UPDATED: Getting the Glenn Beck Case Really Wrong
Mediaite needs a legal consultant. Or at least Glynnis MacNicol does, because she’s jumping to conclusions about Glenn Beck’s legal rights in that “parody” website matter; and basically misreporting the whole event.
An arbitration is not a lawsuit, as Glynnis refers to the proceeding. And the World Intellectual Property Organization panel that arbitrated the dispute is not a court of law, so it has no jurisdiction over claims of defamation or even the power to decide Constitutional rights to free expression. The panel – thus – did not “rule” that a certain internet domain name was protected under the First Amendment. Again, the panel has no such powers. But, that’s not what the panel did here anyway. I read the decision. Maybe Glynnis did too, but she got it all wrong.
First, Glenn Beck didn’t bring a claim for defamation to the panel. He brought a claim to assert rights in an internet domain name which happened to say – when read as a sentence – that Glenn Beck committed two felonies. In fact, Beck’s objective was to get the right to control as his own the internet address in question because it contained his name – which he argues might as well be a trademark.
The only reason why defamation arises in the panel’s analysis is because Beck argues the defamatory meaning of the domain name in question weighed against the panel concluding that Isaac Eiland-Hall – the registrant of the domain name and the other party to the dispute – had legitimate rights to that internet address.
Indeed, the WIPO panel dodges the defamation issue at the bottom of page 12 of the decision as a matter “more suited to resolution by a court than in an administrative proceeding”; and then proceeds to a defamation analysis anyway, but under Hustler v. Falwell, which was not a defamation case but a claim for intentional infliction of emotional distress, something that has nothing to do with Beck’s claims at all.
So we have an arbitration in a dispute for control of a domain name in which defamation is mentioned incidentally and tangentially, then considered under an emotional distress analysis (a big boneheaded mistake) by a panel aware that it had no power to decide tort actions; but which Glynnis MacNicol presents as the final word on Glenn Beck getting his just desserts for who knows what (far from it, Glenn could have probably appealed in U.S. District Court).
The fact is – as Glynnis reports – that Eiland-Hall has surrendered rights to the domain name to Glenn Beck himself (so Beck got just what he wanted). I suppose it was a peace offering, because the truth is that Glenn hasn’t even begun to sue. And could very well give it a shot if he wants to. Contrary to popular belief, public figures are not barred from suing for defamation. They just have a higher – but far from impossible – standard to meet in court.
According to the WIPO decision, Eiland-Hall’s anti-Beck website (which is now down) is riddled with disclaimers to make it clear it is meant as parody. But I went to that website early on – months ago – and they weren’t there. Eiland-Hall got smart and at least tried to protect himself…as opposed to other internet-savvy folks with pointed political views and and axe to grind.
UPDATE: Isaac Eiland-Hall clarifies via e-mail:
Your facts are mostly straight, but there is one important point you’ve missed:
[F]rom the very first time I uploaded the very first page, the disclaimers were there. I’m sorry you missed them.
But you can see them also in every document Beck’s lawyers sent, too – you can find all of the docs at http://gb1990.net/legal/
Also, the site is not at all down, but running on two of the three domains:
http://gb1990.com/
http://DidGlennBeckRapeAndMurderAYoungGirlIn1990.com/
Sorry for any misstatements on my part. I do recall now reading some disclaimer language, but nothing as conspicuous or explicit as what the WIPO decision quoted. I guess I overlooked it.
MORE: Isaac e-mails that he’s expanded the disclaimer language several times. Makes sense.
