California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

Frances Gibb writes on the London Times online edition about the British High Court's decision regarding the NightJack author.

Check out what the High Court said as reported in the article:

"In the first case dealing with the privacy of internet bloggers, the judge ruled that Mr Horton had no “reasonable expectation” to anonymity because “blogging is essentially a public rather than a private activity”.

Coming down in favour of freedom of expression, the judge also said that even if the blogger could have claimed he had a right to anonymity, the judge would have ruled against him on public interest grounds"

This case will send a shockwave through the legal community. What effect will it have on Internet Defamation Law in the United States?

So far, American legislators have done everything possible to protect freedom of speech; and really, to do the EXACT opposite of everything the UK has been doing in terms of online defamation law.

This is HUGE.

Thanks to @Vbalasubramani for giving me the heads-up on this!

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Unless you've been living under a rock for the last year, you've probably heard about Twitter and the many benefits it can give you or your business. (Twitter really is amazing so if you're not on it and you own a business you should definitely check it out).

But like anything else, with every opportunity there comes a risk, especially when you're talking about the Internet. And this is particularly true with Twitter since you're really putting yourself out there when you send a tweet. So how do you manage this risk?

You do it by first knowing what people are saying about you.

And the way you do this is to use tools that automatically check what people are saying about your brand, company, or even you if you're an individual on Twitter.

So let's take an example and flesh this out a bit.

You probably already know that I'm on Twitter and that I consistently tweet about defamation, internet defamation, slander, libel, etc. I occasionally tweet about the Lakers (my favorite sports team) or other interesting shenanigans that I get myself into, like going to a RATT concert or winning an important motion in court.

Since I tweet a lot and I'm a defamation lawyer, I'm naturally concerned about my reputation on the Internet. Who doesn't care what other people think about them? Right?

So here's what I do to manage my name on Twitter. Now, you should know that I've never shared this with anyone (not because it's some revolutionary secret, it's just that I haven't talked about it with anyone)   :-)

I use a service called Tweetbeep.

It's really awesome because it works and because it's FREE.

All you have to do is the following:

1. Sign up with Tweetbeep 
2. Figure out which terms you want to manage - I keep track of name and its variants, e.g. "adrianos, "facchetti," adrianos m. facchetti." I also keep track of important keywords to stay on top of news in my areas of interest, e.g., "defamation" and "libel." 
3. And Voila! - You'll automatically receive free alerts on the terms people are tweeting about.

So here's what it looks like in action. About once a day I'll get an email with a couple of tweets about me or terms that are relevant to my area of interest like the ones below.

	craigniedenthal: A must read post for all of us tweeters! Protect yourself from defamation claims. Thanks @Adrianos. http://is.gd/pki5 Friday, March 27th at 23:03:01 · Reply · View Tweet
	gfiremark: RT @heathermilligan: Here's my great panel 4 @LACBA small/solo conf topic: social networking. @adrianos @gfiremark @vpynchon @hsleviant. Friday, May 8th at 23:20:57 · Reply · View Tweet

This allows me to know what it is being said about me so that I can respond appropriately. As you can see above, @craigniedenthal retweeted one of my tweets. In this instance, I might send craig a thank you tweet, or I might not respond depending on how I'm feeling on any given day.

And if someone is saying something negative about me I'll know about and I'll have a record of it if I decide to take action against them. So far I haven't encountered anything negative about me on Twitter, but when it happens you'll be the first to know.

So there you have it. Go sign up for Tweetbeep or a service which assists you in monitor your name, or key search terms relevant to your business or market.

You can follow me on Twitter at @adrianos.

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As I write this post, the Lakers are up 2 games to 1 against the Orlando Magic in the NBA Finals. The Lakers are strong favorites to win and it makes me wonder whether the Magic should just give up and go home. I mean, CAN they win? Sure. Should they even try? Now that's an entirely different and interesting question, which brings me to the point of this post.

You can sue an attorney for defamation under certain limited circumstances. The important question, however, is, should you?

Attorneys can be sued just like anyone else, but there is a very important privilege which will shield them from liability if they are acting for their client's benefit.

It's called the Litigation Privilege.

If an attorney is engaged in an activity in anticipation of, or preparation for litigation on behalf of a client, it is absolutely protected. This means you will not prevail if you choose to file a lawsuit for defamation based on the attorney's conduct.

So can you sue an attorney for defamation? Sure. But only under limited circumstances.

Just like Orlando can beat the Lakers. Yeah right.

For more reading on this subject:

• The Litigation Privilege Applies to Settlement Letters Directed To Counsel
• The Litigation Privilege Doesn't Apply To Negotiation/Persuasion

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Winston Churchill once remarked that "a joke is a very serious thing," and I agree, especially when it comes to the law of defamation.

Many people believe that a joke is incapable of being actionable defamation.  But they are wrong.

A court will first examine whether the alleged defamatory statement is susceptible of a defamatory meaning. The court will look at the statement itself and all the circumstances under which it was made to determine whether it was understood in a defamatory sense.

One of the best explanations of this concept comes from Prosser on Torts:

"One common form of defamation is ridicule. It has been held to be defamatory to publish humorous articles, verses, cartoons or caricatures making fun of the plaintiff, to heap ironical praise upon his head, to print his picture in juxtaposition with an article on evolution and a photograph of a gorilla, or with an optical illusion of an obscene and ludicrous deformity, readily detected at second glance. It is of course possible that humor may be understood by all who hear or read it as good-natured fun, not to be taken seriously or in any defamatory sense; but when it carries a sting and causes adverse rather than sympathetic or neutral merriment, it becomes defamatory. Thus a speech made after dinner, understood by all present as a harmless joke, may amount to libel when it is published in a newspaper and reaches those who do not understand its circumstances." (Prosser, The Law of Torts (3d ed. 1964) § 106, pp. 759-760.) 'In order that the defendant's words may be defamatory, they must be understood in a defamatory sense. It is not necessary that anyone believe them to be true, since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation-although obviously the absence of belief will bear upon the amount of the damages.'"

No one even needs to believe the statements are true if they are understood in a defamatory sense. This is critically important and an argument I see defense lawyers making all the time with regard to statements made on internet forums or social media sites.

Their argument goes something like this: "Adrianos, you can't even prove that my client's statements are even defamatory since they were made on X chat room, and no one takes those things seriously--they won't believe it.

My response is: "It is not necessary that anyone believe the statements are true if they are understood in a defamatory sense. Take a look at Arno v. Stewart (1966) 245 Cal.App.2d 955, 962-963."

Pretty soon I'm sure I'll hear a lawyer say: "no one is going to believe what someone Tweets about on Twitter. Who would ever take instant messages of 140 characters in length seriously! I don't waste my time on Twitter!"

This gets me to thinking. I wonder if Courtney Love's lawyer will argue that no one will take her arguably defamatory rants on Twitter and other social media sites seriously because of the nature of the medium. I hope he does so I can write a blog post about why such an argument is flawed.

At any rate, let me leave you with a joke from one of my favorite comedians of all time, the late great Rodney Dangerfield.

"My psychiatrist told me I was crazy. I told him I want a second opinion. He said okay you're ugly too."

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Are you ready to hear this?

I'm about to reveal a little known secret that can dramatically change the length of your defamation lawsuit.  And I mean BIG time. Knowing this one thing may allow you to obtain preferential treatment from the Court.

Sounds good, right? I mean, who doesn't want special treatment?

I almost hesitate to tell you this for two reasons: (1) it's so simple that you won't think it's a big deal once I tell you; and (2) I don't want my competition to know this because I don't want it done to me. But as I've said before, I won't let my fear of competition get in the way of educating YOU about defamation law.

So here it is . . .

The way to get preferential treatment from the Court is to: ASK FOR IT at the right time, and in the right way.

You see, most attorneys know that some kinds of cases are entitled to priority in trial setting. This means that some cases must be given an earlier trial date than others. Attorneys also know that other types of cases CAN be given priority.  In other words, the Court has discretion to give a case an earlier trial date other cases.

What is amazing is that most attorneys (at least the ones I know) aren't aware that you can speed up a defamation case dramatically by making an ex parte application shortly after filing a complaint pursuant to CCP § 460.5

So here's how it's done:

• File a Complaint
• Make an Ex Parte Application Shortening Time to Respond to the Complaint
• Include a declaration showing that the alleged statement has been continuously published and that there is a reasonable likelihood that the publication will continue
• Serve a copy of the application, declaration, and order along with the summons

If you do the above and the court grants your request, the court MUST give your case priority in setting a date for trial.

This will speed up your trial. Instead of years, your trial may be heard in a matter of months. And that's what you want if you've been defamed.  You want justice. And you want it now.

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This editorial in the New York Times discusses the inherent dangers of Libel Tourism.  

For more reading on this topic:

• New Libel Bill Introduced In the House of Representatives
• California Bill Aimed at Curbing Libel Tourism

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I'm pleased to be part of an impressive panel including entertainment attorney Gordon Firemark; class action attorney H. Scott Leviant; Barger & Wolen Marketing Director Heather Milligan, and mediator attorney Victoria Pynchon, to discuss how lawyers can use and benefit from social media.

The Details:

Los Angeles County Bar Association's Second Annual Small Firm and Solo Practitioner Conference, June 24-25.

Social Networking For Lawyers: A Roadmap to Success
Thursday, June 25. 9:15 - 10:30 a.m.

In this interactive session we will explore the buzz surrounding social networking and social media tools and how solo and small firms practitioners can effectively employ them to communicate with current clients; control your messaging as you reach out to new clients and the media; and to meet, network and collaborate with colleagues.

Our panel of solo and small firm attorneys will discuss their experiences with blogging as a social media tool, and we will spotlight several social networking applications, including Twitter, Facebook, and LinkedIn. By calling upon their personal experiences, our panel will highlight best practices for how you can incorporate these and other Web 2.0 applications into your business development, PR and networking activities.

You don't want to miss this event!

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WARNING: This post contains an advanced concept that may only be of interest to California defamation lawyers and other people who deal with anti-SLAPP motions on a regular basis.

OK. With that disclaimer in mind, what in the heck is a "mixed cause of action?"

A "mixed cause of action" means that the underlying allegations of a given claim contain both protected and unprotected conduct under the so-called anti-SLAPP statute.

This is important because a mixed cause of action is subject to the anti-SLAPP statute " . . . if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287.

Huh? That's what I said to myself when I first read the above quote, so here's how I keep it straight in my head:

1. Does the claim for defamation contain at least one allegation of conduct that is potentially protected?

2. Is the potentially protected conduct central or merely incidental to the unprotected conduct? If it is merely incidental, then the claim for defamation is not subject to section 425.16.

The reason for this rule is to prevent plaintiffs from "immunizing" a cause of action from the anti-SLAPP statute, by including extraneous allegations containing non-protected activity.

The rule seems to accomplish its purpose.

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. . . for underestimating Trump's net worth in a book!  Apparently, a New York Times writer wrote in a book that Trump's fortune was approximately $150-200 million.

Trump claimed that his net worth was more like $5 billion.  Quite a difference, right?

Anyhow, Trump brought a lawsuit for libel, claiming that he lost some deals as a result of the statement in the book.

None of this is relevant to California Defamation Law, but we can't always be serious.  Can we?

For more on this story check out Overlawyered.  I promise you will find it entertaining.

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