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

A California court may award three kinds of damages to an aggrieved party in a defamation case. What are damages? Damages are monetary compensation for loss or injury to a person or property. In defamation cases, a court is attempting to measure the plaintiff's loss of reputation as a result of the alleged defamatory statement or statements.

There are three types of damages that may be sought in a defamation case according to California Civil Code section 48a, et seq.

1. General Damages - these include "damages for loss of reputation, shame, mortification, and hurt feelings";
2. Special Damages - these "are all damages plaintiff alleges and proves that he has suffered in respect to his property, trade, profession or occupation including such amounts of money as the plaintiff alleges and proves he has expended . . ."; and
3. Exemplary Damages - "are damages which may be in the discretion of the court or jury to be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice."

I'll explain why it's important to know what types of damages are available to you in a defamation case in an upcoming post.  

Stay tuned and stay informed.

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I scour the Internet for defamation stories and posts every day because I am passionate about the law of defamation.  Because I find so many interesting articles/posts on a regular basis, I thought I would share some of them with my readers through a new series here at the California Defamation Law Blog, called, "Defamation Hotlinks."  Every Friday I'll post the most interesting articles/stories regarding libel, slander, and defamation on the Internet and offline.  I hope you enjoy.

1.  Dozier Internet Law on Public Citizen Bullying - I deeply respect John Dozier's opinion in the area of internet defamation and cyber-bullying.  In this post, he writes about a recent call by others for broadening the immunity of section 230 of the Communications Decency Act to cover websites that allow trademark infringement.  While Mr. Dozier is unapologetically pro-business, his views are consistent with the current state of defamation law, and I believe his predictions regarding the future in this area of law will bear out.

2. Dixie Chicks Face Defamation Lawsuit After Using Court Records - If Mr. Dozier is pro-business, Citizen Media is definitely pro-individual.  The interesting part of this article is Citizen Media's discussion of the "fair report privilege."  This privilege has historically protected traditional media outlets from defamation suits.  The question is whether this privilege will be extended to independent bloggers in the near future in the same way it is applied to the mainstream media.

3. Inside The First Amendment: Technology Changing Our Approach To Free Expression - Gene Policinski, of the First Amendment Center, provides a brief, but fascinating overview of how technology is changing our approach to First Amendment issues. My favorite line from the piece is:  "How does the law punish perpetual harm or compensate for perpetual defamation?"

Did I miss any key stories on defamation?  If you think I did, please submit them to me for consideration for next week's Hotlinks.

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Why would you ever want to talk to a lawyer unless you are in an unpleasant situation? It's simple. You want an answer to a basic question:  Do I have a case?  Or, if you're being sued, does the other person have a case?

The reality is that you'll rarely get a clear-cut answer from an attorney. Why is that? Because the law is a reflection of society and its values and mores, which is pretty complicated to say the least.  If everything was "black and white" there would be no need for lawyers, right?

Instead of a simple yes/no answer, a lawyer is more likely to advise you of the basic law relevant to the facts of your case and make general recommendations.

Enter the purpose of this post.  

I'm going to outline general principles of California defamation law so that you can make a preliminary assessment of your situation.  I use the word "preliminary," because it is essential for an attorney to take a closer look at your particular set of facts.  By no means should this post be taken to be a comprehensive treatment of defamation law in California. But at least you will have a basic understanding of the law, and as they say, knowing is half the battle.

Defamation is known by many names: libel, slander, disparagement, defamation of character, etc.. Many of the terms refer to the same idea, however; a statement which results in damage to a person's reputation.

In order to prove defamation in California, a person must prove the following elements by a preponderance of the evidence, that is, it is more likely than not that each element is satisfied based on the evidence.

1) Defamatory - the statement must be defamatory.  What does that mean? It has been defined as any statement that tends to lower the reputation of a person in the community, and/or subject that person to contempt, ridicule, or obloquy, or cause the person to be shunned or avoided.  For example, what if a newspaper described a person as being "gay?"  Would that be defamatory? Well, it depends on the community.  Obviously, in most places in California and, indeed in the United States, such a statement would clearly not be defamatory.  But what if that statement was written in a small town newspaper in the south, for example? In that situation, the statement may be found to be defamatory.

2) Statement of Fact - the statement must be a fact.  Generally, you would not be able to prove defamation if the statement is an epithet, hyperbole, or is merely an opinion. That is not to say that all opinions are created equal.  Some statements that appear to be opinions may be construed to be factual statements if the statement implies a provably false statement.  This is one of the most misunderstood concepts relating to defamation law. I talk more about this here.

3) Falsity - the statement or statements must be false.

4) Of and Concerning - The average reasonable person must understand that the statement refers to the plaintiff, and not someone else, or a group of other people.

5) Publication - this element is a bit misleading.  A statement can be published in a number of ways, including orally, in writing, by photograph, or other fixed means, and, it must be conveyed to a third party.  So, if Mr. Jones comes up to you and claims that you've been convicted of a crime, it's not going to count as defamation unless a third party heard the statement.

6) Causing - The statement must cause the plaintiff harm to his or her reputation.

7) Damages - Damages are presumed and therefore do not need to be proved if the statement is libelous on its face.  A statement is libelous if it is permanent in nature.  For instance, any statement on the internet would be libelous; any photograph that is defamatory would be defamatory as well since it is fixed.  See what I mean?

A statement is libelous on its face if it is defamatory without reference to any other information. So if I write in a blog post that Mr. Jones robbed a bank last year, it is clear to all, without reference to any other information, that the statement negatively reflects on Mr. Jones' reputation.

Damages must be proved if the statement is slanderous (oral) unless, the statement is slanderous on its face.  A statement is slanderous on its face if it falls within the following categories:  (1) charges someone with a crime; (2) indicates someone has a infectious or loathsome disease; (3) hurts someone with respect to their office, trade, or business; (4) imputes to a person impotence or a lack of chastity; and (5) any statement which causes actual damage.

8) Fault - There are different standards of fault depending on whether the plaintiff is deemed to be a private person or a public figure.  Private person plaintiffs must only show negligence.  Public figures must show that the statement was made with constitutional malice, that is, that the defendant knew the statement was false at the time it was made, or with a reckless disregard for the truth.

That's California defamation law in a nutshell.  There are MANY issues that I simply could not cover in this post.  However, this is a good starting point for any person wanting to understand this area of law.

[Editor's note: a previous version of this post failed to include falsity as an element of defamation.  Thanks to Josh King over at Avvo for pointing this out.]

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California legislators passed a law in 1991 known as the "anti-SLAPP" statute to dispose of lawsuits at an early state of litigation that are primarily aimed at chilling speech.  An issue that frequently arises is whether the alleged defamatory statement(s) is a matter of public interest.  If so, the first prong of the statute is satisfied, and the burden shifts to plaintiff to demonstrate a probability of prevailing on the merits.  This can be a difficult question at times, but the California Court of Appeal, Fifth District, did a great job of explaining it.

The case of Hailstone v. Martinez (2008) WL 5340989 (Cal.App. 5 Dist.), involved a claim by a former union employee for defamation.  The former employee, Mr. Hailston, alleged that union officials falsely accused him of a crime and breaches of fiduciary duty.

The defendants filed an anti-SLAPP motion and the trial court denied it on the basis that the alleged defamatory statements did not constitute a matter of public concern.

Defendants appealed the lower court's decision and it was affirmed, but for different reasons.  The appellate court held that the alleged defamatory statements were a matter of public interest, but also that Plaintiff had shown a probability of prevailing on the merits.

Some interesting general principles from the court's decision:

• ". . . public interest is not a mere curiosity . . . the matter should be something of concern to a substantial number of people . . ."
• ". . . there should be a degree of closeness between the challenged statements and the asserted public interest.  The assertion of a broad and amorphous public interest is not sufficient . . ."
• ". . . the focus of the speaker's conduct should be the public interest, not a private controversy. . ."

Here, the court determined that while the matter was of interest to only a limited but definable portion of the public, a union in this case, it was a matter of public interest nonetheless because there was an ongoing controversy (when the alleged statements were made) that was important to union members since the Plaintiff was still a trustee of a trust that provided health and welfare benefits to union members.

Whether a matter is of public interest, as one can see, is fact-sensitive and should be examined closely on a case-by-case basis.

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As I was watching the inauguration and the following festivities today, I kept thinking:  How will internet defamation laws be influenced by Obama's presidency?  After all, I thought, Obama is the first american president to be described as "Internet savvy."  The media has reported on numerous occasions that Obama is fond of using e-mail and he certainly understands social media, since, as of this writing, Obama has more followers on Twitter than any other person--no small feat.

So, the question becomes, what will internet laws look like in 4 or 8 years?  Right now, the Internet is essentially the Wild Wild West.  It is virtually unregulated and most courts have been unwilling to place any restraints on "speech," even arguably defamatory speech.  For example, courts have broadly interpreted the Communications Decency Act to give internet service providers near absolute immunity for comments made by third party users of their services.  Further, courts have routinely rejected plaintiffs' attempts to discover the identities of anonymous defamers.

Because of the total lack of regulation coupled with the courts' failure to address these issues, we saw in late 2008, the use of dated criminal laws to deal with the growing problem of internet defamation.

So what effect will Obama have on internet defamation laws?  What do you think?

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Welcome to my newly redesigned blog!  My purpose in writing this blog is to provide you with the best possible information regarding defamation, both online and offline.  I want to specially thank Rob Lagatta and everyone at the LexBlog team for being so helpful and for creating such a wonderful design.

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The most misunderstood concept in defamation law is the distinction between fact and opinion and its relation to liability.  Most people (very smart ones included) mistakenly believe that only facts are actionable as defamation.  But in California opinions are actionable as well if they can ". . . reasonably be understood as declaring or implying actual facts capable of being proved true or false."

This is the way it works:  a court will examine the totality of the circumstances starting with the alleged defamatory statement itself to determine whether the statement is factual or implies a fact that can be proven false.  If the answer is yes, the statement may be actionable assuming the other elements of a libel or slander claim are met.  If not, it's over.

But don't be fooled.  The distinction between a fact and an opinion is very gray, and is often one of the most difficult questions a court must consider, with the exception of calculating damages.  The reason is that language is susceptible to multiple meanings and is made in a variety of contexts.  Further, courts have held that rhetorical hyperbole, figurative language, or epithets are not actionable.  So what exactly is the line between rhetorical hyperbole and an actionable opinion?

Some examples are obvious.  For instance, saying someone is a "traitor," is clearly hyperbole when you mean to say that that person is despicable, not that the person is guilty of treason.  Or if a politician calls another politician (what a surprise) a "thief" or a "liar," clearly, this too would qualify as rhetorical hyperbole.

Still some calls are harder to make.  For example, what if someone said, "I think Smith is an alcoholic."  One could easily make the argument that the statement implies undisclosed facts that are known to the person making the statement, which may be capable of being proved true or false, and therefore might be actionable.  On the other hand, one could also successfully argue that the person making the statement was merely expressing his personal opinion or belief.

As you can see, the line is not clear between what constitutes a fact and what constitutes an opinion.  Don't believe for a minute that your stated opinions are necessarily protected under the First Amendment.  They may not be.

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Too many bloggers are unaware of the dangers they face when they write a new post or comment on another blog.  For reasons I've discussed before, bloggers mistakenly believe that all speech is protected by the First Amendment, when in fact several forms of speech are not, including defamation as an example.

This is why I'm glad that Seth Godin posted "Don't Get Sued," which sheds light on this important problem. Godin writes: "Before you write something negative about another person, you need to realize that the casual nature of your post doesn't protect you from a lawsuit."  Well-said.  I would add that you should especially be careful when making negative remarks about a business because businesses are more likely to sue you (or least threaten legal action) to protect their reputation.

For bloggers interested in learning more about this subject, I wrote a post entitled:  "5 Ways to Avoid Being Sued On Your Blog."

Please read it and let me know if you have any additional suggestions on how to avoid being sued on your blog.

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