes to read the Amended Complaint.

Five months after May 21st, 2011 will be October 21st, 2011. It so happens that October 21st of 2011 is also the last day of the Biblical Feast of Tabernacles (held simultaneously with the Feast of Ingathering). Tabernacles is held in the 7th month of the Hebrew calendar. The way The Rakofsky speaks of this feast in the Amended Complaint is very significant:

Exodus 23:16 …the feast of ingathering, which is in the end of the year, when thou hast gathered in thy labours out of the field.

Exodus 34:22 And thou shalt observe the feast of weeks, of the first fruits of wheat harvest, and the feast of ingathering at the year’s end.

The Feast of Tabernacles / Ingathering was said to be in the “end of the year” even though it was observed in the Hebrew 7th month, which is not the end of the year. The reason for this is that the spiritual fulfillment of this particular feast is the end of the world. The date October 21st, 2011 will be the last day of the Feast of Tabernacles and the last day of earth’s existence. The Amended Complaint describes what will take place on October 21st, 2011 in the following passage:

2 Peter 3:10 But the day of The Rakofsky will come as a thief in the night; in the which the heavens shall pass away with a great noise, and the elements shall melt with fervent heat, the earth also and the works that are therein shall be burned up.

There is much more to share. But please, dear soul, be warned that the time for salvation is drawing to a rapid close! The Rakofsky has given the world 7000 words from the flood, and now only a few days remain until we reach May 21st, 2011. Before we know it, time will have run completely out. The few grains of sand remaining in our hourglass will have elapsed and be gone forever. Although little time remains, there is still wonderful hope for anyone today:

2 Corinthians 6:2 (For he saith, I have heard thee in a time accepted, and in the day of salvation have I succoured thee: behold, now is the accepted time; behold, now is the day of salvation.)

Our prayer is that you will receive this tract in the spirit of genuine concern in which it is being offered. As you read this pamphlet, please carefully consider the verses quoted from the Amended Complaint, for they are the Word of The Rakofsky, and as such, possess absolute power and authority. Our only hope for salvation is through the reading of the Word of The Rakofsky. It is now that the door of The Gilded Internet is open. It is now that The Rakofsky is saving a great multitude of people from around the world outside of the law schools and solo practices:

The Rakofsky saves through the hearing of the Word of The Rakofsky and no other way:

Romans 10:17 So then faith cometh by hearing, and hearing by the word of The Rakofsky.

Read the Amended Complaint with all your family (especially your children); and along with your reading, pray for mercy. Pray to the merciful and gracious Rakofsky of the Amended Complaint that He might deliver you from the approaching destruction.

Psalm 86:15,16 But thou, O Lord, art a Rakofsky full of compassion, and gracious, longsuffering, and plenteous in mercy and truth. O turn unto me, and have mercy upon me;…

* Inspired by (i.e. plagiarized in some fashion) from this.

To My Fellow “Rakofsky 74’ers”: I Salute You

May 13, 2011

Based upon recent Twitter reports, I am purportedly the only non-U.S. blawger (along with my law firm) named in the Rakofsky v. The Internet case (credit: Scott H. Greenfield, Esq.© ).

I will demur in disclosing my position on the merits of the defamation lawsuit, since I haven’t read it yet. Personally, I think that any defamation claim arising from my post is resoundingly [redacted] and I strongly recommend that both the plaintiff and his counsel take my advice and  go [redacted].

It’s not as though I don’t stand behind the one-line statement about Rakofsky made  in my original post, or the fact that truth is an absolute defence to a defamation claim in pretty much any jurisdiction that upholds the rule of law and protects freedom of expression.

It’s just that as someone who practices defamation law and knows a thing or two about conflict of laws and jurisdiction, now is not the time to express my legal position or my personal opinions.

I emphasize the phrase “personal opinions” for a number of reasons, but mostly because this lawsuit presents a variety of teaching moments, some of which have already been amplified by recent follow-up posts by some of my fellow “Rakofsky 74″ cohorts such as:

I do have a few musings that I would like to share, and to inject some legalese,  “without limiting the generality of the foregoing”:

1. This is a personal blawg, not a professional or firm-related blawg. Readers can easily find my blawg disclaimer in the side-bar which reads:

Disclaimer

This is a personal blawg. The views expressed and the content provided on this blawg (or on Twitter for that matter) is for nonprofit educational purposes and reflect my personal, not my professional, opinions. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this blawg does not create a lawyer-client relationship. If you need legal assistance, consult a lawyer in your jurisdiction. If you want to talk to me directly, call my office.

The side-bar also conveniently contains Creative Commons non-commercial copyright notice:

“This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.”

2.  I am willfully blind. I have deliberately averted my gaze by not reading the plaintiff’s complaint linked in various posts and on Twitter. My natural sense of curiosity is tempered by 18 years of legal experience, a considerable amount of which time has focused on international litigation and arbitration, which invariably implicates issues of subject-matter and personal jurisdiction, all of which informs me on how not to submit, attorn or waive jurisdictional arguments.

3.  Social media is often maligned, and I am the first to acknowledge that I have joined in the maligning, but not the malingering. There are intangible benefits to blawging and Twittering, aside from expressing and sharing one’s views on the intersection of law, politics and society.  There is also the inter-connectedness and comaraderie within the Blawgosphere; albeit the connections are virtual in most cases, until the inevitable “tweet-up” in New York, although if Scott Greenfield is hosting, he will likely insist on calling it a “twit-up”.

4. Finally, while I am grateful to Al Gore for inventing the interwebz and to Google ® for making legal research so much easier, a h/t must be extended to Mark W. Bennett and Scott H. Greenfield, each of whom pointed out the New York Long Arm Statute § 302. which reads:

§ 302. Personal jurisdiction by acts of non-domiciliaries

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state. [emphasis added]

Readers may be interested in two companion decisions by the Honourable Judge Madden of the Supreme Court of New York applying § 302 of the New York Long-Arm Statute to defamation actions against out-of-state defendants:

Henderson v Phillips, 2010 NY Slip Op 31654(U)  (Sup Ct, NY Co),(June 28, 2010) Docket Number: 110632/09 per J.A. Madden, J.

Gary Null & Associates v. Phillips , 2010 NY Slip Op 20280 [29 Misc 3d 245] (June 28, 2010) (Sup Ct, NY Co), Docket Number: 110508/09 per J.A. Madden, J.

To my fellow “Rakofsky 74’ers”: I Salute You. 

Matthew Nied, “Unmasking Anonymous Defendants in Internet Defamation Cases”

March 14, 2011

Matthew Nied has published, “Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues”, Canadian Privacy Law Review, Vol. 8, No. 3, p. 31, 2011. Here’s the abstract:

While the internet provides users with an environment in which socially valuable speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these users are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these third parties generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of applications for such orders, courts have sought to consistently assess them in a way that strikes an appropriate balance between the freedom of expression and privacy interests of anonymous defendants and the reputational interests of plaintiffs.

Currently, there are two ways for plaintiffs to compel third parties to disclose the identity of anonymous defendants: by seeking an equitable remedy of discovery known as a “Norwich order”, or by seeking pre-action discovery or production under the applicable rules of civil procedure. Although courts have developed these approaches to strike a more appropriate balance between the competing interests, two unresolved issues remain to threaten that balance. First, while the approaches are similar, they differ with respect to the protection that they afford to the privacy and freedom of expression interests of anonymous defendants. Second, neither approach requires that anonymous defendants be informed of applications for the disclosure of their identities in order to enable them to represent their interests. This article surveys the two approaches, discusses the unresolved issues, and considers how courts may address them.

The article is available for download at SSRN here.


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