Two dueling tattoo parlors down the road from one another in Mobile, Alabama. It could be the premise of a TLC reality show. It’s not (yet) a TV show, but it IS a court case recently decided by the Alabama Court of Civil Appeals. In September, that court ruled in favor of Chassity Ebbole, owner of “LA Body Art” tattoo parlor in Mobile, who had sued the owners of the competing “Demented Needle” tattoo shop for libel and wrongful invasion of privacy.
Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.
Ebbole also reported that Demented Needle boasted at least two defamatory objects in the parlor: a poster displaying an image of one of Ebbole’s tattoos, meant to discourage customers from visiting Ebbole’s shop, and a body cast decorated in demonic symbols and used to model Demented Needle’s apparel. Ebbole claimed that Averette told customers the body cast was supposed to be Ebbole.
In his defense, Demented Needle owner Averette claimed that the poster was not defamatory because it was protected commercial speech and the body cast was not recognizable as Ebbole. The court held that Averette did not present adequate evidence to prove that the poster was protected speech. The court also held that, because Averette routinely told customers that the body cast was supposed to represent Ebbole, his speech was defamatory.
Ebbole also claimed that a co-defendant of Ebbole had defamed her through a MySpace posting, which included a video of Ebbole performing a body piercing.
The MySpace post read:
I came across this video during my recent health inspection of all [things]. I was certified to do microdermal anchoring in October of 2008…. [Ebbole’s method] is disrespectful to what I do and what I love … allegedly. I ask you, people of the interweb … what should I do about it?
FYI: [Ebbole’s method] is NOT the method I use or would suggest to be used for any implant procedure.
The post was followed by comments from third party MySpace users, some of which contained threatening and defamatory language.
In his commentary about the case, Eric Goldman questioned the court’s malice finding: “The court ruled the plaintiff was a public figure, so the plaintiff [would have] had to show defendants’ malice to support the defamation claim. I am especially interested in its application to [the co-defendant’s] MySpace posting.” Goldman then questioned evidence of malice based on the MySpace posting.
Goldman discusses the specifics of the MySpace posting, wondering who had originally posted the video and noting that the statements that seemed to be most defamatory were made by third party commentators, not any defendant. And in any event, Goldman thinks defendants’ MySpace comments were clearly opinion, not factual. “I’m failing to see anything defamatory in this statement at all,” he concludes.
Goldman then discusses the case in light of 47 USC 230, the Communications Decency Act of 1996 (CDA). Section 230 of the CDA states that no user of an interactive web service can be held responsible for the postings or another user. Goldman argues that this principle should have applied here. “Inferring malice from a site operator’s failure to remove third party comments should be preempted by [CDA Section 230] because it treats the operator as a publisher/speaker of those comments,” he writes.
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