Media, LLC
Filed 8/10/12 Redmond v. Gawker Media, LLC CA1/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
SCOTT REDMOND,
Plaintiff and
Appellant,
v.
GAWKER MEDIA, LLC, et al.,
Defendants and
Respondents.
A132785
(San
Francisco City
& County
Super. Ct.
No. CGC-11-508414)
Gawker
Media, LLC, and Gawker Sales, LLC (collectively, Gawker) published an article
in a technology weblog questioning claims made by Scott Redmond, the chief
executive officer (CEO) of a small startup technology company, about the
company’s products and his past business successes. Redmond sued Gawker and the article’s
writers, John Herrman and Adrian Covert, for libel and false light. Defendants moved successfully for an order
striking the complaint under Code of Civil Procedure section 425.16 (hereafter
section 425.16). Redmond contends the trial
court erred in finding he had not established a probability of prevailing on
his libel claims. Based on our independent review of the record, we
affirm the trial court’s order.
I. BACKGROUND
A. The
Parties
Redmond is
the CEO and founder of Peep Wireless Telephony Company (Peep), which he
describes as “an early stage company developing software intended to replace
the current system of server racks and cell towers employed by wireless network
carriers.” Redmond has also founded
other companies which he asserts have successfully developed, designed, or
built prototypes of a range of high-technology products using his ideas and
inventions. On January 13, 2011, the technology
weblog, Gizmodo, published a post by two of its writers, defendants Herrman and
Covert, expressing skepticism about Peep and some of Redmond’s other business
ventures and technologies (hereafter the article or the post). Gawker owns and operates Gizmodo.
B. The
Article
Entitled
“Smoke & Mirrors: The Greatest Scam in Tech,” Herrman and Covert’s article
begins with the authors’ tongue-in-cheek commentary about how the consumer
electronics industry promotes its products to technology reporters like
themselves: “In the tech world, a few questions
are usually enough. Does the product
work Is the idea good How much does it cost But as Peep Telephony reminds us, there’s a
fourth, all-important qualification: Is
it real [¶] The Consumer
Electronics Show [(CES)], which took place in Las Vegas last week, is a place
where you get lied to. A lot. Always, basically, which is one of the
reasons reporters attending CES mope so melodramatically: for every cool thing you see, you have to
endure hours of pitches, all of which are misleading, and many of which,
disingenuously so. [¶] But that’s how this industry—and plenty of
others—work. They pitch; we parse. They stretch the truth; we try to make it
contract. It can be a crude and
occasionally uncomfortable system, but it generally works.”
The article
goes on to describe Peep and a number of Redmond’s other business ventures
based on information gathered from his Web sites and other sources accessible
on the Internet.[1] Links to Redmond’s Web sites and to YouTube
video clips promoting his products were provided throughout the article. Written in a breezy, irreverent prose style,
the article openly questions whether any of Redmond’s products and product
claims are technologically feasible and whether his product descriptions make
technological sense or were mere “technobabble” without real substance.[2] Hermann and Covert summed up Redmond’s
business history as follows: “In
addition to [the technology] being arguably impossible, the problems with Peep
go much deeper than unclear business plans and sketchy PR. [¶] Peep
Wireless is just the latest in a string of seemingly failed tech startups that
spans back about two decades, all conceived, helmed and seemingly driven into
the ground by one man: Scott Redmond.
We’ve done a bit of digging into the Peep CEO’s past projects, and they
don’t give us much faith in his current endeavor, to say the least.
[¶] The pattern is easy to pick out:
This dude shows up whenever there’s a bubble or hot trend in the tech
business world that has yet to make it to the marketplace. Then he strings together a bunch of technical
jargon that hardly informs what he’s doing, and presumably gets some kind of
funding . . . . [and forms companies] around said bubble.
. . . [¶] Ultimately, the companies just disappear . . . .
There’s no point in trying to ascribe motives to what Redmond does, and we
don’t want to make this about character or intent. Point is, these ventures rarely—if ever—work. And through the harsh lens of hindsight, some
look like they weren’t ever meant to.”
The article
mentions and provides links to Web sites describing past projects of
Redmond’s—none of which seemed to still be ongoing according to the authors: a
mid-1990’s technology to stream major films free to any computer or television,
even without an Internet connection; a virtual reality product; an inflatable,
build-it-yourself electric-powered automobile; a personal flying device; and a
hydrogen fuel storage system. The
article’s concluding paragraphs return to the theme that claims about new
consumer technology products generally should never be taken at face
value: “This post isn’t meant as some
kind of personal hatchet job, and to be honest, one shouldn’t be necessary to
dissuade investors from throwing money at this venture. Peep’s background information is freely
available online, and everything you see above was discovered with a few quick
searches on Google. Any investor—or
reporter, for that matter—should be able to see these red flags on their own.
. . . . [¶] Rather, this is a glimpse at what happens when
hype overcomes all else. It represents
an unchecked version of the pungent, insidious promotional id of events like
CES. And it’s worryingly familiar.”
The article
generated hundreds of comments from readers, expressing praise and criticism
for the authors, positive and negative reaction to Redmond and his products,
and opinions and views on a range of subjects related to the CES and the
technology industry.
C. Redmond’s
Lawsuit
Redmond contacted Gizmodo by
e-mail to complain about the piece, and requested to speak to someone
“preferabl[y] live on CNN, to understand why you allowed an obvious
competitor[’]s attack on my company and on me personally.” Joe Brown, the Gizmodo features editor,
replied and offered to meet with Redmond and to correct any factual
inaccuracies in the article. Redmond
responded with a lengthy e-mail reproducing the text of the Hermann/Covert
article interspersed with Redmond’s two- or three-sentence responses to many of
its assertions. The e-mail stated in
part: “[A]ttached is a list of the
factual inaccuracies [the article] contains [and] an explanation of the
corrected facts in response. . . . [A]ttached are the true facts. Will you agree to publish them as a fair and
accurate counterpoint to the inaccurate post”
Gizmodo posted Redmond’s e-mail in full on January 18, 2011. This posting also generated voluminous
comments from readers. Gawker declined
Redmond’s subsequent demand that the January 13 and 18 articles be removed from
the Internet.
On February
22, 2011, Redmond sued Gawker for libel per se, libel per quod, and false
light. The complaint alleged, among
other things, that the Gizmodo article falsely asserts or implies Redmond (1)
runs a company using “ ‘knock-off’ ” and nonfunctioning technology,
(2) uses his ventures to scam investors into giving him money, (3) has
predominately or exclusively presided over failed start-up companies,
(4) takes advantage of trends in technology without having a novel idea or
expertise in the subject technology, (5) misrepresented the success of his
companies, and (6) lies about his business and technological experience. The complaint specifically quotes only one
portion of the article:
“ ‘Ultimately, the companies just disappear, legacies reduced to
comically vague blubs on Redmond’s resume—if that. There’s no point in trying to ascribe motives
to what Redmond does, and we don’t want to make this about character [or]
intent. The point is, these ventures
rarely—if ever—work, and through the harsh lens of hindsight, some look like
they were never meant to.’ ”
Redmond cites this as an example of how the article “directly implies
[he] has put forth his Peep Wireless venture, along with others, to scam investors
into giving him money.”
D. Gawker’s
Anti-SLAPP Motion
Gawker
filed a special motion to strike Redmond’s complaint under section 425.16[3] on the following
grounds: (1) the Gizmodo article
constituted protected speech in connection with a public issue; (2) the
statements in the article were protected opinions and could not support a libel
action; (3) alternatively, if the statements were not opinions, they were
substantially true; and (4) Redmond was a limited-purpose public figure who
could not prove the requisite “actual” malice.
The trial
court granted Gawker’s motion to strike the complaint, ruling (1) all three of
Redmond’s causes of action arose out of conduct in furtherance of the
constitutional right of free speech in connection with a public issue; and (2)
Redmond failed to establish a probability of prevailing in his claims because
(a) in context, the statements in issue constituted statements of protected
opinion rather assertions of verifiable fact, and (b) Redmond is a
limited-purpose public figure, but failed to present any prima facie evidence of actual malice.
Redmond
timely appealed from the trial court’s order.
II. DISCUSSION
Redmond
contends the trial court erred in determining (1) the statements in issue
concerned a matter of public interest, (2) the statements were of opinion
rather than fact, (3) he is a limited-purpose public figure, and (4) he failed
to show a likelihood of establishing defendants published the article with
actual malice.[4]
A. Standard
of Review
Subdivision
(b)(1) of section 425.16 provides in pertinent part “[a] cause of action
against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech . . . in connection with a
public issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.”
An order
granting a special motion to strike under section 425.16 is reviewed de
novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) We apply our independent judgment to
determine whether the plaintiff’s causes of action arose from acts by the
defendants in furtherance of the defendants’ right of petition or free speech
in connection with a public issue. (
65 Cal.App.4th 713, 721, disapproved on another point in
Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) Assuming this threshold condition is satisfied,
we must then independently determine, from our review of the record as a whole,
whether appellant has established a reasonable probability he would prevail on
his claims at trial. (
(1996) 42 Cal.App.4th 628, 653, disapproved on another point in
(2002) 29 Cal.4th 53, 68, fn. 5.)
We must reverse the judgment of dismissal if appellant made a prima
facie showing in the trial court of facts which, if proved at trial, would
support a judgment in his favor. (
B. Nexus to a Public Issue
Redmond
argues Gawker failed to meet its burden of showing how the post invokes any
issue of public interest. He asserts he
“never offered any goods for purchase to the general public,” but merely
offered them “to a limited number of pre-qualified investors.” Thus, according to Redmond, the subject
matter of the post as Redmond defines it—his “truthfulness in connection with
his investment opportunity available to a limited segment of the populace”—does
not concern a matter of public interest.
Subdivision
(e) of section 425.16 defines the statutory phrase “ ‘in furtherance of a
person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue,’ ” in relevant part to
include “any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest
. . . .” (§ 425.16, subd.
(e)(3).)
Redmond
does not dispute his claims arise from an exercise of free speech rights in a
“place open to the public or a public forum.”
(§ 425.16, subd. (e)(3).) As the
Supreme Court has recognized, the Internet is “ ‘the most participatory
form of mass speech yet developed’ ” and thus Internet communication is
“entitled to ‘the highest protection from governmental intrusion.’ ” (Reno
v. American Civil Liberties Union (1997) 521 U.S. 844, 863.) Where, as here, the “gravamen of the lawsuit
is the content of [the defendant’s] Web site,” the action arises from an “act
in furtherance of the right of free speech.”
(Kronemyer v. Internet Movie
Database Inc. (2007) 150 Cal.App.4th 941, 946–947; see also
33, 41, fn. 4 and cases cited therein [Web sites accessible to the public are
public forums for purposes of the anti-SLAPP statute].)
Speech has
been found to concern a public issue where it (1) concerned a person or entity in the public eye, (2) addressed
conduct that could directly affect a large number of people beyond the direct
participants, or (3) contributed to the public debate on a topic of widespread
public interest. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (
AFL-CIO (2003) 105 Cal.App.4th 913, 924.)
In this
case, Gawker came forward with evidence that before cowriting the article,
defendant Hermann had viewed posts by other Internet commentators raising similar
questions and concerns about Redmond’s Peep venture. These included a January 3, 2011 Twitter post
by Sascha Segan, a mobile device analyst and editor for PC Magazine, which
included a link to a January 3 article in PC Magazine’s online news site entitled,
“Peep Proposes Wireless P2P System,”[5] describing some of the
claims Peep was making about its technology.
The Twitter post asked, “Wireless folks, does this read like crazy to
you” The linked article contains quotes
about the product from an unnamed Peep “spokesman,” apparently sent to the
author by e-mail, as well as language taken from a Peep press release
announcing plans to demonstrate its software product for investors at the
CES.
Herrman
also reviewed a January 4, 2011 CNET online news article by regular CNET
contributor, Rafe Needleman, expressing his own skepticism about the Peep
technology. Needleman had interviewed
Redmond at the CES who told him he was there to seek out business partners for
his company. Among other things, the
CNET article’s author wrote that his “credulity strained” at some of Redmond’s
claims and he doubted “if Peep ha[d] the discipline to develop any of its ideas
into viable businesses.” Gawker
submitted evidence the CNET article generated a considerable number of reader
comments, both positive and negative, about Redmond’s venture.
Herrman
identified two other Web pieces regarding the Peep venture posted in the days
leading up to the 2011 CES. A post in
the weblog www.crunchgear.com labeled Peep’s promotion “the first outrageous
claim of CES,” and generated numerous pro and con reader comments on Peep’s
claimed technology. Another post on
www.rcrwireless.com also questioned the viability of Peep’s technology, stating
Peep “wins our award for sheer originality,” and “it’s nice to see a bit of
mobile madness is alive and well at CES.”
As
mentioned earlier, Gawker produced a press release issued by Peep on
January 3, 2011, announcing it would be demonstrating its technology to
potential commercial partners and investors at a Las Vegas hotel suite during
the CES. Peep’s own Web site included
several videos promoting the company and its technology, and boasted extensive
press coverage about the Peep “team” claiming “[t]here are over 2000 media
articles about their past successes.”
The videos were also available on the Peep Wireless YouTube
channel. Another of Redmond’s Web sites,
for Clever Industries LLC, described him as an “award-winning visionary” whose
“ventures and services are acclaimed in over 2500 press and media
acknowledgements.” The site stated his
past projects had been featured on the Discovery Channel, Fox, E!
Entertainment, Green Seed Radio, CNET, the New York Times, the Wall Street
Journal, Aero News, NPR, XM Radio, the Mike O’Meara radio show, and in
“hundreds” of other publications and media outlets, achieving “extensive media
acclaim globally.” Redmond’s evidentiary
submissions in opposition to Gawker’s motion to strike did not contradict
Gawker’s evidence on the question of whether the Gizmodo article concerned an
issue of public interest. In fact,
Redmond sought judicial notice of other publications and Web sites describing
technologies under development by well-known companies he contended were similar
to those ridiculed by the Gizmodo article.
The
preamble to section 425.16 states its provisions are to be construed broadly to
safeguard the constitutional right of
free speech. (§ 425.16, subd.
(a).) Broad construction must therefore
be given to the phrase “an issue of public interest” in subdivision
(e)(3). (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133,
143.) Here, Redmond sought to be and was
“a person or entity in the public eye.”
(Wilbanks,
Internet media heavily trafficked by tech consumers and members of the tech
community. He sent out press releases,
responded to inquiries by well-known tech writers, gave interviews, maintained
Web sites with promotional videos, and sought to use the CES and the publicity
surrounding it as a means to bring his company to the attention of the public
and potential investors. His own Web
sites touted media interest in his ventures as a selling point. Moreover, the Gizmodo article was
disseminated in a public forum and concerned a public controversy. At least four articles about Peep, as well as
a widely followed Twitter message by a well-known tech analyst, had preceded
the Gizmodo article. Four of these had
expressed open skepticism about Redmond’s technological claims, and significant
reader response had been generated.
use of “viatical settlements,” arrangements by which dying persons sell their
life insurance policies to obtain funds for medical care and other
purposes. (Wilbanks, supra,
121 Cal.App.4th at p. 889.)
The underlying suit was brought by a firm in the business of brokering
such arrangements after the defendant used her Web site to warn potential
customers against using the firm. (
connected to an issue of public interest because it was in the nature of
consumer protection information, providing information relevant to choosing
among brokers. (Id. at pp. 890, 898–901.)
Similarly here, the Gizmodo article was a warning to a segment of the
public—consumers and investors in the tech community—that Redmond’s claims
about his latest technology were not credible.
That segment was at least as large as the rather specialized group of
consumers involved in Wilbanks. Although Redmond states he was not offering
any product to consumers, and was only seeking to reach qualified investors, he
was doing the latter by claiming to have developed a high-impact technology
that would be of tremendous interest and value to consumers and to the cellular
telephone industry. He actively sought
media attention for his company with such claims, and succeeded in getting
it. He cannot now plausibly maintain
there was no public interest in whether the claims were credible.
We
therefore find this case comes within the purview of section 425.16.
C. Opinion Versus Fact
False
statements in publications, even if objectively unjustified or made in bad
faith, cannot form the basis for a libel action if they are statements of
opinion rather than fact. (
California (1996) 44 Cal.App.4th 572, 578.)
“[O]pinions are the lifeblood of public discussion promoted by the First
Amendment, under which speakers remain free to offer competing opinions based
upon their independent evaluations of the facts.” (Paterno
v. Superior Court (2008) 163 Cal.App.4th 1342, 1356 (
libelous statement constitutes fact or opinion is a question of law for the
court. (Campanelli, at p. 578.)
California
courts use a “ ‘totality of the circumstances’ ” test to determine
whether an alleged defamatory statement is one of fact or of opinion. (Baker
v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 (
We look both to the language of the statement and to the full context in
which it appears. (Ibid.) “[W]hat constitutes a
statement of fact in one context may be treated as a statement of opinion in
another, in light of the nature and content of the communication taken as a
whole.” (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601 (
statement is “cautiously phrased in terms of apparency,” the statement is less
likely to be reasonably understood as a statement of fact rather than opinion. (Id.
at p. 603.) Disclosure of the facts
supporting the challenged statement is also highly significant in determining
whether it is actionable. (
159 Cal.App.3d 1166, 1170.)
Redmond
places great reliance on his contention the word “scam” in the article’s title
—“Smoke & Mirrors: The Greatest Scam in Tech”—is an assertion of fact about
his business rather than opinion. But
the word “scam” has no precise meaning.
(See McCabe v. Rattiner (1st
Cir. 1987) 814 F.2d 839, 842 (McCabe).) Although undoubtedly a pejorative term,
“scam” means different things to different people and is used to describe a
wide range of conduct. (
It could refer to anything involving an arguably inaccurate
representation, from exaggerating the value of a product or charging too much
for it to carrying out a massive criminal fraud. It would not be unusual to see the word
“scam” used in a pure opinion piece expressing the author’s opinion of a
restaurant, a product or service, a piece of legislation, or a business
proposal. “The lack of precision makes
the assertion ‘X is a scam’ incapable of being proven true or false.” (Ibid.) Thus, defendants’ use of the term “scam,” by
itself, does nothing to establish a probability Redmond will prevail against
them in a libel claim.
Viewing the
full context of the article, we believe it falls into the category of
constitutionally protected opinion rather than fact. First, the article is written in a casual
first-person style, which puts the reader on notice the authors are expressing
their own views rather than stating objectively verifiable facts. (See McCabe,
supra, 814 F.2d at p. 843.) The
article has the tone and style of a sarcastic product or movie review—negative
about its subject matter to be sure, but with little pretense of objectivity. The authors assert, for example, Peep’s
product descriptions “don’t make sense,” “sound[] like bullshit,” and are
“filled with meaningless technobabble.”
Redmond’s video of his concept for the standardization of fuel cell
components, makes “the thing seem[] more like a movie prop.” Peep “is just the latest in a string of
seemingly failed tech startups . . . all conceived, helmed and
seemingly driven into the ground by . . . Scott Redmond.”[6] In our view, the article’s general tenor and
language would give a reasonable reader the impression the authors were
expressing subjective opinions, not reporting facts. (See, e.g., Paterno, supra, 163
Cal.App.4th at p. 1356 [“loose and figurative” language signals
constitutionally protected opinion rather than actionable, false assertions of
fact].)
Second, the article is completely
transparent. The sources upon which the
authors rely for their conclusions are specified, and the article incorporates
active links to many of the original sources—mainly Web sites and promotional material
created and maintained by Redmond and his ventures. As the article states in its concluding
paragraphs, “Peep’s background information is freely available online, and
everything you see above was discovered with a few quick searches on
Google.” Having ready access to the same
facts as the authors, readers were put in a position to draw their own
conclusions about Redmond and his ventures and technologies. As shown by the comments posted, many readers
did view these sources, and not all of them agreed with the authors’
views. Statements are generally
considered to be nonactionable opinion when the facts supporting the opinion
are disclosed. (Baker, supra, 42 Cal.3d
at p. 266, fn. 7; see also Partington v.
Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1156–1157 [“when an author outlines
the facts available to him, thus making it clear that the challenged statements
represent his own interpretation of those facts and leaving the reader free to
draw his own conclusions, those statements are generally protected by the First
Amendment”].)
Third, the
authors couched their conclusions in the language of “apparency” (
Peep’s technological claims were “arguably
impossible”; Peep was “just the latest in a string of seemingly failed startups . . . seemingly driven into the ground” by Redmond; Redmond “
cash prizes available”; some of Redmond’s ventures “look like” they were never
meant to work. (Italics added.) The authors also expressly disclaim any
intention to impute bad motives or character to Redmond, and invite readers to
check Redmond’s own Web site or conduct their own Google search to find out
about his ventures. All of this
qualifying language reinforces the impression that Herrman and Covert were
expressing their personal, subjective perspective rather than declaring
objective facts.
For these
reasons, we conclude the Gizmodo article constituted protected opinion and
cannot provide the basis for a successful libel suit. As Redmond concedes, his false light cause of
action based on the same publication therefore also fails. (See
(1984) 37 Cal.3d 244, 265 [liability cannot be imposed on any theory for what
has been determined to be a constitutionally protected publication].)
III. DISPOSITION
The order
granting defendants’ motion to strike is affirmed.
_________________________
Margulies,
J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Banke, J.
[1]
The post states the authors tried to reach the company three times but were
unsuccessful. Redmond disputes whether
they made a good faith effort to contact him.
[2]
For example: “Peep’s promises are
manifold: customers will ‘never need to pay a phone bill again,’ and ‘all their
email, Internet and media access would be free forever’. . . .
[¶] But a visit to Peep’s website is vexing. Every page is jam-packed with sentences that
don’t make sense, literally and technologically. . . . [¶] To be
frank, this all sounds like bullshit. In
fact, the combination of everything described was so strange, it almost made
the company seem like a larger-than-life prank on the tech world.”
