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

Say what you will about "Web 2.0" and the so-called "evolution" of the Internet. The fact is, the Internet is still the Wild Wild West, especially with respect to policing/regulating the web. Witness the herculean struggle in the United States to define the limits of free speech on the net and you get the picture. For instance, in some states you can go to jail for libel while in others there isn't even an anti-SLAPP statute. One state court in Massachusetts held that truth may not be an absolute defense in some instances of defamation. 

With the disparate application of internet defamation law in the states and the boundless nature of the web, I wonder if legislation imposing some basic standards might be helpful.

Putting aside your political views for a brief second, what do you think? I'd really like to hear from you.

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Warning! This post contains language which may be offensive to some. Please do not read it if you find profanity objectionable or if it makes you feel uncomfortable.

E Online! is reporting that Courtney Love is being sued in Los Angeles by a designer for defamation and other claims.

The "Hole" rockstar allegedly made outrageous statements about fashion designer Dawn Simorangkir on Twitter, Myspace, and other media, after Simorangkir sent Love an invoice for clothes Simorangkir had designed for Love.

Here are some of the more shocking allegations of libel in no particular order (spelling mistakes included):

• "she has a history of dealing cocaine, lost all custody of her child, assualt, and burglary."
• "nasty hosebag lying thief"
• "she's an assault addict herself"
• "vile horrible lying bitch"
• "is my clothes my WARDROBE! oi vey don't fuck with my wradrobe or you willend up in a circle of corched eaeth hunted till your dead."

It is clear to anyone that if these allegation are true, they would be extremely offensive and defamatory. But that's not the reason why I'm writing this post.

This case is novel not because of the alleged rantings of a celebrity, but because it is the first defamation lawsuit involving comments made on Twitter.

I have talked about it a lot of times on Twitter and I knew it would be coming soon. 

And now it's here.

The point is that Twitterers need to be careful about what they post on Twitter.  It is too easy to post something that can come back to haunt you later. People have lost jobs or have been reprimanded for misusing Twitter, and yes, you can even get sued for internet defamation.

So now that I've pointed out the problem, what can you do to avoid getting sued on Twitter? Here you go:

1. Listen To Your Mother - Remember when you mother said, "honey, if you don't have anything nice to say, don't say anything at all."  Well, your mother was absolutely right. Even if what you say is not technically defamation, you still might get sued. Do you want to get sued? I didn't think so.
2. Don't Drink & Tweet - Drinking leads to stupid decision-making. Just don't do it. I was thinking about tweeting during a friend's bachelor party last weekend in Vegas, and someone gave me great advice. Don't do it! He said. Because of his advice, what happened in Vegas will stay in Vegas.
3. Don't Use Your Real Name - If you insist on making negative comments about others, I would implore you not to use your real name on Twitter. You have a right to anonymous speech and you should exercise it. Just know that the law will hold you accountable if you break it; and know that if an experienced internet defamation lawyer wants to obtain your identity, he or she eventually will with enough effort. So I will repeat: Listen to your mother.

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You are a professional service provider and you pride yourself on the quality of your services.  Odds are, you have a lot of experience and you've spent a great deal of time building your professional reputation in the community.

Then it happens.

You get hit with one or two negative reviews online about you or your business.  You lose business and your reputation suffers immediately.

You get angry. Then you get frustrated. Then you get angry again.  Then you begin to feel anxious. And eventually you feel helpless.

Well, I'm here to tell you that I understand your situation because I'm a service provider myself, and because I talk to people all the time who have been defamed online.

Because I know how you feel, I'm going to tell you a secret that is extremely effective in getting some customer review sites to remove defamatory material about you.

But before I share this gem with you, you need to understand a couple of things.

The first thing you need to know is that most customer review sites are unlikely to remove content about you unless you threaten to sue them. This is because they are shielded from liability by a federal law known as the Communications Decency Act.

The Communications Decency Act of 1996 ("CDA") is a federal law that is extremely protective of online speech. It was originally intended to regulate pornography on the Internet, but later was interpreted by courts to immunize Internet service providers from torts committed by users of their systems.  It specifically says:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This means generally that a plaintiff cannot sue the operator of a site (read: customer review site) for defamation for comments made by a third party (read: customer).

Second, you need to know that most customer review sites have counsel who deal with these kinds of situations on a daily basis and they are extremely reluctant to remove alleged defamatory reviews, unless they clearly violate the law.

So what is the best way to get customer review sites to remove alleged defamatory reviews?

Is it to send them a letter asking them nicely to remove the material? NO.

Is it to send them an e-mail alleging that the material violates their Terms Of Service? NO.

Is it to file a defamation lawsuit? Not necessarily.

The best way to get SOME customer review sites to remove alleged defamatory material is to allege a Misappropriation of Trade Name or Likeness. 

Most customer review sites/directories make money by placing ads around customer reviews. I argue that these sites have not obtained permission from my clients to use their trade name or likeness for profit.  I argue that this is an unfair business practice and that it violates the law. This strategy works.  And the best part is that it is not subject to the overly broad protections of the Communications Decency Act.

This is one of the most powerful strategies I know to combat internet defamation on customer review/ratings sites bar-none. It does not require you to file a lawsuit or go after some anonymous individual.

One word of caution . . . Do not to use this tactic in every situation.  Every case is different and I highly encourage you to speak to an internet defamation attorney; even if it's not me.

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California Defamation precedent never ceases to amaze me due to its complexity and fact specific holdings. The case of Nguyen-Lam v. Cao (2009) WL 484589 illustrates my point perfectly.  In Nguyen-Lam, a Vietnamese woman who was slated to become the nation's first Vietnamese superintendent of a public school district, sued the Defendant for slander per se, among other claims.

The Defendant allegedly said that Plaintiff was a "Communist." Plaintiff alleges that this comment caused the school district to rescind her appointment.  The complaint did not allege that Defendant acted with actual malice, at least not in the those words.

Defendant filed an answer containing several affirmative defenses; but no privileges.  He filed an anti-SLAPP motion within a few days, arguing that any statements he made were pursuant to his right of free speech and that Plaintiff was a public figure and that her appointment was a matter of public interest.

The court effectively denied the anti-SLAPP but not in the way one might expect.  Instead of straight-out denying the motion, the court allowed Plaintiff to amend her complaint to allege actual malice. This, in effect, rendered the anti-SLAPP motion moot.

Defendant appealed the decision of the trial court and the appellate court affirmed.

The appellate court affirmed the decision because

"plaintiff's request for amendment to meet her burden on the second prong proceeds from timely submitted facts already before the court."

In other words, since the facts were already before the court, there would be no danger that

"the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs."

Aside from the holding there are some other important lessons to be taken from this case:

• Raise all your important points in an anti-SLAPP motion because you may not raise new points in a reply brief (Here, Defendant did not address why the court should strike the ninth, tenth, or eleventh causes of action; court denied anti-SLAPP motion as to these causes of action holding that it was improper to raise new points in a reply brief for the first time.)
• Plead actual malice clearly and separately from garden variety malice otherwise the court may sustain a demurrer to the complaint.  Use the language of New York Times v. Sullivan. While the court did not squarely address this issue (because it didn't need to) it did seem to find it important enough to discuss it at length.
• Political labels like "Communist" can (not must) be construed as false statements of fact.  Do not assume that it is merely opinion. You should evaluate each statement in dispute with an experienced attorney you trust.

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Colloquium  1. The offer of extrinsic evidence to show that an alleged defamatory statement referred to the plaintiff even though it did not explicitly mention the plaintiff.  2. The introductory averments in a plaintiff's pleading setting out all the special circumstances that make the challenged words defamatory.

Black's Law Dictionary, Seventh Edition, at p. 258.

One of the basic elements of a defamation lawsuit is that the alleged defamatory statement must be of and concerning the Plaintiff.  At common law this was called colloquium.  What this is means is that the average reasonable person must understand that the statement is about the Plaintiff.

Here's an example of what I'm talking about:  Suppose I wrote in a widely read newspaper that "officials" from XYZ organization were diverting funds for their own use and agitating terrorism. Now let's suppose that the CEO gets wind of my statement and wants to bring a lawsuit.  Arguably, the statement in the newspaper is defamatory, but is it sufficiently specific enough so a reasonable person would know I was referring to the CEO?  I would argue no.

Suppose instead, that I wrote that the Vice-president of XYZ organization was an adulterer and used illegal drugs.  And suppose further that there is only one Vice-president of XYZ.  This would probably be specific enough to meet the colloquium element of defamation.

So now you know what colloquium means.  Go and tell your friends that you learned something new today.

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A new bill was introduced on March 4th by Peter King of New York that would create a federal cause of action in tort for so-called Libel Tourism.  Libel Tourism is forum shopping.  It is the strategic selection of plaintiff friendly jurisdictions in defamation cases.

The bill is known as the Free Speech Protection act of 2009 and it lives up to its name.  The stated purpose of the act, among other things, is to curtail the suppression of free speech by allowing qualifying individuals to sue other persons who are suing them extraterritorially because defamation laws in the foreign jurisdiction are more plaintiff friendly:

(a) Cause of Action - Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated primarily in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law.

Creating a separate cause of action in tort for libel tourism has several implications and not just in the legal arena.  It sends a very clear message to countries who are not as protective of free speech that the U.S. will not permit its laws to be circumvented or undermined. It will also undoubtedly create an entirely new foreign defamation cottage industry given that attorney's fees are awardable under the bill, not to mention the possibility of treble damages.

But I wonder how courts will interpret this bill. The language ". . . primarily in the United States . . ." is extremely vague and open to interpretation.

I also wonder how courts will apply section (c), which is the remedies section.  It essentially allows for injunctive relief and damages, but the damages appear to be pretty heavy.  Not only can the person bringing the suit under this bill ask for damages in the amount of the foreign judgment, but they can also get costs, legal fees, and EVEN treble damages under the right circumstances.

It appears, however, that this bill is a step in the right direction, but so was the Communications Decency Act (with regard to internet pornography), until courts began broadly interpreting it to effectively immunize internet service providers from liability for torts committed by users of their systems.

So what effect do you think this bill will have on libel laws in other countries, if any?

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 "Vaya con Dios, Brah." -Johnny Utah, Point Break

Based solely on the movies and other anecdotal evidence, you would never think that a surfer would sue another surfer for libel.  But it happened.  And the surfer who brought the lawsuit lost at trial.

Matthew Heller writes in On Point that Craig "Owl" Chapman sued a surf magazine for alleged statements that Chapman was a "degenerate, pathetic, and drug addled outcast."  A jury found that none of the alleged defamatory statements was false, so it wasn't required to reach the issue of whether they were factual.  However, it seems clear that none of the statements were statements of fact.  Mere epithets or figurative language are not actionable defamation.

So in the immortal words of Keanu Reeve's character in Point Break, vaya con Dios, Mr. Chapman.

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The answer appears to be yes.  In a recent unpublished passage of a published decision, the Court of Appeals wrote the following:

In the case of a broadcast, we are required to consider:  the impact of visual effects (White v. Fraternal Order of Police (D.C. Cir. 1990) 909 F.2d 62 512, 526; Southern Air Transport, Inc. v. American Broadcasting (D.C. Cir. 1989) 877 F.2d 1010, 1015); dramatic intonations by an announcer (White v. Fraternal Order of Police, supra, 909 F.2d at p. 526; Stokes v. CBS Inc. (D.Minn. 1998) 25 F.Supp.2d 992, 999); and dramatic audio accompaniment and orchestrated imagery.  (Ibid.; Corporate Training Unlimited, Inc. v. National Broadcasting Co. Inc. (E.D.N.Y. 1994) 868 F.Supp.2d 501, 507.)

This point is important because it is consistent with existing law that requires California courts to examine the totality of circumstances when determining whether a statement is one of fact or opinion.

And while this is only persuasive authority since it  was not published, it provides some insight as to what California courts might do in the future.  

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Yelp reviewers are the bane of many small businesses.  One reviewer can potentially devastate a business with a few keystrokes and the business owner has limited options to counter the impact of the review.  One of their options might be to file a defamation suit, but it is very difficult to pull off and in some situations makes the situation much worse.

Which is why I find Claire Cain Miller's post today in the New York Times Bits' blog so fascinating.

A pizzeria in San Francisco has decided to strike back!

They created T-shirts with the negative customer reviews on them and distributed them to their employees to wear.

This is a brilliant marketing tactic.  It is disarming, and I believe it will be effective for this business. However, I don't believe this would work for professionals, e.g., lawyers, doctors, dentists.

What do you think?  Will this tactic work for the pizzeria?  

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The vast majority of defamation appeals are taken after a trial court has granted a special motion to strike, also known as an anti-SLAPP motion.  Most of these appeals are affirmed.  In other words, the appeals are unsuccessful.

And while most appeals (other than defamation) are unsuccessful, losing an appeal in the defamation context can be particularly costly.

The reason is attorney fees.

Section 425.16 of the California Code of Civil Procedure (the so-called "anti-SLAPP statute") provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." This includes fees and costs incurred in defending an appeal of an order granting a special motion to strike.

This is effectively a double whammy.  

The defendant is entitled to attorneys fees expended in bringing the motion in the trial court AND defending the losing appeal.  You get hit twice.

And you might be thinking, but how much can this really cost me?

Well, I've seen fee awards ranging anywhere between $15,000 and $30,000, and even more in some instances.  It is very expensive.

So I ask you again . . .  Are you sure you want to file an appeal?

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The Second District of the California Court of Appeals published two cases involving defamation in the span of one week.  The first case involved the Staples Center Owners and this next case deals with a little known issue--the litigation privilege.

The Appellants were defendants in an earlier case where the plaintiffs offered to dismiss one of the defendants on certain conditions.  The plaintiffs in that case sent a settlement letter to the defendants, which the defendants contended was unethical because it sought to create a conflict of interest so that defendant's attorney, in effect, would not able to represent any of the defendants. The defendants sued the plaintiffs for intentional interference with contractual relations and negligence.

The plaintiffs filed an anti-SLAPP motion and they prevailed because the court held that the litigation privilege applied to the settlement letter.

The decision was appealed and was then affirmed.

While this decision is not surprising since a purpose of the litigation privilege is to "promote[] the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests," what is interesting is how the court compared the privilege to the Rules of Professional Conduct.

In short, the court said that the litigation privilege trumps the Rules of Professional Conduct.  This is a powerful statement!

It underscores the importance the court of appeal places on the litigation privilege.

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Today's point is an obvious but important one: Special damages must be specifically alleged in a defamation complaint.

Let me give you two examples to show you what I mean: One where the court said the pleading was sufficient, and one where the court said it was not.

In one case plaintiff alleged that because of defendant's publication of the libel, he lost his job with a specific employer, for a specific period of time and for a specific amount of money.  The court held this was sufficiently specific because it apprised the defendant of the exact nature of plaintiff's claim, which allowed the Defendant to prepare a proper defense.

In another more recent case, plaintiff alleged:

As a direct and proximate result of Defendant's News Report, Plaintiffs have suffered damage to their reputations in an amount to be proven at trial.  [¶] [] Plaintiffs are informed and believe, and thereupon allege, that the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiffs' rights.  Defendants' conduct justifies an award of exemplary and punitive damages.

See the difference?  In example one you know exactly why the plaintiff is suing the defendant.  You know what his alleged loss is.  

The other example, in contrast, could be applied to any case involving alleged defamatory news reports.  There is simply no manner of discerning what the plaintiff's damages might be from the allegations.

So now you know.  Be specific about your special damages, unless you want to spend more time and money opposing a demurrer.

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