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A recent SLAPP from PADI may provide context for the case from ***** and her attorneys; PADI's case went to the 9th-circuit and created case-law.
Most ScubaBoard readers probably do not know that PADI sued the “Diverlink” website, because Diverlink posted information about PADI’s training standards vs. the standards of other agencies (International PADI, Inc. v. Diverlink). Some opinions on Diverlink were stated as facts; nevertheless, PADI lost, and lost their appeal under California's SLAPP statutes (Strategic Litigation against Public Participation).
While PADI lost in court, they effectively won, because Diverlink shut down, too drained in the defense process. (see SB thread on this topic).
To prevent a repeat of the legal miscalcualtion made by PADI, *****, and her attorneys, are naming 100 "Does."
Under the copyright "fair use" doctrine, here are two articles from Ben Davidson's "warts-and-all" newsletter, Undercurrent, about PADI's SLAPP (thank you Ben from a long-time subscriber!).
From January 2004, page 11:
PADI Takes on WebsiteFrom February 2006, page 6:
In 2001, the scuba website Diverlink (http:/ /diverlink.com) ran
a couple of essays that compared PADI’s training standards to NAUI
and YMCA. While stating that “All three agencies have room to
improve,” the site was particularly critical of PADI, offering opinions
like: “If you want to learn to be a good diver as opposed to just being
certified to be a diver, then most responsible divers would suggest getting
trained by the higher standards that agencies like the YMCA and NAUI
have maintained over the years.”
PADI objected to that and other statements on the site as “full of
inaccuracies, half-truths, and outright misrepresentations regarding
PADI’s business, instructional materials, instructional methods, and
policies,” eventually suing Diverlink for defamation.
Diverlink countered that it was protected by a unique California law
prohibiting suits brought to silence legitimate public debate by using
the legal system for intimidation. According to court documents, in
November a California federal judge granted Diverlink’s motion to
strike PADI’s complaint, awarding Diverlink, as the prevailing party,
$196,000 in attorney’s fees and costs.
Diverlink attorney Dotty Vidal of Dallas told Undercurrent that PADI
has appealed the California ruling to the Ninth Circuit Court of Appeals (last
stop before the U.S. Supreme Court), and the matter probably won’t be
decided until fall or winter 2004. PADI public relations and legal executives
did not reply to Undercurrent inquiries regarding this case.
PADI Anti-Defamation
Lawsuit Tossed OutAs we reported in January 2004, PADI sued the WebFor those too timid to say anything about corporate bullying, for fear of being named as a "Doe," remember you just have to frame your statements as opinions, not facts. As a web community, we need to learn the rules to participate as responsible citizens, otherwise this could be the future... (Two-time Academy Award winning screenwriter Paddy Chayefsky won his third Oscar for Network, 1976; here's the film's most famous scene. Has Chayefsky's prophecy come true? Is the pendulum swinging back via the internet?)
site Diverlink (http://Diverlink.com) for defamation
over an essay that compared PADI training standards
with NAUI and YMCA. The suit has been dismissed,
with PADI ordered to pay court costs incurred by
Diverlink and the essay’s author.
In 2001, Diverlink carried an article by Walter Wilt,
who holds several instructor certifications, stating, “All
three agencies have room to improve. PADI’s system
is very rigid, allowing little room for an instructor to
improve the course by presenting skills in a different
order.” Wilt also wrote that “PADI has been removing
skills from its requirements since the late 1970’s.”
While conceding that a person could dive without the
removed skills, Wilt asked, “Will the diver be confident
and knowledgeable enough to deal with problems and
emergencies as they arise?” His own response was: “I
fear PADI standards do not allow us to answer ‘yes.’ It
seems PADI standards are designed around time constraints
instead of around learning to dive.”
PADI sued in California, claiming that the Diverlink
site “is full of inaccuracies, half-truths and outright
misrepresentations regarding PADI’s business, instructional
materials, instructional methods, and policies.”
One Diverlink statement singled out in PADI’s complaint
was, “If you want to learn to be a good diver as
opposed to just being certified to be a diver, then most
responsible divers would suggest getting trained by
the higher standards that agencies like the YMCA and
NAUI have maintained over the years.”
A federal judge threw out PADI’s complaint, citing
a California law prohibiting suits brought to silence
legitimate public debate. PADI was ordered to pay
Diverlink’s attorney’s fees, but PADI appealed the ruling
to the Ninth Circuit Court of Appeals.
Last summer, the Ninth Circuit Court upheld the
dismissal, because the Web site made obvious that “the
action arose from its acts in connection with a public
issue in furtherance of its First Amendment rights.”
The court further held that Diverlink was immune
from the charges of defamation under the California
law known as anti-Strategic Lawsuits Against Public
Participation (“anti-SLAPP”). Since Diverlink did not
write the statements but was simply the publisher of
Wilt’s article, the court said that “no provider or user
of an interactive computer service shall be treated as
the publisher or speaker of any information provided
by another information content provider.” Wilt was not
named as a defendant by PADI.
The Ninth Circuit Court agreed that Diverlink,
as the prevailing party, was entitled to attorneys’ fees
and court costs. Wilt told Undercurrent that PADI has
advised the Ninth Circuit that the case has settled
and that it is no longer pursuing legal action. The
settlement agreement calls for PADI to pay Diverlink
$311,187.
Additionally, Wilt himself was awarded $3,000 attorneys’
fees as sanctions against PADI by a Florida court,
his home, where PADI had tried to fight the anti-
SLAPP motion. Says attorney Paul Meyer, who was not
involved in the suit, “This is unusual. Lawyers have to
pretty much behave like complete miscreants to earn
this kind of sanction in the U.S.”
Eddie Rhodes, Diverlink’s webmaster, says, “The
case is exactly what it appeared to be at first look, a
big bully trying to get their way even though there was
no grounds for it ... They [PADI] played dirty along
the way, and they were chastised by two federal judges
in different districts for their unethical and improper
behavior.”
PADI’s legal department declined to talk to
Undercurrent about the decision. Their legal director,
Pat Fousek, said, “It’s PADI corporate policy not to
speak to Undercurrent, so we have no comment.”
As JAX cited earlier:
"Statements that imply facts will not be considered opinions under federal law, even if they are labeled opinion. Opinions labeled as such will therefore not necessarily gain protection if what follows asserts a fact, such as "It is my opinion that John murdered Fred."
See Millkovih v. Lorain Journal Co., 11 S Ct. 2695 (1990) as cited in Computer Security Handbook, 4th Ed. Bosworth, Seymour & Kabay, ME, ed. John Wiley & Sons, Inc. 2002.
E.g. Instead of "It is my opinion that John murdered Fred," try "According to statements made by sources I believe to be reliable, I think that John murdered Fred." Hmmm...that's sort of like when Drew Richardson cited data from the National Safety Council and DAN to claim that diving's safety is comparable to bowling. As long as you create plausible deniability, where's the liability? BTW, has anybody actually investigated the reliability of the data sources that Drew and DAN have cited to make the bowling comparison?
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