[VAR] "No Easy Outs Seen in Suit for Internet Libel
By Shannon Lafferty
The Recorder
December 12, 2001
One of the first Internet libel cases -- targeting two unapologetic former employees of Varian Medical Systems Inc. -- went to the jury this week.
But even as jurors toiled Tuesday to determine if defendants Michelangelo Delfino and Mary Day libeled the company and two of its executives with sometimes nasty postings on
Internet message boards, a bigger struggle -- over the type and extent of any injunctive relief -- may lie ahead for the lawyers and the judge.
The unusual case, marked by defendants who continue to post messages that criticize and insult the plaintiffs, their witnesses and their lawyers during the trial, has become an
expensive test of wills with no easy way out.
Depending on the outcome of the eight-week trial, Santa Clara
Superior Court Judge Jack Komar could end up writing a wide-ranging injunction that may add a new and important precedent to the growing body of Internet law.
The case may also serve to illustrate the pitfalls of using libel laws to attack Web-enabled antagonists. Corporate plaintiffs typically go after rogue Internet posters to shut them up. However, Varian's suit has arguably amplified Delfino and Day's message. Day and Delfino continue to post messages and operate a Web site providing often scathing courtsid coverage. The two have admitted under oath that they've posted 13,000 messages on more than 100 message boards, including Yahoo's.
Day and Delfino have also publicly said that if the company or the executives drop or lose the civil suit, they'd consider filing a malicious prosecution complaint.
"There is no easy way out because they are not going to silence us," Day said Tuesday. "I believe there is no injunction that will silence us."
"It's never been a game of chicken. It's about defending our rights," Delfino said.
After the jury left the courtroom on Tuesday, Varian's lawyers asked Judge Komar to craft an injunction barring Delfino and Day from defaming, impersonating or even approaching individual plaintiffs Varian Vice President George Zdasiuk and manager Susan Felch or using variations of their names like "Susan_Felch_Lies" and "Zdasiuk_sucks."
Day and Delfino's attorney argued against what he described as an unlawful prior restraint.
"To do what they want you to do infringes on constitutional rights," Palo Alto attorney Randall Widmann told Komar.
Varian's legal team -- Orrick, Herrington & Sutcliffe partner Lynne Hermle and associate Matthew Poppe -- also asked the court to make Day and Delfino remove defamatory postings about the plaintiffs' personal and sex lives, work competency and families, and prevent them
from posting similar statements on message boards and personal Web sites.
Poppe listed for the judge several statements to be included in the injunction including statements describing plaintiffs as "chronic liars," "hallucinators," "scary yenta bitch," "homophobic," "incompetent" and "stupid."
Poppe also wants Komar to restrict the search identifiers Day and Delfino can use on their site so that Web surfers searching "Varian" or "Zdasiuk" won't find links to their pages. Varian also wants Komar to require Day and Delfino to notify the plaintiffs of any new Internet aliases.
"It's clear from the defendants' statements that they are going to post forever," Poppe said. "It demonstrates that an injunction will be necessary to avoid repetitive lawsuits for libel and impersonation."
Poppe argued that an injunction was appropriate under California's civil harassment statute, a state penal code barring harassment with an electronic communications device, and Business & Professions Code Section 17200. And he pointed to the California Supreme Court's plurality opinion in Aguilar v. Avis Rent a Car, 21 Cal. 4th 121, in which a deeply divided court allowed an injunction to stand against a worker who a jury determined had repeatedly hurled racist epithets at his co-workers.
"You can enjoin defamation if there is a finding, but you can't enjoin in advance," Widmann responded. Widmann also argued that Varian can't use Section 17200 against Day and Delfino. "You can't use it to go after individuals, which is exactly what they are doing here," Widmann said.
While Komar considers crafting an injunction, the jury is considering defamation, misappropriation of name, breach of contract and conspiracy causes of actions. On Tuesday, the jury asked several questions about actual damages versus punitive damages and the conspiracy special finding.
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