Finally! Liability Insurance for Bloggers

It's a well-known fact among lawyers that most insurance policies don't cover defamation, invasion of privacy, or copyright infringement claims. It's also true that legal threats against bloggers have escalated dramatically in recent years. So what's a blogger to do? Give up? Never!

The Media Bloggers Association has launched an education, legal advisory, and liability insurance program for bloggers. If you're a blogger, or you're interested in blogging, I highly suggest that you read MBA's press release here.

But it's not just about liability coverage. The best part is that MBA offers an online course in media law explaining the basics to bloggers and other online publishers. This is a fantastic resource for bloggers. Kudos to MBA!

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"Cache" is King in On-line Defamation Cases

I posted yesterday about Steven Tyler's lawsuit against anonymous bloggers. You can read that post here. I thought about the case some more and a particular thought jumped out at me. According to the complaint, Tyler's attorney sent a letter to Google asking them to remove the blogs, which Google did. The complaint goes on, "[a]pparently defiant and intent on infringing upon Plaintiff's rights, they have reappeared." Now, if Google removed the blogs how could they have reappeared? Well, the answer is likely that Google created a "Cached" copy of the blog. What is a Cache? Well, "Google takes a snapshot of each page it examines and caches (stores) that version as a back-up." Why is this important, you say? To those of you who are currently being defamed, or lawyers who are representing parties that are the victims of internet libel, you must ask the other party (or counsel) to remove the cached copies of the alleged defamatory website. If you don't, you may end up being sued like the bloggers in the Tyler lawsuit, or being sued for malpractice.

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Aerosmith Lead Singer's "Cryin'" over Bloggers' posts

Steven Tyler, of the world-renowned rock band Aerosmith, has sued anonymous bloggers for: (1) public disclosure of private facts; (2) false light; and (3) misappropriation of likeness. Tyler alleges that the defendants impersonated him and his girlfriend in various posts to their blogs on Google's free blogging platform, Blogspot.

This lawsuit is interesting because Tyler is a resident of Massachusetts and has filed sued in California against anonymous bloggers. How would he know that the bloggers are residents of California? And if he doesn't know, why would he choose California as a venue? The complaint claims that venue is proper
under California Code of Civil Procedure section 395(a), which is odd because that would mean that Tyler's claiming he's a resident of California, or that at least one of the defendants are a resident of California, or that the claimed injury took place in California.

There are many other problems with the complaint. Sorry Steven. "Dream on."

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"Anti-SLAPP"- Weapon of Choice for Defendants

Beyond the obvious hurdles of proving a defamation case, a Plaintiff has to worry about what I call the "Bazooka," (mainly because I love saying that word). The Bazooka is an anti-SLAPP motion. Such a motion allows a defendant to dispose of the case at an early stage of litigation and is found in California Civil Code of Procedure section 425.16, et seq. Basically, as long the defendant can show that the lawsuit is directed against free speech, defendant will prevail unless plaintiff can demonstrate a probability of prevailing on the merits. This is no easy task, especially in cases where the defendant contends that plaintiff is a public figure. Thus, the Bazooka.

How to Protect Your Reputation on the Internet

Your reputation is everything. It can take years to develop and only a few blog postings to call it into question. This guide will give you some practical steps that you can take now to preserve your good name.

1. Monitoring Your Name - Be your own Gumshoe

The internet is vast and replete with brontobytes (that is a 1 followed by 27 zeroes) of information. But you can harness the power of Google and monitor your name by adding Google Alerts. Google will send you emails of queries that you create. For example, I have created a Google Alert for my name, Adrianos Facchetti. This allows me to monitor what others are saying about me. To sign up for Google Alerts, go to www.googlealerts.com and sign up. The rest is pretty straight-forward. There are additional ways to monitor your name. In fact, there are many companies that engage in Reputation Management, exclusively.

2. Ownership - Own your name

This piece of advice sounds easy enough but it is often overlooked. You need to own your name. This allows you to control to some extent, what is said about you.

3. Avoid Conflict

Don't engage in arguments in internet forums. If you need to vent, go for a run. Engaging in a sparring match is unlikely to persuade the person, and worse, it may lead to a defamation lawsuit.

4. Use Wikipedia to your advantage

Wikipedia is an incredibly powerful and influential source of information online. If your name or brand become important enough, Wikipedia may determine you to be a source of information worthy of citation. You should attempt to define your name/brand or services on Wikipedia before someone else does. It's as simple as that.

5. Obtain Positive Reviews from Important Bloggers

Search out important/influential bloggers in your niche and ask them to write a positive review about you. Since bloggers often enjoy excellent search engine results, it will have a resounding and positive impact on your reputation.

6. Write Articles About Yourself

This will seem strange to you but it works. Write a bio about yourself in the third person on the sites you own or control. An especially effective technique is to write your name in the title of a posting. That way, your name will come up in search engine results.

7. Get a Lawyer

If nothing else works, seek out legal advice from an experienced internet defamation lawyer. Attorneys are becoming increasingly effective combatants of online defamation. They can file John Doe lawsuits in situations where anonymous messages are posted or e-mailed. They can subpoena Internet Service Providers to provide information about such messages. Additionally, cutting edge internet defamation attorneys will work with computer experts in search engine optimization to crowd out defamatory messages.

Subpoenas not subject to motion to strike as "SLAPP": Tendler v. www.jewishsurvivors.blogspot.com

Subpoenas are not subject to a motion to strike under Code of Civil Procedure section 425.16, et seq., because they do not constitute a "cause of action." Tendler v. www.jewishsurvivors.blogspot.com, June 10, 2008 164 Cal.App.4th 802. This decision will undoubtedly lead to an increase in requests for subpoenas to ISPs and assist plaintiffs in obtaining the identities of anonymous internet posters.

"Defamation of Religion," is Code for "Big-Brother"

The primary focus of this blog is defamation in California. But my jaw dropped when I read that the U.N. now employs an official who is charged with reporting instances "where the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination. As written on Wsj.com, a cause of action for Defamation protects individuals and not ideas. Extending defamation to ideas would force the state to be the "arbiter of ideas." Not good. You can read the article here: http://blogs.wsj.com/law/2008/08/04/defamation-of-religion-the-new-international-legal-craze/

Defamation on Website Directories & Ratings Sites

Eriks Syverson over at the Internet Law Attorney Blog writes about defamation on website directories and ratings sites. You can read his blog at http://syversonlaw.blogspot.com/2008/09/internet-directories-and-ratings.html. Website directories/ratings sites make it easy for past clients/employees to defame businesses and professionals alike, particularly because the Communications Decency Act virtually insulates these sites from liability. That's a problem. Here's the solution according to Erik: "convince" the site to remove the offending post by claiming misappropriation of trade name or likeness. Since most of these sites generate revenue from ads placed on the profile of the defamed individual, without the individual's permission, it arguably constitutes an unfair business practice. This could be a very powerful strategy in combating online defamation.

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AutoAdmit Saga Continues: Anonymous Posters Beware!

If you like drama you will LOVE the AutoAdmit case. (for the full story read here.) Yale students are suing at least 39 defendants for defamation. Many of the alleged defamatory remarks were made by anonymous posters. But the fascinating part is that plaintiff's counsel has been able to uncover some of the names of these so-called anonymous defendants. What this shows is that no one is truly anonymous on the internet. I have heard the internet described as the "Wild, Wild, West." Well, not anymore.

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Recent "anti-SLAPP" discovery decision: Paterno v. Superior Court

Here is an interesting case. In Paterno v. Superior Court (2008) Cal.App.4th 1432 (June 13, 2008) the Court of Appeal (Fourth Appellate District, Division 3) issued a peremptory writ directing the trial court to vacate the order allowing Plaintiff to conduct limited discovery on the issue of malice and to issue a new and different order denying the motion. Among other things, the court held that a showing of provably false assertions of fact is necessary for discovery regarding malice while an anti-SLAPP motion is pending. This appears to be a new requirement in order to lift the discovery ban while an anti-SLAPP motion is pending under California law. If subsequent courts agree with the Paterno decision, it will become more difficult for Plaintiffs to prevail in defamation cases where Defendants raise the issue of malice.

Defamation Basics: PART I

Defamation seems like a simple concept. Someone says or writes something damaging about someone's else's reputation, right? Wrong. The legal requirements for defamation are far more stringent than you might expect. I find that most people equate defamation with office gossip. It's true. (refer to said simple definition above). So lets clear it up. The first thing you need to know is that there are two forms of defamation: slander and libel. Slander is specifically defined in California Civil Code section 45, as ". . . a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to
him general disqualification in those respects which the office or other occupation peculiarly requires, or
by imputing something with reference to his office, profession, trade, or business that has a natural
tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

So you see, Slander has a very particular meaning under the law, and it's more than just office gossip. The other kind of defamation is libel, which is defined in California Civil Code section as, "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." So there you go. Now you know what the two primary forms of defamation are, and, knowing is half the battle.

About this Blog

Welcome to the California Defamation Law Blog. The purpose of my blog is to educate (and occasionally entertain) you in the area of California defamation law, obviously. Over the next few weeks I'll be covering the basics of defamation law in a multi-part series imaginatively titled, "Covering the Basics." I hope you enjoy it.

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