Kimo Fights Back

Posted on September 6, 2009 by David Nelmark

In July, I quoted a report that Kimo Leopoldo was considering legal action against the internet troll that started the frenzy of false reports about Kimo's death.  It appears that a lawsuit is on the horizon, but against a far more well-known opponent: TMZ.com.

Although many blogs ran with the erroneous story of Kimo's untimely demise, TMZ was the first to report that the death had been "confirmed."  This threw fuel on the fire as TMZ's confirmation was republished by countless other sources.

TMZ ultimately took down the story, but the website's prior articles on Kimo still, to this day, show a link with the headline "UFC Legend Kimo Leopoldo Dies."  Kimo's attorney, Stephen Doniger, understandably finds TMZ's actions unacceptable.  Doniger and his client have thus been making the media rounds with Kimo submitting an "open letter'  to MMA blogs and both attorney and client appearing on Fox Fight Game. 

Doniger explained to me that he had contacted TMZ to try to get a retraction and to see if a resolution could be reached without litigation.  However, according to Doniger, TMZ has not only refused to post a retraction, it has not even bothered to reply to the correspondence.  Doniger says TMZ is running out of time, and a California state court lawsuit is being prepared which accuses TMZ of defamation and other related causes of action.  Doniger believes that TMZ's report caused Kimo harm because, among other things, the report said that Kimo had died of a heart attack.   Kimo is trying to clean up his image and such a report hearkened back to earlier reports of a drug-related arrest and may make MMA promoters hesitant to give him a fight for fear of a possible heart condition. 

I'll leave it to Doniger and the California courts to sort out whether a false report of someone's death can amount to defamation, but it's absolutely clear that TMZ engaged in irresponsible journalism, which troubles me a great deal. (Unless you've been a MMALB reader since the beginning you might not know that I went to journalism school so I take this somewhat personally.)Saying that someone's death has been "confirmed" has a very specific connotation.  While Beau Taylor should never have originally posted the false comments, the situation would not have gotten so out of hand so quickly if TMZ had not jumped into the fray without getting its facts straight.

While any media outlet can make an honest mistake (see Jewel, Richard) TMZ seems to have something against Kimo.  In February, it ran a story with the headline: "UFC Legend Has Finally Meth His Match."  The story related to an incident where Kimo was arrested near an automobile containing methamphetamine, but Kimo was never charged with possession of that drug.  In TMZ's defense, the police report was somewhat confusing and TMZ was not the only outlet to get the story wrong.  Unlike TMZ, however, Sherdog.com posted a correction/retraction and later ran a detailed article allowing Kimo to provide his side of the story. TMZ did neither. 

Score one for the MMA media. 

UPDATE:  This blog post was uploaded on September 6, 2009.  The morning of September 7, 2009, TMZ posted "Update: Kimo Is Alive!"  MMAJunkie.com scooped TMZ by 47 days on that one, which was not particularly difficult since Kimo held a press conference at the Orange County Sheriff's Department debunking the rumors of his death.

Score two for the MMA media. 

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Reports of Kimo's Death Greatly Exaggerated (and Defamatory?)

Posted on July 22, 2009 by David Nelmark

Erroneous reports of the death of UFC pioneer Kimo Leopoldo spread like wildfire on Tuesday.  Numerous MMA and mainstream sites picked up the story, with TMZ.com going so far as to "confirm" the death. Yahoo!'s Kevin Iole provides a great recount of the hoax.    

One of the most interesting aspects of this story is the way that technology was involved.  The hoax itself began as a single post on an online MMA forum at The Underground.  Ever more fascinating, however, is that this may be the first hoax that was debunked over Twitter.  Both Iole and CBSSports.com's Denny Burkholder provided frequent tweets as they were investigating the story (as chronicled by Bloody Elbow.)

Now that Kimo has held a press conference to end all doubts, the legal wrangling begins.  As Kimo's manager reported to MMAJunkie.com:

You can see the posts from the original people and the original guy who started it. That gentleman was banned (from the site). We're trying to summons his name so we can sue him. We're not taking this lightly.

As it turns out, a summons (subpoena) won't be necessary as the poster's identity has already been revealed by The Smoking Gun who clearly relished the chance to point out the original faulty reporting by its main competitor. 

But, if it had been necessary, could Kimo have forced the forum to release the poster's identity?  The answer is likely yes.  Although this is a very unsettled area of law, one of the leading cases is Dendrite v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001), which laid out some factors for a judge to consider in deciding whether to enforce a subpoena designed to reveal the identity of an anonymous poster.  Although it is a delicate balancing act, if a party can lay out strong evidence that a wrongful act was committed, the poster's identity can generally be revealed.  The First Amendment does protect anonymous speech, but it does not protect defamation.

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