Tortious interference is one of those legal terms that sounds a lot more complicated than it is. Bryan A. Garner, the author of the Dictionary of Modern Legal Usage, once explained the concept to the legendary New York Times wordsmith William Safire. “Say you had a contract with Joe Blow, and I for some reason tried to get you to break that contract,” Garner said. “Or say that Pepsi has an exclusive contract with a hotel chain to carry Pepsi products, and Coke tries to get the hotel to carry Coke despite that contract. That’s tortious interference.”
Tortious interference can arise in a wide variety of cases, involving actors as diverse as multinational corporations and Playboy models.
In 1985, a Texas jury ruled that Texaco must pay Pennzoil $10.53 billion for interfering with Pennzoil’s previously announced takeover of Getty Oil. It was at the time the largest jury award ever granted in a civil suit, forcing Texaco into bankruptcy.
Tortious Interference And The Centerfold
Another prominent tortious interference case involved former Playboy playmate Anna Nicole Smith. In 1994, she sued her stepson, E. Pierce Marshall, claiming he had interfered with the efforts of his late, millionaire oilman father to establish a trust that would benefit Smith after the elder man’s death. Smith was 26 and Marshall’s father, J. Howard Marshall II, 89, when they tied the knot. Marshall died 14 months later, triggering the long battle over the estate. The case went on 20 years and went all the way to the Supreme Court. Both Smith and E. Pierce Marshall had long since died by the time the matter was resolved.
What does tortious interference have to do with the internet and defamation? Potentially quite a lot. Tortious interference seems to be cropping up increasingly as an allegation in online defamation suits, especially cases involving negative comments on product and service review sites. Granted, tortious interference isn’t always so easy to prove. And some legal analysts look down on tortious interference as kind of “kitchen sink” accusation, used when plaintiffs’ lawyers are throwing every charge they can think of at defendants.
“There ought to just be a rule that if you’re even threatening to sue someone for ‘tortious interference,’ or ‘racketeering’ that you should recognize that your claims are probably bogus and you should probably take a deep breath and think again,” Mike Masnick, wrote in a column last year in Techdirt.com. He was referring to the possibility that Gawker might accuse PayPal founder Peter Thiel of those two charges after discovering he had bankrolled a libel suit that forced Gawker out of business. But many tortious interference claims in online defamation cases also don’t get a lot of respect from legal specialists.
Claiming Tortious Interference Against Hostile Online Reviews
Be that as it may, reputation-conscious businesses and professionals are now deploying tortious interference, in tandem with the more common complaints of defamation of character and false light, to combat negative reviews.
In one recent case, lawyers representing Stahulak & Associates, a Chicago bankruptcy and divorce law firm, used the triad of tortious interference, defamation and false light in a suit aimed at the anonymous author of negative reviews on Glassdoor, a site offering current and ex-employees provide anonymous evaluations of companies and their managers. Among other things, the reviews said that the firm didn’t allow workers to take lunch breaks and added that “the pay is worse than working in fast food and you have no future with the firm.” Stahulak’s complaint against the anonymous author of the reviews said it didn’t require much investigation to establish their falsehood. Some of the reviews were written by people purporting to be ex-Stahulak, contractors and interns, and the firm doesn’t employ contractors or interns, Stahulak’s suit said. Stahulak sought removal of the reviews and damages.
- “The Plaintiffs (Stahulak & Associates) held a reasonable expectancy of entering into valid business relationships with consumers.”
- “The Defendant (the unknown author of the negative Glassier comments) had knowledge of the Plaintiffs’ expectancy of entering into valid business relationships with consumers.”
- “The Defendant published the Glassdoor Statements to harm the Plaintiffs .. .. ( and) expressly intended to direct consumers away from doing business.”
- “The publication of the Glassdoor Statements constitutes an intentional and unjustifiable interference with prospective clients of the Plaintiffs.”
Risks And Challenges Of Tortious Interference Claims
Claiming tortious interference in defamation cases is a strategy that bears risks. Nine times out of ten, when a plaintiff pursues tortious interference claim in tandem with defamation of character, the fate of the two claims becomes inextricably linked. That’s to say, that if the tortious interference claim is rejected, so too is the defamation claim, in most cases.
It also might be helpful for looking more broadlatut the principles underlying a tortious interference claim. Some of this is ground I’ve covered before.. But below I’ll repeat the main elements that must be proven for a claim for tortious interference to prosper.
In most jurisdictions, a claim for tortious interference requires that the following six elements are proven:
- A valid contract or relationship must exist between at least two parties
- The third party defendant had knowledge or was aware of the contract between the two other parties
- The defendant intended to convince, induce, or make one of the parties to the contract breach the contract
- The interference by the defendant was not an act that is privileged or protected by the law
- A contractual breach actually occurred
- The non-breaching party suffered measurable damages
Tortious Interference And The Infidelity Site
Elsewhere, some judges haven’t expressed much sympathy for tortious interference claims in online defamation cases. A Manhattan lawyer tried—and failed—to use tortious interference to sue two women he had been romantically involved with who attacked him on a site about infidelity called liarscheatersrus.com.
Attorney Matthew Couloute, Jr. sued Stacey Blitsch and Amanda Ryncarz for posting on the site that he “Cheated on ALL of ex-girlfriends” and “lied and cheated his entire way through his 40 years of life.” They added ”BE FOREWARNED, HE’S SCUM. RUN FAR AWAY.”
Couloute, a former prosecutor, sued on the grounds of tortious interference, arguing that the posts had hurt his practice.
In a ruling in 2012, Manhattan federal Judge Harold Baer Jr. said Couloute hadn’t proven that the postings constituted tortious interference. “Even though plaintiff’s reputation has suffered, I am unwilling to take the leap from generalized comments calling plaintiff a ‘liar’ and a ‘cheater’ — on a Web site called ‘liarscheatersrus’ no less — to actions directed at specific business relationships,” Baer wrote.
Baer added: “The average reader would know that the comments are ’emotionally charged rhetoric’ and the ‘opinions of disappointed lovers.’ ”
After the verdict, Couloute told reporters he was “disappointed” by the ruling. “The suit was never about cheating, or whether I was faithful, but about what you can print on the Internet and the harm it causes to people’s lives,” Couloute said. He also said he’s gotten “tons of phone calls and emails from people who are in a similar situation,” and vowed to become active in fighting online defamation. “This issue’s not going to go away,” he said.
Couloute added: “It’s hard to find lawyers that know enough about this to take these kinds of cases forward, and I think I’m going to use my skills to help them.”
First Amendment Obstacles To Tortious Interference Claims
One tortious interference claim that prospered at a lower court level became a huge cause celebre among free speech defenders. In that case, a Minnesota jury in 2011 ruled that a blogger named John Hoff pay $60,000 to the subject of an article who lost his job as a consequence of the post. The unusual part of the verdict was that the jury didn’t find that the post itself was false. It just ruled that the negative blog piece had tortiously interfered with the subject’s relationship with his employer.
The author of the post, John Hoff, wrote a blog called “The Adventures of Johnny Northside,” which focussed on community issues in his neighborhood on the northside of Minneapolis. In one post, he attacked Jerry Moore, former director of a neighborhood council, who had gotten a job at the University of Minnesota’s Urban Research and Outreach/Engagement Center. Hoff accused Moore of involvement in a “high-profile fraudulent mortgage” and asking “WHAT THE HELL was the U of M thinking by hiring him.”
The day after the blog post appeared, Moore received a letter from the University of Minnesota saying his “services would no longer be needed.” Moore sued Hoff, saying the blogger had tortiously interfered with his contract with the University of Minnesota.
The jury didn’t find that what Hoff wrote was untrue. But it still issued a verdict against Hoff on the grounds of tortious interference. The jury decided Hoff should pay Moore $25,000 for emotional distress, along with another $35,000 for lost wages.
A district judge upheld the jury verdict, promoting free speech activists to fret about the precedent.
“That’s a back-alley use of tortious interference,” said Charles Davis, associate professor of media law at Missouri School of Journalism. Davis said the case represents a current trend that involves “throwing everything against the wall” to see what accusation sticks.
Free Speech And ‘Trash Torts’
Another analyst, Jane Kirtley, a professor of Media Ethics and Law at the University of Minnesota, wrote that the tortious interference claim was a kind of end run to avert the free speech protections the first amendment provides for written discourse. She likened it to the so-called “trash torts” of the 1990s. “Plaintiffs who wanted to sue for libel, but could not meet the high standards of proof set by the Supreme Court in cases like New York Times v. Sullivan and its progeny, attempted to circumvent those requirements by claiming damages based on other legal theories such as trespass, breach of duty of loyalty, or fraud,” Kirtley wrote. In one case, 1999 Food Lion brought suit against ABC’s “Primetime Live” for deceptive undercover reporting techniques, and won.
Eventually, the tortious interference claim against Hoff was set aside by a Minnesota appeals court. In 2012, the appeals court ruled: ““Because a tortious-interference claim cannot be based upon true information and because the record does not contain sufficient evidence of conduct separate and distinct from Hoff’s constitutionally protected speech to sustain the verdict, we conclude that the district court erred by denying Hoff’s motion for JMOL. We therefore reverse and remand for the district court to enter judgment for Hoff.”
Tortious Interference And The Sock Puppets
But there have been cases in which tortious interference accusation was used successfully by the target of an unflattering online review. It’s worth adding that in one of the most prominent cases there were some unusual circumstances regarding the nature of the reviews. In that case, New Directions For Young Adults, a Florida-based program to aid students with autism and other learning challenges, sued and won an injunction against reviewers who had posted negative comments using so-called sock puppets. Sock puppetry is the act of creating a phony online identity as a commenter, in order to make statements without the commenter’s true identity being revealed.
The injunction obtained by New Directions ordered the defendants, Kathy and Brian Davis, to remove the posts signed by sock puppets. The Circuit Court in Broward County, Florida found “that the Defendants created a false impression of a group of negative reviewers about the plaintiffs, when in fact, there is no such group of negative reviewers-only the defendants,” the opinion read. The court added that “ the conduct of making up names of person[s] who do not exist to post fake comments by fake people to support defendants’ position tortiously interferes with plaintiffs’ business…This conduct is inherently unfair. “
Stop Tortious Interference on the Internet
As the cases we’ve looked at illustrate, tortious interference is a nuanced and complicated area of the law, especially as it pertains to the internet. Pursuing a tortious interference claim requires a high level of legal expertise. If you or your business is a victim of tortious interference from information written on internet, contact the experienced internet attorneys at Minc LLC to evaluate your case. Under current laws, it is possible for an attorney to completely remove infringing content from the web. To schedule a free, no-obligation initial consultation call (216) 373-7706 or schedule a meeting online.