Commentary

Web Site Allowed To Restore Fake News Item

Vacating one of the more outrageous judicial actions against Web publishers, a court in Louisiana this week reportedly overturned a restraining order directing the publisher of Hammond Action News to remove a parody from his Web site.

The publisher, Nicholas Brilleaux, had posted the item "Giraffe Claims Third Victim at Global Wildlife" shortly after news broke about the tragedy at Sea World in Orlando -- where an orca whale had killed a trainer in February.

The Global Wildlife Foundation complained by email to Brilleaux, which spurred him to add a disclaimer stating that the piece was a satire. But that wasn't enough for Global Wildlife, which went into state court in Louisiana and convinced a judge to order Brilleaux to remove the piece.

That decision was problematic on many levels. First of all, by the time the first judge issued the restraining order, the item already contained a disclaimer stating that it was satirical. But even if some people briefly thought it was a factual news item, that momentary confusion often is the point of satire. (This same issue is playing out in another case -- a lawsuit by the Chamber of Commerce against the Yes Men, who allegedly created a parody site that confused people because it too closely resembled the Chamber of Commerce's genuine site.)

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Secondly, as Sam Bayard from the Citizen Media Law Project points out, orders banning publication are considered "prior restraints" on speech -- which are extremely disfavored by the courts. "Even assuming the article were defamatory, the appropriate remedy would be money damages... after a full trial on the merits, not a provisional order to take the post down made without the benefit of a hearing," he writes.

After a judge issued the takedown order, the ACLU got involved in the case. That organization reportedly not only convinced another judge to dissolve the restraining order, but also to order Global Wildlife to pay Brilleaux $500 to cover the costs of defending the case.

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