IN RE: ANTHONY BROWN,
Protest Decision 2002 EAD 552
Issued: January 15, 2002
OEA Case No. PR062212CA
Anthony Brown, a member of Local 213, filed a pre-election protest pursuant to Article XIII, Section 3(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that IBT Local 213, its secretary-treasurer Don McGill and its president Ray Zigmont violated Article VII, Section 11(g) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") by commencing a defamation action against him in a civil court in British Columbia, in retaliation for his exercise of rights protected by the Rules.
Election Administrator representative Gwen Randall investigated the protest. This protest was the subject of our earlier decisions in 2001 EAD 434 (August 30, 2001), where we granted the protest, and 2001 EAD 437 (September 4, 2001), where we granted a stay of our remedial order pending appeal. Thereafter, on October 4, 2001, the Election Appeals Master remanded this case to the Election Administrator "for further investigation, with explicit instruction to conduct an examination under oath of Anthony Brown, as to his full and complete knowledge of all relevant facts, and such further extensive inquiry as is necessary." 01 EAM 95.
Findings of Facts
Two slates contested the Local 213 delegate election: the McGill Unified Members slate (the "MGM slate") and the Local 213 Teamsters Rank & File slate (the "TRF slate"). Ballots were mailed on February 21, 2001 and counted on March 14. The MGM slate was elected.
Brown was the spokesperson for the TRF slate during the delegate election campaign, and his name was listed first on the delegate election ballot. Brown signed correspondence with the local union and our office on behalf of the TRF slate. McGill and Zigmont were candidates on the MGM delegate slate.
During the course of the delegate campaign, supporters of the TRF slate established an Internet web site with the address of http://213rankandfileslate.homestead.com. The Internet domain server was Homestead Technologies Inc. ("Homestead"), a California company. The web site contained a chat page, which was open to anyone who wished to log on.
Between February 26 and March 18, 2001, a message appeared on the TRF slate web site chat page. It made reference to McGill and Zigmont personally, suggesting that certain serious charges had been laid against them by a former officer of Local 213. The message suggested further that McGill and Zigmont had "paid off" or threatened the officer to drop the charges. The message went on to say that McGill and Zigmont were people that the author did not want running the union and that the MGM slate members were corrupt. The message was signed with the pseudonym "Concerned."
In fact, in May 2000 a former officer had instituted internal charges under the IBT Constitution at the joint council level against McGill and Zigmont. Hearing of the charges was postponed a number of times at the request of the former officer. In October 2000, the internal charges were dismissed, as the former officer did not appear at the hearing. This result was reported to the regularly scheduled January 2001 meeting of the local in the officer's report.
On March 14, 2001, following the tallying of the election results at Local 213, a Local 213 lawyer sent a letter to each member of the TRF slate requesting that the message described be deleted from the web site immediately. The TRF slate complied on the same date, deleting the message, posting a retraction and mailing a letter of apology to the union's lawyer.
On May 9, 2001, Local 213, McGill and Zigmont commenced an action in the Supreme Court of British Columbia, Vancouver Registry, against Brown, Homestead, John Doe #1 and John Doe #2, alleging defamation against McGill, Zigmont and Local 213, as McGill and Zigmont are officers of Local 213. The action was commenced on the recommendation of the executive board of Local 213 and approved by a motion of the membership at a local union meeting through acceptance of the officer's report. The local union subsidized the cost of the litigation.
In his protest, Brown claimed that the offending statement was not posted on the web site by any member of the slate, and further claimed that he did not know the identity of the person who posted the message. Brown further claimed that the litigation had a chilling effect on his ability to participate in Local 213's officer elections. Zigmont and McGill advised our investigator that despite their being aware of the posting of the message during the delegate election campaign, they decided to wait until after the delegate election before taking legal steps. They claim that the web site message defamed them personally and in their capacity as officers of Local 213.
The plaintiffs' Statement of Claim alleges that the words were published falsely and maliciously. Brown, however, testified that he did not have a computer, and that he was unaware of the posting of the allegedly defamatory message until his post-election receipt of the lawyer's correspondence. Lacking any knowledge of the posting, he says, he could not be said to have maliciously posted the same.
On remand, we conducted a sworn deposition of Brown. In that deposition, he testified that the idea for a web site for his slate in the delegate election came about at a meeting among several members of the slate, including him. He said that "several of the members of the slate thought it would be a good idea to set up a web site so that people that were interested in our point of view could log on to that web site and, you know, put points of interest forward. That's why it was set up." (Deposition at 4.)
Brown stated that the web site was set up "early in the [delegate] campaign." According to Brown, Local 213 member and shop steward Russ Sawdon set up the web site. Sawdon was not a member of Brown's slate, but did support it. Brown stated that Sawdon attended the meeting where members of the slate decided to set up the web site, and that the slate members, including Brown, asked Sawdon to set up the web site because they understood Sawdon had some expertise in doing so. (Deposition at 4-5.)
Brown testified under oath that he does not own a computer and "barely" knows how to operate one. (Deposition at 6, 12.) He does, however, have access to a computer at work. He testified that he did not visit the slate's web site after it was set up. (Id.) He did not know why Homestead was chosen as the Internet service provider for the web site, and did not know where it is located. (Id.) Brown testified without contradiction that he first learned of the allegedly defamatory posting on the web site when he was served with papers demanding the removal of the message from the web site. (Deposition at 6-7.) In response, says Brown, he telephoned Sawdon and asked him if the complained-of message was on the web site. (Deposition at 7-8.) Sawdon ascertained that it was and told Brown, who asked him to remove it so he could comply with the demand that this be done. (Deposition at 7-8, 11-12.) Further, Brown says he asked Sawdon to post a retraction immediately, which he did. (Deposition at 8-9, 12.) Brown did not author the retraction that was posted, but Sawdon read it to him over the telephone before it was posted. (Id.) He instructed Sawdon to post the retraction without talking to other members of his slate. (Id.) Brown then wrote a letter to counsel Laughton, who represents Zigmont and McGill. (Deposition at 10.) It is dated March 20, 2001 and states, inter alia:
Firstly and foremostly we deny any knowledge of the person who posted the libellous statements on the website.
We also categorically state that we do not agree with or condone the said defamatory statements. Therefore we have removed the offensive posted article and posted a retraction of same.
It goes without saying that we are deeply sorry and apologize for any slight of hurt incurred by the Union or its principal officers, because of this flagrant misuse of our Election Website.
We will be very diligent in making sure that no further false and misleading statements are posted.
Brown further testified that he was unaware whether Sawdon had posted any sort of notice on the web site about the type of messages that were suitable, and does not know whether Sawdon took any steps to prevent further postings by the pseudonymous author of the challenged posting. (Deposition at 9.) Brown asked Sawdon if he knew the identity of the author and was told he did not. (Deposition at 9-10.)
Analysis
Article VII, Section (11)(g) of the Rules prohibits retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a union member, officer or employee for exercising any right guaranteed by any Article of the Rules. Here, Brown engaged in protected conduct by running for delegate and campaigning for himself and other members of the TRF slate.
Prior election rules precedent establishes that IBT members may pursue a "well-founded" defamation claim against a fellow member if brought by the plaintiff-member in his individual capacity and without the support or subsidization of the IBT or any IBT subordinate body, even if motivated by a retaliatory purpose. See Hoffa, P1019 (October 23, 1996), aff'd, 96 EAM 267 (November 28, 1996). However, Hoffa also holds that "[a] lawsuit which is financed, directed or supported in any tangible way by the union would become union retaliation for exercising protected campaign rights, [and] the need to defer to the countervailing right to file suit would accordingly decrease, and a violation of the Rules could be found against the union in an appropriate case even if the libel case had merit."
Hoffa further teaches that the appropriate standard to be used in determining whether a member's defamation suit against a fellow member is "well-founded" is that established in light of the qualified privilege recognized under the federal labor policy in favor of free debate in labor matters. Thus, Hoffa cites to the recognition of that standard in Linn v. Plant Guard Workers, 383 U.S. 53 (1966), where the Supreme Court limited the availability of state remedies for defamatory statements made in labor settings "to those instances in which the complainant can show that the defamatory statements were circulated with malice and cause him damage." Id. at 64-65. Such "actual malice" means that the defamatory statements must be published "with knowledge of their falsity or reckless disregard of whether they were true or false." New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). Under this standard, as we apply it here, the litigation against Brown cannot be said to be "well-founded" if he had no knowledge of the challenged internet posting prior to the service upon him of the plaintiffs' demand for removal.
Further complicating the matter is the 1996 passage by the United States Congress of the Communications Decency Act ("CDA"), which provides at 47 U.S.C. §230(c) that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Thus statute immunizes providers and users of Internet sites from liability for materials posted on those sites by third parties.
In Zeran v. America On-Line, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), the Fourth Circuit held that Section 230(c) of the CDA grants statutory immunity to those who provide or use an interactive computer service such as an internet web site from publisher liability as for defamatory material posted by others on that site. The Court explained:
The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." Id. § 230(a)(3).
None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. … Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.
129 F.3d at 330-331.
The import of Section 230(c) is clear. In defamation cases governed by the law of the United States, a defamation case brought against a web site provider or user, such as a slate of candidates in a local union election, cannot be "well-founded" whenever the allegedly defamatory material was not posted on the web site by the candidates. This result is entirely consistent with the interest in free speech by IBT members that is to be fostered by the Rules.
The question presented here is whether Section 230(c) of the CDA applies here. On the one hand, the web site provider, Homestead, is located in California, and the server containing the allegedly defamatory material is located there. On that basis, it may be argued that U.S. law and thus the CDA governs, since it may be claimed that the defamatory publication occurred in California. This argument finds support in common law defamation and choice of law principles recognized in Canada, where publication of an allegedly defamatory statement in a foreign jurisdiction is not actionable unless it is actionable not only in Canada but also in the situs of its publication. See Brown, The Law of Defamation in Canada (2d Ed. 1994), p. 375, n. 193; Chaplin v. Boys, [1971] A.C. 356 (H.L.); McGhee v. Arabian American Oil Co, 871 F.2d 1412 (9th Cir. 1989). Under such principles, application of Section 230(c) of the CDA would bar the plaintiffs' claim in Canada here, if the material appearing on the Homestead California web site were deemed to be a "foreign publication" vis-à-vis Canada.
We reject that claim, however, because the Canadian courts have broadly construed the application of Canadian law under choice of law principles by holding that articles published on foreign-based web sites are not "foreign publications" under common law so long as the web site is accessible in Canada. See, e.g., Kitakufe v. Oloya, O.J. No. 2537 Q.L. (Ont. Gen. Div., Himel, J., 1998)(Ontario law held to govern in suit between two Ontario residents over allegedly defamatory statements appearing in a Ugandan newspaper, because the newspaper was available in Ontario on its web site). This understanding is consistent with prior Canadian precedent holding that radio broadcasts originating outside Canada are deemed to be published in Canada, and thus not deemed "foreign publications" for defamation purposes, so long as the radio signal reaches Canadian territory. See Jenner v. Sun Oil Co., [1952] O.R. 240 (H.C.). Accordingly, although the matter is not free of doubt, we find that Section 230(c) of the CDA is not determinative as to the "well-foundedness" of the defamation litigation here.
We still conclude, however, that the defamation action here is not "well-founded" and must be barred as improper retaliation under Article VII, Section 11(g) of the Rules. This result is dictated by the common law of defamation, upon which the Canadian law of libel and slander is based, and upon the facts found during our supplemental investigation. Thus, under common law principles, to be found liable for a defamatory publication, "[I]t must be shown that the defendant was responsible for the publication." Brown, The Law of Defamation in Canada, supra, p. 345. Thus, for example, individuals or entities upon whose premises defamatory material is posted can be held liable for the posting, provided that they have notice of the defamatory statement and fail to remove it. As Brown explains:
[L]iability may also be imposed where a publication takes place in a location over which the defendant has control, such as a bulletin board on business premises, and reasonable steps are not taken for its removal after the defendant becomes aware of defamatory remarks posted there.
Id. at 346 (Emphasis supplied, footnote omitted.)
Similar principles limit the liability of others held to be unknowing distributors of another's defamatory statement, such as booksellers and librarians. Such persons "are not liable for [the defamatory statement's] publication where they are totally ignorant of the defamatory contents of the material and have no reason to suspect it is libelous either by virtue of the title of the publication or the known propensity of the author to disseminate libels abroad." Brown, The Law of Defamation in Canada, p. 396 and cases cited therein. Accord: W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 113, at 811 (5th ed. 1984)(explaining that distributors are not liable "in the absence of proof that they knew or had reason to know of the existence of defamatory matter contained in matter published.")
These principles are particularly appropriate with respect to an interactive publication such as a website where rank and file IBT members can post their opinions and arguments about the merits of candidates for IBT office. To hold that a slate of candidates is open to the risk of tort-based damages for the Internet postings of unknown members and others would effectively deter free debate among the membership in IBT elections. Thus, while candidates are not necessarily immune from defamation claims based on their own Internet postings under these common law principles, we conclude that candidates who are unaware of allegedly defamatory posting on their slate's interactive web site are immune from liability under the principles discussed above. This is especially so when the candidate promptly removes the allegedly defamatory material after it is brought to his attention.
The facts here establish that under these principles the lawsuit against Brown is not "well-founded." Thus we find that Brown had no knowledge of the allegedly defamatory posting here before it was brought to his attention by counsel for Zigmont and McGill. Nor is there any evidence that Brown monitored the web site postings prior to the challenged posting being brought to his attention, so that he could be said to have ratified the posting. Given these facts, under common law Brown cannot be subjected to a valid claim for defamation, and any such claim is against him is therefore not "well-founded."
Accordingly, absent evidence of knowledge by Brown, we must conclude that the litigation against him cannot proceed without running afoul of Article VII, Section 11(g) of the Rules. We thus reaffirm our earlier decision to GRANT the protest.
We also rely on other grounds as support for this result. Thus, we reaffirm our earlier holding that the British Columbia litigation against Brown violated Article VII, Section 11(g) of the Rules because it was initiated and subsidized by Local 213 itself, and therefore is not subject to the countervailing right of an individual to bring a defamation action against another individual. In light of the local union's sponsorship and subsidization of the litigation against Brown, the suit does not meet the requirement recognized by the Election Appeals Master in Hoffa, supra, 96 EAM 267, that "the suit must be brought by the plaintiff in his individual capacity and free of union sponsorship." (page 7) As recognized by the Election Appeals Master, when such union support exists, there is "an impermissible campaign contribution" made by the union to the plaintiff-candidates. (pages 7-8)
We further conclude that this defect cannot be cured by abandonment of such financial support by Local 213 and repayment of the union funds expended. In our view, the improper use of union funds inevitably provided an improper advantage to Zigmont and McGill that cannot be erased by repayment.
Finally, we also find that the litigation here does not appear to be "well-founded" under the traditional Linn standard, and thus does not appear to be of the type that would be protected even if it had not been improperly funded by the local union. Again, Brown cannot be said to have met the Linn malice standard because he had no knowledge of the allegedly defamatory message here until after he was asked to remove it from the slate web site, which he promptly did.
For the foregoing reasons, we GRANT the protest and conclude that Local 213, McGill and Zigmont have violated Article VII, Section 11(g) of the Rules by commencing and prosecuting the challenged defamation litigation against Brown.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.
To remedy the violation found, we order Local 213, McGill and Zigmont to immediately dismiss with prejudice their pending defamation litigation against Brown. We further order Local 213 to fully reimburse Brown for all attorney fees and costs incurred by him in defending the defamation action.
A decision of the Election Administrator takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2002 EAD 552
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