Last week a Florida, intermediate Court of Appeal, vacated a temporary injunction entered against a former commercial tenant arising from a landlord/tenant relationship gone bad.
After reading the case, I foresee little harm in amending your existing “forms” to include contractual protections against the types of cyber attacks described below. I also suggest that you consider adding protective language into every agreement or amendments to existing agreements.
In the case in question, the Court wrote:
“Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.”
In the case, the tenant appealed an order granting a preliminary injunction to “enjoin tortious interference, stalking, trespass and defamatory blogs” entered in favor of the landlord. The appeal was one of eight South Florida legal proceedings between the landlord and tenant.
The landlord became aware of an anonymous blog about the landlord and its principals. Some illustrative blog posts were: “Bottom line, when you sign a lease with RK Associates, Raanan Katz goes after YOUR money no matter what”; “If you do not want to lose your business, your investment, your ideas, think twice, talk to their tenants, and do your research to learn what can happen to you after signing the lease with the landlord like RK Associates”; and “Raanan Katz and Daniel Katz are the most immoral human-being[s] in the world. They are daring enough to take bread from little Jewish special needs child to support their luxury lifestyle [sic].”
The landlord and its principals filed a complaint in the circuit court alleging defamation per se and libel and thereafter added counts for tortious interference with contractual relationships, tortious interference with advantageous business relationships, invasion of privacy, trespass, civil conspiracy, injunction to stop tortious interference, injunction to prevent trespass, and injunction to prevent stalking.
Thereafter, the former tenant posted what the Court described as a “somewhat unflattering” photograph of the landlord’s principal. The landlord’s response was to again amend his suit to include a claim the tenant “realized and continues to realize profits or other benefits rightly belonging to the landlord.”
The trial court action determined that, “the Defendants have blogged extensively about the Plaintiff and many of these blogs are arguably defamatory. Although ultimately a defamation trial will be held, this Court ORDERS the Defendants not to enter defamatory blogs in the future.” The court determined that:
Plaintiffs have a substantial likelihood of ultimately prevailing on the merits of their claims, and there is a substantial threat of irreparable injury to the Plaintiffs if injunctive relief is not granted, that the threatened injury to Plaintiffs outweighs whatever damage the injunction would cause the Defendants, and that the injunction would not be adverse to the public interest.
The order prohibited the tenant from “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs' advantageous or contractual and business relationships,” and ordered the tenant to remain at least 200 yards away from the appellees and their immediate families, and ordered the tenant from trespassing upon the appellees' properties.
In vacating the injunction, the appellate Court ruled that with limited exceptions, freedom of speech is of paramount importance. Therefore one has the right to speak, even if ultimately the spoken word will be defamatory or libelous statements. There is, however, a limited exception to the general rule when the defamatory words prevent the other party from realizing profits.
The record before the Court failed to support an inference that the blogs were having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved or likely to be involved, in an advantageous business or contractual relationship with the landlord.
The Appellate Court also ruled that the landlord failed to prove cyber-stalking. Ruling that the landlord failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language ... directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”
Of course this begs the question of whether protections limiting First Amendment right, the ability to blog or use cyber-space can be contracted away. I strongly suspect the answer is yes because two parties to a commercial contract are generally free to contract rights away.