I represent a plaintiff in a defamation case involving internet defamation and offline defamation. The Defendant filed an anti-SLAPP motion. SLAPP is an acronym for Strategic Lawsuits Against Public Participation. These types of motions are meant to dispose of lawsuits at an early stage, which are primarily aimed at chilling speech. We opposed the motion and the court agreed with us. Motion denied.
You may be under the mistaken impression that the only remedy for a defamation claim is monetary. Well, that was the case (essentially) until the California Supreme Court had something to say about it last year in Balboa Island Inn v. Lemen (2007) 40 Cal.4th 1441. The owner of a restaurant and bar sued a nearby resident for nuisance, defamation, and interference with business. The case went to trial and the restaurant owner prevailed on all causes of action and the court issued a permanent injunction, preventing defendant (among other things) from making defamatory statements about the restaurant. The defendant appealed the decision and the Court of Appeal affirmed. The California Supreme Court granted review. The Court held that the injunction in question was overly broad, but that the defendant's speech:
"would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory."
This means that a court has the power to stop you from speaking or writing about a given person or business for LIFE with regard to certain specific statements, which a judge or jury deem to be defamatory at a trial. A permanent injunction would not appear to apply to subsequent and different "defamatory" comments, however. The bottom line is that California courts CAN enjoin speech permanently.
"Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property." -Jean de la Bruyere
Most lawsuits are avoidable and unnecessary. The key is to adopt a strategy that decreases the likelihood that you will be sued, and if you are sued, increases your chances of prevailing. For bloggers, this has become particularly important because of the recent rash of defamation lawsuits. If you follow the steps below, you'll be in a better position whatever happens.
1. Check your sources and verify the facts - Factual assertions lead to lawsuits, whereas the law generally protects opinion as free speech (but not always -- so be careful). Therefore, you must verify whether your factual assertions are accurate, if you are making any. And don't rely on just any sources. Seek out credible and unbiased sources and keep a record of what you did to investigate the facts included in your post. If you're simply writing an opinion piece, make it very clear that you're doing just that.
2. Write About Public Figures Or Well-Known Businesses - If you write a post that is critical about an individual or a business, make sure they are very well-known. The law affords "public figures" lesser protection for various reasons. In other words, if a so-called public figure wants to sue you, they're required to show that you made the alleged defamatory statement knowing it was false, or with a reckless disregard for the truth. That's a very high standard to meet. On the other hand, if you wrote about Joe the Plumber (circa 2 weeks ago, when he was a private citizen), he'd have to show that you made the statements negligently--a much easier task.
3. Admit it When You're Wrong - Issue a correction/retraction if you discover that your post contains false information. Don't forget the human component here. Most people will not go to the trouble of suing you if you made an honest mistake and are willing to correct it. It might also be a good idea to request that Google remove all cached copies of the offending post.
4. Avoid Certain Subjects - You're likely to be slapped with a defamation lawsuit if you write that someone was convicted, punished, etc., of a crime, or that they have contracted a serious disease or are unchaste, if it turns out to be untrue. Also, don't write about something that may negatively affect the reputation of a business. Businesses usually have money and are more likely to hire an attorney to protect their good will and reputation.
5. Provide A Forum For Opposing Views - There has been an active discussion lately regarding whether bloggers should permit their readers to leave comments on their blogs. Bloggers should permit commentary because it provides a potentially aggrieved party with a forum to voice their concerns about a particular post, instead of in a court room.
Re-read the quote above. If you truly understand it, it just might change your life--or at least help you avoid a situation like the one below.
Photo by: Douglasspics
It's rough out here in Los Angeles for bloggers who report on the practices of real estate companies and mortgage lenders! According to a story in the L.A. times, entitled, "R.E. Blogs Under Attack," Mortgage Lender Implode-o-meter, and Blown Mortgage have been sued recently in Los Angeles County for defamation. The California Defamation Law Blog will keep an eye on these cases and report back to you with any news as it becomes available. But for the time being, I want to make an important point that I've been making for the last two months, and the point is this: Lawsuits against bloggers have increased dramatically in recent years, and in my opinion, will continue to rise. Why do I say this? Well, for two reasons: (1) more people are starting blogs everyday, and (2) more people are getting their information on the internet, which increases the impact of blogs with respect to the public, and thereby increases the potential for damage to an individual or companies' reputation.
So, how do you protect yourself if you're a blogger? I'll answer that question in the upcoming weeks in a series that I'm going to call, Blog Protection 101. Trust me, if you're a blogger you don't want to miss this. And if you're not a blogger don't worry. I'm going to sprinkle in some other general posts about developments in California Defamation law, too.
Defamation is the false or unjustified injury of the reputation of another person. Generally, defamation comes in two forms: Slander and Libel. Slander is an oral defamation and Libel is a written defamation (also pictures and video, and any defamatory statement on the internet).
Greatest American Lawyer posted about a webinar today that will deal with the issue of online defamation as it relates to blogging and bloggers. If you're a blogger, you should attend the webinar since defamation claims against bloggers have increased dramatically in recent years. I've posted about this subject here and in other posts.
The webinar will be presented by Gary Williams of Loyola, and costs $10.
Jennifer Forsyth over at WSJ.com, posted about the Overstock defamation case. Overstock.com sued Gradient Analytics for libel, alleging that Overstock's negative reports drove down Overstock's stock prices. The case recently settled and a press release was issued. This made me question the importance of public statements/retractions in the online defamation context. I mean, does anyone actually believe that Gradient, "now believes that, to the best of its knowledge, Overstock's stated accounting policies did in fact conform with Generally Accepted Accounting Principles (GAAP) and regrets any prior statements to the contrary."
I bet they regret having made the statements considering they were sued, but I wonder whether they've really had a change of heart.
Perhaps public retractions/statements are no longer meaningful? Perhaps Google will develop a dispute resolution mechanism for online defamation? Now that would be very interesting.
I'm writing this follow up to my previous post: "5 Common Misconceptions about Online Defamation," because I got such a great response from my readers. Again, I want to give proper attribution where it's due. Check out this video for more information on online defamation.
1. "Safety in Numbers" - some believe they're safe as long as their target is a public figure or someone who is being defamed by lots of other people. Not so. It will depend heavily on the particular circumstances.
2. "Aren't I anonymous on the Internet?" - NO. This is probably the biggest misconception of them all. No one is truly anonymous on the internet. If you don't believe me, check out http://ipid.shat.net/. Scary, isn't it? The truth is, people can find you if they want to. They can employ a whole host of advanced techniques. Also, a lawyer can request a subpoena in certain circumstances to unmask your identity.
3. "I'm immune, right?" - Not necessarily. You've probably heard of the Communications Decency Act, which was passed by Congress in the 1990s. It was designed to protect freedom of expression on the Internet, and immunizes internet providers (in certain circumstances) from liability for their users' content. Initially, this law was interpreted broadly. Now, courts are carving out exceptions to the law, and effectively narrowing its scope.
4. "Only U.S. law applies" - Wrong again. While the U.S. was the first to tackle internet law, it will not be the last. As more and more countries develop, they will no doubt attempt to put their own stamp on internet law. What will be especially interesting is how this applies in countries with vastly different cultures.
5. "Any lawyer will do" - You should know that most lawyers have no idea what they're doing when it comes to the internet. Don't assume that any defamation lawyer will do when you're dealing with online defamation. You need a lawyer who understands how the internet works. You need a internet defamation attorney.
I stumbled across a great video on YouTube by John W. Dozier, Jr. about common misconceptions lawyers have regarding online defamation.
1. "Bumping" a post - Old math says that you should respond to defamatory remarks in order to refute them. But, responding to such posts, or "bumping," only makes the defamatory remarks more significant in search engine indexes.
2. Traditional PR Approach - PR professionals will tell you that you should respond to a defamatory remark once forcefully and immediately. Then, they would tell you to then attempt to "replace" the remarks subsequently with positive information. This doesn't work in the online world.
3. Opinions are not actionable - This is a common mistake. People believe that only factual assertions are actionable defamation. But opinions in certain circumstances can give rise to a claim for defamation.
4. Can't Prove Damages - The trend is to look to a "Market Share Damages Approach" in order to calculate the damage of a particular defamatory statement in instances where there are several sources of defamation.
5. "Gripe Sites" are absolutely protected - The newest misconception and proof that a little knowledge is a dangerous thing. The Communications Decency Act was Congress' attempt to ensure that the Internet remained a marketplace of ideas by legislating broad protection for interactive computer services, AKA, websites. But courts are now limiting such protection by in cases where the "Gripe Site" has a financial component (as most sites do, advertising, e.g.), or encourage or assist a user in defaming another.
There appears to be a frontal assault on Church practices occasioned (perhaps) by recent scandals and the post-9/11 world that we live in, among other reasons. The court of appeal made the correct decision in applying the "ministerial exception" and declining to inquire into the truth or falsity of religious beliefs.
In Gunn v. Mariners Church, Inc., __ Cal.App.4th __ (Sept. 2, 2008), the Court of Appeal affirmed the judgment of the trial court, which had granted defendant's summary judgment motion. Plaintiff and Appellant Gunn, sued for defamation, invasion of privacy, and intentional infliction of emotional distress. Gunn alleged that after the defendant terminated Gunn because he was homosexual, the defendant made several comments about Gunn in front of the church and others, which were allegedly defamatory. What is interesting about this case is the court's detailed discussion of the "ministerial exception," which "bars courts from reviewing employment decisions by religious organizations affecting employees who have religious duties of ministers" (citations omitted). The key to the court's decision was that it was the defendant's practice to inform the congregation that it had terminated a church employee and its reasons for doing so. Since that was the case here, the "ministerial exception" barred Gunn's claims.
Also of note here is the point that the "ministerial exception" may apply to "post-termination acts if they were part of the process of termination."
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