Obeying a Takedown Letter a Binding Contract

TechDirt reports today on a vexing case out of Pennsylvania dealing with contract, defamation, and website take-down letters.  Apparently, the Pennsylvania Supreme Court of Philadelphia believes that obeying a take-down letter constitutes a binding contract and any reposting of the material constitutes a breach, despite any legal justification for posting the information at issue.

The case deals with Dominic Morgan, a Philadelphia man who had Lasik surgery in 1998 and whose doctors, Herbert Nevyas and Anita Nevyas-Wallace, he later sued for malpractice because he was left legally blind and was awarded only paltry damages.  Still unhappy, Morgan started www.LASIKsucks4u.com on which he wrote about his experience and dissatisfaction with his doctors.  The Nevyas sent Morgan a letter claiming his site was defamatory and demanded that all references to them be removed from the site (if he did, they promised not to sue).  As almost every lawyer would recommend, Morgan immediately removed the material at issue and proceeded to seek advice from a lawyer about the letter.  After determining that the Nevyas’ claim of defamation was weak, Morgan reposted the material and the Nevyas sued.

In April, the court found that

The parties had agreed that in exchange for the Nevyas’ agreement to refrain from  filing a lawsuit against Morgan for Defamation, Morgan would remove all defamatory statements from the site and refrain from doing so in the future. This Court found that Morgan agreed to this, even providing proof to the Nevyases of his agreement and compliance therewith… Essentially the Court found an offer, acceptance, including Morgan’s compliance with the agreement to alter the web site, removing the Nevyas name, and consideration.  Nevyas v. Morgan, No. 946, 2006 Phila. Ct. Com. Pl. LEXIS 203, 3 (PA. 2006).

So Morgan’s act of reposting the alleged defamatory material, though its defamatory nature was never discussed by the court, constituted a breach of contract between Morgan and the Nevyas.

Morgan is being represented by Public Citizen and has just filed his appeal (read here).  The appeal notes that not only did the correspondence between Morgan and the Nevyas not constitute a contract to not criticize the Nevyas, but that finding that it does is an impermissible waiver of Morgan’s free speech rights.  At some level, Morgan’s criticisms are mere accounts of what factually happened to him and as such he has every right to report that info to the public.  A fair and true report would not be defamatory, but the court never bothered to address the issue in basing its decision in contract.

As Public Citizen’s press release regarding the appeal points out, it is common practice for companies to threaten companies and individuals with take-letters in response to legitimate criticism and just as common for the information to be removed to avoid costly litigation.  If abiding by a take-down notice is determined to be a binding agreement, essentially an admission of guilt, such a practice could create numerous problems.  The time it takes for an individual to consult with a lawyer may create an undue delay, creating more severe penalties in the event of a lawsuit.  Further, because of the immediate need to respond to a take-down letter, legal advice might be hurried and less than thorough.  It could lead to information being removed in order to prevent litigation, and because such would create a binding contract, free speech would be greatly infringed upon because, in essence, even a retraction and a correction would be a breach.

The decision could also increase the number of people who flat out reject take-down letters, since they might be less likely to remove the disputed information if they feel that common sense and justice should be on their side.  Being up against a wall like this, more people might feel obligated to fight the take-down request, causing headaches for those sending out the letters, and in a round about kind of way might actually decrease the number of such requests issued.  As of now, it makes sense for companies and people to send out frivolous take-down notices because the costs are low (most people take the stuff down).  If more people fight the letters, costs will escalate, and those that issue such letters might be forced to pick and choose their battles more carefully.  This would not be such a bad result.

Interpreting the situation as one creating a binding contract ignores the strong first amendment argument that would hold this kind of expression as protected.  To make an end run around the first amendment by characterizing this as an offer and acceptance is most troubling, and likely (I would hope) an argument that will be rejected on appeal.