California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

In my last post I covered just a few examples of the recent "trend" of treating defamation as a crime.  

As you might expect, defamation is considered to be a crime in many Asian and Middle Eastern countries. It is also a crime in some European countries, like Italy, for example.  What is surprising is that in some states in the U.S. defamation may be treated as a crime, albeit rarely.  But recently a Colorado man was criminally charged with defamation over statements he allegedly made about his former lover on Craigslist.  So this got me to thinking . . . why is this happening?

The reason is simple.  It's the Internet, stupid.  

More and more people are using the Internet to conduct business and share ideas and information than ever before. The Internet allows people to discuss, and some cases, gripe about topics they would never dare speak about in public.  It leads people to mistakenly believe that (1) they are truly anonymous on the web, and (2) that the Internet deserves additional protection under the First Amendment over other medium of expression.  This view of the Internet encourages stupid behavior, or defamation.  

And courts haven't helped the situation very much, either.  Until very recently, they have consistently interpreted laws in such a way that is overly protective of speech.  Don't think that's possible?  Wait until your business is defamed and you can't do anything about it and you'll understand.  

Without an adequate civil remedy to right a wrong, people will get creative.  Some people will hire an expert in SEO and engage in black hat tactics, while others, like prosecutors, will charge a person with a crime.  Who knows?  Perhaps people will engage in self-help (read violence) to address defamation on the net.  

The point is:  if we do not provide a meaningful way to address alleged instances of defamation on the Internet in a civil context, prosecutors and others will find a way.

What are your thoughts on the matter?  Should defamation be treated as a criminal offense and/or a civil remedy? Should governments regulate the Internet?  How so?  If not, why not?

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The police arrest you.  

They then detain, cuff, interrogate, force you to strip down naked, and subject you to body cavity searches.  Your lawyer isn't present during this entire time.  

So, what were you charged with?  Defamation.  Hard to believe a nightmarish scenario like this one could ever happen to anyone?

Well, just ask Vittorio De Fillippis.

He alleges that this is exactly what happened to him, and all because ". . . of an article contributed by an internet commentator and published on Liberation's website which described the past legal troubles of Xavier Niel, founder of a French Internet access company called Free."  The article was published while Mr. Fillippis was an editor-in-chief of the Liberation, which makes him responsible under French law.

Defamation is chargeable as a criminal offense in France, Italy, and several other countries around the world.  Recently an Italian prosecutor ordered four former and current Google executives to appear in court to face charges of defamation.

Believe it or not, defamation is also chargeable as a criminal offense in some states in the U.S.  Last week, a Colorado man was criminally charged for posting certain comments about his former girlfriend on Craigslist.

Fortunately France appears to be moving in the right direction on this issue.  In response to public outcry over Mr. Fillippis's alleged treatment by the police, the prime minister, Nicholas Sarkozy, issued a statement urging the decriminalization of defamation.  I applaud Sarkozy and hope that defamation is fully decriminalized in France soon.

In Part II, I will discuss why I believe criminal laws are increasingly being used to address alleged instances of defamation.

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Most defamation cases are simply too small for a lawyer to handle and too costly for the average plaintiff to sustain.  The cost of litigation can easily exceed $50,000 and most lawyers charge by the hour and demand a significant retainer upfront.

So what do you do if you've just been defamed?

One answer is to file a complaint in Small Claims court. Small Claims court provides a relatively quick and inexpensive method to pursue your rights.  An individual can file a claim of up to $7,500 and a corporation or other business entity can file a claim up to $5,000.  Here is a list of some of the following benefits of filing in Small Claims Court.

1. It's quick - you can generally get a court date within one month from the date you file the complaint.  That's lightning fast in the legal world, especially given that most normal cases can drag on for years before they get to trial.  You also want a quick resolution because the defamation may be ongoing and your reputation may be suffering as a result.
2. It's inexpensive - the filing fee is typically between $30 and $75, depending on how much you are claiming.
3. It's decisive - The court will render a decision regarding the merits of your claim on the appointed date and fashion an appropriate remedy based on the facts presented to the court. Courts may issue a money award and/or order the defendant to stop publishing comments about you or your business.

While you don't need to hire an attorney in most cases (in fact, attorneys are not permitted to appear in small claims court), it may be to your advantage to seek an experienced attorney's advice before going before a judge, especially in situations involving internet defamation.  You do not want to waste your time and money on a claim that has little or no merit.

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A Deputy Sheriff (Mr. Evans) sued his wife (Mrs. Evans) for defamation, harassment, and invasion of privacy among other claims.  Evans v. Evans (2008) 162 Cal.App.4th 1157.  He moved for a preliminary injunction.  The trial court granted it and entered an order enjoining her and her mother from:  (1) publishing "false and defamatory statements" about Mr. Evans on the Internet; (2) publishing "confidential personal information" about Mr. Evans on the Internet; and (3) contacting Mr. Evans's employer "regarding [Mr. Evans]" except to call "911 to report criminal conduct."  I'm going to focus on the first part of the order.

Mrs. Evans appealed the order.  The preliminary injunction order was reversed and the matter was remanded to the trial court.

The portion of the order prohibiting Mrs. Evans from publishing "false and defamatory statements" about Mr. Evans on the Internet was held invalid as a prior restraint.  The court relied heavily on the Balboa decision, solidifying the concept in California defamation law that an injunction prohibiting a defendant from repeating specific statements before trial is invalid.  Such an injunction may be only granted with respect to specific statements, which are determined at trial to be defamatory.

The court also determined that the order was vague and overbroad since it failed to specify what future statements might constitute a violation of the order.  That the order was limited to speech on the Internet was of no consequence to the court.

"The fact that the court's prohibition on publishing false materials applied only to speech on the Internet does not affect our analysis.  The courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech in other forums."

So what does this mean for defamation law in California?

It means the preliminary injunction is dead.

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Defamation is not the only legal trap that awaits the unsuspecting blogger.  There are other common pitfalls that can and should be avoided.  

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A Colorado man was charged with 2 counts of criminal libel over alleged posts about his former lover on Craigslist's, "Rants and Raves" section.  It is alleged that the man wrote something to the effect that the woman traded sexual acts for attorney services, among other disparaging remarks.

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