Comments

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  Allan Lynch February 2, 2012 at 4:13am

  In Canada we've had two nice class actions against publishers for unauthorized use of work. The lawyers get 50%, but for me my modest share paid my rent for a year.

  I don't know anything about US law (except that you wouldn't convict OJ), but I have at different times in my career sued advertisers who didn't pay their accounts. One time the court found for me and that put some sort of judgement against the defendant, so they hurried in to pay. Another case after winning, I had to then file a lien. That was necessary to enforce the court decision. I think that's where defendants get away without paying.

  Oh and another thing - you know how people are always trying to charge you interest on overdue amounts? Again, this is from a Canadian perspective. You used to be able to go to the department of consumer affairs - now it's a more touchy, inclusive name - and pay $50 for a license to charge interest. You had to show them a sample of your invoice so everything was clear.

  Annoying little prick that I am I did that. And I put down interest charged at the rate of 2.5% per cent per month or 30% per annum. The department questioned me on that and said the normal rates were much lower. And I told them that I charged this much because I'm not a banker. My business wasn't to make loans. I wanted it to be more expensive to owe me money than it cost to owe their bank or credit card or other supplier. They allowed it. 

  It came in handy about three years later when I sued a politically-connected deadbeat. He came to court with his very smart, well-bred lawyer who when they lost turned to the adjudicator and said that 90% of the account was for interest and unless Mr. Lynch was licensed to charge interest, the court couldn't impose that as part of the award. When I pulled out the license I thought the lawyer was going to choke me. He and his client weren't smiling then.

  If you're involved in a class action you may want to see about your group's ability to charge interest and make the award compound. That has a way of focusing their attention.
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  Ed Wetschler February 2, 2012 at 3:55am

  All very interesting, Allan. I wasn't aware of "libel tourism" --  the right to pick your jurisdiction. Thanks for the explanation and the examples.

  I guess you could say that the class action by unpaid writers that I'm involved in now is kinda like that, insofar as we made a rational decision to choose NY State over Florida. (The United States, as you know, are virtually separate states rather than united ones.) Ah, but will we actually get our money? Still can't say for sure. 

  I can't remember if the discussions you mention in your second set of comments ("while you might be safe at home in the US ") were on Tripatini or elsewhere, but I know what you mean. 
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  Allan Lynch February 2, 2012 at 3:23am

  Ed,

  I forgot to mention there is a concept called "libel tourism". This is where plaintiffs pick the jurisdiction in which to sue. Yes, now it's coming back to me - plaintiffs are collecting in these cases. The CBC did a special on it one or two years ago. They collected five or six cases. For example, an Icelandic banker sued a Norwegian (or maybe it was Danish) newspaper in an English court for defamation and won. That's because it's easier to win a defamation case in the UK than in the USA.

  Politicians do better suing in courts in Singapore because their legal system is favourable to ruling classes. And so on.

  With traditional media you sue them in the jurisdiction in which they operate. But in the on-line world courts are looking past borders because this is a borderless medium or is operating is so many jurisdictions that the courts are expanding their reach. 

  I don't know if it was on here, but I remember several other discussions on this topic. I think one of the comments was that while you might be safe at home in the US should you leave the country, maybe an assignment on a cruise ship or holiday in the Caribbean, you could be then served under some international law which would require you to pay up before you could go home.
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  Allan Lynch February 2, 2012 at 3:10am

  I'm not the lawyer. But too many people have been too free with their unsubstantiated opinions, and too many people think they can hide across borders. If this were simply a Canadian company doing this, I would rack it up to moral outrage and they've made a point. We like to make points in Canada.

  But the three owners of this business are Americans. Two of them are lawyers. Only one still practices, but the other is still licensed to work. He's the one who took on tobacco - and won. Do we think the blogger has the resources to fight two lawyers and a university professor? They are a trio who have a history of running successful businesses in New Orleans and three other countries. They also wrote a best-selling cookbook for Random House and been positively featured in T+L, Nat Geo Trvlr, Conde Nast, Forbes ... 

  The blogger has an uphill fight. He's fighting against money, reputations that have passed the best editors in the world, and a very smart legal team. I think the fact that one very conservative jurisdiction has found certain facts to be true and actionable could well be considered by another jurisdiction. I have interviewed these guys and am very impressed by them. I believe they have a well-thought-out plan to defend their reputation. They started here and will roll it out there. These guys aren't just a trio of pissed off hoteliers. They are smart and know what they're doing. This is one to follow.

  I think it will make a lot of bloggers and website owners sit up. It may actually help freelancers. It may show the value of reliable contributors and elevate our words beyond "content".
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  Ed Wetschler February 2, 2012 at 2:57am

  Thanks for posting this, Allan. As far as you can tell, do plaintiffs in this sort of cross-border suit have much success in collecting? 
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  Allan Lynch February 2, 2012 at 2:10am

  Hi All,

  If you or anyone you know blogs this press release about a court decision may be of interest. The plaintiffs operate small resorts in Nova Scotia, Costa Rica and Spain. They are from New Orleans. One of them was part of the case against the tobacco industry. So they know the law. And this may be a shock to a lot of bloggers who think they have a god-given or constitutional right to say whatever they want about anyone and anything.

  Allan

  Largest defamation damage award in Nova Scotia history a victory & vindication for a small hotel & its proprietors
  February 1, 2011—for immediate release
  
  East Kemptville, NS      Trout Point Lodge and its Managing Directors Charles Leary & Vaughn Perret announce that today Justice Suzanne Hood of the Nova Scotia Supreme Court awarded monetary damages and injunctions against Mississippi-based blogger Doug K. Handshoe for Internet-based defamation and related causes of action. The global award of $425,000 is the largest ever in Nova Scotia, the previous record being $300,000, and appears to be among the top 20 such damage awards in Canada since 1885.
  
  Particularly significant is the granting of both mandatory and permanent injunctions against Handshoe, who continues on a more than 2-year campaign of defamation, including false accusations of numerous crimes as well as homophobic speech. In addition, the judge ordered not only general damages, but also aggravated and punitive damages. Punitive damages are “awarded in situations where the defendant's misconduct is so malicious, oppressive and high handed that it offends the court's sense of decency.  They should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence,” according to a past decision of the Supreme Court of Canada.
  
  In a lengthy reasoned decision, which took over an hour and fifteen minutes for Justice Hood to read in open court at the Yarmouth, NS, Justice Centre, she condemned the use of anti-gay words and images in the defamation as well as the numerous false accusation of criminal conduct.
  
  The plaintiffs do not know the defendant Handshoe, who is a Certified Public Accountant living in Bay St. Louis.
  
  Perret and Leary were each awarded $100,000 in general damages, $50,000 each in aggravated damages, and $25,000 each in punitive damages. Trout Point Lodge received $75,000 in general damages. Under the law of defamation, corporations cannot receive aggravated damages because they do not have feelings. Justice Hood took into consideration, however, the excellent reputation that Trout Point Lodge had developed as tourism enterprise. The injunctions require the removal of all extant published material and forbids Handshoe from publishing about or referring to the plaintiffs in the future.
  
  The plaintiffs now will seek to have the judgement enforced in the United States. Although the United States Securing the Protection of our Enduring and Established Constitutional Heritage or SPEECH Act will provide for an additional measure of scrutiny from U.S. Courts, the plaintiffs remain confident that Handshoe “would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of Mississippi,” which is the standard of the recent U.S. Federal legislation.
  
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  Michelle da Silva Richmond January 18, 2012 at 6:36pm

  Did anyone ever get a response from Madelyn regarding payment for contributors? Inquiring minds want to know..
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  Ed Wetschler January 18, 2012 at 6:18pm

  Can you help a fellow writer with a Valentine's Day question? (Hey, we're all romantics, or we wouldn't be in this biz.)  http://www.tripatini.com/forum/topics/seeks-tips-for-valentine-s-da...
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  Michelle da Silva Richmond January 10, 2012 at 7:08pm

  Madelyn:

  Ditto the question about rates. I have a "sweet" story for you.

   
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  Keith Kellett January 10, 2012 at 6:36pm

  Madelyn:

  I have something that may fit; what are your rates?

   

  (keithkellett@ntlworld.com if you don't want to reply in open forum)