A former student has filed a million-dollar defamation lawsuit against Cornell stemming from an archived Cornell Chronicle news report that describes burglary and larceny charges he faced while attending the University.
Kevin Vanginderen ’83, a practicing California lawyer, filed a complaint in San Diego County Superior Court last October for libel and public disclosure of private facts against Cornell resulting in “loss of reputation” and “mental anguish”.
The lawsuit seeks to hold Cornell liable for making libelous and private information about Vanginderen prominently available nearly 24 years after the article was published in print form.
According to old police and court reports attached to Cornell’s court filings, on March 8, 1983, Vanginderen was charged with third-degree burglary, a felony. He later pled guilty to lesser misdemeanor charges.
Vanginderen confessed to at least 10 separate incidents of theft on campus, according to the transcript of a campus police interview.
On March 17, 1983, the Cornell Chronicle, which is owned by the University press office, published an article describing Vanginderen’s involvement in the alleged crimes. The Chronicle reported that campus safety officers charged Vanginderen with third-degree burglary in connection with a string of 15 thefts on campus over the course of a year and recovered stolen goods from him.
Vanginderen characterized the information in the Chronicle article as “blatantly untrue” and “highly embarrassing”. He said that since the article was placed online and made accessible to Google users, he has not signed any new clients to his legal practice.
“The Cornell Chronicle article was false, as the charge did not involve 15 separate crimes as stated,” he wrote in his court filings.
Last year, the Cornell Chronicle was digitally archived and placed on the University library website.
According to the original complaint, Vanginderen first learned of this by conducting a Google search of his name. He then unsuccessfully requested that Cornell remove the information from the internet.
Vanginderen said he would not have objected if the Chronicle archive were exclusive to Cornell’s electronic library system, but said the Chronicle’s use of the Google search engine makes the information too widely available.
Currently, the archive search page of the Cornell Chronicle’s website instructs users to search through Google for a more comprehensive search of its archives.
“It’s the difference,” he said “between having the article sit in the basement of a dusty library and being posted on the front door of the library … It’s promoting [the article] to a degree.”
On Oct. 29, Cornell successfully removed the case to federal court, a common practice for cases involving litigants from out of state in order to protect the impartiality of a trial. The University subsequently filed a special motion to strike the complaint based on California’s legislation barring “strategic lawsuits against public participation” (SLAPP). Once cases involving free speech in connection with a public issue receive this designation, the burden shifts to the plaintiff to demonstrate the case is not frivolous and has a likelihood of legally prevailing. Under the statute, if a judge finds in favor of Cornell’s motion, the University could also recover from attorney’s fees associated with the lawsuit.
Cornell stated in court filings that it believes the Chronicle article is not defamatory. Even if the article were libelous, University counsel wrote in court documents, the statue of limitations ran out many years ago for any claims to be brought against Cornell because the digital images placed online last year do not constitute any sort of republication, but rather an historical archive.
“[The University] is hiding behind a statute of limitations and other technicality defenses in their filings. The behavior of the University in response to my lawsuit is more egregious than the action that precipitated it in the first place,” Vanginderen said in an e-mail.
Cornell charges in its court filings that Vanginderen is attempting to “re-write” history through this lawsuit.
Vanginderen also alleged that the University or one of its representatives is responsible for further publicizing the case and releasing damaging, irrelevant documents in an attempt to intimidate him from further pursuing the litigation. In court filings, Vanginderen states that the filings were released to legal news website Justia.com, which has further publicized his case. Federal court filings are usually public records available on the court’s online database PACER, which requires users pay a small service fee.
“Because this matter is in litigation, Cornell University has no comment,” Deputy University Counsel Nelson Roth said. “We stand on the papers filed in court.”
He denied that the University has issued any press releases relating to this case.
Roth is representing Cornell in the case along with attorneys Clifford Davidson and Bert Deixler from a prominent California law-firm, Proskauer Rose LLP.
The case raises questions about the first amendment and the potential legal issues that digital archival creates as it becomes more common for organizations — especially Universities and other libraries — to include electronic archives online.
The Cornell Library system, for instance, is currently engaged in an online digitalization project of The Daily Sun. Larger newspaper archives like The New York Times and The Washington Post are becoming increasingly more accessible online and in electronic library databases.
Vandingeren said he views his lawsuit as an “obligation for not only myself but for other students.”
“They’re basically saying that every student who gets arrested is now going to have that information available on Google,” he said. “It’s a scarlet letter that Cornell is putting on some of its students.”
As for the size of the damages, Vandigeren conceded that the $1 million figure was originally chosen to attract the University’s attention.
“The true damage figure could be much higher,” he added.
Written arguments from both Cornell and Vanginderen were submitted to Judge Barry Moskowitz in December, who will decide whether or not the case will proceed.