Image: D&G

Remember when Dolce & Gabbana came under fire in 2018 for running a now-infamous ad campaign featuring a Chinese model attempting to eat Italian food – read: pizza, spaghetti, and cannoli – with chopsticks? The Milan-based brand characterized the advertisement as a light-hearted, tongue-in-cheek play on cultural differences, but many were left unamused by Domenico Dolce and Stefano Gabbana’s attempt at “humor.” Shortly thereafter, racist comments that reportedly originated from Mr. Gabbana’s Instagram account surfaced, bringing Dolce & Gabbana further under fire, a fire that the brand claims was fueled by Instagram “watchdog” Diet Prada and that resulted in large-scale backlash and a cancelled runway show.

While the fashion media was busy speculating about how the incidents and the subsequently-cancelled fashion spectacular that Dolce & Gabbana was slated to stage in Shanghai in November 2018 would impact its bottom line (particularly given the spending power of Chinese consumers), it turns out that the brand – which threatened legal action against highly-followed social media users over the spread of “false information” in connection with the escalating saga – ultimately opted to quietly file a defamation-centric suit with the Tribunale di Milano against Diet Prada operators Tony Liu and Lindsey Schuyler a few weeks later. 

According to the complaint that it filed in early 2019, Dolce & Gabbana alleges that by way of their heavily-followed Instagram account, one that currently maintains some 2.5 million followers (or “Dieters” as Liu and Schuyler have coined them), Diet Prada’s founders initiated a “smear campaign” consisting of “serious and repeated defamatory conduct” aimed at damaging the Italian brand, and costing it €3 million in damages. The multi-million-euro harm came as a result of the Chinese government abruptly blocking the elaborately-planned runway show and also from various brand partnerships that never came into fruition, as celebrities, such as Kim Kardashian and Cardi B, distanced themselves from the brand. This was all due, Dolce & Gabbana has argued, to Diet Prada’s alleged defamatory pattern, as well as its “illegal publication of Stefano Gabbana’s private conversations” on Instagram.

At the same time, Dolce & Gabbana also claims that Mr. Gabbana was damaged in his personal capacity to the tune of €1 million as a result of Diet Prada’s allegedly malicious attack on the brand.

After an alleged attempt at “mediation” failed, Dolce & Gabbana filed suit in Milan two years ago, as first reported by Fashionista on Thursday, and now, counsel for Liu and Schuyler has filed a lengthy formal answer to Dolce & Gabbana’s complaint, accusing the brand of “abusing” the judicial process, and asking a court to remedy some alleged procedural wrongs.

Instagram as a medium

A sizable portion of the 47-page answer lodged by Liu and Schuyler is devoted to highlighting a laundry list of instances in which Mr. Dolce and Mr. Gabbana and their brand have proven controversial – from the brand’s tax evasion trial and its 2007 “gang rape” advertisement to the founders’ stance on “synthetic” children born via In vitro fertilization and Mr. Gabbana’s comments about influencer Chiara Ferragni’s “vulgar” Christian Dior wedding dress. 

The point of the truly-lengthy run-down of bad acts by the two men behind Dolce & Gabbana? To demonstrate that “the communications culture of fashion” – which plays out on Instagram – “has always been characterized by excess, provocative[ness], and mischievous insinuations,” something that Diet Prada’s response claims that Dolce & Gabbana “has largely exploited” over the years, and that Liu and Schuyler do, as well, in furtherance of their “mission” to “inform readers” of events impacting the fashion industry in a tone that caters to younger Instagram users. (According to the answer, Diet Prada is “known for its frank approach in dealing with important issues in the [fashion] sector and beyond,” and its ability to “stimulate the fashion sector so that the latter complies with a higher level of originality and ethical standards.”)

Given the medium in which the alleged defamation played out (i.e., Instagram), “It is inevitable that, sometimes, the tone used is colorful and deliberately provocative,” counsel for Liu and Schuyler argues.

Why does Diet Prada’s counsel spend so much time attempting to give “context” to the “the communication and style” of Liu and Schuyler’s Instagram posts, namely, by comparing them Mr. Gabbana’s? That is because of the expansive nature of defamation under Italian law. In considering cases of defamation, which is defined (in Italy) as the act of “injuring someone’s reputation [by way of] a communication to a plurality of people,” Italian courts not only “consider the truth” of the allegedly defamatory statements (or lack thereof), but they also take into account “the social utility and ‘restraint,’ which means that information must be expressed in a civilized way that does not ‘violate the minimum dignity to which any human being is entitled,'” according to Milan-based journalist and lawyer Janna Brancolini.

In other words, the lengthy attempts to show that Diet Prada’s way of using Instagram is not all that different from the way that Mr. Gabbana does, and thus, is not out of the norm when it comes to utility or restraint, is an attempt to chip away at the merit of Dolce & Gabbana’s defamation claims.

As for the applicability of a defamation cause of action to allegedly damaging claims made on the web, Hogan Lovells attorneys previously asserted in an unrelated client note that Italian case law has “recognized that posting offensive comments on a Facebook personal profile,” for example, “not only represents a defamatory conduct, but is also aggravated by the circumstance that it occurred through a means that allows a broad diffusion of the offense.” At the same time, they state that the Italian Criminal Code “provides that the crime of defamation is more serious (and the relevant sanction is higher) in the event it occurs through the ‘press’ or ‘other means of publicity,’” such as social media. 

Proper jurisdiction?

In terms of its attack on some of the procedural aspects of Dolce & Gabbana’s case, counsel for Liu and Schuyler argues, among other many things, that the plaintiffs – Dolce & Gabbana S.R.L., Dolce & Gabbana Trademarks S.R.L., and Stefano Gabbana – lack standing to sue Liu and Schuyler individually. While the two individuals are the creators of the Diet Prada brand and the exclusive authors of the account’s content, they claim that the Instagram posts at issue (and any liability associated with them) is, instead, attributable to their corporate entity THEDIETSODA LLC, which is not named as a defendant. 

More than that, counsel for Liu and Schuyler argues that the Dolce & Gabbana plaintiffs lack standing to claim relief, as “the allegedly damaged companies are Dolce & Gabbana U.S.A. Inc.,” given that Diet Prada is an American entity, “and at most, Dolce & Gabbana Hong Kong and Dolce & Gabbana Shanghai subsidiaries that are located in the jurisdiction where the facts of this dispute occurred.” 

In other words, Liu and Schuyler assert that the case – which they say amounts to little more than an attempt to silence them – should have been filed in the U.S. and not Italy, where University of Perugia PhD candidate Sofia Verza says, “Defamation charges have been very commonly used against critical reporters, especially when they have been covering stories about public figures or famous entrepreneurs,” thereby, “resulting in penal sanctions or orders to compensate those allegedly harmed by the impugned statements if such journalists are unable to mount a successful defense.” (Unlike in the U.S., where defamation – or more specifically, slander and libel – are civil causes of action, defamation is covered by both civil and criminal law in Italy.)

With the foregoing in mind, Liu and Schuyler have asked the court to “ascertain and declare the lack of jurisdiction” for an Italian court “in favor of a New York forum, or in the alternative, in favor of the Shanghai or Hong Kong forum.” In other words, they want the case transferred to a different jurisdiction and away from Dolce & Gabbana’s home turf. They have requested that the court “ascertain and declare” that they are not the appropriate defendants, and the case should be filed against their corporate entity. And still yet, they have asked the court to require the losing party to pay the other side’s legal fees, as well as a sum determined pursuant to Article 96, section 1 and 3 of of the Italian Code of Civil Procedure, the Italian equivalent of punitive damages. (Punitive damages are awarded in addition to actual damages at the court’s discretion when a defendant’s behavior is found to be especially harmful).

In the meantime, Diet Prada has set up a GoFundMe pay to cover their legal bills, at least some of which are being provided pro bono. As of the time of publication, they had raised $8,362 of their $26,000 goal.

UPDATED (March 7, 2021): The Associated Press reports that Dolce & Gabbana is actually seeking over $600 million in damages from Liu and Schuyler in connection with the case. Citing counsel for Diet Prada’s operators, the AP asserts that the fashion brand aims to recover the 450 million euros ($533 million) it has allegedly spent to its restore brand image since 2018. More than that, D&G wants damages of 3 million euros for the company and 1 million for Mr. Gabbana, as well as “more than 8.6 million euros for the cancellation of the Shanghai show, another 8.6 million euros for staff expenditures and 89.6 million euros for lost Asian sales from November 2018-March 2019.”

*The case is Dolce & Gabbana S.R.L., et al. v. Liu and Schuyler, PROC. N. 50660/2019 R.G.