Flagged Revisions installed. Unapproved pages display a Red unchecked notice under the title. Trolls attack here by creating and archiving pages with offensive content. To verify an archived page, check the original URL. Questions about administration? Contact User talk:Abd. Limited privacy on this site, see CFC:Limited privacy
User:Abd/Lomax v. WikiMedia Foundation/Motion to Dismiss/Memorandum in Opposition
DENNIS G. LOMAX, pro se
WIKIMEDIA FOUNDATION, INC. et al
) CIVIL CASE NUMBER 3:19-cv-30025-MGM
) PLAINTIFF'S OPPOSITION TO
) DEFENDANT'S MOTION TO DISMISS
- 1 Table of Authorities
- 2 PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
- 3 PRELIMINARY REMARKS
- 4 LEGAL STANDARD
- 5 COUNT 1: Defamation (all defendants)
- 6 COUNT 2: Defamation (WMF)
- 7 COUNT 3: Civil conspiracy
- 8 COUNT 4: Breach of implied contract
- 9 CONCLUSION
- 10 Link Notes
- 11 CERTIFICATE OF SERVICE
Table of Authorities
- 1. Conroy v. Fall River Herald News Co., 306 Mass. 488, 28 N.E.2d 729, 731-32 (1940). p. 28 #Defamation
- 2. Disend v. Meadowbrook Sch., 33 Mass.App.Ct. 674, 675, 604 N.E.2d 54 (1992). p. 89 #Defamation
- 3. Doe v. Amherst College, 238 F. Supp. 3d 195 - Dist. Court, D. Massachusetts 2017 #Defamation
- 4. Grant v. John Hancock Mut. Life Ins. Co., 183 F.Supp.2d 344, 362-63 (D.Mass.2002) #Conspiracy
- 5. "Iqbal" John D. ASHCROFT, Former Attorney General, et al., Petitioners, v. Javaid IQBAL et al 129 S.Ct. at 1949 #Pleading
- 6. Kurker v. Hill, 44 Mass.App.Ct. 184, 689 N.E.2d 833, 836 (1998) #Conspiracy
- 7. Lynch v. Lyons, 303 Mass. 116 , 118-119 (1939) [no copy found, cited in Ravnikar] #Per se
- 8. Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6, 9 (1st Cir.1993) #Conspiracy
- 9. Massachusetts Sch. Of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st Cir.2006) #Defamation
- 10. Mass. Laborers,' 62 F.Supp.2d at 244 #Conspiracy
- 11. McAvoy v. Shufrin, 518 NE 2d 513 - Mass: Supreme Judicial Court 1988, 401 Mass. at 593 #Defamation
- 12. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) #Pleading
- 13. Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009) #Defamation
- 14. Noonan v. Staples, Inc., 707 F. Supp. 2d 85 (D. Mass. 2010) #Defamation
- 15. Ocasio-Hernandez v. Fortuño-Burset 640 F. 3d 1 - Court of Appeals, 1st Circuit, 2011. #Pleading
- 16. Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981) #Conspiracy
- 17. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir.2011) #Pleading
- 18. Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003) #Per se
- 19. Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.2009) #Pleading
- 20. Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.2010) (Souter, J.). #Pleading
- 21. Shaari v. Harvard Student Agencies, Inc., No. CA 907810D, 1996 WL 1186873, at *9 (Mass.Super. July 19, 30*30 1996) #Defamation
- 22. Shafir v. Steele, 431 Mass. 365 , 373 (2000) #Per se
- 23. Sharratt v. Housing Innovations, Inc., 310 NE 2d 343 - Mass: Supreme Judicial Court 1974 #Per se
- 24. Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir.2006) #Defamation
- 25. Taylor v. American Chemistry Council, 576 F. 3d 16 - Court of Appeals, 1st Circuit 2009 #Conspiracy
- 26. "Twombly" BELL ATLANTIC CORPORATION et al., Petitioners, v. William TWOMBLY et al. 550 U.S. at 555, 127 S.Ct. 1955 #Pleading
- 27. White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004)) #Defamation
Statutes and Rules
- 28. Fed.R.Civ.P. 8(a)(2) #Pleading
- 29. 47 U.S.C. § 230
- 30. Mass. General Laws Part III Title II Chapter 231 Section 91
- 31. Mass. General Laws Part III Title II Chapter 231 Section 92 #Defamation
- 32. Mass. General Laws Part III Title II Chapter 231 Section 93
- The Restatement of Torts (Second), § 622 [no public copy available] #Per se
- The Restatement of Torts (Second) 875-876 (as of 2010) #Per se and #Conspiracy
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
Plaintiff DENNIS G. LOMAX ("Lomax") pro se, hereby responds in opposition to Defendant WikiMedia Foundation, Inc. ("WMF") Motion to Dismiss DE:19, and states:
Plaintiff apologizes to the court for the late filing and thanks the court for additional time provided. Electronic access has now been obtained after an unexpected delay.
Cases cited would be be hyperlinked, where possible to public copies believed to be safe and likely to be stable, such as Google Scholar or Courtlistener, but CM/ECF rules prohibit hyperlinks. So links will be indicated with the full URL, not actually linked in the filed document or where this would be cumbersome, there will be a reference to Link Notes.
This Memorandum will not address the many irrelevancies in the Defendant's Motion to Dismiss, beyond mentioning a few here:
- The original complaint is moot.
- The amount of damages claimed in either complaint is moot as to a claim of defamation per se.
- That the plaintiff mentioned the ban on an obscure page two months after the ban was published, in an attempt to ameliorate damage, is moot as to whether or not that publication was defamatory.
- The overall mission of the WMF is moot as to plaintiff's claims.
- Most WMF sites exist for the collaborative creation of content. Wikiversity's mission includes an additional function: "learning through doing," and scholars or students have much more interest in personal content there than on other WMF sites.
- However, this is moot except to Plaintiff's claim of violation of implied contract, Count 4, which is being abandoned.
- Likewise, defendant WMF's claims of USC 47 Section 230 immunity are moot as to the other Counts because, with reference to alleged WMF defamation, this is about material published by the WMF, which they originated and for which they are fully responsible.
- Cold fusion work was not moved to the meta wiki, nor was cold fusion content moved to the blog. These are errors, and moot. The cold fusion study on Wikiversity had largely been abandoned. What was deleted on Wikiversity (whcih was much more than cold fusion-related content) was moved to a private wiki, and some of this required difficult work with large data dumps from Wikiversity. Again, this is not relevant to this case because Count 4 has been abandoned.
- What was moved to the blog was content from meta about long-term abusers, being later identified as the Smith defendants, and study continued there, now looking at much more than WMF wikis (whereas the work on-wiki avoided "outing," i.e, revelation of the real name of the abusers) as defamation and attack became widespread.
- Specific misrepresentations in the Motion to Dismiss as to what is in the Amended Complaint will be addressed in relevant sections of this Memorandum. They boil down at most to possible unclarity in pleading. If the pleadings are deficient, then plaintiff prays that with clarification from the court, the complaint may be properly amended. However, plaintiff believes that at this point, the pleadings are sufficient as to defendant WikiMedia Foundation (WMF).
- Plaintiff has pled the necessary elements for claims, but not necessarily enumerated as such. This memorandum will examine those.
- The case is also complicated because a conspiracy is alleged, and many of the actions alleged are of individuals, and so may seem irrelevant to the actions of others, but that will be covered in the section on Count 3, civil conspiracy.
- Umbricht was mispelled as "Umbrecht" in the AC, this is expected to be corrected later.
- When the issues of law are clear, Plaintiff intends to request the permission of the court to amend the complaint, which will allow the issuance of subpoenas to the other defendents. (Plaintiff was unaware that permission was required for a first amendment that added named defendants.)
- We distill the following principles from Twombly and Iqbal.
- Dismissal of a complaint pursuant to Rule 12(b)(6) is inappropriate if the complaint satisfies Rule 8(a)(2)'s requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2). See Iqbal, 129 S.Ct. at 1949; Twombly 550 U.S. at 555, 127 S.Ct. 1955. A "short and plain" statement needs only enough detail to provide a defendant with "`fair notice of what the ... claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Conley, 355 U.S. at 47, 78 S.Ct. 99); see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement....' Specific facts are not necessary."). However, in order to "show" an entitlement to relief a complaint must contain enough factual material "to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); see also Iqbal, 129 S.Ct. at 1950. "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" [Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In short, an adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim.
- In resolving a motion to dismiss, a court should employ a two-pronged approach. It should begin by identifying and disregarding statements in the complaint that merely offer "`legal conclusion[s] couched as ... fact'" or "[t]hreadbare recitals of the elements of a cause of action." Id. at 1949-50 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A plaintiff is not entitled to "proceed perforce" by virtue of allegations that merely parrot the elements of the cause of action. See id. at 1950; cf. Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.2009) (disregarding as conclusory, under Iqbal's first prong, a factual allegation that merely "[p]arrot[ed] our standard for supervisory liability in the context of Section 1983" in alleging that defendants had "failed to [supervise] with deliberate indifference and/or reckless disregard of Plaintiff's federally protected rights"). Non-conclusory factual allegations in the complaint must then be treated as true, even if seemingly incredible. Iqbal, 129 S.Ct. at 1951 ("To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical.... It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth."). But cf. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir.2011) ("[S]ome allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross the line between the conclusory and the factual.") (internal quotation marks omitted). If that factual content, so taken, "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," the claim has facial plausibility. Iqbal, 129 S.Ct. at 1949. "The make-or-break standard ... is that the combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.2010) (Souter, J.).
- Although evaluating the plausibility of a legal claim "requires the reviewing court to draw on its judicial experience and common sense," Iqbal, 129 S.Ct. at 1950, the court may not disregard properly pled factual allegations, "even if it strikes a savvy judge that actual proof of those facts is improbable." Twombly, 550 U.S. at 556, 127 S.Ct. 1955; see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations."). Nor may a court attempt to forecast a plaintiff's likelihood of success on the merits; "a well-pleaded complaint may proceed even if ... a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (internal quotation marks omitted); see also id. at 563 n. 8, 127 S.Ct. 1955 ("[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder."). The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.
- Under Massachusetts law, to prevail on a claim for defamation the plaintiff must establish that: (1) the defendant published an oral (slander) or written (libel) statement; (2) the statement was about, and concerned, the plaintiff; (3) the statement was defamatory; (4) the statement was false; and (5) the plaintiff suffered economic loss, or the claim is actionable without proof of economic loss. Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir.2006) (citing White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004)); Massachusetts Sch. Of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st Cir.2006) (quoting McAvoy, 401 Mass. at 593, 518 N.E.2d 513). A statement will be considered "defamatory" if it "may reasonably be [understood] as discrediting [the plaintiff] in the minds of any considerable and respectable class of the community." Disend v. Meadowbrook Sch., 33 Mass.App.Ct. 674, 675, 604 N.E.2d 54 (1992). p. 89
- . . . under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with "actual malice." Mass. Gen. Laws ch. 231, § 92; White, 809 N.E.2d at 1036 n. 4; Conroy v. Fall River Herald News Co., 306 Mass. 488, 28 N.E.2d 729, 731-32 (1940). p. 28
- . . . the legal context supports construing "actual malice" as "ill will" or "malevolent intent." p. 29.
- . . . we conclude that Mass. Gen. Laws ch. 231, § 92 means "common-law malice" when it uses the term "actual malice." See also Shaari v. Harvard Student Agencies, Inc., No. CA 907810D, 1996 WL 1186873, at *9 (Mass.Super. July 19, 30*30 1996) ("To establish `actual malice,' as that term is used in § 92, plaintiff need only prove `disinterested malevolence' rather than `knowing falsity' or `reckless disregard for the truth on the part of the defendants.'"), rev'd on other grounds by 427 Mass. 129, 691 N.E.2d 925 (1998). p. 29-30.
- Given the facts alleged by Doe, his proposed reading of the Policy and Procedures is not unreasonable. He asserts that a student reading the Policy and Procedures would expect the College to conduct its investigation and fact-finding process in such a manner that potentially exculpatory information would be obtained and presented to the Hearing Board in the same manner as inculpatory information, and that this was not done in his case. Whether such a reading of the Policy and Procedures was, in fact, objectively reasonable given the specific facts in this case turns on evidence extrinsic to the Policy itself. Doe alleges the investigator took inadequate steps to uncover Jones's contemporaneous written communications, even though such communications could have been relevant and exculpatory. He further asserts the content of Jones's text message exchanges were, in fact, relevant and exculpatory. For purposes of the motion before the court, Doe has alleged sufficient facts, from which the court can plausibly infer the investigation and fact-finding process was inadequate. Therefore, the court denies Defendants' Motion for Judgment on the Pleadings as to this theory of the breach of contract claim.
Defamation per se
- [. . .] all libel is actionable per se. [. . .]
(There is no requirement to plead special damages.)
- The general damages recoverable in a defamation action are those naturally and necessarily flowing from the wrong. They include damage to reputation [. . .]
- Four types of statements are actionable without proof of economic loss: statements that constitute libel, see Shafir v. Steele, 431 Mass. 365 , 373 (2000); statements that charge the plaintiff with a crime; statements that allege that the plaintiff has certain diseases; and statements that may prejudice the plaintiff's profession or business, see Lynch v. Lyons, 303 Mass. 116 , 118-119 (1939). If the statement comes within one of these four exceptions, a plaintiff may recover noneconomic losses, including emotional injury and damage to reputation. See Shafir v. Steele, supra; Restatement (Second) of Torts, supra at § 622 comment b, § 623 comment a. An undamaged plaintiff may recover nominal damages. [Note 4] See Shafir v. Steele, supra; Restatement (Second) of Torts, supra at § 623 special note on remedies for defamation other than damages.
- Massachusetts recognizes two types of civil conspiracy, so-called "true conspiracy" and conspiracy based on section 876 of the Restatement (Second) of Torts. Kurker v. Hill, 44 Mass.App.Ct. 184, 689 N.E.2d 833, 836 (1998); see also Grant v. John Hancock Mut. Life Ins. Co., 183 F.Supp.2d 344, 362-63 (D.Mass.2002). [...]
"True conspiracy" is likely not relevant in this case. The court in Taylor continues:
- [. . .] The second type of conspiracy, based on section 876 of the Restatement, is a form of vicarious liability for the tortious conduct of others. See Mass. Laborers,' 62 F.Supp.2d at 244; Restatement (Second) of Torts § 876 (1979). Because it is vicarious liability, this type of civil conspiracy requires an underlying tort. Mass. Laborers,' 62 F.Supp.2d at 244. The conspiracy consists in agreeing to, or assisting in, this underlying tort. Massachusetts courts have recognized two theories of liability under section 876:(1) "concert of action," and (2) "substantial assistance" or "aiding and abetting." See Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6, 9 (1st Cir.1993); Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981).
The Restatement of Torts (Second) 875-876 (as of 2010) covers civil conspiracy of the second type:
- § 875. Contributing Tortfeasors —- General Rule
- Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm.
- § 876. Persons Acting In Concert
- For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
- (a) does a tortious act in concert with the other or pursuant to a common design with him, or
- (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
- (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
From Restatement 876:
- Comment on Clause (a):
- a. Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself.
- Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts. The theory of the early common law was that there was a mutual agency of each to act for the others, which made all liable for the tortious acts of any one.
COUNT 1: Defamation (all defendants)
As conspiracy is alleged, it may be that not all defendants undertake each specific action, but that the actions together worked toward the harmful and defamatory intent.
The elements of a claim of defamation: (1) A written statement (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss. [. . .]
Written statements that contributed to the defamation that was assembled include:
- Statements by DLS using attack accounts making false claims about the studies and Lomax on Wikiversity, and, later on the meta wiki. DE 16. para 9.
- A defamatory article on RationalWiki written by DLS. DE 16 para 10. This article continued to be updated with "news" about Lomax from Wikiversity and then the WMF ban.
- Schroeder was recruited with false representations of Lomax activity. DE 16 para 15.
- Chapman, pretending to be an independent user, filed the deletion request on Wikiversity, misrepresenting it and Lomax. He also commented as himself, similarly. DE 16 para 16.
- "Max" was recruited by email to add misleading comments. That email is suspected to be defamatory.
- Those who joined and supported the defamation a that point were DLS, Chapman, Max, and Vituzzu. DE 16. para 18-19.
- Schroeder falsely claimed that he had been harassed by email by Lomax. DE 16 para 20-21.
- Umbricht supported the campaign with misleading and deceptive actions and comments, DE 16 para 23-28.
- Those comments were used (and continue to be used) to support internet defamation of Lomax by DLS and/or ODS. DE
- Vituzzu falsely claimed that Lomax had illegally collected information. DE 16 para 32.
The Motion to Dismiss is about the WMF, not about the other defendants. This memorandum will focus on the WMF Motion to Dismiss, which will be assumed to be about the claims against the WMF, not the entire action, and COUNT 2 focused on the WMF activity. However, the expected Second Amended Complaint, assuming the court grants permission to amend, will also be more specific and clearer as to each named defendant, as to the elements of defamation. Counts 1 and 2 will probably be merged.
As conspiracy is alleged, actions of individuals may reflect on the liability of others who join the conspiracy. However, this will be covered under the present Count 3.
COUNT 2: Defamation (WMF)
The elements of a claim of defamation as they apply to the WMF are covered here.
(1) The WMF published a written statement. Am. Compl. ¶ 37 .
(2) of and concerning the plaintiff; that was both
(3) defamatory, and
(4) false; and
(5) either caused economic loss, or is actionable without proof of economic loss. [. . .]
There is no controversy as to the WMF publishing a statement that they banned Abd.
Of and concerning the plaintiff
There is no controversy that it was concerning the plaintiff, as Abd was well known as being Abd ul-Rahman Lomax, the plaintiff, birth and legal name Dennis G. Lomax, and WMF global bans are directed at the person, not the account.
While plaintiff acknowledges that he was banned, the reasonable implications of the published ban, however, were clearly false.
The WMF has provided DE 21-2 as a snapshot of the Global Ban Policy, apparently as of June 21, 2019, which is not the version that would have been in effect as of the date of Abd's ban. However, there are no significant differences, other than the list of banned users, which is transcluded from another page, archived as of the date of Abd's ban [http://archive.is/pmJMD], 01:13, 24 February 2018], when Abd's account name was added to the list. Notice was placed on Abd's meta user page as edited at 1:11, 24 February 2018 [archive: http://archive.is/r2UlH]. This page then read:
The global lock was set at 01:11 24 February 2018.
Plaintiff has been unable to find any notification to him of the ban from the WMF. The ban shuts off WMF email, so the normal notifications of edits to his user page would not be sent. He likely first learned about it from the announcement of the ban by "ODS" (Defendant Oliver D. Smith), on RationalWiki, 22:20, 24 February, 2018. [archive: http://archive.is/iHM5W]
From this point of view, the claim of a ban was not strictly true. However, the implications of the ban publication are far more serious. The public will routinely consider a WMF ban as an indicator that a reputable organization has carefully investigated claims of harassment or other complaints and has concluded that a user is a serious risk. One might easily conclude that the technical error was not significant, but the substantially false implications of the statement are very significant.
Quoted in Noonan (2009): A statement will be considered "defamatory" if it "may reasonably be [understood] as discrediting [the plaintiff] in the minds of any considerable and respectable class of the community." Disend v. Meadowbrook Sch., 33 Mass.App.Ct. 674, 675, 604 N.E.2d 54 (1992)]
There are many evidences which can be adduced to show how bans are represented by the WMF and how they are understood by the public. Defendant WMF claims truth, but deprecates what the statement implies by citing Noonan (2009)" From DE
"see also Noonan,556 F.3d at 28 (no defamation claim, without proving actual malice, where company truthfully stated that it fired plaintiff after investigation determined him to be out of compliance with company policy). DE 20, p.15
In that case, the statement was ruled "truthful," both literally and in implication as to the investigation undertaken, after discovery, but trial was still required to consider the possibility of malice.
As defined in Massachusetts law, as interpreted in the First Circuit in Noonan (2009 and 2010), and even after discovery in the 2009 case, malice, alleged, could not be ruled out, though evidence for it was weak (but considered plausible). Noonan (2009) actually went to trial on that issue, and malice was found unproven by the jury. However, then, in 2010, there was another claim from Noonan over another defamation by an officer of the corporation, again, the court ruled that the statement was substantially true, yet the case must go into discovery on the issue of malice, even though evidence on that was circumstantial, not direct, but considered plausible.
The WMF claims there is "no evidence" for malice. However, they also cite evidence, i.e, prior behavior that would reasonably lead the plaintiff to suspect malice, similarly to that in Noonan. In addition, the ban was apparently based on complaints, where investigation by the WMF would have revealed that the complaints were not made in good faith and were, in fact, themselves defamatory. This leads plaintiff to conclude that actual malice was present, and "actual malice" must be understood as defined in Noonan (2009):
- . . we conclude that Mass. Gen. Laws ch. 231, § 92 means "common-law malice" when it uses the term "actual malice." See also Shaari v. Harvard Student Agencies, Inc., No. CA 907810D, 1996 WL 1186873, at *9 (Mass.Super. July 19, 1996) ("To establish `actual malice,' as that term is used in § 92, plaintiff need only prove `disinterested malevolence' rather than `knowing falsity' or `reckless disregard for the truth on the part of the defendants.'"), [. . .]
By the action of the ban, the WMF joined in the conspiracy to defame, encouraging and providing it with "proof" of plaintiff's alleged harmful behavior, because the ban may easily be cited in comments and communications, as it frequently has been. It provides strength to what would otherwise be mere claims on the part of parties with little or no reputation.
Disinterested malice, as a possibility here, does not require motive, per se, but a malicious neglect of the rights of one harmed by the tort, of what should be a reasonable expectation of harm.
There is no justification, no necessity, for the publication of bans, and that they are published without any opportunity for a banned individual to address charges against him or her, to provide evidence that may show that complaints are misleading, or the like, is unconscionable.
It is understandable that the WMF wants to protect complainants, but acting on complaints without developing independent evidence of harmful activity would then generate facts that could be addressed with the accused without disclosing complainant identities, and then publishing the result, without necessity (since a ban may be accomplished without publication), is an unconscionable neglect of the rights of the accused user and an invitation to abuse by complainants.
That is, the fact of a complaint, in itself, should be irrelevant, if the complaint has a basis. As this case shows, a small group of users, out of millions, may coordinate complaints to make a situation seem serious, without any factually serious situation existing.
Further, the WMF does have the right to ban, this has not been challenged. If it errs in this, there would still be no clear cause of action, per 47 U.S. Code § 230 and common sense, though that Office bans are unappealable does create possible unnecessary harm in the ban itself.
However, there is no justification for actually publishing the ban other than 'this is their policy'; but users have no real notice in the TOU or the policy that they can be banned at any time for any reason or no reason, because the reservation will be read as still requiring the existence of a serious situation, i.e., not "no reason," or, more to the point, not "We don't like users like you. and you have criticized us or our valuable volunteers, so begone." Malice. (But we do not know what the reason for the ban was, and, absent discovery, this remains unclear except for the action being clearly in response to known complaints, pursuing a campaign to harass and harm plaintiff and his work, without factual justification other than possible misleading fragments of evidence.
Nor does the TOU, which users presumably agree to, mention publication. It refers to the community ban policy, which is irrelevant to WMF Office bans, and which, as actually practiced, provided opportunity for an accused user to contradict evidence and arguments presented, and to make statements in defense. Plaintiff would not have been eligible for a community ban discussion to be opened, because there was only one actual individual wiki community ban in place, the policy required a minimum of two community bans (not merely a block), but the requisite process for a community ban on Wikiversity was never followed, and would probably have failed. The WMF Office ban made it moot.
either caused economic loss
(5) As to damage to the plaintiff from the defamation, determining actual damages is difficult, because the effect of the defamation may not be visible. Plaintiff is a journalist/blogger and depends on donations for support of his work. How many people saw or were shown the defamatory article on RationalWiki or otherwise saw the confirmation of plaintiff's alleged harassment and harmful behavior, resulting from the WMF publication of the ban is unclear. How many people would have contributed but did not? It may be impossible to deterine. Incidents of personal harm are known to plaintiff, however, and certainly there has been extensive effort to defame using the WMF ban for support, including a web page comment to plaintiff's daughter, and family of a friend who were very concerned about her friendship with the plaintiff, based on the published defamation.
or is actionable without proof of economic loss
Plaintiff is claiming defamation per se, which does not require specified damages to be actionable. Plaintiff's personal reputation has been harmed.
COUNT 3: Civil conspiracy
These facts and claims are in the Complaint, and there is specific evidence for each.
- The affair began with harassment of a Wikiversity user by D. Smith. This had nothing to do with cold fusion. DE 16 ¶ 7.36]
- Plaintiff Lomax identified the harassment, arranged for global locks for Smith's numerous accounts, and began to document how an anonymous user was able to create damage, and looking at the particular Long Term Abuser whose identity began to emerge. DE 16 ¶ 8 and 9.
- D. Smith's attacks on Wikiversity became intense, overwhelming local administrative capacity, so Lomax moved the documentation (the "study") to the meta wiki, where there is much more reliable administration. DE 16, ¶ 10.
- D. Smith then threatened Lomax with retaliation: ""1 will do my best behind the scenes via email to get admins to delete all your material." To accomplish this, he needed to recruit others to participate in what became a conspiracy to defame. DE 16 ¶ 11.
- Defendant Chapman held grudges from prior events on Wikipedia. DE 16 ¶ 2. Defendant Schroeder was also identified by Smith as one who might assist as well, and both were recruited to join the conspiracy. DE 16 ¶ 14 and 15.
- These defendants then created a deletion discussion on Wikiversity, for a major project I had worked on there, which had never been a source of disruption. Defendant "Max" was recruited to join that. DE 16 ¶ 16, 18.
- Defendant Umbricht was recruited to join the conspiracy by private complaint. DE 16 ¶ 25
- Defendant Vituzzu is suspected of joining the conspiracy, and he also had cause to resent Lomax, who had exposed and documented abuse of his role as a Steward, years before. The degree of his participation is not known. He commented in the deletion discussion with irrelevancies. There is cause to suspect that he participated in the conspiracy more than that. DE 16 ¶ 19</sup> and ¶ 32
- Schroeder falsely and maliciously claimed that Lomax had harassed him by email. DE 16 ¶ 20 and 21
- Umbricht then collaborated with the conspiracy in various ways. He removed a request for administrative attention. DE ¶ 16 22,23 and carried out the threatened deletions. DE 16 ¶ 24 and 31. Umbricht's action was entirely contrary to normal procedure.
- Umbricht then blocked Lomax for trumped-up cause, also contrary to policy, DE 16 ¶ 26, 27 which block was immediately used for defamation on RationalWiki by D. Smith. DE 16 30.[¶
- D. Smith, his brother O. Smith, Chapman, Schroeder, Umbricht, and "Max" filed coordinated complaints to the WMF. DE 16 34.
- The WMF then Office-banned Lomax. Complaints filed by multiple persons will often be taken much more seriously than isolated ones.
- The WMF may have acted with malice, they may resent critics and people they believe are disruptive. The founder of Wikipedia has referred to proponents of alternative medicine as "lunatic charlatans" and it is possible that they believed that cold fusion was "pseudoscience," though what I report on is mainstream research, merely "fringe," i.e., not widely understood.
- The fact of the ban and the statments of Umbricht have been very widely quoted as proof of Lomax disruption and unreliability and more. As an example, a comment received by one of his daughters is referenced. DE 16, 40.
The elements of defamation are discussed in those sections. Here, there was a conspiracy to harm and defame. Some defamatory statements were made publicly, others were private, and discovery will be needed to determine the extent of this. Whether the WMF had a conscious malicious intent, or merely incompetently allowed themselves to be used by the conspirators, is not known to the plaintiff, but malice is suspected, and malice may be part of the reason why the WMF publishes the names of banned users. This has, indeed, long been suspected by those familiar with the WMF. As well, the clearly poor investigation combined with providing banned users with no information or warning and ruling out any possibility of appeal is unconscionable
COUNT 4: Breach of implied contract
This count is withdrawn to simplify this case. Lomax has no objection to the dismissal of this count.
A WMF Office ban is intrinsically defamatory, from its rarity and how it has been explained to the community. The WMF may be protected by 47 U.S.C. § 230 from liability for error in banning, but not from defamation from publication of the ban, which has been unnecessary for all bans issued by the WMF. That publication is far from ordinary service provider practice, and, being content that they created, is not protected.
In addition to general suspicion from how the WMF has handled critics, there is clear evidence of a conspiracy to defame. By responding with a published ban based on the complaints of the conspirators, the WMf apparently aided and abetted the conspiracy, and actual malice is then reasonably suspected. Sufficient facts are alleged to show reason to suspect malice,
From precedents and plausibility, discovery will be required, as a minimum, before any conclusion that the claim of malice is not plausible. It is not a mere conclusory allegation.
There are questions of fact that may require a jury to decide, as in Noonan (2009). .
- Was there a conspiracy to harm and defame?
- Was the WMF ban investigation careful and thorough, as the WMF has claimed for ban process?
- Was there a reasonable basis for the ban in plaintiff's behavior?
- Is a ban as published by the WMF defamatory?
- Is publication necessary (and therefore possibly excusable)?
- Did the WMF join in a conspiracy by issuing and publishing the ban?
These are enough as cause to reject the WMF Motion to Dismiss, DE 19, except as to Count 4, which may be dismissed.
- [no copy found]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 8, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record for the parties.
August 8, 2019
(s) Dennis G. Lomax
Dennis G. Lomax, pro se