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Anonymous Internet Defamation

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State: Nevada

I have been sued by an apartment complex, its owner, and two employees for defamation per se due to comments they allege appeared on apartmentratings.com

There are many problems with the suit.

1) Most of the printed copies of the comments they say appeared about their apartment property look NOTHING like anything printed from apartmentratings.com. They look more like something that was created in a word processor. Worse, most of the alleged comments don't appear on the website and haven't since at least the day I was served with the complaint.

2) Each and every one of the defamatory postings they claim to have printed from the website shows that is was "posted" by an anonymous person, and whoever that person is, it sure as hell isn't me.

3) One of the anonymous posts DOES appear on the website, but I didn't post it. Interestingly, my investigation has revealed that the post was made on a date that almost perfectly coincides with date that the Plaintiffs attorney was getting foreclosure notices on her home. I believe that this attorney was looking for a rental home, found this website, and smelled an opportunity and that SHE posted the comment and brought it to the attention of the property who then used me as a convenient scapegoat.

4) The plaintiffs, despite 12 months of discovery, have not produced one single shred of documentary evidence that proves I have any involvement in posting ANYTHING on the website...they haven't subpoenaed the website, they haven't produced ip addresses, e-mail addresses, etc. They expect the court to accept their explanation that "we know he did it."

5) Even though posts on apartmentratings.com all have unique URL addresses, when a demand for production of each and every URL address for each of the alleged comments was made, the plaintiffs produced the same URL address for every one...and that URL address doesn't lead to ANY of the alleged comments.

I don't have anything to do with this, but this case is now 2 YEARS old. Who bears the burden of proving that the posts really ever appeared on apartmentratings.com and that I made them? Do I bear the burden of proving that I did not make the comments, or do the Plaintiffs bear the burden of proving that I did?

They didn't sue "john doe," they sued ME because of some battles that were fought during the 5 month I was a tenant..it all smacks of retaliation and abuse of process to me.
 


quincy

Senior Member
Although there is much that puzzles me about what you have described, I will answer your last two questions first and address some of what confuses me later.

In order for the apartment complex, its owner and the two employees (the Plaintiffs) to win their defamation action against you, they must prove that they were identified (or identifiable) in a published statement that is determined by the court to be defamatory per se (or, if not judged to be defamatory per se, a jury will determine the statement's defamatory nature).

The Plaintiffs must be able to show that you were the one who published the defamatory statement and that the defamatory statement was published with fault amounting to at least negligence (if the statement is defamatory per se, fault will be presumed). They must additionally show that reputational injury has resulted from the publication and that they are entitled to compensation for this injury (if the statement is defamatory per se, reputational injury is also presumed, and damages can be awarded on this presumed injury).

In order to defeat a defamation claim, a private person defendant must generally show that the defamatory comments when published were true or substantially true, or are pure opinion or opinion based on expressed true facts, and that the publication was made without ill will. There are other defenses available (ie. privilege, consent), but these will not often apply in a private person action.

Obviously if you did not publish the defamatory statements, you will not be using truth or opinion as a defense - the fact that you did not publish the statements will be your best defense. This is where you will hope that the Plaintiff's case against you will fail. If you did not publish the statements, they will be unable to prove that you did.

Now for some of what has me puzzled. :)

Generally when there is an anonymous poster involved, there is a John Doe action initiated and there is no discovery until evidence presented to a court demonstrates a prima facie case, until evidence presented to the court shows there is enough to support each element of the claim. This evidence will include support to show that the defendant named in the action is the one who posted the defamatory material. In a John Doe action, the plaintiff will present enough evidence to the court to support the issuing of a subpoena to unmask the anonymous poster's identity so the case can proceed.

If you did not publish the defamatory statements about the apartment complex, its owners or its employees, and this is not a John Doe action (possibly because the plaintiffs knew a prima facie case could not be established and a court would not issue a subpoena?), why when served with the complaint didn't you file a motion to dismiss? The plaintiffs would then have needed to show to the court evidence that you are, indeed, the anonymous poster connected to the defamatory material and provide evidence enough to show that the case against you should proceed. Without evidence to support their claim against you personally, the court would have more than likely dismissed their action and you would not now be facing a deposition in Nevada.

Why, also, do you believe that the Plaintiffs in this action would go to the time and the extremely high expense of suing you, if they are not able to prove you are the one who defamed them? It seems an awfully costly and rather futile way to retaliate against a former tenant for whatever may have happened during that tenant's tenancy.

By the way, your suspicion that the Plaintiff's attorney posted the defamatory statements about the apartment complex in order to get an apartment seems far-fetched at best and defamatory at worst. I would not repeat this theory of yours to others if you do not have solid proof of the truth of it.

As a note on obtaining a subpoena to identify an anonymous poster: This is the typical route taken to identify an anonymous user, but it is not the only route. IP addresses are routinely logged by web systems and a subpoena can be issued to a website to obtain the IP address of a user (and often the user's account information is available as well). If all that is available is the IP address, a reverse lookup (a WHOis search) of the address can determine if the IP address belongs to a residential ISP or not. If it is, then a second subpoena will be issued to the ISP and the ISP can often reveal the account details of the user who was posting from that IP address at the specific date and time in question.

Because this is not always a successful way to determine the identity of a user, for a variety of reasons (ie. the IP may not be logged or traceable back to an ISP account), someone intent on identifying an anonymous user can use other means. For one example, StatCounters track web traffic and can often be used to identify users of a site, each visit made by a user to a site, and the time a particular post was made by that user to a site.

You mentioned that the Plaintiffs have a URL that is supposedly connected to the anonymous posts that were made on the apartmentratings.com site. A URL is a user-friendly internet address. The IP address is the URL address expressed in numbers. Computers read numbers but people find it easier to remember names, hence the converting of the computer-read IP numbers into people-read URLs. If you know the URL address, it is not difficult to find the IP address of this URL. To see how this works, put the following IP number into your browser: 67.192.171.77. The URL is much easier for people to remember but both will get you to the same place.

I honestly think you need the services of an attorney. A defamation loss will be a costly one for you, and it appears you are already fumbling a bit with this suit. If you have a solid defense (ie. you didn't do it and they can't prove you did), an attorney would have been able to at the start, and will still be able to now, dispose of this suit rather quickly.

I strongly recommend you consult with an attorney before your upcoming deposition in Nevada. Good luck.
 
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Thanks. I have consulted TWENTY attorneys in nevada, each and everyone has said this case is a total waste of time and money.

I DID file a motion to dismiss when served, the court declined to grant it because the Plaintiffs have named ME and 30 "doe and roe defendants and corporations."

I filed a motion for summary judgment on this back in November. The Plaintiffs were supposed to have 10 days to respond. On the 10th day they filed a motion to extend time to respond, seeking a 10 day extension of time. That was more than 32 days ago. The court blatantly REFUSES to rule on the Plaintiffs motion to extend time and refuses to allow me to submit my motion for summary judgment until they respond. In fact, during a recent in-chambers conference the judge stated " I will rule on the motion to extend when I'm ready to." All in all I'm getting screwed by the court on this one.
 
Perhaps some background is in order on this case.

This is an apartment complex with more than 200 units.

I rented an apartment from the plaintiffs. I signed a rental agreement without ever seeing the apartment (I was shown a model). This was my first mistake. When they day came to move in the apartment was unavailable, and I was thus homeless as I had just moved 1,000 miles.

When the apartment became available I was horrified. It was nothing like the model, it was in deplorable condition with torn carpets, no hanger rods in the closets, broken smoke detectors, dirty bathroom, even with used prophylactics under the sinks! (I have pictures of all of this).

The owner replaced the carpets and hanger rods etc. However the fact that I had the audacity to complain about all of this set the property's employees off on a vendetta that has now lasted more than 4 years.

I never once posted a review about the property on this or any other website, and only one of the purported reviews the Plaintiffs have produced appears on the website today. The other produced reviews don't share any appearance traits with the verifiable review. They were produced by a word processing program.

The property has also had a vendetta against apartmentratings.com since before I ever moved to Nevada. In 2006 they posted on the website a warning to their tenants to not post negative reviews there. Negative reviews have existed on the site since at least 2002.

I'm still somewhat confused here. I didn't post the comments. That is my defense. As you mentioned, I cannot take the "truth as an absolute defense" road because I don't know if the alleged reviews are true or not...again, I did not post them.

So who has to prove what? They have accused me of posting the reviews, I say I didn't post them. Don't they have to prove that I posted them in order for this to proceed? Why should I be forced to bear the expense of proving that I did not do something? What happened to innocent until proven otherwise?

Also, as I mentioned, there is a URL address (I know the difference between that and an IP) that can be typed into a nav bar that will lead directly to every review posted on apartmentratings.com They were ordered to produce these addresses to prove publication. They have failed to produce a URL address for ANY review, not even the one I know appears on the website. Instead they produced a URL that leads to a random page on apartmentratings.com...
 

quincy

Senior Member
Who has to prove what? As I said in my previous post, the Plaintiffs have to prove their case against you. You do not have to do anything other than appear in court and deny their claims and present your defense of "I didn't do it."

I am assuming that you have submitted your own discovery requests so that you have all of the relevant facts and documents produced, prior to proceeding to trial, so you know exactly what the Plaintiffs intend to "throw at you" in court?

False claims of any kind are difficult to defend against in court, which is a reason why one files a motion to dismiss and seeks summary judgment. If the judge refuses to entertain either, however, you may be forced to defend against the false claims in court (although the typical defamation claim will settle prior to trial). Once in court, there is no way to tell how your case will play out. One always hopes that "truth and justice" will prevail.

You have mentioned in this thread and in the other thread you started that you feel you are being screwed over by the court. That is entirely possible. Pro pers often find themselves at a distinct and definite disadvantage. Some judges show little tolerance for people who choose to represent themselves in any case that is outside a small claims action, and this can be especially so when it comes to a complicated two-state internet defamation action.

That is why I recommend and will continue to recommend that you seek the help of an attorney. If you have contacted 20 attorneys and they have expressed no interest in taking on your case this late in the game, contact another 20. I can almost guarantee that there is an attorney somewhere in the state of Nevada who will review the facts of your case and the evidence that has been gathered, and who will sit with you at your deposition. There should be an attorney somewhere in Nevada who will handle your case from this point forward.

Although I understand that hiring an attorney is an expense you may feel you should not have to take on, after a trial (should there be one) the prevailing party is entitled to seek recovery of litigation costs.
 
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Thanks.

I am continuing to seek legal counsel in Nevada. Every lawyer I have spoken to has said, almost verbatim, "this is such a bull**** case you don't need to spend the money on a lawyer."

It is further complicated by the fact that I cannot afford a lawyer. Can't afford a $250 consultation with a lawyer, can't even afford a plane ticket to appear for an improperly noticed deposition.

It's all a bit insane.
 

quincy

Senior Member
I can understand the difficulty you are having trying to find an attorney in Nevada when you live in Oregon. And a lack of money doesn't help much.

I suggest you continue to contact Nevada attorneys, perhaps concentrating your search for an attorney on large law firms. Large firms often require (and state bar associations often require) their attorneys commit to a certain number of pro bono hours a year. This pro bono work is not advertised to the public, so it may take some "leg work" to locate an attorney who needs or wants the hours and will take your case.

You may find that many attorneys who do pro bono work will not be anxious to service an out-of-state defendant. Even so, contact the firms and ask if they have a pro bono coordinator or an attorney who is available on an emergency basis to do some pro bono work.

You can also contact the Nevada State Bar Association and perhaps they can direct you to some free or low-cost legal aid, although this is often not available for defamation suit assistance.

And you also may find some help near you in Oregon. Contact the Oregon State Bar to see if they can assist in any way. In your other thread, Tex told you what you can do to get the deposition rescheduled. An attorney in your area (or a law clinic, law school, legal aid organization) can perhaps get you on track by helping with this. This needs to be done SOON.

You are definitely in an odd, unfair and insane situation, pro_perdef. Lawsuits are sometimes like that.

Good luck.
 
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What about bankruptcy? It makes me sick to be forced to even consider that option as I have had absolutely nothing to do with any defamation whatsoever...Truly...I have NEVER posted on any apartment review website.

That being said, it would obviously be cheaper for me to file bankruptcy, but would that stop a case for libel? Would it be more beneficial to file before a judgment is entered or after?

I'm going to get screwed on this, there's just no doubt about that. The judge has allowed this thing to proceed with exactly ZERO evidence of my involvement, and he refuses to compel the Plaintiffs to respond to my motion for summary judgment. I'm pretty confident that fact alone would get a ruling overturned on appeal, but I simply cannot afford this any more.
 

quincy

Senior Member
Bankruptcy is not an area of expertise for me, pro_perdef, but I provided some information for you in your Civil Litigation thread. This back-and-forth is one of the reasons we ask posters to use just ONE thread for all questions, instead of making a different thread for each question. ;)

I think you should review the two threads posted by troubled11 that I mentioned in your other thread, as the information provided there can possibly answer many of your questions.

For a very quick answer, though, bankruptcy will probably not help you. It won't stop the suit (it only stays the proceedings) and damages awarded in defamation suits are generally not dischargeable in a bankruptcy.

Everything in law depends on ALL of the facts, however, and the most important fact could be that you don't lose the suit. If the plaintiffs cannot build a successful case against you, you can then seek to recover all of your costs from the plaintiffs.

If you have any evidence at all that can help to support the fact that you did not post anything online about the apartment complex or could not have posted anything online about the apartment complex, that can certainly help your defense of "I didn't do it" but, absent evidence, the best you can do is hope that the plaintiffs cannot convincingly connect you to the defamatory posts somehow - or that the court finds the posts are not defamatory at all. Having not seen the posts and exactly what was written about the complex and individuals, it is impossible for me to tell if this is something you can realistically hope for or not, however.

Again, good luck.
 
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This is all good stuff...and I really appreciate the input. Wouldn't they have to prove damages if I filed bankruptcy?

Also, how do I prove I didn't post something? That's like proving a negative, right?

I can link to the page for the apartment complex on apartmentratings.com if you wanted to read through it. Only one of the posts they've produced appears on the website though..And that post doesn't say ANYTHING about any of the plaintiffs.

But it is FULL of negative reviews of the property (kinda wish I had read some of them before I rented there actually)...It also has an interesting 2006 "letter from management" begging people to not post comments there.
 

quincy

Senior Member
If you want to send me a Private Message with the link, I can take a look at what was posted, to see just what has this apartment complex, its owner, and the employees so upset - but please don't post the link here.

Proving a negative is almost impossible, by the way, so I really didn't expect you to have any evidence to prove you didn't post anything. :)

Having a printout of ALL of the negative reviews this apartment complex has received in the past may be something that could be used to your benefit, however. It may be hard for the Plaintiffs to prove, for instance, that the posts that are the subject of the defamation suit are what caused any economic losses or business reputational injury.

Although it may be possible to show that the apartment complex did not have a good reputation to begin with, this will do nothing to eliminate the reputational injury suffered by the owner or the employees who were defamed (depending on what exactly was said about them).

At any rate, discuss all of this with the attorney I am sure you will be able to locate.

As for the damages, if this suit goes to trial then a jury will determine the amount of the damages to be awarded based on the evidence presented. If the defamatory statements are judged to be defamatory per se, there will be an award of damages based on that fact alone.

Your filing for bankruptcy will have no effect on the defamation case or what is awarded in the way of damages, should this case go to trial. Damages awarded in intentional tort actions are not (generally) dischargeable in a bankruptcy, for one thing, and your particular financial situation is not considered at all. All that is considered when awarding damages will be the facts of the defamation case itself. Filing for bankruptcy COULD make a difference in any settlement amount agreed to, though - but you would want to speak to a bankruptcy attorney or an attorney in your area to determine this after a review of all of the facts.

You really need an attorney, pro_perdef.
 
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Hmmmm...

Wouldn't the plaintiffs have to come to the bankruptcy court and prove that their lawsuit has some sort of merit before the bankruptcy court would rule whether or not the suit can continue. Thought that filing bankruptcy placed an automatic stay on lawsuits until merit, or some good reason, could be shown why the suit should continue...
 

quincy

Senior Member
I took a look at the apartmentratings link you provided and the one 2008 review (if false) is an excellent example of defamatory per se statements - reputational injury would be presumed and damages could be awarded based on this presumed injury alone.

I have not had the opportunity to check out your pdf file - I will see if I can get to it later tonight.

Before I answer your bankruptcy question, I want to remind you that I am not a bankruptcy law expert and you will need to speak with such an expert who can review your financial situation and all of the facts of your situation and advise you accordingly. Bankruptcy laws are complex and they affect all filers differently and a careful review of all of the figures and facts involved in your particular situation is important.

So, given that caveat ;), here is a very brief overview of Chapter 7 bankruptcy (which works to wipe out all debts - Chapter 13 reorganizes your debts):

You will first need to file a petition in your bankruptcy court. You file "schedules" with the court which list all of your creditors and all of your real property and assets. Any debts not listed will not (generally) be considered for discharge.

Filing for bankruptcy will stay all collection activity and can stay court proceedings. These are postponements. The defamation action will not go away just because you file for bankruptcy.

After filing, the judge then will notify all of your listed creditors and you will testify under oath about your financial situation. Creditors then file written proofs of their claims against you and a trustee appointed by the court will administer your estate.

Once the trustee has taken control of your assets, he will liquidate them to raise funds to pay off your creditors. Secured creditors (ie. mortgage loans) and taxes (among other debts) will be paid first and unsecured creditors (ie. credit cards) will be paid last.

When your assets have been distributed, the bankruptcy court issues an order discharging your debts. You are then free from paying any of your past bills EXCEPT those that are not dischargeable by bankruptcy.

Those debts not dischargeable (generally) by bankruptcy include those that arise from liability for any willful and malicious injury (ie. damages awarded in many defamation suits).

HOWEVER, although there are, I believe, 12 major categories of debts that are not dischargeable in bankruptcy, you can still list these debts in your "schedule" that is filed (check with your bankruptcy attorney on the pros and cons of doing this) and it will (generally) be up to the creditor to object to the discharge.

If one or more of your creditors object to the discharge of the debt, you must respond by filing a "complaint to determine dischargeability" with the bankruptcy court and show why the debt does not fall into one of the categories that are not dischargeable. If they are determined by the court to be nondischargeable, they will remain valid and collectable debts and you do not escape your responsibility for paying them.

The Bankruptcy Code is long, complicated, and it takes an expert to know all of the ins and outs of it. You can check out 11 USC §§101-1330 if you wish to do some heavy reading :). The section that may be of most relevance to you is 11 USC §523(a)(6).

And you can check back here to see if anyone better versed in bankruptcy law than I has wandered over to provide additional advice (or correct any misinformation I may have provided).

I hope you are actively looking for an attorney in your area to assist you, pro_perdef. You really need one.
 
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I took a look at the apartmentratings link you provided and the one 2008 review (if false) is an excellent example of defamatory per se statements - reputational injury would be presumed and damages could be awarded based on this presumed injury alone.
It is a great example...and whoever posted it (I have my theories) should probably be sued...It wasn't me.

Even though it is a great example of defamation "per se" it is only defamatory against the maintenance personnel at the apartment complex, correct? And only then if it's not true. I have no idea if it's true or not and I didn't post it anyway. But it wouldn't be defamatory against other employees of the apartment complex now, would it?

For example. If someone accuses my wife of being a prostitute I can't sue that person for defamation, but my wife could...Likewise, if someone falsely accuses my employee of being a sex offender, I couldn't sue but the employee could...It is my understanding that it is not illegal to employ a convicted sex offender, so therefore whoever made the 2008 post hasn't accused the plaintiffs of any kind of crime or other wrongdoing.

Thanks again, and I AM actively seeking a lawyer, I have an appointment with one next week who may be interested.
 

quincy

Senior Member
If false, the defamatory per se statements about the maintenance men could potentially defame more than just the maintenance men and could potentially result in causes of actions for the apartment complex and for anyone who works for or at the apartment complex. It really depends on the facts and how others have responded to what was written.

If someone accuses your wife falsely of being a prostitute, your wife would probably have a legitimate defamation action to pursue, but it is also potentially possible for you, as her husband, to have a cause of action, as well. You can be defamed by implication.

You are right that it is generally not illegal to employ a sex offender, but sex offenders can have (and generally do have) restrictions placed on where and with whom and around whom they can be employed. An employer could potentially be sued for hiring a known sex offender.

It is potentially possible for an employer to be defamed by implication when a false accusation is leveled at one of their employees.

Everything in law depends on the exact facts presented. Defamation will depend on what exactly was said, to whom, how what was said was communicated and understood and received by others. . . .

There are no pat answers. Case specifics must be reviewed by an attorney.
 
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