From the Apr '10 issue as a courtesy of Undercurrent (http://www.undercurrent.org/
“The other defendants are 1 to 100 John Does Dive Operator Sues ScubaBoard and John Does she wants $10 million for libel and slander
Search a few scuba bulletin boards on the Web and you’re bound to read comments from disgruntled divers who had a bad dive trip, felt they got the runaround from an operator, or had some other complaint to levy. Some are levelheaded, others vitriolic. Some divers seem to have a good time lambasting others or reading about it, but then others may not sit still for it.
Gundi Holm, the owner of travel agency Maldives Scuba Diving, is suing Florida-based Internet forum ScubaBoard for $10 million. A Canadian subscriber (we’ll call him James Blake) was the first to send us word of the lawsuit -- that’s because he is the only other named person Holm is suing. The other defendants are 1 to 100 John Does who wrote comments on ScubaBoard that she didn’t like.
On January 29, Holm filed a lawsuit in the U.S. District Court in Orlando, charging ScubaBoard and its users with defamation, libel, intentional infliction of emotional distress, and intentional interference with her economic relationships. This is definitely a 21st-century case, as there are few precedents of people suing Internet users for libel and defamation. But if Holm wins her case, it could mean the end of ScubaBoard, a website scores of divers use daily.
In the complaint filed by her lawyers, Holm states that for the past year and a half, “defendants have waged a systematic and devastatingly effective war of words” against her and her businesses. The tip of the spear was ScubaBoard. “Defendants have used ScubaBoard.com to lay siege to [Holm’s] good name, casting aspersions and imputing criminal actions without truth or consequences.”
“The commanding officer of this relentless force is one ‘James Blake’, an officious, mudslinging rumormonger, who apparently has little more to do than dispense vitriol from the safety of his snowbound Canadian fortress. Blake fancies himself a white knight and champion of the truth. In reality, he is a callous debaser, set on nothing less than destroying [Holm’s] reputation and business.” “Defendants have used ScubaBoard.com to lay siege to [Holm’s] good name, casting aspersions and imputing criminal actions without truth or consequences.” The other defendants are 1 to 100 John Does; Holm’s lawyers believe each one is a person and responsible by participating in and endorsing the wrongdoing. As a result, Holm has been publicly disgraced and her once-successful business crippled.
“Give This Operator the Widest Possible Berth”
When did this vitriol start? Probably back in January 2008, when Blake took a two-week dive trip on the Baani Explorer, the Maldives liveaboard Holm managed, and she was aboard at the time. He wrote a review of his trip for our Reader Reports. While Blake gave five stars for service and attitude, he wrote “we had more problems on this trip than all of our previous liveaboard experiences,” Problems with the compressor meant going back to town and missing five dives. Blake said he was promised those dives would be made up later in the trip but they weren’t.
Then the motorboat ran aground and partially sank, and some divers lost equipment. “Gundi offered to pay for items but when we explained what was missing [$225 in gear], we were requested to provide a revised quote that would represent a depreciated value, and questioned on the exchange-rate difference between Canadian and U.S. dollars. We were floored by the questions in light of the fact that we were told Gundi had insurance on all of this.” When Blake sent an e-mail to Holm’s main office in Austria outlining his concerns, Gundi sent an e-mail “offering compensation of $25. Even this princely sum has never been sent to us. In her e-mail she states she has no insurance.
Who to believe?”
Blake also wrote that on his trip, nine passengers were sick with nausea, headaches and upset stomachs, and he believes that it was from carbon monoxide fumes coming from the generator. “You could see and smell the exhaust rising from the back of the boat. A CO2 detector is missing from the Baani.” So it must have been ironic to him when he saw news reports in May 2008 of one fatality and multiple illnesses due to carbon monoxide poisoning from a faulty air compressor on the Baani Adventure, another Maldives liveaboard Holm was in charge of. We wrote about it in our July 2008 issue.
“Concrete Booties” Was a Bit Too Much
In her complaint, Holm says that incident is what started the slander against her on ScubaBoard. The John Does she is suing created threads dedicated to the incident and her involvement in it, containing “scurrilous allegations” against her. Here are some, included in the complaint, that offended her most: ScubaBoard member “Leslie Finnegan,” who had been on the Baani Explorer in February 2008 and had issues with the boat, wrote, “Gundi in my books is ultimately responsible. She vets the operations and knows exactly what is going on. Here in Dubai she would be tried for manslaughter. And rightly so.” “DandyDon” wrote, “Haha, pathetic. When they’re killing tourists, no problem. When tourists hurt business, big problem.” “BrianMered” wrote, “Had Gundi been present during our week on board, she would now be wearing concrete booties, an extra weight belt or two, and bethrown over the side.”
Holm and her lawyers think Blake uses several different user names and posted slanderous e-mails under those names. They also allege that ScubaBoard members “LeslieFinnegan,” “DandyDon” and others are “all agents or employees of Intermedia [ScubaBoard’s owner], or made the postings at issue at Intermedia’s direction. Therefore Intermedia is responsible...for the creation or development of the false and defamatory content.”
The comments, especially the one linking Holm with tanks filled with bad air, have caused her loss of business, humiliation, mental anguish, and emotional and physical distress. “As a result,” her filing states, “Holm has been labeled a liar, cheat and murderer and has been ostracized by the scuba community within which she once maintained an excellent reputation and standing.”
What’s a User and What’s an Employee? We read the ScubaBoard threads Holm is upset about. While much of it is based on speculation about what happened on the Baani Adventure, it then turns to questions about how to do air checks on tanks and ensure safe air fills. Elsewhere on ScubaBoard are negative comments about dive trips aboard Holm’s boats, not just from Blake, and they were posted before the Baani Adventure death in 2008.
If our knowledge of Internet chat boards serves us correctly, people who post their comments online are not officially considered agents or employees of the forum. ScubaBoard is based in Florida, “Leslie Finnegan” and “BrianMered” live in Dubai, and “DandyDon” is based in West Texas. While the members post frequently and on many topics, making them “Veteran Members,” does that make them agents for ScubaBoard? Like Blake, “Leslie Finnegan” wrote about taking a bad trip on the Baani Explorer, but a year earlier. While he sees his comments as good advice to other divers, Holm sees them as a slam on her business.
And while Holm believes ScubaBoard is out to get her, she lists an interesting example in her filed complaint that would seem to show otherwise. When “BrianMered” wrote his post about Holm in concrete booties, ScubaBoard owner Pete Murray, who writes under the name “NetDoc,” erased that post, stating, “We don’t allow threats, implied or real on ScubaBoard. I also deleted a thread where you were taunting Gundi. That has no place here.”
While Murray can’t speak about this case, he confirmed to Undercurrent that he is being sued for libel. “We obviously don’t agree, otherwise we would not be aggressively defending ourselves.” He also told us what ScubaBoard’s policy on member posts is. “Anytime anyone is called a name, that is a problem. However, we do not try to vet or rule out facts. If someone presents something as a fact, we allow the other party to give their side of the story. We do not come in between them. We keep things friendly, that’s what we’ve always tried to do.”
Holm’s lawyer, Colin Hardacre of the Kaufman Law Group in Los Angeles, gave us this statement: “We are confident Ms. Holm’s position will be vindicated, and her good name restored, through the judicial process. Hopefully, this lawsuit will also serve as a warning to all those who believe they can cast anonymous aspersions on the Internet with impunity.” Now It’s Up to the Courts.
There have been two recent cases of someone suing over disparaging comments made via the Internet. Last year, a San Francisco chiropractor sued a patient who wrote on Yelp.com that the doctor’s billing practices were dishonest. The chiropractor contended that the patient’s comments on Yelp were misstatements of fact and thus libelous. The patient maintained his comments were opinion and therefore constitutionally protected speech. The lawsuit was settled before it went to court and the patient went back to Yelp to write that “a misunderstanding led us to act out of hand. I chose to ignore [the doctor’s] initial request to discuss my posting. In hindsight, I should have remained open to his concerns.”
In 2006, a Florida woman was awarded $11.3 million in a defamation lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a crook, a con artist and a fraud. It was the largest judgment over postings on an Internet blog or message board. The plaintiff pursued the case even though she knew the defendant had no hope of paying the money. She just wanted to make a point to those who unfairly criticize others on the Internet. “People are using the Internet to destroy people they don’t like, and you can’t do that,” she told USA Today. If Holm wins and gets even a portion of the $10 million she’s asking for, ScubaBoard, which operates on a shoestring budget, will most likely be online no longer. The cost for defending oneself in court is high.
The National Law Journal says the average hourly rate for a lawyer in 2009 was $372. Even if a case goes nowhere, it would cost a defendant tens of thousands of dollars to get it to go nowhere. Unless one has proper liability insurance, that’s a lot of out-of-pocket costs. ScubaBoard members have found out about the suit and are rallying behind Murray, creating a legal defense fund (you can e-mail for details to email@example.com). At its best, Internet blogs, forums and chat rooms represent the ultimate in free speech, giving every person a voice. But they’re also the modern version of the Wild West, a growing frontier town with no sheriff. In the past, judges have given wide latitude to the type of speech posted on the Internet. They usually have cited the 1996 Communications Decency Act, which protects website owners from being held liable for postings by others. That’s good news for ScubaBoard.
Yet also under that statute, individuals who post messages are responsible for their content and can be sued for libel. And judges, many of whom may not know what a blog is or even use the Internet, may not think an Internet commentator is entitled to the same sort of free-speech protection as newspaper and TV journalists. Depending on the outcome, this case could show that it’s worth it for Internet users merely voicing their opinions to fight back, or it could have a chilling effect on free speech as more businesses sue - - not just for cash awards but to silence their critics. - - Vanessa Richardson”