Court Rejects Lawsuit Claiming Site Falsely Attributed Allegedly Anti-Muslim Statements to Plaintiff

From Goddard v. Interserver.Net, decided yesterday by Judge Evelyn Padin (D.N.J.):

Plaintiff is a California-based technology professional …. Plaintiff is also Jewish. The crux of Plaintiff’s Complaint is that Defendants, through the website spotlighthate.com, “host, maintain, and refuse to remove [information] that falsely portrays Plaintiff as an anti-Muslim bigot and falsely attributes numerous inflammatory statements to him that he never made.” In addition to attributing numerous statements concerning the Israeli-Palestinian conflict to Plaintiff, the website labels Plaintiff an “Anti-Muslim Bigot” and “Islamophobe,” which has damaged his reputation; Plaintiff alleges he “has never made any of these statements, harbors no such views, and strongly condemns any form of bigotry, hatred, or discrimination.” Spotlighthate.com also uses a photograph of Plaintiff without his authorization….

Plaintiff sent a detailed “DMCA takedown notice and defamation complaint” to Defendants in which he requested the immediate removal of the defamatory content and unauthorized use of his photograph. A similar request Plaintiff made to X.com was granted. However, Defendants have not removed the defamatory content or responded to Plaintiff’s outreach.

The court rejected plaintiff’s claims. It began with the copyright infringement claim, and held that plaintiff hadn’t adequately alleged a registered copyright, which is required for a copyright lawsuit to be filed. (Unregistered works are protected from infringement, but they need to be registered before the lawsuit is filed, even if they weren’t registered when the alleged infringement happened.) It then went on:

[C.] Right of Publicity/Misappropriation of Likeness …

To establish a claim for misappropriation of likeness under New Jersey common law, a plaintiff “must establish four elements: ‘(1) the defendant appropriated the plaintiff’s likeness, (2) without the plaintiff’s consent, (3) for the defendant’s use or benefit, and (4) damage.’”

Under New Jersey common law, a plaintiff can prevail only if they show the use of their likeness “was for a predominantly commercial purpose.” In other words, a defendant must be “seeking to capitalize” on the plaintiff’s “likeness for purposes other than the dissemination of news or information.” … [A] media-defendant is not liable for misappropriation of likeness if their use of a person’s likeness was incidental….

Here, Plaintiff makes no allegations as to the nature of Defendants’ use of his likeness. See Compl. In conclusory fashion, he pleads that Defendants have published false and defamatory statements, which have exposed him to “hatred, contempt, ridicule, and obloquy, and have caused him to be shunned and avoided.” But “[u]ntil the value of the name has in some way been appropriated, there is no tort.” …

[D.] Intentional Infliction of Emotional Distress (“IIED”)

To state an IIED claim, a plaintiff must allege that: (1) defendants’ conduct was extreme and outrageous; (2) the conduct caused plaintiff severe emotional distress; and (3) the defendants acted intending to cause such distress or with knowledge that such distress was substantially certain to occur. A plaintiff’s claim “will only survive where ‘the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” The plaintiff must also allege that he suffered “some type of resulting physical harm due to the defendant’s outrageous conduct.”

Although Plaintiff alleges that he has suffered “severe emotional distress, including but not limited to anxiety, fear, humiliation, and anguish,” the Third Circuit has held that these claims must be supported by competent medical evidence. Plaintiff provides no such documentation to support his claims….

Plaintiff further fails to state an IIED claim because his allegations are conclusory and threadbare. For example, Plaintiff “does not allege that any doctor or other medical or mental health professional indicated that [he] has suffered severe emotional distress,” nor does Plaintiff allege in any detail how his physical symptoms have manifested as a result of Defendants’ alleged conduct….

[E.] Defamation …

New Jersey “provides enhanced protection to speech touching on matters of public concern and interest.” New Jersey courts have applied the actual-malice standard to protect “both media and non-media defendants who make statements involving matters of public concern, regardless of whether the targets of the statements are public figures or private persons.” … The alleged defamatory statements in the Complaint concern the Israeli-Palestinian conflict, which the Court considers to fall under the umbrella of discourse on political subjects [and thus to involve matters of public concern]….

At the motion to dismiss stage, a plaintiff cannot rely on “a bare conclusory assertion that [a defendant] ‘knew and/or reasonably should have known that the statement was false.’” Instead, a plaintiff must plead facts that show a defendant “actually doubted the veracity’ of [their] statements.” In other words, a plaintiff must “allege sufficient particularized facts to suggest that … [the statement] was published with knowledge of its falsity or a reckless disregard for the truth or falsity of the reported statement.”

Here, Plaintiff alleges in conclusory fashion that “the statements are false and were published with knowledge of their falsity or with reckless disregard for the truth.” New Jersey courts routinely dismiss defamation actions where a plaintiff makes threadbare allegations regarding a defendant’s knowledge of a statement’s veracity. Plaintiff does plead that he notified Defendants that the statements were false and defamatory, and in his view, their failure to remove the statements from spotlighthate.com demonstrates actual malice. However, “‘actual malice cannot be inferred from a publisher’s failure to retract a statement once it learns it to be false.’” This is because a plaintiff must show actual malice was present at the time of publication….

[F.] Negligence

Plaintiff’s negligence claim is predicated on the same facts that underlie his defamation claim. But this is not allowed in New Jersey…. “Where a plaintiff claims that the communication of false information has injured his reputation, the plaintiff is precluded from seeking redress under a theory of negligence. Instead, the proper cause of action is defamation.” … Indeed, a plaintiff is precluded “not only from suing in negligence for harm caused by the communication of defamatory statements, but also from suing in negligence for any acts that proximately underlie the communication of defamatory statements.” This is because courts seek to preclude plaintiffs from “circumvent[ing] the strictures of the law of defamation … by labeling its action as one for negligence.”

{The Court’s holding does not preclude Plaintiff from bringing a negligence claim grounded on different facts. However, Plaintiff cannot bring a negligence claim based on the same facts that underlie his defamation claim.}

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