Defamation Law Series: Court Affirms Dismissal Of Claims Against Actor Marlon Wayans

In Daniel v. Wayans, The California Court of Appeal recently affirmed a trial court’s decision to grant actor Marlon Wayans’ anti-SLAPP motion against Pierre Daniel.

Daniel worked as an extra on the movie A Haunted House 2, which starred Wayans.  Daniel filed suit against Wayans and others asserting a number of claims, based in part on allegations that he was the victim of racial harassment, including false light and intentional infliction of emotional distress (“IIED”).  Daniel alleged, among other things, that he was subjected to “offensive and derogatory language regarding his race/national origin” and was negatively referred to as “Cleveland Brown,” a cartoon character in the comedy series Family Guy.  Daniel claims that Wayans took Daniel’s photograph without his consent and posted it on the internet alongside a photograph of Cleveland Brown, with the caption:  “Tell me this [*****] don’t look like . . . THIS [*****]!!!  Ol Cleveland Brown ass looking @ahhmovie 2 @whatthefunny I’m hurting!”

Wayans filed an anti-SLAPP motion challenging all of the causes in which he was named as a defendant.  The trial court granted the motion, and the California Court of Appeal affirmed.

A claim for false light is a species of defamation and is subject to the same requirements as defamation.  The appellate court thus emphasized certain well-settled principles underlying defamation law.  Specifically, the Court observed that it must examine the totality of the circumstances in which the statement was made (including its context), and that “[o]pinions are constitutionally protected and cannot form the basis for a defamation-type claim.”  Further, “[p]hotographs are not actionable if they are fair and accurate depictions of the person and scene in question, even if they place the person in a less than flattering light, so long as the photographs . . . [are not] highly offensive to persons or ordinary sensibilities.”

Based on these principles, the Court concluded that Daniel had failed to demonstrate that he would prevail on his false light claim.  The internet posting referred only to a physical resemblance between Daniel and Cleveland Brown, and was an expression of Wayans’ non-actionable opinion that Daniel looked like the cartoon character.  There was no implication that the two shared personality characteristics.

Additionally, in finding that the trial court properly struck Daniel’s IIED claim, the Court concluded that the “boorish and/or juvenile” comments about Daniel’s appearance and the internet post were not so extreme as to exceed all bounds of decency.  Rather, such conduct fell within the category of insults, indignities, annoyances, and petty oppressions that are not actionable under a claim for IIED as a matter of law.

Defamation Law Series: Massachusetts District Court Tosses Katherine McKee’s Claims Against Bill Cosby

Last week, on February 16, 2017, the United States District Court for the District of Massachusetts dismissed Katherine McKee’s claims against Bill Cosby in McKee v. Cosby.

McKee was among the women who alleged that Cosby had sexually assaulted her.  In her lawsuit against Cosby, McKee claimed that after she shared her story in an interview with the New York Daily News newspaper (the “Daily News”), Cosby’s attorney wrote a retraction demand letter to the Daily News which contained a series of statements that questioned Ms. McKee’s credibility.  In turn, the Daily News published a description of the letter, as did the Hollywood Reporter, to which the letter had allegedly been leaked.  Based on the statements contained in Cosby’s counsel’s letter, McKee Hill asserted claims for defamation.

Analyzing each of the twenty-four (24) allegedly defamatory statements in great detail, the court found that none of the statements were actionable as a matter of law.

Underscoring the court’s dismissal were several legal First Amendment principles.

First, under the First Amendment, opinions typically cannot give rise to liability because they are not capable of being proved true or false.

Second, even if an opinion could somehow be subject to objective verification, a statement is not actionable as defamation where the speaker communicates the non-defamatory facts on which the opinion is based.  “[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader to draw his own conclusions, those statements are generally protected by the First Amendment.”  Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995) (describing other jurisdictions’ agreement on this principle).  Indeed, “[a]n expression of opinion based on disclosed … nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.”  Piccone v. Bartels, 785 F.3d 766, 774 (1st Cir. 2015) (quotation omitted).

For example, it would not be defamatory to call someone a “thief” where the speaker explained that the statement was based upon the unusually low price paid by the so-called thief for a house he recently purchased.  The statement would clearly constitute a non-actionable opinion.

By way of another example of a non-actionable statement, this one explained by Justice Brennan: “A writes to B about neighbor C.  ‘He moved in six months ago.  He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio … and with a drink in his hand.  I think he must be an alcoholic.’”  Milkovich v. Lorain Journal Co., 497 U.S. 1, 27 n.3 (1990) (Brennan, J., dissenting) (quoting Restatement (Second) of Torts § 566, cmt. c).

In light of these principles, the court held that Cosby’s attorney’s statements about Ms. McKee lacking credibility were non-actionable as a matter of law.  First, Cosby’s lawyer’s statements about McKee’s credibility were not capable of being objectively verified or disproven.  Second, in any event, the lawyer’s letter disclosed the non-defamatory facts underlying his conclusion, thus immunizing his statements from liability for defamation.

Finally, the court seemed concerned that a defendant has a First Amendment right to deny the allegations against him or her without fear of liability for defamation.  Here, the court said: “Individuals publicly accused of misconduct cannot be held completely incapable of issuing any statement in response to the allegation, other than ‘no comment.’ … [A]n accused person cannot be foreclosed … from … the issuance of a simple and unequivocal denial – free from overall defamatory triggers[.]  In the court’s view, such a situation would be inconsistent with basic First Amendment principles.”

Defamation Series: Texas Supreme Court Explains That Courts Should Not Make Editorial Decisions For The Media Re Information Related To Matters Of Public Concern

In Texas, Plaintiff Wade Brady brought claims for libel and libel per se against Carter Publications, Inc., publisher of the newspaper West Fort Bend Star, and one of its writers, LeaAnne Klentzman.  Wade alleged that the defendants published an article in a “malicious” attempt to portray him as a criminal who used his the connections of his father, the Chief Deputy for the Sheriff’s office, to avoid certain charges.

Specifically, the article at issue described certain actions allegedly taken by Chief Brady after Wade was ticketed and charged with being a minor in possession of alcohol.  The article claimed that the ticketing officers were intimidated by Chief Brady, and described several encounters between Wade and law enforcement.

In one encounter, deputies stopped Wade and his friend in their vehicle for littering.  The deputies reportedly smelled what they believed was alcohol, resulting in Wade receiving a ticket for being minor in possession of alcohol.  The article alleged that Chief Brady continually made contact with the ticketing officers, and that the officers were intimidated when Chief Brady demanded all audio tapes and notes from that incident in their possession.

In another encounter, officers allegedly followed Wade and his brother, Cullen, to Chief Brady’s driveway.  The article reported that a video of the incident revealed that Wade “so unruly and intoxicated” that he was handcuffed and placed into the backseat of the police car.  When a sheriff alerted Chief Brady over the county’s official radio system, the county’s dispatcher purportedly could be heard attempting not to broadcast Cullen’s name.

Based on these encounters, the article stated that it should be “glaringly apparent why the officers [who ticketed Wade] were intimidated” by Chief Brady’s actions.

At trial, the jury found that some of the statements in the article were defamatory.  The jury made this determination after it was (erroneously) instructed that the defendants bore the burden of proving that the challenged statements were substantially true.  Additionally, while the jury concluded that Klentzman had acted with malice, it did not make a finding that she acted with knowledge of falsity or reckless disregard for the truth.  Rather, the jury was (erroneously) instructed that “malice” was defined to require an intent to cause injury or conscious indifference of the risk.

The court of appeal held that the jury charge was erroneous by placing the burden of proving truth on the defendants, and by misstating the actual malice standard, which should have been knowledge of falsity or reckless disregard for the truth.

As such, the appellate court held that a new trial was warranted.

The Texas Supreme Court granted the parties’ petitions for review, and focused on the “threshold question” of whether the article embraced matters of public concern.  The Court explained that speech embraces matters of public concern if “it can be fairly considered as relating to any matter of political, social, or other concern to the community.”  Such matters encompass subjects of legitimate new interest, crimes and the resulting prosecutions and judicial proceedings, as well as the disclosure of misbehavior by public officials, especially when it concerns the operation of the police department.  Based on these principles, the Court concluded that the article’s claims of intimidation by the Chief Brady embraced a matter of public concern.

As such, the Court concluded that because the statements related to a matter of public concern, the First Amendment required Wade, as the plaintiff, to prove that the statements were false.  The Court further held that the First Amendment required a finding of actual malice on the part of the defendants.

In reaching its decision, the Court found that there was a “logical nexus” between the details of the reported encounters and Chief Brady’s purported use of authority on Wade’s behalf.  Equally important, the Court further observed that courts should not “get involved in deciding the newsworthiness of specific details in a newsworthy story where the details were ‘substantially related’ to the story” or “make editorial decisions for the media regarding information directly related to matters of public concern.”  Moreover, that portions of the article may have contained false information or omitted key information did not alter that the statements related to a matter of public concern.

The Court agreed that a new trial was appropriate.

Defamation Law Series: Trumping Defamation Claims

President Donald Trump and First Lady Melania Trump recently have found themselves embroiled in two separate defamation cases in state courts – but while the President defended himself against claims resulting from his late-night tweeting, the First Lady brought her case as a plaintiff seeking damages against an online blogger and media company.

Relying On The Protections Of The First Amendment, Trump Defeats Defamation Claim Against Him

In January 2017, a New York judge dismissed a defamation lawsuit filed against then-President Elect Trump in ruling that insults and offensive language hurled back-and-forth on Twitter are generally considered to be opinion.  New York County Supreme Court Judge Barbara Jaffe stated in her decision that Trump’s regular tweets against his critics “all deflect[] serious consideration.”

In the lawsuit, Cheri Jacobus v. Donald J. Trump, case number 153252/2106 (Supreme Court of the State of New York, New York County), veteran political strategist and consultant Cheryl Jacobus sought $4 million from Trump and his former campaign manager.  She alleged that the then-presidential candidate and his campaign defamed her by falsely claiming that she “begged” for a communications job with the campaign and sought payback when she wasn’t hired by criticizing Trump during subsequent media appearances.  Early in 2016, Jacobus appeared on television in a commenter role and panned Trump’s motives for his threat to skip a debate.  She also said that Trump was a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.”

In response to that commentary, Trump fired off a series of tweets stating first that Jacobus “begged us for a job.  We said no and she went hostile.  A real dummy!” and later that Jacobus “begged my people for a job.  Turned her down twice and she went hostile.  Major loser, zero credibility!”

Jacobus’ lawsuit contended that these tweets were based on the untrue assertion that she had “begged” for a job and was rejected for the position.  While the court characterized Trump’s tweets as “intemperate,” the decision held that tweets stating Jacobus
“begged” for a job should be considered statements of Trump’s opinion protected by the First Amendment: “To the extent that the word ‘begged’ can be proved to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that the plaintiff and Trump were engaged in a petty quarrel.”

Essentially, the court determined that Trump’s tweets against Jacobus were mere opinions – and therefore not libelous.  In doing so, the court relied on the context of Trump’s Twitter reputation.  The court emphasized that Trump employs a “regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable” and attacks others via Tweets that are “rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ . . ..”  Because Trump has a recognized history of posting derogatory tweets against others, the court essentially determined that his tweets criticizing Jacobus needed to be examined within the same context – as part of his opinion and therefore not as defamatory.

Thus, even though the tweets belittled Jacobus, the court found that no reasonable reading of the comments would reflect adversely on the television commenter and dismissed the case.  According to the court, it was “impossible to conclude” that the tweets damaged Jacobus’ reputation as a political strategist and consultant.

Melania’s Contention: Defamation Claims Led to Loss of Economic Opportunity

In contrast to the defamation case against her husband, First Lady Melania Trump’s foray into the world of defamation law came as a plaintiff in bringing a suit claiming $150 million in damages.  In September 2016, Trump’s attorneys sued Maryland blogger Webster Tarpley and the online Daily Mail for publishing a blog and article that reported rumors that she once worked as a high-end escort instead of as a fashion model.  The suit was filed in Montgomery County, Maryland state court – the jurisdiction where Tarpley lives.

More specifically, in August 2016, Tarpley’s blog published allegations that the first lady worked for an escort service in the 1990s and suffered a nervous breakdown during the presidential campaign.  In recent weeks, Trump settled the lawsuit against the blogger. The Washington Post reported that he agreed to apologize to the Trump family and pay her a “substantial sum.”  According to the statement provided by Trump’s attorneys: “I posted an article on August 2, 2016 about Melania Trump that was replete with false and defamatory statements about her,” Tarpley said. “I had no legitimate factual basis to make these false statements and I fully retract them.”

However, the claims against the Daily Mail were dismissed on jurisdictional grounds by the Maryland judge – forcing Trump to re-file the case in New York, where the company that publishes the Daily Mail’s website has its corporate offices.  See Melania Trump v. Webster Griffin Tarpley, et al., Case No. 424492-V (Circuit Court of Montgomery County, Maryland).

According to the Maryland court, the alleged defamatory article in question was about the plaintiff – a New York resident – and the statements forming the basis of her claims concerned events that took place in New York or in foreign countries.  Thus, even though Trump’s attorneys asserted that the publication of defamatory statements by a national publication with significant circulation in Maryland should give rise to personal jurisdiction, the court determined that the Daily Mail did not intentionally enter the Maryland market specifically but rather targeted the United States market as a whole.  The court reasoned that no reporter or editor traveled to Maryland in the course of editing, reporting or publishing the article, the Daily Mail does not have an office in Maryland, the plaintiff herself does not live in Maryland, and the witnesses were not located in Maryland.  Thus, the court held that it would be “unreasonable as a matter of constitutional due process for this Court to exert jurisdiction over MMI or MailOnline in the State of Maryland.”

On February 6, 2017, Trump re-filed the libel suit against the Daily Mail’s publisher in New York state court. See Melania Trump v. Mail Media Inc., case no. 650661/2017 (Supreme Court of the State of New York, County of New York).  Trump’s complaint asserts claims for defamation and intentional infliction of emotional distress, as she contends that the article stating she worked as an “elite escort” rather than a fashion model and took part in a lesbian-themed nude photo shoot led to a loss in value of her brand of commercial products. The complaint estimated Trump’s economic damage in the “multiple millions of dollars” and refers to opportunities she had “to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multimillion dollar business relationships for a multiyear term during which plaintiff is one of the most photographed women in the world.”  Because of the Daily Mail’s defamatory article, the complaint alleges that Trump’s brand “has lost significant value” as her commercial opportunities have been reduced.

Defamation Law Series: Wisconsin Court of Appeals Affirms Dismissal of Firefighter Aaron Marjala’s Claim for Defamation

The Wisconsin Court of Appeals recently affirmed the trial court’s dismissal of firefighter Aaron Marjala’s claim for defamation against a news network, Robert Whitaker (chief of the fire department), television journalist Megyn Kelly, and a guest on her show, Lee Armstrong.

Marjala was a firefighter and injured the ulnar nerve in his right arm while on duty.  His condition eventually worsened and precluded him from performing certain duties as a firefighter, such as lifting a ladder or tying a knot.  Desk jobs with the fire department purportedly were unavailable, prompting Marjala to apply for duty disability benefits.  He was certified as permanently disabled and approved for duty disability benefits.  Thereafter, Marjala became a licensed national home inspector.  Although he was unable to work as a firefighter, Marjala engaged in strenuous physical activities, including marathons and an Ironman triathlon.

Several years after Marjala began to receive duty disability benefits, Robert Whitaker, chief of the fire department, gave an interview for the television station WITI.  An excerpt of the WITI interview was broadcast and Marjala’s receipt of disability benefits was discussed during a segment hosted by Megyn Kelly on a television news program.  Marjala claims that Whitaker, Kelly and one of her guests, Armstrong made defamatory statements about him.

The appellate court explained that the principle of fair comment insulates one from liability for honest expressions of opinion on matters of legitimate public interest when based on true of privilege statements of fact.  In affirming the trial court’s dismissal of Marjala’s claims, the appellate court agreed that Wisconsin’s duty disability system is an issue of public importance, and that both the WITI and Kelly’s broadcasts provided a full factual background about Marjala’s injury and receipt of duty disability.

Against that backdrop, the court found that none of the alleged statements were defamatory.  Rather, the court agreed that when the broadcasts were viewed as a whole and in context, the statements were not actionable.

Whitaker’s Statements

Whitaker’s first statement:  “To even have that activity come up and questioned, begs in my mind, what is [Marjala’s] current physical status”.  Marjala contended that this statement implied that he was lying about his injury.  The court found, however, that it was a statement of opinion based on true, disclosed facts.  Specifically, Marjala was disabled because of his inability to perform certain tasks as a firefighter involving the ulnar nerve, but nonetheless engaged in activities that required the use of the ulnar nerve.

Whitaker’s second statement:  “The system may need some reform”.  Marjala argued that this statement implied that he was abusing and defrauding the system.  The court disagreed, observing that the statement was made after the narrator of the program observed that the State does not require medical check-ups and that there is “almost no way”  to overturn a decision finding that a firefighter is permanently disabled.  The court thus interpreted Whitaker’s statement as a critique of the system, and not about Marjala.

Whitaker’s third statement:  “[W]e are continually looking into that whether the information we are being provided is accurate.”  Marjala asserted that this statement implied that he was being untruthful about his disability.  However, the court noted that the statement was unrelated to Marjala’s disability.  The court found that when viewed in context, the statement was related to certain representations that Marjala had made concerning his compensation as an inspector.

Whitaker’s fourth statement:  “Is there a small part of me that says I’m glad Brian [the reporter] got a tip on this?  Yeah, because it needs to be exposed.”  Marjala claimed that this implied that his receipt of benefits was improper or illegal.  The court observed that it was unclear whether “it” referred to Marjala’s receipt of benefits or income representations.  Even if “it” referred to Marjala’s receipt of benefits, however, the court concluded that in the context of the entire broadcast, the statement implied Whitaker’s opinion that the existing duty disability system may be flawed.

Kelly’s and Armstrong’s Statements

Marjala asserted that a series of statements made by Kelly and Armstrong on Kelly’s broadcast were defamatory.  Among the statements he alleged was defamatory were:

  • “The Ironman too injured to fight fires”
  • “He’s exploited this supposed injury. . . .  [F]irefighters are genuinely injured, really hurt, mentally and physically, and then you have this guy.  It’s just not right.  There has to be an investigation here.  Something needs to be done.  This guy should no longer get this money. . . .  Somebody has to look into this.  It’s disgusting.”
  • “Why should he be excused from the fraud?”
  • “I will blame him. . . .  But you blame him because he started this domino.  He’s the one who . . . hit his elbow, his pinky became numb and then all of a sudden, he’s permanently disabled.  He’s the one who went to the doctor and told them about this supposed limitation so I think the buck does stop with him.”
  • “He’s too hurt to push paper but he can run Ironman triathlons.  We’ve seen this time and time again, people taking advantage of the system and it’s wrong, period.  He should be forced back to his job, I think that fourteen million Americans would love to have it.”

The court found that, viewed in context, the program was a collection of opinion statements based on fully disclosed true or substantially true facts, rendering the opinions nonactionable.  For instance, the court found that the implication that Marjala claimed total disability because of hitting his funny bone was substantially true because he injured her ulnar nerve which resulted in a finding of permanent disability as a firefighter.

While Marjala focused on Kelly’s question about being “excused from the fraud,” the court explained the question had to be viewed in context.  Specifically, when a guest on the segment suggested that the system, rather than the individual, should be critiqued, Kelly essentially asked why individual should get a pass even if there is systemic problem.

The court acknowledged that the broadcasts likely were embarrassing and unflattering to Marjala.  The court nonetheless concluded that “while the commentary may have been sarcastic, belittling, and impolite, that does not make it defamatory.  ‘[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.’”

Defamation Law Series: Third Circuit Court of Appeals Affirms Dismissal of Renita Hill’s Claims Against Bill Cosby

The Third Circuit Court of Appeals recently affirmed the Pennsylvania district court’s dismissal of Renita Hill’s claims against Bill Cosby in Hill v. Cosby.

Hill was among the women who alleged that Cosby had drugged and sexually assaulted her.  In her lawsuit against Cosby, Hill claimed that after she shared her story in an interview, Cosby retaliated against her and other alleged victims by publishing three statements that questioned the accusers’ honesty and motivations.  Based on these statements, Hill asserted claims for defamation/defamation per se, false light and intentional infliction of emotional distress (“IIED”).

The trial court found that none of the statements were actionable as a matter of law.

The court focused primarily on the first statement, allegedly made by Mr. Cosby’s attorney and given to The Washington Post, in which his attorney stated:

The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity.

These brand new claims about alleged decades-old events are becoming increasingly ridiculous and it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of so many years.

Lawsuits are filed against people in the public eye every day.  There has never been a shortage of lawyers willing to represent people with claims against rich, powerful men, so it makes no sense that not one of these new women who just came forward for the first time now ever asserted a legal claim back at the time they allege they had been sexually assaulted.

This situation is an unprecedented example of the media’s breakneck rush to run stories without any corroboration or adherence to traditional journalistic standards.  Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop out of the woodwork.  When will it end?

It is long past time for this media vilification of Mr. Cosby to stop.

Hill argued that the statement was actionable because it was a “mixed” opinion which implied the existence of defamatory facts, namely, that Hill had lied and was extorting Cosby.  However, the court explained that if the underlying facts are true and disclosed, the statement is not actionable because the recipient of the statement may choose to accept or reject the opinion based on an independent evaluation of the facts.  In finding that Singer’s statement was not actionable, the court found that the attorney had “adequately disclosed” the factual basis for his opinion that Hill had lied.  The court further concluded that no reasonable recipient could find that Mr. Cosby’s attorney had characterized Hill and the other alleged victims as extortionists.

The second statement was allegedly made by Mr. Cosby himself during an interview with the newspaper Florida Today, in which he purportedly stated:

So today I was informed of this ratio station that is offering money for people to stand up and heckle in order to collect prizes and money.

The thing is, these people are prodding and pushing people and asking people to have a frat house mentality.  Now suppose someone brings a weapon or decided to do more foolishness.  There will be announcements made and the stations made some disclaimers, but what if people don’t listen to what they said and they entice violence.  That’s not good for anyone.

When you go to a civil rights march or something like that, at least there are meetings and some organization to it and people understand how to behave.  There may be people coming to the show and don’t know exactly what to do; there is no organization at all.

I know people are tired of me not saying anything, but a guy doesn’t have to answer to innuendos.  People should fact-check.  People shouldn’t have to go through that and shouldn’t answer to innuendos.

While Hill focused on the last paragraph of the statement, the court found that Cosby’s statement was a criticism of the radio station.  The statement was not defamatory because it could not be interpreted to imply the existence of undisclosed defamatory facts.  In reaching that decision, the court acknowledged that while Cosby characterized the accusations against him as innuendos, he did so to explain why he had not responded to the accusations, and in fact asked the public to conduct its own investigation and to draw its own conclusions.  The court agreed that “asking the public to investigate and draw its own conclusions is a far cry from labelling Plaintiff (and the other women who have made similar public assertions) as liars or extortionists.”

The third statement was allegedly made by Cosby’s wife, Camille Cosby, in a letter published by The Washington Post, in which she purportedly stated:

I met my husband, Bill Cosby, in 1963, and we were married in 1964.  The man I met, and fell in love with, and whom I continue to love, is the man you all knew through his work. He is a kind man, a generous man, a funny man, and a wonderful husband, father and friend. He is the man you thought you knew.

A different man has been portrayed in the media over the last two months.  It is the portrait of a man I do not know. It is also a portrait painted by individuals and organizations whom many in the media have given a pass.  There appears to be no vetting of my husband’s accusers before stories are published or aired.  An accusation is published, and immediately goes viral.

We all followed the story of the article in “Rolling Stone” concerning allegations of rape at the University of Virginia.  The story was heartbreaking, but ultimately appears to be proved to be untrue.  Many in the media were quick to link that story to stories about my husband – until that story unwound.

In finding that Mrs. Cosby’s statement was not actionable, the court concluded that Hill could not satisfy the “of and concerning” requirement.  Specifically, the court found that Ms. Cosby’s statement was directed more towards the media rather than the accusers.  The court also found that Ms. Cosby’s reference to the infamous scandal involving false rape allegations at the University of Virginia could not reasonably be interpreted to imply the existence of specific undisclosed facts known to Ms. Cosby regarding Hill.  Instead, the court concluded that it was understandable that she would defend her spouse without implicating specific facts regarding a particular accusation.

The court also affirmed the dismissal of Hill’s other tort claims.  With respect to her false light claim, the court found that dismissal was warranted because Pennsylvania courts apply the same analysis for both defamation and false light.  And since none of the alleged statements were defamatory, the false light claims also failed.

With respect to Hill’s claim for intentional infliction of emotional distress (“IIED”), the court concluded that certain courts do not allow IIED claims based on defamatory language.  Even if such a claim were allowed, however, the court found that it could not go forward where the alleged statements were not defamatory.

Former American Idol Contestant’s Defamation and False Light Claims Dismissed

The California Court of Appeal recently dismissed former American Idol contestant Corey Clark’s claims against Radar Online, LLC (“Radar”), concluding that Radar’s anti-SLAPP motion should have been granted.

In 2003, Clark was a contestant on the national television singing competition American Idol.  Clark was eventually removed from the competition due to his purported failure to report his arrest for the alleged battery against his sister.  In December 2013, Clark engaged in negotiations with Radar to provide an exclusive interview about his removal from American Idol.  Radar interviewed Clark and reviewed documents that he claimed disproved the allegations regarding his battery charges and failure to disclose those charges to American Idol.  Clark and Radar did not reach an agreement, however, and Clark provided an exclusive interview to another media outlet.

Radar subsequently published an article online discussing controversial American Idol events, which included a statement about Clark.  Clark claimed that the publication’s statements regarding him beating up his sister, the reason for leaving American Idol, and characterization of his arrest as a legal mess were false.  After Radar refused to retract the statement and issue an apology, Clark sued for libel per se/defamation and false light/invasion of privacy.

Radar filed an anti-SLAPP motion, which the trial court denied.  The appellate court reversed after applying the two-step test to determine whether the claims should be stricken:  (1) whether the defendant made a threshold showing that the challenged conduct was in furtherance of the defendant’s right of petition or free speech in connection with a public issue, and (2) whether the plaintiff has demonstrated a probability of prevailing on his claim.

With respect to the first step, the court agreed that Radar’s website was a public forum.  The court further concluded that Clark’s dismissal and arrest were issues of public interest because they concerned a person in the public eye and the casting of a popular television program.  In reaching that decision, the court rejected Clark’s argument that there was no public interest since the issues were relevant only to a limited portion of the public.  The court reasoned that not only was American Idol widely watched, but that public interest can be established solely by interested television fans.  The court also rejected Clark’s assertion that public interest could not be established given that too much time had passed.  The court found that Clark could not claim there was no ongoing controversy when Clark had actively sought public attention and attempted to rekindle the discussion on the issues of his arrest and removal from American Idol with media outlets.

With respect to the second step, the court concluded that Clark had failed to meet his burden to show the likelihood of success of the merits of his claim because he never presented any evidence on that issue.  Rather, Clark had briefed only the first step at both the trial and appellate courts.

The court nonetheless found that Clark could not succeed on his defamation and false light claims.  Defamation involves the intentional publication of a factual statement that is false, unprivileged, and injurious.  When coupled with a claim for defamation, a false light claim is superfluous and stands and falls with the defamation claim.  Because the challenged statements concerned a matter of public interest, Clark bore the burden of proving that the challenged statements were false, which he failed to do.

The appellate court found that the trial court had erred in its analysis of the challenged statements.  In denying the Radar’s anti-SLAPP motion, the trial court had focused on the first line of the article – which stated “Corey Clark Disqualified After Beating Up Sister” – and found the phrase false because Clark had been removed due to his alleged failure to disclose his arrest to American Idol.  The appellate court explained that the lower court should not have analyzed the publication in fragments, but rather, should have read the article as a whole.  The court concluded that when read as a whole, it was clear to the reader that Clark had been removed from American Idol due to his purported failure to disclose his arrest for allegedly battering his sister.  Despite the “slight miswording” of the initial phrase, the substance of the article was accurate.

The court further reasoned that even if the publication had represented that Clark had beat his sister, Clark failed to prove that fact was materially false.  The court observed that Clark’s declaration did not contain an affirmative denial that he beat up his sister, but rather, left open the possibility that he had beat her.

The Attack On Social Media Influencer Campaigns

Gonzalo Mon authored the Law360 article “The Attack on Social Media Influencer Campaigns.” In the article, he notes that four consumer groups have sent letters to FTC encouraging the agency to investigate the use of influencers on Instagram. The combined letters include over 150 examples of campaigns that allegedly violate the FTC’s Endorsement Guides. Gonzalo notes that although the letters highlight some legitimate issues regarding the use of influencers, they also misstate some of the requirements in the Endorsement Guides and lump good influencer campaigns along with bad ones. Gonzalo explains what the Endorsement Guides actually require and provides tips for companies to avoid scrutiny.

Gawker Remains in the Crosshairs: Seventh Circuit Finds that Online Media Publisher Can Be Liable for Defamatory Third-Party User Comments for Its Role in Disseminating the Statements

The Seventh Circuit Court of Appeals recently kept alive one of the multitude of legal entanglements ensnaring Gawker Media LLC, as the Court reversed and remanded a lower court’s decision to dismiss a plaintiff’s defamation claim involving defamatory third-party user comments.  In its ruling, the Court emphasized that a media company such as Gawker can be liable for creating and posting (or inducing another to post) defamatory statements in a forum that the company maintains.

The plaintiff in Meanith Huon v. Nick Denton, et al., Case No. 15-3049, is an attorney who was acquitted on charges that he abducted and sexually assaulted a woman in 2010.   Following his acquittal, the plaintiff sued the legal blog Above the Law for $100 million relating to an article published on the blog that suggested that he faced several different criminal rape charges.  Jezebel, a blog owned by Gawker, later posted a story that linked to Above the Law’s coverage.  The plaintiff claimed that Jezebel’s story maintained the false impression that he had actually committed the sexual assault, and Gawker thus was added to the plaintiff’s lawsuit in 2011.

The plaintiff specifically took issue with third-party user comments posted in the comments section following the Jezebel article.  The article generated more than 80 comments from anonymous third-party users, and the plaintiff alleged that Gawker served as an information content provider for those comments by encouraging and inviting users to defame him, shaping the content of the comments, and employing individuals who may have authored some of the comments themselves.

The district court dismissed the plaintiff’s claims against Gawker, finding that the complaint insufficiently pled that Gawker employees had actually authored the comments.  The lower court relied on the Communications Decency Act, which serves to protect online media publishers from liability for third-party comments. Under Section 230 of the Communications Decency Act of 1996, traditional online service providers are not viewed as publishers of “any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  Even if an online service provider could be considered a “publisher” under traditional defamation law, courts have held that such operators cannot be found liable under Section 230 for defamatory postings by anonymous users, even if the operators maintained some degree of relevant knowledge.  See, e.g., Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

However, in reversing the lower court’s ruling, the appellate panel of Circuit Judges Frank Easterbook and Ann Claire Williams and U.S. District Judge Staci M. Yandle determined that the general “immunity” that protects most online publishers from liability for third-party user comments did not extend to Gawker under the specific facts alleged in this case.  Although a company like Gawker cannot be considered the publisher of information under the Communications Decency Act simply based on its action of hosting an online forum for third-party users to submit comments, the Court reasoned that Gawker’s comments forum in this instance operated as more than a passive conduit for disseminating defamatory statements. The Court held that the plaintiff’s fourth amended complaint devoted more than four pages to detailing Gawker’s alleged activities and suggested that Gawker employees may have anonymously authored comments in an effort to boost traffic to Gawker’s website.  One user comment in particular may qualify as actionable defamation, as the comment clearly and unmistakably accused the plaintiff of committing rape, according to the Court.  Thus, the Court determined that discovery will serve as the proper tool to test the validity of the plaintiff’s allegations relating to Gawker’s involvement in the third-party comment function.  (“The Gawker defendants may well be correct in contending that none of Huon’s various allegations actually occurred, but this doesn’t mean that the allegations are so implausible as to warrant dismissal.”).  Without first engaging in the discovery process, the lower court should not have dismissed the plaintiff’s claims, the Court held.

The Court also found that the lower court improperly dismissed two other claims – false light invasion of privacy and intentional infliction of emotional distress – as a result of the court’s dismissal of the defamation count.

The revival of this defamation lawsuit further muddies the crammed litigation landscape facing Gawker Media.  The notable Hulk Hogan invasion of privacy case, in which the professional wrestler sued Gawker after the website ran an excerpt of one of his sex tapes, resulted in a $130 million judgment for Hogan and against the company.  Gawker filed for Chapter 11 bankruptcy to block Hogan from seizing the company’s assets, and the bankruptcy filing stayed all other litigation against the company.  In June 2016, reported that Gawker was fighting at least ten separate lawsuits at the time of the bankruptcy filing.  The New York Times similarly reported that five of those cases were defamation-related lawsuits.   In this case, the Court was notified of the bankruptcy filing following oral argument.  In a footnote, the Court stated that Gawker’s counsel informed the Court that the automatic stays were modified in order to permit the Court to render a decision.

VR/AR in a Real World

In case you have been living under a rock, virtual reality (VR) and its first cousin, augmented reality (AR), have arrived.  The highly publicized and long-awaited head-mounted displays (HMDs), the headsets through which the world of virtual reality can be accessed, have been or will be made available for sale to the public this year, such as Facebook-owned Oculus VR’s Oculus Rift, Samsung’s Gear VR, Sony’s PlayStation VR, HTC’s Vive, etc.  In other words, VR/AR is going mainstream.

Nearly all of the top 10 tech companies, including Apple, Google, Samsung, and Microsoft, have jumped on the VR bandwagon, investing significantly in the space.  Countless players across many different industries, including Marriott, Netflix, Hulu, Birchbox, and Ford, have developed VR “experiences,” seeking to capitalize on the hype.  Indeed, 75% of the 100 companies on Forbes’ World’s Most Valuable Brands list have either developed VR or augmented reality (AR) experiences for their customers or employees, or have invested in developing the technology.[i] Television networks have broadcast sporting events such as the Kentucky Derby, NASCAR, and the NBA live in VR.  The 2016 Sundance and Cannes Film Festivals featured VR short films.  The Coachella music festival provided each 2016 attendee with a custom cardboard VR headset, allowing them to explore the festival grounds and preview performances through the Coachella VR app.  Six Flags debuted the New Revolution, a roller coaster experience during which riders wear a VR headset while riding a roller coaster.  As the foregoing examples demonstrate, VR is the new “it” technology, and “it” is everywhere.

Even in its nascent state, VR is proving to have a multitude of beneficial uses stemming far beyond the gaming industry with which it is most readily associated.  The healthcare industry is using VR to treat human cognitive and behavioral conditions and provide training to medical students.  The real estate and automotive industries are using VR to show properties and cars to potential buyers.  The sports industry uses VR to provide zero-impact training to athletes.  Educators are incorporating the technology into learning tools designed to engage children.  VR is also being utilized for advertising, space exploration, tourism, military and law enforcement purposes, and, naturally, entertainment.

In contrast to the virtual world they exploit, however, the new HMDs, as well as VR/AR in general, raise very real legal issues, especially in the areas of consumer safety, privacy, intellectual property, and First Amendment law.  Most recently, Pokémon Go, which was released to the public on July 6, 2016, has captured so much attention that it borders on mania.[ii] For the uninformed, Pokémon Go is a game that uses the player’s smartphone camera and augmented reality to insert virtual Pokémon (fictitious creatures) into the user’s real world.  The game designates real-world locations, such as buildings and landmarks, as in-game destinations; players are encouraged to walk around their community in order to locate and capture these Pokémon.  Pokémon Go is producing some beneficial effects, such as promoting physical exercise, generating revenue for businesses, and assisting law enforcement in apprehending suspects.  It is also foreshadowing the problems that future VR/AR games and devices may create.

For example, cell-phone-fixated players are walking into the street without looking.  Some are driving while playing the game – indeed, one player crashed into a tree due to playing Pokémon Go while driving.[iii]  Players are also attempting to capture Pokémon located in inappropriate places such as the Holocaust Museum and the 9/11 Memorial.  At least one man’s private residence has been marked by the app as an in-game destination, causing players to congregate outside of his home at all times of the day.[iv]  Armed robbers are using the game to bait unsuspecting players into unpopulated areas.  A teenage girl in Wyoming even discovered a dead body while trying to catch a water Pokémon.[v]  For at least a few days, the app contained a coding “error” that gave the game’s developer “full access” to users’ Google accounts, including Gmail.[vi] Remarkably, all of the foregoing events happened over the course of the first week Pokémon Go was available to the public.  The fact that Pokémon Go became ubiquitous in such a short period of time is a testament to public appetite for VR/AR.

Below, we highlight some prospective issues raised by VR/AR, while recognizing that this discussion is pure conjecture at this point.  The world of VR is still in its infancy, and, as such, these legal issues have not yet been explored in connection with VR.  While we can (and do below) compare VR to other forms of media and technology preceding it, VR is unlike anything before it in terms of the immersive and interactive experience it provides. As such, it is difficult to predict all of the legal implications of this new technology. As HMDs and other VR devices become ubiquitous, these and other issues will come to the forefront and legislation and case law will likely provide answers to many outstanding questions.  Only time will tell us which issues are non-issues and which issues require further regulation, innovation, and attention.

While The “Reality” May Be Simulated, The Potential Legal Issues Are Not

Consumer Safety

While the fully immersive experience of VR is what makes it unique and appealing, it has also spawned perhaps the top (and most obvious) concern regarding VR – the physical risks involved.  It is not difficult to imagine the kind of harm that can ensue when an HMD-user proceeds to move around a room filled with furniture, pets, cords, walls, and other objects while her view of the real world is obstructed.  Injury to both the user and others in the vicinity is foreseeable.  The Internet is filled with reports and videos of HMD users running into walls, furniture, the ceiling, and other people.  The risk of harm is especially high when the user is engaged in a VR experience that encourages moving around (e.g., when the goal is above the user).  It is not only real world objects that can cause the VR user harm, but objects within the virtual space, as well; forgetting that these objects are not real, VR users have attempted to sit or lean on non-existent furniture and are quickly jolted back to reality when they fall onto the very real floor.  If these physical risks actualize and HMDs begin causing serious consumer injuries, a slew of product liability lawsuits will likely emerge claiming that these products suffer from a design defect and/or fail to sufficiently warn of their risks.

It is foreseeable that future plaintiffs will claim that HMDs are defective in design under both strict liability and negligence theories.  But a product does not suffer from a design defect solely because it is dangerous (e.g., a knife).  Like a knife, while the HMD’s design, essentially a high-tech blindfold, certainly presents a risk of danger, it also serves VR’s primary purpose – to fully immerse the user in a virtual experience.  On the other hand, some HMD creators have shown that these products can be made safer with minimal interruption to the immersive VR experience.  Indeed, Valve created a safety mechanism for its HTC Vive called the Chaperone System, which utilizes the Vive’s front-facing camera to detect physical objects in the user’s path.[vii] It also enables users to define the area of the room that they will use and notifies them when they get close to the boundary.[viii]

Unlike the Vive, the first consumer version of the Oculus’ Rift does not come with a Chaperone type system or a front-facing camera.  The Rift, therefore, cannot detect or prevent a user from colliding with physical objects in their path, such as walls, tables, and chairs.[ix]  This raises the question: is an HMD’s lack of a front-facing camera or chaperone system a design defect?  In other words, could Oculus be held liable if a Rift user suffers a physical injury that could have been prevented by the inclusion of a front-facing camera and/or a Chaperone system?  When asked if the Rift can set boundaries to ensure that users do not walk into walls, Oculus’ founder indicated that he believed that to be a software issue rather than a hardware issue.[x]  Interestingly, however, at least one earlier model of the Rift had a front-facing camera.[xi] Further, user reports and videos clearly indicate that Rift users are getting up and walking around, and several users are claiming that the Rift is dangerous and needs a Chaperone system like the Vive.

Oculus could take the position that the doctrine of assumption of risk bars liability for any injury that results from consumers walking around while wearing the Rift.  Oculus could argue that not only is the risk of injury foreseeable, but it specifically warns users of such risks in its health and safety warnings.  Thus, so the argument would go, the consumer assumed the risk of injury because they were aware of it and still used the HMD.  The success of this argument would likely depend on several factors, including the adequacy of Oculus’ health and safety warnings and whether the inclusion of a front-facing camera is economical.

Manufacturers of HMDs may be able to avoid liability for injuries and side effects resulting from HMD usage by providing specific and thorough health and safety warnings.  The health and safety warnings that accompany HMDs already on the market, such as the Rift and Vive, alert consumers to the immersive nature of VR and the risk of serious injury if the product is used in an unsafe area (or if one relies upon imaginary furniture to bear their weight).  These warnings also notify consumers that VR interaction may produce a multitude of negative side effects, ranging from nausea and headaches to seizures and post-traumatic stress disorder.  These types of consumer safety warnings insulated Nintendo from liability in connection with its Wii remotes, and it stands to reason that they will similarly prevent the imposition of liability in connection with VR HMDs.[xii]  Future claims will either confirm the adequacy of such warnings or will test their limits.

Furthermore, since VR only recently made its public introduction, it may involve risks that are not yet known, including the long-term effects of VR usage.  While more research is needed, many believe that long-term VR engagement may have an impact on eyesight, cognition, and behavioral function, especially in children.  Further, there are concerns that the wholly-immersive nature of VR will cause users to develop serious addictions that could lead to death from exhaustion, dehydration or starvation.[xiii]  The threat of addiction to VR does not seem so far-fetched when one considers the severe addictions that users have developed to the significantly less immersive massively multiplayer online games (MMOGs).[xiv]  Oculus warns users to “take at least a 10 to 15 minute break every 30 minutes, even if you don’t think you need it,” but does not specifically mention anything about the threat of addiction.[xv] Warnings may be modified or enhanced to address these and other concerns as they arise, or may be tested in future litigation.  As with all new technology, refinements in both the technology and the business and legal practices surrounding it will continue for as long as the technology is interesting to developers and consumers.


Like many mainstream products on the market today, HMDs such as Oculus’ Rift can – and do – collect data about their users.  Unlike other forms of technology, however, the new VR HMDs have an unprecedented ability to collect unique personal information that consumers are not accustomed to providing, namely, physical movement.  Oculus’ privacy policy reveals that the company not only collects information provided by its users, but also automatically collects certain information when a consumer uses Oculus’ services, including “information about your physical movements and dimensions when you use a virtual reality headset.”[xvi]  In addition to user location, Oculus tracks users’ head, hand, and eye movements, and can determine if a user is sitting or standing.  Moreover, the software required to run the Rift includes an internet-connected process that is continuously running and routinely sending information to Facebook’s servers, even when the user is not using the device.[xvii]   In other words, Facebook, through Oculus, knows what content users are viewing on Rift, where they are viewing it, and the positional tracking of the HMD.[xviii]  Concerns over user privacy and security have already been articulated.

Growing concerns over Oculus’ privacy policy caused Senator Al Franken to ask Oculus’ CEO, Brendan Iribe, some hard questions regarding “the company’s collection, storage, and sharing of users’ personal data” to enable consumers to “make informed decisions about whether and with whom they share such sensitive information.”[xix]  Oculus responded that it “collects information about physical dimensions to help improve its services” and admitted that it shares such information with its developers, including Facebook, “as necessary to provide our services and enhance the ability of relevant VR products for people.”[xx] Notably, however, Oculus did not address whether it sells such information to third parties, despite being specifically questioned on the subject.

The unique (and arguably sensitive) information collected through VR products will likely be coveted by advertisers, hackers, and potentially government agencies.  VR companies that collect this data must be careful not to mislead consumers by failing to implement or maintain “reasonable” and “appropriate” controls to secure such information, or by making materially misleading statements or deceptive omissions of material facts to consumers concerning the use, disclosure, or safeguarding of such information (e.g., in a privacy policy or other public-facing materials). Otherwise, they could be subject to enforcement actions by the Federal Trade Commission, as well as litigation brought by consumers for invasion of privacy.

Like other uses of private information, those selling VR products and experiences will be well served by providing clear policies and choices with respect to the information collected.  Responsible safeguarding of private information collected from users will also protect consumers and insulate developers from liability.  No matter what policies and practices are adopted, the trove of information collected from the marketplace of VR users will make a tempting target for hackers and thieves.  In this respect, the emerging VR community will not be breaking new ground; it will merely be joining the ranks of countless other interactive businesses who are entrusted with protecting customer information.  A wide range of businesses, from banking and credit card companies to entertainment and dating services, already struggle to balance the quality of the services and products they provide against the need to protect user privacy.

Intellectual Property

VR may also implicate intellectual property issues where the virtual environment contains real world corporate logos, copyrighted works, or a person’s name or likeness.  As with video games, the laws of copyright, trademark, and right of publicity govern the use of such content in VR.

A copyright owner has the exclusive right to reproduce, distribute, perform, or display the copyrighted work, or to prepare derivative works based on that work.[xxi]  Thus, VR content creators must secure a license from the applicable rights owner before displaying or performing material subject to copyright protection within a VR experience.[xxii]  Likewise, software developers must be cautious when it comes to enabling VR users to generate content (such as avatars).  If users are provided with the means to incorporate protected material into the content they create, software developers may be held secondarily liable for the user’s infringing conduct.

With respect to the use of another’s trademark in VR, solely including another’s mark in VR is not per se trademark infringement.  Rather, the mark’s owner would have to establish the mark was used “in commerce” in order to state a claim for trademark infringement.  For instance, if a VR user sells virtual cars bearing the BMW logo to other VR users, the use of the mark may be found to meet the “in commerce” element of trademark infringement.

Similarly, invoking the name or likeness of a celebrity in VR could amount to an unauthorized use – forming the basis for a right of publicity action – if the use was commercial in nature.  Because right of publicity laws vary from state to state, content providers must take additional care to ensure that use stays within the bounds of the law in every jurisdiction in which the products are distributed.  Addressing this inconsistency is a common issue in the creation of entertainment and other creative content already, and that problem will remain a concern with respect to VR products.

As far as intellectual property issues in the virtual space are concerned, it appears that existing law will apply to protect the intellectual property rights of owners in the virtual world.  If VR content is deemed to be an expressive work, however, as with video games, the First Amendment may provide a defense to future intellectual property lawsuits arising out of the use of a trademark, copyrighted work, or a person’s name or likeness within VR.

First Amendment Issues

Like movies, television, books, and other expressive works before it, VR communicates ideas.  Given that the Supreme Court has held that even violent video games qualify for First Amendment protection,[xxiii]it would seem that, by extension, most VR content should receive First Amendment protection as well.  The highly immersive and interactive nature of VR, however, is encouraging the creation of some content that is less clearly within the protection of the First Amendment.

For instance, the adult film industry is developing X-rated VR experiences that seek to turn pornography into an active experience.  But the less than PG VR uses go far beyond ordinary pornography.  VR users may be able to engage in behavior that is illegal and unacceptable in the real world, such as virtual prostitution, torture, murder and other illegal sexual activities.   This dark side of VR raises many moral and legal questions.  It is foreseeable that legislators will be called upon to regulate VR to preclude user access to some types of experiences, which will surely garner the attention of First Amendment advocates.  VR is lauded by users for the realistic and completely immersive experiences it provides.  For example, users participating in a horror-themed VR experience display palpable signs of fear, signifying that the experience is quite real.  By analogy, performing illegal acts in the virtual, yet life-like world, that one rarely, if ever, gets to perform in the real world would arguably feel even more real to the user and bring the action closer to a real-life crime.  It is unclear whether VR’s incomparable realness and interactivity, coupled with the obscene nature of certain VR content, would render such content outside of the First Amendment’s protective cloak.

Because VR and the new HMDs have only recently gone public, many interesting issues arise as new uses and experiences with VR are created and reported.  The number of products, experiences, and services utilizing VR will certainly continue to explode in the near future as the technology evolves, and so will the legal issues surrounding it.  As with any new technology, some anticipated hurdles will turn out to be non-issues, while other issues may arise and surprise everyone.  With all of the uncertainty surrounding VR, one thing that can be said with confidence is that we have only just begun – and a new world of technology and law lies ahead.