First, the legal Disclaimer:
This message is in response to continuing queries the resolution of the libel suit brought against CyberWire Dispatch by Benjamin Suarez and Suarez Corporation Industries. Because this message is in response to direct questions about the resolution of the suit, it does not fall under the provisions of the consent judgement which state that Mr. Suarez be notified 48 hours in advance of anything I write about him.
I'd like to use this message as an opportunity to thank all those that contributed to my legal defense fund, whoever you are. However, the money collected only covered about 25% of my legal bill, which is somewhere around $30,000. You can contribute more if you feel so moved or take this opportunity to contribute for the first time. The address for contributions will be supplied at the end of this message.
Also, I'd like to publicly acknowledge the work and support of those on my Defense Fund Committee and particularly that of Sam Simon, president of IDI, who has volunteered his own time, his staff and his hardware to run the defense fund IP account. The work of my lawyers also was brilliant: Bruce Sanford and David Marburger of Baker & Hostetler. I couldn't have come through this process without their guidance and advice.
I'd also like to take some time to explore issues brought up by this suit and its resolution. Much of what I'll relate here is contained in a kick ass brief for Summary Judgement written by my lawyers. This brief is a landmark piece of work and could be used as a benchmark for anyone that, like me, finds themselves on the receiving end of a libel suit stemming from something posted to the Net.
Much has swirled around the Net about regarding the settlement of this case. Let me be clear about this: I won. Hell, we -- as a community -- won. Despite the attempts of Suarez's $100 million corporation to squelch public criticism of its business practices, the atmosphere of free and open debate that is woven into the fabric of the Internet remains intact and as vibrant as ever.
As the brief filed by my lawyers says on the opening page, Suarez "filed this lawsuit as part of a continuing series of libel suits aimed at silencing criticism" of his business practices. "The Attorney General of the state of Washington has sued and achieved judgements against plaintiffs for violating consumer protection laws. Instead of meaning their ways, plaintiffs have filed lawsuits against those who have exposed their unsavory business practices."
Yes, I settled the case. But it was Suarez that initiated the settlement offer. At first he floated the idea of having me issue an apology, say that investigations of his company by state and federal authorities were actually "sham investigations" and paying his legal fees (which were $15,000 at the time).
I told my lawyer bluntly: "No fucking way." My lawyers translated.
The settlement talks lagged until my lawyers filed for summary judgement, wherein the judge basically decides the case on its merits based on arguments supplied by both sides on paper. When my summary judgement was filed, the urgency of the Suarez attorneys to have me settled increased dramatically.
And so, I paid the court $64 dollars to cover Suarez's filing fees and I bought myself a return to normal life.
I didn't issue any kind of apology, no correction or retraction and I admitted no liability.
My only stipulation is that before I publish anything about Suarez or any company, I must fax him questions 48 hours in advance. But I'm under no obligation to use his answers.
Suarez, on his part, got to clarify two points which really didn't need clarification, but I humored him. He states that he had no involvement with a product called the Gutbuster. That's fine, but my article never says he was involved with it. It was his brother that was associated with the product. That's exactly what my article said. Second, Suarez stated that he and his company have never been the target of a criminal investigation. We took him at his word. But again, my article never says he violated criminal laws.
My summary judgement brief is full of background on libel law. But where it breaks new ground, I believe, is how it makes a user of the Internet a public figure.
"American law has long recognized the individual prerogative 'to speak one's mind, although not always with perfect good taste,' both as an aspect of individual liberty and to enhance the vitality of society," the brief says (and it's backed by case law examples.) Doesn't this sound like much of what you read on the Net every day? It does to me.
Again from the summary judgement brief: "Through their mass EPS [Electronic Postal Service] solicitation on the Internet, [Suarez, et al] voluntarily exposed themselves to scrutiny by the Internet public. Indeed, they expressly invited Internet users to do exactly what Meeks did--to acquire more information about EPS."
That act of soliciting the Net should give commercial enterprises that want to do similar things some reason for pause: "Through their solicitations alone plaintiffs assumed the risk of comment and criticism about their business activities, but they assumed an ENHANCED RISK OF CRITICISM by selecting the Internet as the medium for their communications," the brief says (emphasis added).
This goes to the point of "knowing the culture" you're marketing to. Any smart business takes the time to figure this out. When marketing to another culture, in another country, businesses take the time to make sure their advertising campaigns don't offend local and societal norms of the culture. Why should marketing to the Internet be any different? Answer: It shouldn't.
But the Net community is a different culture and businesses that don't recognize that fact and deal with it will fail.
"Not only did plaintiffs voluntarily assume the risk of criticisms by soliciting Internet users to examine their product and to learn more about them, but, like any other Internet user, they have ample ability to rebut criticism," the brief says. "Just like any other Internet user, plaintiffs could have written any response they desired and posted it to as many people as they chose. Unlike TRADITIONAL COMMUNICATIONS media where editors and news directors control who says what, the Internet provides plaintiffs with UNFETTERED ACCESS TO ITS MASS AUDIENCES," the brief says (emphasis added).
Did you catch that? Posting to the Internet, then, makes you or your business even MORE of a public figure, for the purposes of libel law, because unlike a politician or other public figure, on the Internet you don't have to rely on the newspaper or TV to get your message out. You have all the firepower you need, so to speak, right at your fingertips.
It was this firepower that Suarez bypassed, choosing the vastly inferior lawsuit route as his hammer.
"Because plaintiffs have voluntarily assumed the risk of public comment and because plaintiffs enjoy effective access to Meeks's Internet audience to rebut Meeks's criticism, plaintiffs are public figures for the purpose's of Meeks's commentary. As public figures, plaintiffs cannot prevail on their libel action because they cannot prove that Meeks published any false and defamatory statements of fact with actual malice," the summary judgement brief says.
I think that statement should be tucked away in anyone's mind when they jump to the keyboard with a critical comment that they are about to launch into the Net.
Can someone be libeled on the Internet? Of course. If you're stupid enough to shoot from the hip with a lot of crazed flaming, you might very well find yourself embroiled in a libel suit. But marshall your facts, as I did; investigate and report, as I did and then write to those facts as pointedly as you choose and you'll be able to post with confidence.
Will that confidence keep you from being sued? Unfortunately, no. The legal system is there to use and it will be used, unfortunately, even when it's not merited. But truth, eventually, wins out. It may cost you, as it has me, in monetary means. But it also costs the one suing you.
I firmly believe that had Suarez just sat down at his keyboard and typed in a response to me, as strongly worded as he wanted, he would have achieved more for all his tens of thousands in legal fees than he ended up with: Nothing.
Has this incident had a "chilling effect" on me? No. I was intimidated at first, yes. Has it had a lasting effect on me? No. I'm more determined than ever to investigate and write about issues involving the Internet.
As I've told many reporters: "If people on the Net begin to self-censor themselves, for fear of being sued, then we've lost the heart and soul of the Internet."
For additional Contributions to the defense fund, please send to:
Meeks Defense Fund
901 15th St. NW
Washington, DC 20005