New York court throws out Sandals case against Google

McPherse Thompson, Assistant Editor -Business

A New York appellate court has dismissed a petition brought by Sandals Resorts International in which it sought to force Google Inc to disclose information about the sender of an email criticising the company for reserving high-paying managerial positions for foreigners while employing Jamaicans in menial jobs at its local resorts.

By unanimous decision, the Appellate Division of the Supreme Court, First Department, ruled that the contents of the email constituted an expression of constitutionally protected opinion, and a libel action cannot be maintained unless it is premised on published assertions of fact.

The decision, written by Justice David B. Saxe, was handed down on May 19, affirming a 2010 judgement of the Supreme Court, New York County, dismissing the petition for pre-action discovery in preparation for filing a suit for libel against the email sender.

According to the judgment, the case began last year when Sandals, which operates multiple resorts in Jamaica, filed a petition in the New York Supreme Court seeking disclosure of information and materials that would enable it to build a libel action against the Google gmail account holder.

In the email, the sender accused Sandals Resorts of benefiting from subsidies from the Jamaican Government, while hiring native Jamaicans for low-paying menial jobs and reserving its high-skill, high-paying jobs for foreigners.

A response from Sandals on the outcome of the appeal was being prepared, public relations manager Sheryl McGaw Douse, told the Financial Gleaner, but was not available up to press time.

Under the Foreign Nationals and Commonwealth Citizens (Employment) Act, non-Jamaicans employed in the island are required to obtain work permits, which are normally issued by the Ministry of Labour and Social Security.

The Act also provides for the relevant minister to vary or cancel a work permit, as well as grant exemptions.

However, contacted on Wednesday, the ministry declined to say under what circumstances work permits are issued to foreign nationals where local talents are available, directing the Financial Gleaner to request that information through the Access to Information Act, responses to which typically take upwards of 30 days.

The email was sent to a named local politician attached to one of the third parties, as well as a number of "undisclosed recipients" from jft3092@gmail.com and referenced as belonging to 'John Anthony', presumably the account holder or a pseudonym.

The email contained links to numerous news articles and websites intended to contrast the wages and living conditions of native Jamaicans, especially those employed by Sandals, with the financial success of the hotel chain and its top employees.

false and defamatory

Sandals argued that the email was false and defamatory in claiming that the company was engaged in racist hiring practices.

The company relied on the 1995 Appellate Division decision in Herlihy v. Metropolitan Museum of Art, in which the plaintiff asserted that museum volunteers had falsely accused her of making anti-Semitic remarks for which she was then fired. In that case, the court ruled that the allegation of anti-Semitism was an example of 'slander per se' and denied the museum summary judgment.

Sandals had asked the court to order Google to "turn over all information concerning the Google account designated as jft3092@gmail.com, including but not limited to all email, instant messages, text messages, buddy lists, address books, contact lists, account histories, account settings, profiles, mail boxes, folder structure, detailed billing, user activity records (logon and logoff times), user identification records, phone number access records, ISP access records, and all information provided by the user at the time the account was created."

In March 2010, Supreme Court Justice Alice Schlesinger denied Sandals' petition, ruling that the email "does not contain assertions of fact, nor would a reasonable person construe that it does".

In addition, Justice Schlesinger noted that the email's numerous links to outside sources invited readers to draw their own conclusions and suggest "that the account holder's words are meant to provoke either thought or discussion and are therefore protected speech."

Judges in both the Supreme Court and the Appellate Division said Sandals offered no evidence that its business reputation was harmed by the email. "Initially, we observe that nothing in the petition identifies specific assertions of fact as false. That is, there is nothing in the petition contradicting the e-mail's claim that Sandals offers only menial jobs to native Jamaicans of African heritage."

And even if it was found that Sandals' business reputation was harmed, the judges said, they would still deny the petition for disclosure on the ground that the subject email is constitutionally protected opinion.

In agreeing with the Supreme Court's decision, Justice Saxe wrote that "Herlihy is inapposite to Sandals' claim. Although implying that someone is racist is as libellous as representing someone as anti-Semitic, here, we are not dealing with a few oral statements that each stand on their own, but with a multipage writing. Consequently, our inquiry must address both the words and the context of the email as a whole, as well as its broader social context, to determine whether the content of the email constitutes defamation."

The court said there was validity to Sandals' argument that the "natural connotation" of the email was that Sandals' hiring policies were racist. Although most of the comments in the email referred to "Jamaicans" and "foreigners" without reference to race or skin colour, "there is one specific assertion that Sandals 'does not even have a single dark-skinned Jamaican on its board', from which it is reasonable to infer that the writer is suggesting that Sandals is biased in its treatment of Jamaicans of colour," the judge added.

Further, Justice Saxe wrote that "it is also true, as Sandals states, that assertions of objective fact seem to be contained in the comments that Jamaicans are relegated to menial, low-paying jobs such as making beds, cleaning toilets, and giving massages, while foreigners hold 'high-profile luxury-style jobs', and that the Government is subsidising tourist empires with the taxes of poverty-stricken Jamaicans."

However, the court held that none of those factual assertions established a meritorious defamation claim.

The court found the email "an exercise in rhetoric, seeking to raise questions in the mind of the reader regarding the role of Jamaican nationals in the Sandals resorts located in Jamaica."

"It is replete with rhetorical questions, asked either in relation to a link to an article about Sandals' companies or executives or in relation to a link to a photograph from the resorts' online public relations materials," the judge said.

"Its apparent purpose is not to characterise Sandals Resorts as racist. It is to call to the reader's attention the writer's belief that the native people of Jamaica, specifically the taxpayers, are providing financial support for the resorts on their island, but are not reaping commensurate financial rewards for that investment."

personal views

The court held that the tone of the email indicated that the writer was expressing his or her personal views, in that it reflected a degree of anger and resentment at the idea that travel agents make money from the success of Sandals, and foreign nationals earned large salaries from the resorts, while native Jamaicans benefited financially only by being hired for service jobs.

"To the extent the email suggests that Sandals' hiring of native Jamaicans is limited to menial and low-paying jobs, a reasonable reader would understand that as an allegation to be investigated, rather than as a fact," Justice Saxe wrote.

He said the anonymity of the email makes it more likely that a reasonable reader would view its assertions with some scepticism and tend to treat its contents as opinion rather than as fact.

Such an observation, wrote Justice Saxe, is in no way intended to immunise emails the focus and purpose of which are to disseminate injurious falsehoods about their subjects.

However, he said the court should protect against "use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs, via court orders, to silence their online critics", arguing that it "threatens to stifle the free exchange of ideas."

mcpherse.thompson@gleanerjm.com