West Palm Beach attorney’s 3-year fight highlights cost, difficulty in clearing name on Internet
By Jane Musgrave
But, at 45, he said he’s worked hard for what he’s got. He got straight A’s at Lake Worth High School. His grades propelled him to Georgetown University where he graduated with top honors as an undergraduate and went on to earn his law degree. Returning home, he set up an estate planning and probate practice in West Palm Beach and tried to do right by his clients.
Then, with one click of a button, two men he never represented, took it all away.
“He is a thief! Before hiring him, please be advised that he is as crooked and deceitful [sic] as they come,” according to one of several reviews that began popping up three years ago on his Google listing.
Stunned, Morrissey tried to persuade the Internet giant to remove the false — and defamatory — accusations. When it refused, he used the only option available to him: He sued.
This month, a jury agreed his reputation had been harmed and ordered Gerald and Jason Siew, brothers who posted the comments, to pay him $400,000 in damages.
While satisfied by the outcome, Morrissey said he is disturbed by the process. “They took three minutes out of their life to call me a thief and I had to spend three years of my life to get it removed,” he said. “It’s patently unfair.”
Further, he said, as an attorney, he was lucky. He could represent himself.
But, he asks, what about the plumbers, electricians or others who find themselves pilloried online?
“They have no recourse unless they want to pay an attorney tens of thousands of dollars,” he said.
Civil libertarians sympathize with Morrissey’s predicament.
“I understand the frustration of people who are having untrue things posted about them,” said Matthew Zimmerman, a senior staff attorney at the California-based Electronic Frontier Foundation, which fights to assure free speech thrives the Web.
When Congress set the rules for the Internet, lawmakers agreed it should be an open marketplace for ideas. While victims of “cybersmears” might call its name a misnomer, the Communications Decency Act of 1996 says Internet service providers and Web site operators can’t be held responsible for the content of missives posted by others.
“The downside of a free and open Internet is a lot of slimeballs get a lot more air time,” Zimmerman said. But the impact of making Web site operators censors would be worse.
“We would all suffer because the people who complain are the ones who would control what goes online,” he said. As cumbersome as it might be, the court system is the best forum to arbitrate disputes and decide whether an online comment crosses the line from fair criticism to defamation.
In the early days of the Internet, corporations turned to the courts to silence anonymous critics, said Lyrissa Lidsky, a University of Florida law professor who specializes in First Amendment issues. Before judges knew the difference between a message board and a memory board they routinely allowed corporations to swat away unfavorable comments by going after those who posted criticism anonymously online.
In one case, Enron Corp. went after a person who posted a message, hinting at the financial misdeeds that later brought down the Texas-based energy giant, she said. The case illustrates that comments that are objectionable to the target often have merit.
Since then, judges have become much more savvy about Internet posts. In a 2008 case, a California appeals court acknowledged that an anonymous post was crude, juvenile and offensive. However, it ruled, calling the top executives of a company “boobs, losers, and crooks” wasn’t defamation, in part, because of the nature of the Internet.
The court noted that the Internet encourages a “relaxed conversation style,” making posts more akin to “gossip” than cold-hard facts. Saying it was doubtful anyone took the misspelled, ungrammatical rants seriously, it ruled that they “fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment.”
In Morrissey’s case, however, he argued that the comments, which branded him as a thief, were false on their face and therefore not protected by the First Amendment. He said he has never been charged, much less convicted, of being a thief.
Unlike the California case and many other cybersmears, the attacks against him weren’t anonymous. Gerald and Jason Siew, who posted the comments, used their real first names. Neither ever denied that they posted them, Morrissey said.
Further, he said, contrary to at least one of the posts, he had never represented the brothers. He was appointed by Palm Beach County Circuit Judge Richard Oftedal to sort out a complex mess that arose when the Siews’ father died. Complications included determining which of two women were married to Gerald Siew Sr. when he died, determining if money had been misappropriated from his estate and whether the beneficiaries of his $1 million life insurance policy had been improperly changed.
The brothers became his adversaries, Morrissey said.
Five months after the messy estate case was settled, the first post — by Gerald S. — appeared. That it came days after the murder of Morrissey’s brother, a molecular biologist and cancer researcher at Nova Southeastern University, exacerbated the offense. Those who turned to the Internet to locate him so they could send condolences learned someone thought he was a thief.
As the number of nasty comments grew and spread to other Web pages, Morrissey learned there were several ways he could make them disappear. He could persuade the Siews to remove them (which they wouldn’t). He could hire a reputation management firm to write favorable comments and take other steps to counter-act them. Or, he could sue.
While Yelp.com agreed to remove the comments after he filed the lawsuit in 2011, Google said it would only do so if Morrissey won. Even after he got a judgment against the brothers in October when they failed to respond to the lawsuit, Google refused to scrub the comments. It wasn’t until December, after Circuit Judge David Crow issued a permanent injunction, spelling out the offending comments and ordering the Siews to remove them, that Google acted.
Google’s stubborn refusal to do anything still angers Morrissey. “Each day these defamatory reviews appeared on the Internet my reputation is being damaged,” he said.
This month, after a two-day trial, a jury understood. Since Crow had already ruled that the brothers posted the defamatory comments, jurors were only asked to decide how much they should pay Morrissey for damaging his reputation. Neither of the brothers, who represented themselves, returned calls for comment.
Morrissey said he will head back to court to ask that the Siews also be forced to cover the roughly $4,500 he spent on court costs and more than $100,000 it cost him to represent himself.
Lidsky, the UF law professor, said she can sympathize with Morrissey. She recently tried to help a friend get a “nanny cam” video removed from the Internet and got a taste of how complicated and frustrating it can be.
Because courts throughout the country have taken different views of Internet defamation, she said the U.S. Supreme Court may eventually weigh in. Further, she said, Congress may change the rules, eliminating protections for Web sites that encourage the posting of “nastygrams” or obscene photos — known as “revenge porn” — by jilted lovers. Unfortunately, she said, such a change could have a chilling effect on speech that should be protected.
Noting the difficulty of sorting out the various competing free speech issues, Lidsky wonders if people will eventually learn to tolerate Internet slams. Just as young people are less likely to worry about privacy violations on the Internet, she suggested that they may be less concerned about ugly comments.
“The younger generation is going to be used to living their lives in the public spotlight,” she said. “Maybe the answer is that you’re going to have to live with a certain amount of content you don’t like. You have to learn to take the bitter with the sweet.”
First Amendment attorney Thomas Julin, former chairman of the Florida Bar committee on media and communications, said given the difficulty, cost and uncertainty of litigation, many people are turning to reputation management companies to combat online smears. But such companies aren’t cheap. A do-it-yourself approach is often easier.
“You need to create your own image,” he said. “It’s very difficult to remove negative comments but you can drown them out.”