It's too late to apologize, Dick Levy!
"Varian Internet Defamation Case On Hold
By Michael Bartlett, Newsbytes
SAN JOSE, CALIFORNIA, U.S.A.,
20 Apr 2002, 10:34 AM CST
A California appeals court has granted a temporary stay in both the contempt and appeal proceedings in the case of two people who were found guilty of Internet defamation in December.
Jon Eisenberg, the attorney for defendants, today told Newsbytes he asked for the stay until his clients' appeal is heard. Eisenberg said he believes the lower court's finding was unconstitutional and will be overturned.
Lynne Hermle, lead attorney for plaintiffs, Friday said she is "confident the decision of the 12 jurors and Judge (Jack) Komar will stand up to any scrutiny."
The case of Varian Medical Systems, Varian Semiconductor Equipment Associates, Susan B. Felch and George Zdasiuk versus Michelangelo Delfino and Mary Day has been heated from the beginning.
On Oct. 8, 1998, Varian discharged Delfino due to what the company said was harassment of some co-workers. Varian alleged that, shortly after his termination, Delfino began to "harass" plaintiffs on the Internet by posting what the company termed, "belittling, derogatory and often scandalous messages."
The postings, which Varian alleged were authored by Delfino, were placed on the Yahoo message board for Varian Associates. The company claimed Delfino posted almost every day under different aliases.
Delfino and Day proudly admit they have posted over 15,000 messages online relating to the plaintiffs. However, Delfino told Newsbytes in November, "Nothing we've ever posted is anything but the truth, our opinion or hyperbole."
Four months ago, a jury disagreed, finding the defendants guilty of defamation. The jury awarded plaintiffs a total of $775,000 - $425,000 in actual damages and $350,000 in punitive damages.
In addition, Judge Jack Komar issued an injunction against defendants, prohibiting them from posting what he termed "clearly defamatory statements."
Komar specifically prohibited Delfino and Day from posting statements that said plaintiffs as a group or individually were liars or chronic liars; were promiscuous or were having extramarital affairs; were a danger to children; were homosexual; were homophobic; or were mentally ill.
The judge also ordered defendants not to use the names of any or all of the plaintiffs as an alias when posting on the Internet, and he forbade them from listing the names of plaintiffs' children and giving information on where they were located.
Komar said defendants can give their opinions, but "when it comes to stating something as a fact that is demonstrably untrue, that is a subject to be enjoined."
According to Eisenberg, Delfino and Day continue to post on the Internet after the trial, both on their Web site and on various Yahoo boards. He said plaintiffs contend the Web site violates the injunction and asked for a hearing. If found guilty, he said, the defendants could be jailed.
"The injunction tells Delfino and Day there are certain things you must stop saying on the Internet," said Eisenberg. "The First Amendment says there can be no prior restraint on speech. If speech is defamatory, then the speaker can be sued for damages, but the government can't stop people from speaking."
"In this case, the defendants were told they had to shut up."
Eisenberg said the appeals court granted the stay on April 16, one day before a judgment debtor's exam - a hearing to determine the location of assets for Delfino and Day. Also looming on the calendar are April 22 and 29 deadlines to produce documents in advance of a July 11 contempt hearing to determine if defendants violated the judge's injunction.
"The appeals court agreed to stop the proceedings temporarily," said Eisenberg. He said a hearing will be held to determine if the contempt hearing will be stayed until after the appeal of the case is heard.
"I believe the appeal has a good chance of winning, and if I'm right, they have no lawsuit because they went to trial on the wrong theory of defamation," he said.
According to Eisenberg, there are two kinds of defamation - libel and slander. In legal history, slander generally has been defined as oral defamation, while libel was written.
"You can sue for libel, even if there is no monetary loss. Plaintiffs went to trial in this case on a libel theory."
Eisenberg believes defamation on the Internet is slander, not libel, because it is similar to radio and television. He said California law defines defamation on radio and TV as slander, not libel.
"This is important, because plaintiffs claimed no monetary loss, just emotional distress," he said.
Not surprisingly, attorneys for plaintiffs disagreed with Eisenberg.
Lynn Hermle today told Newsbytes defendants "violated the judge's order in several ways."
"They continued their vicious attacks against my clients' children, against their sanity and their morals," Hermle said. "They did the same things the jury and the court told them to stop."
Hermle said neither of defendants' attorneys raised the libel or slander argument during the trial.
"That argument does not seem to me to have merit," she said. "In this case there are words, written on a computer and conveyed over the Internet. It is possible for people to download these words onto written documents, and many people print out these words."
"This is very different from radio and TV," she continued. "Those don't have written words, and you can't download the words."
Matthew Poppe, another attorney for plaintiffs, said he will be filing a brief with the appeals court on behalf of his clients on or before May 1, as per the court's order.
"This is not an unconstitutional prior restraint. It restricts speech, but it is narrowly tailored," he said. "It prohibits the making of statements that are false and defamatory, and it came after a full trial on the merits."
Poppe said the messages posted by Delfino and Day were written, and he would argue against Eisenberg's contention they constitute slander, not libel.
Both Poppe and Hermle said they hoped the appeals court would remove the stay quickly. They said evidence linking post-trial postings to the defendants could be lost.
"We will be more harmed by the stay remaining in force than defendants would if it were to be removed," said Poppe. "The service providers for the Yahoo boards don't maintain information that connects the post to the poster indefinitely."
"If the stay remains in effect, we can't prepare for the July 11 contempt hearing," added Hermle.
The defendants' trial update is at geocities.com .
Defendants' version of events leading up to trial is at geocities.com .
Another site dedicated to this case is at geocities.com .
Reported by Newsbytes.com, newsbytes.com .
(20020419/Press contact: Jon Eisenberg, attorney for defendants, 510-452-2581; Lynne Hermle, attorney for Varian, 650-207-4297 /WIRES LEGAL, ONLINE, BUSINESS/DOTCOMLIT/PHOTO)
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