From Eric Goldman's Tech Blog:
BidZirk v. Smith, [is] a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger's life. Fortunately, even though the blogger handled the case pro se, the court saw the case's lack of merit and finally ended the case.
The case started when Smith blogged a lengthy post on his negative experiences with BidZirk, an eBay drop-off company. BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct*. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs' counsel to boot.
Specifically, the court said:
* calling BidZirk's founder a "yes man" was an opinion and therefore not actionable as defamation
* South Carolina doesn't recognize the false light invasion, and even if it did, nothing portrayed the plaintiffs in a false light. Further, linking to a photo published on a third party website does not constitute a publicity rights violation
* Smith was immune from trademark claims because his reference to BidZirk was in the context of news reporting or news commentary. Though the court doesn't equate bloggers and journalists generally, it gives Smith the same protection given to journalists
* BidZirk's attorney filed a lis pendens on Smith's condo, and the court sanctioned the attorney because the attorney had no basis to claim a right against Smith's property
As the court says, "In essence, this is a case in which the Plaintiffs have sued Smith because he published articles on the internet critical of the Plaintiffs' business." Thus, on the surface, this appears to be a cautionary tale to all bloggers that we live in peril of being dragged into court whenever we negatively critique businesses. Yet I see this ruling as a redemption of sorts--it takes a lot of courage to blog, and it takes even more courage for bloggers to stand behind their words when challenged, but we have a responsibility to make sure we can't be bullied on either front. On behalf of bloggers everywhere, we applaud Philip Smith's courage and determination to defeat this case.
* I don't think I was ever chastised for my conduct in court or depositions. I was ridiculously reprimanded for chewing gum, but I sincerely apologized. It wasn't like I was popping bubbles though. It was more of a nervous thing than disrespect. I was also compelled by the court at the magistrate level to answer some ridiculous questions. I refused to answer. The District Judge later dismissed my having to answer because the Plaintiff attorney failed to give a reason why he needed an answer.
- The Plaintiff attorney forced me to reveal trade secret information regarding an invention of mine and also forced me to reveal several of my clients personal information. One subject of a completely unrelated article that I posted was contacted and prompted to say something bad about me. Instead, he contacted me and I posted his letter on my website.
* the Plaintiff attorney was chastised very firmly for asking me 3 separate invasive, irrelevant, and antagonizing questions.
"This court finds several of the plaintiff's requests are irrelevant, vague, overly broad, and unduly burdensome"
"Two of the discovery requests appear to have been made for no other purpose than to antagonize and embarrass the defendant"
Quote from District Judge Henry Herlong:
"... the court finds that based on Elwell's grossly improper conduct, he should be sanctioned"
* My counterclaims were all dismissed because the attorney was able to falsely claim lack of jurisdiction. I have put out requests for a lawsuit to a number of attorneys interested in the case.
* I think it's worth noting that I was warned by several attorneys with whom I consulted that my legal fees would approach the high 6 figures, one attorney even referenced Apple's litigation against bloggers.
* The ruling layed the foundation for a "litmus test for bloggers as journalists":
- It's not the format it's the content and intention that make text journalism / reporting.
* The MAIN reason my article was saved from defamation was that while I was critical I wasn't crazy and not once discouraged people from going to the business, nor did I register any domains such as BIDZIRKSUCKS.COM. (Although, with PayPalSUCKS.COM & WalmartSUCKS.COM - I'm sure I would have been protected had I chosen to do such.)