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

Retractions matter.

Let me repeat and emphasize.  Retractions really matter.

This is what the owners of the Staples Center in Los Angeles learned yesterday when the California Court of Appeals, Second District, determined that Plaintiffs' retraction was not sufficiently specific. 

In Anschutze Entertainment Group, INC, et al. v. Frank W. Snepp III, et al., Plaintiffs sued Mr. Snepp, NBC Universal, Inc. and NBC Subsidiary, Inc. (KNBC-TV) for defamation for a television segment, which implied that the Staples Center was unsafe and likely to experience a conflagration.

Defendants filed two special motions to strike (Plaintiffs filed two complaints) and Los Angeles Superior Court Judge Robert Hess denied them both.  Defendants appealed.

The central question on appeal was whether identifying a wholly owned subsidiary in a retraction (and not the parent company) was sufficiently specific to meet the requirements of Civil Code section 48 subdivision (1).  The answer is no.

Civil Code section 48 subdivision (1) states:

In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

So a plaintiff must serve a retraction demand in order to recover general damages.  And trust me, you want  general damages because they're often the lion's share of any recovery in a defamation case.

Here, the court of appeal sided with the Defendants for two main reasons: (1) Section 48 subdivision (1) specifically requires the plaintiff to serve the retraction demand; and (2) a legislative purpose of the section is to help the publisher determine if the publication contains an error.

The court held that requiring the potential plaintiff to be named in a retraction demand is consistent with the plain meaning of the statute and furthers an important legislative purpose of the statute.

What do I think?

I think this is a ridiculous decision that exalts form over substance. Failing to include the name of the parent company in the retraction in no way affected Defendants' ability to determine what to correct, if anything.

The Court of Appeal should not have published this decision and I sincerely hope that the California Supreme Court overrules it soon.

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The UK Ministry of Justice announced new proposals today aimed at cutting the rising costs associated with defamation cases. One of the proposals is placing a cap on hourly rates or setting fixed maximum rates for attorneys.  Presumably, this would discourage some attorneys in the UK from filing defamation suits in favor of pursuing other, more profitable cases. It may have the unintended consequence of encouraging defamatory speech as well.

But that's what governments are good at--creating unintended outcomes, which are potentially worse than the original problem.

And yet I wonder . . . what proposals will the UK Ministry of Justice ultimately adopt to limit the costs of defamation? Will any states in the U.S. adopt similar proposals?

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Many people believe that defamation of character litigation is out of control. They go on and on about how rising costs are encouraging defendants to settle "frivolous" cases and "abusive" discovery procedures are chilling free speech. But they don't really offer any solutions to this so-called problem.  Instead, they just talk, talk, and talk, and it's really getting old.

The real problem here is the delusion that Internet speech deserves greater protections than speech made in other places.  It shouldn't.  And I predict that courts will begin to see the error of their ways in the near future.

What do you think?

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The whole point of writing the California Defamation Law Blog is to provide you with the best possible information out there on the subject of California defamation law.  I really love this stuff and I truly want you to get the most out of this blog.  Here are some tips that'll get you on your way.

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If you'd like to learn more about me you can click on the "About" page or the "Services" page at the top of the blog.  Besides writing this blog, I also have a busy civil litigation practice in Los Angeles, where I handle business litigation, real estate litigation, land use litigation, and of course, defamation cases.

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I am SO excited about this week's hotlinks and I'll tell you why in a second. . .   But first, I want to thank you for reading my blog.  I really LOVE this defamation stuff.  I think about it every day and I put my heart and soul into learning about defamation law so I can help you and my clients.  You're getting for free what I charge some of my clients big bucks to learn.  So make sure you read everything on this blog because it's worth its weight in gold.  

Now, without further ado (does anyone actually use that word anymore?) this week's Hotlinks served up Texas style:

1. The Biggest Verdict In Internet Defamation History! - I'm so pumped about this hotlink because it silences all the naysayers.  Lawyers ask me why I got involved in internet defamation law all the time. They tell me me stuff like:  "defamation cases are too hard, or, "there's no damages in defamation cases.

Well . . .  what about this case, huh? 

A jury in Texas just handed a 12.5 MILLION DOLLAR verdict  in favor of Orix Capital Markets, LLC in an internet defamation case!

Do I really need to follow-up on this one?  I think it speaks for itself, but I'll say it anyway.  Internet defamation cases are important and valuable, provided, of course, that you have an attorney who knows what he or she is doing.  You really do need an internet defamation attorney to handle a case like this.

2. Clemens Strikes Out - Okay.  So I couldn't resist the obvious baseball metaphor here and it really isn't true that he struck out.  What happened here is that a large part of his lawsuit against the trainer that allegedly gave him steroids was dismissed.  Apparently, the court didn't think there was jurisdiction for some of the statement allegedly made by the trainer about Clemens.  Also, the court found that some of the statements were privileged because they were part of an ongoing federal investigation.

3. Anonymous on the Internet! Yeah right!  I've said it before and I'll say it again . . . you're not anonymous on the Internet and I can back it up with 178 reasons.  A court ordered a website to hand over identifying information about 178 people who left comments on the website.  A bunch of pro-defamation groups went through the roof when they found out about this decision.  They were saying that this violated the First Amendment and they used really scary words like "chill, "ominous," and "dangerous."  The reality is that the First Amendment doesn't protect defamatory speech.  It never has.  So next time you publish something on the Internet that you wouldn't otherwise say in real life, you better think twice.

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Last year a Los Angeles Superior Court judge told me and another lawyer that "litigation is the sport of kings." Another judge in the same courthouse told me it's not really worth it to go to trial unless you have at least $500,000.00 in damages.

Well, I guess they're right.

As if it wasn't enough that California lawmakers totally mismanaged our economy and have raised fees on everything from parking tickets to waste disposal fees, they have now raised filing fees almost 10%.

It now costs $350 to file a complaint or other first paper in an unlimited civil case (more than $25,000.00) and the same to file an answer or other first paper by a party other than the plaintiff.

This means the little guy or gal has less access to the courts and it isn't right.

To see the complete fee schedule for the Los Angeles Superior Court click here.

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I've been super busy this past week, which is why this batch of defamation hotlinks comes a bit late:

1. Lutfi v. Spears - The saga never ends, does it?  Sam Lutfi is suing Britney Spears's parents for defamation and libel, among other causes of action.  Most of the alleged defamatory statements come from a book written by Lynn Spears, called "Through the Storm: A Real Story of Fame and Family in a Tabloid World."  Most of the alleged libelous statements if proved false would definitely expose Lutfi to hatred, contempt, obloquy, etc.  However, some of the allegations contained in the cause of action for defamation are likely to fail because they are arguably statements of opinion.  For example, Lutfi alleges:  "Lynn pejoratively refers to Lutfi as among other things, "fake", "Svengail", "a predator", "a gatekeeper" and "the General".  Most of these statement appear to be nothing more than epithets, which of course, are not actionable defamation. Whether a statement is actionable is a question of law for the court to decide. I expect defense counsel will file an anti-SLAPP motion and challenge some of the statements as mere unactionable opinions.  I suspect that they will argue as well that Lutfi is a limited purpose public figure due to reports of his relationship with Britney Spears and reports of his relationship with the paparazzi.  I wonder if Lutfi's attorney will be able to produce evidence of actual malice.  I eagerly look forward to what happens next in this case.
2. Juicy Campus Shuttered - Defamation lawyers around the nation are saddened by the fact that Juicy Campus closed its doors last Thursday.  Juicy Campus was a college tabloid site that allowed students to post anonymous comments about other students.
3. Is It Defamation If A Commenter Libels The Owner Of The Blog In That Blog's Comments? - This is an extremely intriguing question, and one to which a UK court said, "no."  The court held that since the blogger had the ability to moderate the comments and published the comment anyway, he essentially consented to the libel.  The court's analysis is correct in my view. The blogger could have just deleted the comment and moved on with his life.  Now, had the blogger published a comment that was disparaging of another person, that would be a different story, and we'd be talking about section 230 immunity.

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I tell my clients to demand a correction and request a retraction. The reason is, demanding a correction is not only necessary in certain circumstances to seek general and exemplary damages, but also because corrections are much easier to obtain.

Retractions are much more difficult to come by, however.  Think about it.

A correction is an adjustment or substitution for something that is wrong. It allows the publisher to retain certain aspects of the story or alleged defamatory statement or statements.  The main idea may be preserved.

But a retraction is a total withdrawal, and it is often very difficult (but not impossible depending on the facts) to negotiate a retraction once litigation has commenced because it means the defendant loses face.

But it never hurts to ask . . .

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You must demand a correction now.  Let me tell you why.

California law limits the amount of damages a defamed party can sue for in certain circumstances depending on whether they have first demanded a correction.  If a defamatory statement is made on a radio broadcast and/or published in a newspaper, you must demand a correction (of the radio broadcaster or newspaper publisher) within 20 days after learning of the slanderous/libelous comments, pursuant to Civil Code section 48a.

If you don't demand a correction within the applicable period of time you are limited to special damages.  This is potentially devastating because special damages generally refer to a quantifiable loss, e.g., loss of business profits, which is more difficult to establish than general damages.  It's especially a big mistake to blow the 20 day period if the defendant's statements were arguably made with malice because punitive damages are a "big stick" in defamation cases.  And trust me, you want to hold onto the big stick if you want to negotiate a settlement.

So it's clear by now that you need to demand a correction.  Do it now.

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Saul Hansell over at the New York Times' bits blog writes, Google Execs Face Jail Time For Italian Video.  Google execs are standing trial today for a cellphone video that was posted to Italian Youtube by a third party of some Turin youths teasing a boy with Down Syndrome.  Even though YouTube took the video down because some found it distasteful the Italian authorities insist on holding four Google executives criminally responsible.

This story is noteworthy for two reasons:

1. It Demonstrates The Role of The Communications Decency Act - In the U.S., Google would be shielded from liability for content created by a third party under Section 230 of the Communications Decency Act, but it appears that Italian law has no such equivalent.
2. It Highlights The Growing Problem Of Internet Defamation - As I wrote in an earlier post, authorities all around the world are struggling to deal with the explosion of defamation on the Internet.  They simply do not know what to do.  Like many others before them, unfortunately, the Italian authorities are simply using the wrong tools to deal with the problem.  They are using the equivalent of a sledgehammer to kill an ant.

What do you think?  Should defamation be treated as a crime?

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Even though I make a living as an Internet defamation attorney, I understand not everyone can afford to hire a lawyer.  That's one of the reasons why I decided to write this post, and particularly, why I enjoy writing the California Defamation Law Blog.  I want to educate as many people about defamation law as possible.

Some of you who are reading this post are being defamed by someone at this moment.  This is a problem.  And the first way to deal with a problem is to educate yourself about it.  So where do you look?

Go to the source.  The law itself.

California defamation laws are found in California Civil Code sections 44-48.  You can find these sections here. The above sections discuss the elements needed to prove a cause of action for slander and libel.  They also describe certain privileges that may apply to certain statements that would otherwise be actionable defamation.

If you want additional information about defamation law you can read some of the blogs that I read here.

So now you have some information about your rights relating to defamation.  I said earlier that the first thing you need to do when you encounter a problem is to educate yourself about it.  The next logical step is to take action.

So, what will you do?

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I thought I'd mix it up this week with the defamation hotlinks.  Enjoy.

1. NYC Vegetarian Sues, Says Boss Called Him 'Homo' - This story came to me via twitter from Eric Goldman and is interesting because the claimant isn't suing for defamation--he is suing for wrongful termination among other claims.  Was it a mistake not to sue for defamation? Probably not.  The term 'Homo' is unlikely to be considered a false statement of fact.  Instead it would be an epithet/opinion which is unlikely to be actionable.
2. Broadcast Angers Muslins - Greg Kruppa, of The Detroit News reports that some Muslims became upset when a Coptic priest made some particularly disparaging remarks about the prophet Muhammad. I mention this story to point out two things: (1) defamation is a personal right. This means an estate cannot bring an action for defamation on behalf of of a deceased loved one; and (2) while I sympathize with Muslims for any remarks that are disparaging of their religion, California law (U.S. law as well) does not recognize defamation of religion, nor should it.  Enacting laws that would permit defamation of religion to be actionable would make the State the arbiter of religion, which is unacceptable and dangerous.
3. Defamation and False Light here in Utah - This link is totally self-indulgent and only included because I love Mark E. Towner's tagline: "The Cap'n be using his spyglass to search out those scalawag political bilge rats and givm a broadside when they need to be exposed for their skulduggery."

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