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

One of the most devastating listings you can have is a "scam" listing for your name or your company's brand name on the Internet. I know this because people call me nearly every day and tell me that someone has written something defamatory about them on the Web.

However, there are ways to deal with this, and one particular dynamite strategy which I stumbled across about a year and a half ago is explained really well in Michael Graywolf's SEO Blog Post here. 

I came across this concept in researching a certain internet marketer with a certain penchant for surfing. When I googled his name I discovered a listing that read: "Name, is he a scam?" That title was so compelling that I just had to click on it and find out whether or not this guy was a scam artist. 

But an interesting thing happened when I clicked on the link: The article was not written by a disgruntled customer. Instead, it appeared to have been written by him and it explained why he was so great. This accomplished two very important things: (1) It ranked really well for his brand name + the word "scam" and (2) it totally defused the notion that he was a scammer. Mission accomplished.

You can try this as well, except that you may not want to limit it to the word "scam." You may want to create a separate "sucks" site or a "ripoff" site since those terms are often used as well.

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The question of whether a statement constitutes an actionable statement or merely protected opinion is one of the most difficult questions for a judge to consider in the defamation context. In fact, the California Supreme Court said in a case: "The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one."

The general rule is that in order to be actionable, a statement must declare or imply a provably false fact. Subjective expressions, opinions, rhetoric, hyperbole, and the like, are generally protected. In other words, they are not actionable.

But what does that mean?

I thought it would be helpful to give you some examples of the types of statements which have been held not to be actionable:

• Stating that a political opponent was a "thief" or a "liar" was determined to be hyperbole, and therefore protected speech.
• Stating that a lawyer had used "sleazy tactics" and that the judge had a "dim view of the defense tactics" was not actionable.
• Stating that a person was a "loser wannabe lawyer" and a "creepazoid attorney" were viewed as rhetorical hyperbole that could not be reasonably understood as stating facts.
• The use of metaphoric expressions such as "booby," "baying in the ocean breezes," and keep him honest," were held to be non-actionable subjective expressions of opinion.
• Stating that a reality T.V. show contestant was a "chickenbutt," "local loser," and "big skank" were "unquestionably statements of the speaker's subjective judgment," and therefore not actionable.

As you can see, the line between what is and what is not actionable can be difficult to determine. I hope that the above examples are helpful. 

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Here is a list of the California Supreme Court's 24 decisions to date regarding the SLAPP statute. This is a great starting point to learn about this very complicated and interesting area of law. Here they are in reverse chronological order.

1. Simpson Strong-Tie Company Inc. v. Pierce Gore (2010) WL 1948283
2. Vargas v. City of Salinas (2009) 46 Cal.4th 1
3. In re Episcopal Church Cases (2009) 45 Cal.4th 467
4. Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th 309
5. Freeman v. Schack (2007) 154 Cal.App.4th 719
6. Taus v. Loftus (2007) 40 Cal.4th 683
7. Kolar v. Donahue, McIntosh & Hammerton (2006) 1532
8. Barrett v. Rosenthal (2006) 40 Cal.4th 33
9. S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374
10. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260
11. Flatley v. Mauro (2006) 39 Cal.4th 299
12. Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192
13. Rusheen v. Cohen (2006) 37 Cal.4th 1048
14. Premier Medical Management Sytems, Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550
15. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180
16. Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679
17. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
18. Zamos v. Stroud (2004) 32 Cal.4th 958
19. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728
20. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53
21. Navellier v. Sletten (2002) 29 Cal.4th 82
22. Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811
23. Ketchum v. Moses (2001) 24 Cal.4th 1122
24. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106

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I tell prospective clients on almost a daily basis that they need to protect their reputation on the internet before the unthinkable occurs--before they are defamed. Unfortunately for most of them, the defamation has already happened and we are faced with the challenge of dealing with a permanent negative. But you can choose to start protecting yourself today. 

How can you do this? Well, I'm glad you asked because this was the subject of a webinar I did last year for Legal Practice Pro. The title of the webinar was: "Protecting and Maximizing Your Online Search Engine Reputation." I'm providing the audio recording to you at no charge just for being one of my loyal readers (the sound is a bit fuzzy due to the microphone I was using, but some of the tips we give on the recording are very valuable).

I hope you enjoy it and let me know what you think of it in the comments below.

Protecting Yourself Before Internet Defamation Occurs.

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I was not surprised last week when a Judge said that anti-SLAPP is a complicated area of law—it most certainly is. There are well over 350 published decisions on the subject, including several California Supreme court decisions. I often tell other lawyers that they need to be very careful in crafting their papers in support of or in opposition to an anti-SLAPP motion. One such piece of advice I often give is to be sure to comply with section 425.16(j)(1).

Section 425.16(j)(1) states:

“(j)(1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.”

This means that a party filing or opposing an anti-SLAPP motion must promptly transmit an endorsed copy of the caption page to the Judicial Council.

But what happens if the moving party fails to do so? Can the court deny the motion based on failure to comply with this provision alone?

Well, I came across an unpublished California decision in which the court decided that very question in the negative.

Here’s why:

• The statute does not specify a penalty for non-compliance
• There is no case law interpreting the statute to provide for a penalty for non-compliance
• It was reasonable to conclude that if the legislature wanted to create such a penalty, it would have expressly done so
• There was no prejudice to the other party

I think the court reached the right decision. The purpose of subdivision (j) is to monitor the number of anti-SLAPP motions and decisions to determine its effect—not to punish a non-complying party. However, you don't want to be in the position of making the bulleted arguments mentioned above. So, make sure you promptly transmit an endorsed copy of the caption page to the Judicial Council. You can do so by e-mail at: SLAPP@jud.ca.gov.

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