California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

I remember sitting in a church pew many years ago hearing the pastor speak about two different kinds of sin:  Sins of "commission" and sins of "omission." I understood very well as a teenager that you weren't supposed to do bad things (commission), but it was always a bit more abstract and difficult to understand that failing to do something could get you into trouble. And, if defamation can be analogized to sin (which, on many levels it probably shouldn't) in California at least, you cannot be held liable for defamation by omission. I know it sounds a bit weird but I'll explain it down below.

In Paterno v. Superior Court (2008) 163 Cal.App.4th 1242, a newspaper sued a student journalist because the student had made some statements in a magazine article about the newspaper. The article stated that the newspaper had "killed" a story about a drunk driving sentence imposed onone of the newspaper's editors. The article also stated that the newspaper initially investigated a workplace restraining order against a former employee, but then dropped it.

Now what's interesting is that instead of claiming that the statements were false, the newspaper complained that the magazine article did not include important facts, which identified why the newspaper did what it did. Essentially, the newspaper said that the magazine article didn't tell the whole story, and therefore falsely implied bad motives with respect to the newspaper.

First off, I doubt this would be the first time a newspaper didn't tell the whole story and omitted key facts, so the newspaper should have known better.

In any event, the court held that defendant had no obligation to include plaintiff's explanation of the story. Therefore, there is no liability for defamation by omission in California.

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which will insulate you from liability for defamation. This usually comes into play because people mistakenly believe that only facts are actionable defamation. Wrong. An opinion can form the basis of a cause of action for defamation (slander, libel, and trade libel too) if it implies undisclosed defamatory facts.

So just because you say "in my opinion, Joe Shmoe is a fraud," doesn't mean you're automatically protected by the First Amendment. The court would look at the statement in its context to determine whether it implies a provably false assertion of fact. "The use of interrogative language alone does not entitle statements to constitutional protection where . . . they otherwise can be understood as implying defamatory fact." Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1004.

Nor can you get away (necessarily) by putting "I think" in front of an otherwise defamatory remark. Jackson v. Paramount Pictures Corp. 68 Cal.App.4th 10, 30 (citations omitted) ("It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think."')

The lesson here is that there are no magic words. What matters is the substance/tenor/context of each statement.

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Comparing defamation and trade libel is like comparing apples and oranges. While both are similar (apples and oranges are fruit), they are fundamentally different in other ways.

One key difference between the two is with respect to the harm each is designed to address or protect. Defamation is meant to protect the reputation of the person, whereas trade libel is designed to compensate the plaintiff for pecuniary damage. The reason this distinction is critical is because " . . . trade libel requires pleading and proof of special damages in the form of pecuniary damages." Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3 547, 572. However, proof of special damages solely in the form of pecuniary damages is not required to plead and prove a cause of action for damages.

A second difference is that plaintiff is required to plead and prove that a disparaging statement is false in regard to trade libel, whereas in a cause of action the plaintiff is NOT required to plead that the statements are false in most cases. Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

Third, plaintiff may not recover damages for mental distress upon prevailing on a cause of action for trade libel. He or she is limited to the loss of pecuniary damages caused by the libelous statement or statements.

Understanding the differences between these torts will help you plan your strategy, whether you are the plaintiff or the defendant in a case.

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Enough!

Enough of the vague allegations that leave defamation defense counsel (like myself) wondering what you mean when you plead, for example, that "defendant made statements indicating that plaintiff is dishonest and is a liar." That is not enough to properly state a cause of action for libel or defamation!

“The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. [Citations.]” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5, 284 Cal.Rptr. 244.)

Failing to specifically identify each and every alleged libelous statement may lead to serious consequences.

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"De mortuis nil nisi bonum"

We've all heard the phrase "speak no ill of the dead," right? It's a phrase that's been passed down through the ages and I think most times people speak rather favorably about the departed. But not always . . .

Now, admittedly, I hate to write about such a morbid topic around the holidays (I suppose I should have written this around Halloween) but It's a topic that seems to come up enough that it merits a post: defamation of a deceased person.

It comes up in one of two ways usually:

1. A potential defendant has made critical statements about a person who has recently died and they are concerned that members of the dead person's family will sue them for defamation.
2. A member or representative of an estate (or family member) discovers several harsh and potentially defamatory statements about their loved one on the Internet. Typically, the representative of the estate wishes to preserve the loved one's good name for commercial reasons.

In any event, in California a cause of action does not lie for defamation of a dead person plain and simple. Saucer v. Giroux (1929) 54 C.A. 732, 733, 202 P. 887; Kelly v. Johnson Publishing Co. (1958) 160 C.A.2d 718, 723, 325 P.2d 659. The reason is that Defamation is a tort which is a civil wrong with respect to a person's reputation. Dead people don't have a reputation in the eyes of the law. For this reason, surviving relatives will not prevail if they bring a cause of action for defamation to protect the good name of the deceased. Nor can a defamation action lie to protect an estate.

I suppose this is hardly surprising. What is interesting, however, is that defaming a dead person used to be a crime in California. Under former Penal Code sections 248 and 249, if one published a statement that "tended to blacken the memory of one who is dead," it was a crime! It's almost hard to believe, but it's true.

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A less common but no less important defense to a cause of action for defamation is the defense of consent. If the defendant can show that the plaintiff consented to the publication of the alleged defamatory statement or statements, it operates as a complete defense. In other words, defendant wins.

Under what circumstances has the doctrine of consent been successful? Well, I'm glad you asked.

In one case a school superintendent was demoted and requested a statement of reasons from the school board. The school board did so in a confidential letter, which included the allegation that the superintendent had taken part in distributing fake election flyers. Apparently the superintendent was not pleased so he submitted the letter to a newspaper and the newspaper published the letter.. The court held that plaintiff' consented to the publication of the letter.

In other instances a person may consent to a third party or an organization investigating him and publishing its findings. This would constitute consent as well.

In any event, consent is a form of absolute privilege. While it does not come up very often, It is a total defense. Therefore it is important for any practitioner to be aware of it in case it appears in a fact pattern.

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 The last several posts have focused on absolute privileges. Today we’re going to talk about the qualified privilege, which is a lot more common than you might think.

A qualified privilege essentially means what it appears to mean. It allows the publisher/speaker to make a statement that would otherwise be defamatory without being held liable for making the statement. In other words, it’s a defense. The catch is that the statement must be made without malice (otherwise the privilege never arises in the first place: a fine distinction but that’s precedent for you) and to an interested person.

There are three general situations when this privilege applies:

Common Interest: 

This is by far the most commonly invoked qualified privilege. This is where the publisher makes the alleged defamatory statement to a person who, quite simply, has a common interest in the subject matter of the statement. For example, suppose you are a member of a Homeowner’s Association and you write a letter to the Board expressing your disapproval for the Board President’s in rather harsh terms regarding safety issues. Obviously, you and other board members will have a shared interest in keeping the complex safe. Therefore, unless malice is present, the qualified privilege will overcome a claim of defamation.

Special Relationship: 

This is a statement made by “one who stands in such relation to the person interested as to afford a reasonable ground for supposing motive for the communication innocent.”

Request for Information:

The final category involves a statement made by one “who is requested by the person interested to give the information.” For example, in one case a court held that an employer had a privilege to make certain communications to the media about employees.

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Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

Defamation Defense: Legislative Proceeding

Defamation Defense: Other Proceedings

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It used to be that statements made before private bodies were not absolutely privileged under Civil Code section 47(b).  This meant that statements made at a judicial commission at a private medical society were not absolutely privileged, for example.

Noting a gap in the law, the California legislature made it such that statements made "in the initiation or course of any proceeding authorized by law," and reviewable by mandamus would be absolutely privileged.  Civ. Code 47(b)(4).

In order for a proceeding to be reviewable by mandamus three elements must be present:

• a hearing is required to be given;
• evidence is required to be taken; and
• discretion in the determination of facts is vested in an inferior tribunal, corporation, board, or officer are present.

This means that statements made during grievance proceedings pursuant to collective bargaining agreements could be absolutely privileged.

This change in the law was important because it broadened the scope of the absolute privilege to quasi-judicial proceedings, which had previously not been seen by the courts as "official."

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the  "The Ultimate Beginner's Guide To Defamation Law."

Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

Defamation Defense: Legislative Proceeding

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Continuing on in our series on the defenses to a cause of action for defamation relates to statements made in a legislative proceeding. Like statements made in judicial proceedings, statements which are made in legislative proceedings are absolutely privileged pursuant to Civil Code section 47(b).

This defense applies to statements made by participants in state and local legislative bodies as well. But these sorts of defenses can be much broader than you think, which why it's usually best to hire a defamation lawyer (and that's NOT self-serving).  Let me explain.

In the case of Cayley v. Nunn (1987) 190 Cal.App.3d 300, the plaintiff sued the defendant for slander since the defendant allegedly circulated a petition for neighborhood support for the defendant's requested height variance. Since the defendant's remarks about the height variance and the plaintiff were made in preparation of the legislative proceeding and had a logical relationship to the proceeding, the communications were held to be privileged. Now to the average lay person, you would think that this kind of statement would not be privileged because it is not made "in a legislative proceeding." Obviously, this is not the case.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the "The Ultimate Beginner's Guide To Defamation Law."

Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

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Continuing in our series on defamation defenses, today we're going to cover the defense of statements made in a judicial proceeding, also known as the litigation privilege.

A publication made in a judicial or quasi-judicial proceeding is absolutely privileged.  Civil Code § 47(b). This means that  you cannot prevail in a libel or slander case if the statements are privileged. In other words, the law allows people to make certain statements in certain settings, e.g., in a judicial proceeding.

The following requirements are necessary to meet the litigation privilege:

1. the communication must be made in a judicial or quasi-judicial proceeding;
2. by litigants or other participants authorized by law;
3. to achieve the objects of the litigation; and
4. the communication has some connection or logical relation to the action.

Silberg v. Anderson (1990) 50 Cal.3d 205, 212.

The primary purpose of the litigation privilege is to allow litigants and witnesses the freedom to use the courts without being worried that they'll be harassed by subsequent lawsuits. The litigation also promotes a more effective judicial system because it allows lawyers to vigorously advance their client's interests.

In short, the litigation privilege is one of the most powerful defamation defenses. It is also one of the more complicated defenses.

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Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

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An absolute privilege exists for statements made "[i]n the proper discharge of an official duty" under California Civil Code section 47(a). An absolute privilege is defined as a "privilege that immunizes an actor from suit, no matter how wrongful the action may be, and even though it is done with an improper motive."  Black's Law Dictionary, 7th Ed., p. 1215.

This means that any publication of a statement made by a person in the proper discharge of an official duty is absolutely immunized.

So when does this defense/privilege apply?

First, the statement must be made by a public official (in other words, only government officials). The official duty privilege does not apply to private individuals. For example, a court held that a district attorney was acting in the discharge of an official duty when he issued a press release regarding alleged violations of the Brown Act.

Second, the statement must be made in the public official's official capacity. If not, the privilege does not apply.

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Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

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Total read time: 2 minutes 49 seconds.

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." -Winston Churchill

Truth is a complete defense to a claim of defamation.  

It is the great equalizer in any libel or slander suit. It is what the plaintiff's defamation lawyer fears the most; that what his client's accuser says is true. It does not matter that the defendant made the statement out of malice or out of bad faith, so long as the statement is true. Washer v. Bank of America (1948) 87 Cal.App.2d 501, 509; Campanelli v. Regents of Univ. of Calif. (1996) 44 Cal.App.4th 572, 581; Rest. 2d, Torts § 581A; Francis v. Dun & Bradstreet (1992) 3 Cal.App.4th 535, 540 (credit report, even one causing harm, is not defamatory if true); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953 (statements as to dentist's misconduct were true given Board of Dental Examiner's determination that dentist had been grossly negligent and in violation of provisions of Business and Professions Code).

So what does it mean to establish truth? Does that mean the defendant must establish the truth of his statements in every particular? Surprisingly, the answer is no.

It is sufficient if the defendant proves that the substance or the "gist" of the statement is true. Heuer v. Kee (1936) 14 Cal.App.2d 710, 714; Gantry Const. Co. v. American Pipe & Const. Co. (1975) 49 Cal.App.3d 186, 194 ("The concept that it is the gist or sting of the alleged defamatory statements that must be false rather than the specific details of the charge is deeply rooted in our common law."). Weller v. American Broadcasting Cos. (1991) 232 Cal.App.3d 991, 1009, footnote, 17; See Campanelli, supra (admission that plaintiff basketball coach engaged in tirades so bad that seven players were thinking of quitting established truth of defendant's assertion that players "were in trouble psychologically").

But who bears the burden of proof? The previous rule in California was that the plaintiff needed to plead that the statements were false. This is no longer required. The burden of pleading and proving that the statements are true rests squarely on the shoulders of the defendant. See Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

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Many of you have been asking me for a list of the major defenses to a claim for defamation.  Well, without further ado, here they are:

1. Truth.
2. Discharge Of Official Duty.
3. Judicial Proceedings.
4. Legislative Proceedings.
5. Other Official Proceedings.
6. Proceedings Reviewable By Mandamus.
7. Report Of Official Proceeding Or Complaint.
8. Report Of Public Meeting.
9. Consent.
10. Common Interest.
11. Special Relationship.
12. Request For Information.
13. Fair Comment.
14. Retraction.

I'm going to go through each of one of these defenses in upcoming posts.  You definitely will not want to miss it.

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Let's get straight to the point on this post because we have a lot of ground to cover. So what is the California Shield law and who does it protect?

The Shield law gives certain legal protections (more on these later) to news providers (more on this later as well!) by allowing news providers to keep their unnamed sources confidential and keep confidential any unpublished information obtained during the news gathering process.

The law is set forth in article 2 section 2 of the California Constitution. This is important because it means there can be no statutory exceptions.

Who the shield protects

It protects a "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service" and a "radio or television news reporter or other person connected with or employed by a radio or television."

OK. So it's obvious that the Shield protects Old Media and perhaps established New Media Outfits like Huffington Post and TechDirt. But what about the little guys and gals? What about freelancers? What about BLOGGERS who aren't affiliated with an established media outlet?

I'll give you the answer in a second . . . But first, let's consider whether bloggers should be given such protection at all?

I know, such talk is considered "blasphemous" in some circles (I know who you are) but really, do bloggers deserve the shield's protections?

On the one hand I understand that freedom of speech/press is one of our most fundamental rights and that it should be applied to foster--not prevent speech whenever and wherever possible

On the other hand, think about all of the moonlit bloggers who are not accountable whatsoever (short of a defamation lawsuit) for what they write or say. As an internet defamation lawyer, I see it everyday: bloggers who publish the most patently false, defamatory, and disgusting statements about my clients.

The reason news media outlets are given protection are because they are accountable to the public for what they write. Think about it, if a media outlet is viewed as untrustworthy, they'll lose market share and eventually go out of business, unless they change their ways.

But a blogger has no such accountability. Blogging is virtually costless and he or she can spread as much rumor, speculation, inuuendo, and in some cases, outright lies, as he or wishes to do so.

Now don't get me wrong, I don't want to muzzle bloggers. But I do believe the Shield law should be limited.

Alas, however, what I think does not matter in this case because California courts have said their peace.

Bloggers are protected under California law. And that's that.

What the shield protects

The Shield law protects news people from being held in contempt of court for not revealing a source or producing information unpublished information obtained during newsgathering. It does not protect the reporter from other sanctions, e.g. discovery sanctions when reporter/journalist/organization is a party to a lawsuit.

The Exception

There is a common law (this means case law if you're not a lawyer) exception where not disclosing the information would violate a criminal defendant's 6th amendment right to a fair trial.

Do you think all bloggers deserve the same protections as media outlets? I'd like to know what you think. Please leave a comment down below.

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I had the great privilege to be a part of the Entertainment Law Update: Episode 3: Bloggers, Journalists, and Defamation. Click here to listen to the recording and hear what a defamation lawyer sounds like.

Why should you listen?

• You'll learn how bloggers can take advantage of a law that was originally intended to protect reporters (I've never mentioned this on the California Defamation Law Blog before!).
• You'll learn what Sarah Palin and Michael Jackson have in common.
• If you're an attorney, you may be eligible to receive MCLE credit.

And a whole lot more!

[Editor's note: a previous version of this post stated incorrectly that MCLE credit would be FREE. MCLE credit will be offered eventually for a nominal fee.]

Check it out now. Just click here.

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Total Read Time: 3 minutes.

Sarah Palin's attorney fired of a warning letter today that is being discussed all over the blogosphere. The letter alleges that certain remarks made about Palin by members of the media and, particularly, by an Alaskan blogger, Shannon Moore, are defamatory.

Here's what Moore said to Davis Shuster on MSNBC last Friday:

"There's a scandal rumor here that there is a criminal investigation into some activities and that's been rumored for about, I don't know, probably six weeks or two months."

It has been reported that the rumor Moore is referring to is that:

". . . Palin steered contracts for the 2003 construction of the Wasilla Sports Complex before leaving office as Wasilla mayor the previous fall, in return for work building her home about the same time."

It appears that Moore's comments are nothing more than rumor and speculation which are not actionable defamation. However, Moore is walking a very fine and dangerous line; and if I were her attorney, I would tell her to be very, very careful.  I'll tell you why.

While unconfirmed reports, speculation, and rumors are not interpreted as statements of fact (statements of fact necessary element of defamation) under California law, they may be analogized to opinions, which can be actionable if they imply provably false assertions of fact.

And when you look at the entire video clip, Moore says: "in watching this all play out, I actually think that the rumors, um, seem like there could be something to it."

But I'm not Moore's attorney and whether or not Palin's claim is actionable isn't the most important part of this story.

What troubles me is the sorry state of journalism today as exemplified in the video above.

It totally baffles me that David Shuster would characterize Moore's statements as, "intriguing and terrific reporting," when it is clear that it is the antithesis of good, solid, journalism.

How was it terrific?

When did it become OK to report unconfirmed stories? When did it become OK to give credence to nothing more than gossip?

While I am a staunch defender of the First Amendment, some people need to stop and think a minute before they make comments like the ones made above.

It does no one any good to spread gossip disguised as journalism.

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If you've been reading the California Defamation Law Blog for any period of time, you'd know that publication is a necessary element of any cause of action for defamation.

What you probably don't know, however, is that the publication element can be met even if the publication was unintentional, or negligent.

For example, suppose I send you a personal letter to your house full of all sorts of defamatory statements.  Suppose as well, that I know you are rarely home and that other people in your home may read your e-mail.

While this would not constitute an intentional publication since I addressed it only to you, it would most certainly constitute negligent publication because I knew that you were seldom at home and that other people might read my letter.

On the other hand, suppose you live alone and that I send you the same letter and someone steals my letter before it gets to you and they post it on the Internet.  Well, this would probably not constitute publication because it is not foreseeable that someone might steal my letter.

So, the bottom line is that publication can be negligent and intentional.  I bet you didn't know that.

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As I write this post, the Lakers are up 2 games to 1 against the Orlando Magic in the NBA Finals. The Lakers are strong favorites to win and it makes me wonder whether the Magic should just give up and go home. I mean, CAN they win? Sure. Should they even try? Now that's an entirely different and interesting question, which brings me to the point of this post.

You can sue an attorney for defamation under certain limited circumstances. The important question, however, is, should you?

Attorneys can be sued just like anyone else, but there is a very important privilege which will shield them from liability if they are acting for their client's benefit.

It's called the Litigation Privilege.

If an attorney is engaged in an activity in anticipation of, or preparation for litigation on behalf of a client, it is absolutely protected. This means you will not prevail if you choose to file a lawsuit for defamation based on the attorney's conduct.

So can you sue an attorney for defamation? Sure. But only under limited circumstances.

Just like Orlando can beat the Lakers. Yeah right.

For more reading on this subject:

• The Litigation Privilege Applies to Settlement Letters Directed To Counsel
• The Litigation Privilege Doesn't Apply To Negotiation/Persuasion

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Winston Churchill once remarked that "a joke is a very serious thing," and I agree, especially when it comes to the law of defamation.

Many people believe that a joke is incapable of being actionable defamation.  But they are wrong.

A court will first examine whether the alleged defamatory statement is susceptible of a defamatory meaning. The court will look at the statement itself and all the circumstances under which it was made to determine whether it was understood in a defamatory sense.

One of the best explanations of this concept comes from Prosser on Torts:

"One common form of defamation is ridicule. It has been held to be defamatory to publish humorous articles, verses, cartoons or caricatures making fun of the plaintiff, to heap ironical praise upon his head, to print his picture in juxtaposition with an article on evolution and a photograph of a gorilla, or with an optical illusion of an obscene and ludicrous deformity, readily detected at second glance. It is of course possible that humor may be understood by all who hear or read it as good-natured fun, not to be taken seriously or in any defamatory sense; but when it carries a sting and causes adverse rather than sympathetic or neutral merriment, it becomes defamatory. Thus a speech made after dinner, understood by all present as a harmless joke, may amount to libel when it is published in a newspaper and reaches those who do not understand its circumstances." (Prosser, The Law of Torts (3d ed. 1964) § 106, pp. 759-760.) 'In order that the defendant's words may be defamatory, they must be understood in a defamatory sense. It is not necessary that anyone believe them to be true, since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation-although obviously the absence of belief will bear upon the amount of the damages.'"

No one even needs to believe the statements are true if they are understood in a defamatory sense. This is critically important and an argument I see defense lawyers making all the time with regard to statements made on internet forums or social media sites.

Their argument goes something like this: "Adrianos, you can't even prove that my client's statements are even defamatory since they were made on X chat room, and no one takes those things seriously--they won't believe it.

My response is: "It is not necessary that anyone believe the statements are true if they are understood in a defamatory sense. Take a look at Arno v. Stewart (1966) 245 Cal.App.2d 955, 962-963."

Pretty soon I'm sure I'll hear a lawyer say: "no one is going to believe what someone Tweets about on Twitter. Who would ever take instant messages of 140 characters in length seriously! I don't waste my time on Twitter!"

This gets me to thinking. I wonder if Courtney Love's lawyer will argue that no one will take her arguably defamatory rants on Twitter and other social media sites seriously because of the nature of the medium. I hope he does so I can write a blog post about why such an argument is flawed.

At any rate, let me leave you with a joke from one of my favorite comedians of all time, the late great Rodney Dangerfield.

"My psychiatrist told me I was crazy. I told him I want a second opinion. He said okay you're ugly too."

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Are you ready to hear this?

I'm about to reveal a little known secret that can dramatically change the length of your defamation lawsuit.  And I mean BIG time. Knowing this one thing may allow you to obtain preferential treatment from the Court.

Sounds good, right? I mean, who doesn't want special treatment?

I almost hesitate to tell you this for two reasons: (1) it's so simple that you won't think it's a big deal once I tell you; and (2) I don't want my competition to know this because I don't want it done to me. But as I've said before, I won't let my fear of competition get in the way of educating YOU about defamation law.

So here it is . . .

The way to get preferential treatment from the Court is to: ASK FOR IT at the right time, and in the right way.

You see, most attorneys know that some kinds of cases are entitled to priority in trial setting. This means that some cases must be given an earlier trial date than others. Attorneys also know that other types of cases CAN be given priority.  In other words, the Court has discretion to give a case an earlier trial date other cases.

What is amazing is that most attorneys (at least the ones I know) aren't aware that you can speed up a defamation case dramatically by making an ex parte application shortly after filing a complaint pursuant to CCP § 460.5

So here's how it's done:

• File a Complaint
• Make an Ex Parte Application Shortening Time to Respond to the Complaint
• Include a declaration showing that the alleged statement has been continuously published and that there is a reasonable likelihood that the publication will continue
• Serve a copy of the application, declaration, and order along with the summons

If you do the above and the court grants your request, the court MUST give your case priority in setting a date for trial.

This will speed up your trial. Instead of years, your trial may be heard in a matter of months. And that's what you want if you've been defamed.  You want justice. And you want it now.

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. . . for underestimating Trump's net worth in a book!  Apparently, a New York Times writer wrote in a book that Trump's fortune was approximately $150-200 million.

Trump claimed that his net worth was more like $5 billion.  Quite a difference, right?

Anyhow, Trump brought a lawsuit for libel, claiming that he lost some deals as a result of the statement in the book.

None of this is relevant to California Defamation Law, but we can't always be serious.  Can we?

For more on this story check out Overlawyered.  I promise you will find it entertaining.

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You probably know by now that Courtney Love got sued last March for alleged defamatory Tweets. The allegations are THE MOST OUTRAGEOUS that I have ever seen.  I sure hope that they're not true for Ms. Love's sake.

Anyhow, here's an update on the case:  Opposing counsel (the attorney representing the plaintiff) has amended the complaint and filed a first amended complaint. Now, anyone who knows anything about litigation knows this is par for the course, i.e., there's nothing unique about this. However, what is interesting is that counsel dropped two claims entirely.

The plaintiff is no longer suing for breach of contract with regard to Etsy, a website for independent designers, which Love used to find out about the plaintiff. Plaintiff seemed to be saying that Love violated Etsy's Terms of Use and that plaintiff had standing to sue since she was an intended third party beneficiary under Etsy's Terms of Use -- not a fantastic argument, but not bad. Seems like it was unnecessary given the more potent libel claim and the claim for intentional interference with prospective business advantage.

The second claim which was dropped from the lawsuit was for intentional infliction of emotional distress. This really boggles my mind. If ever there was a case for an emotional distress claim, this would be the one.

I can probably venture a couple of guesses why counsel decided to drop the emotional distress claim, but that would boring. Instead, I'd like to know what you think.

Why do you think the designer's lawyer dropped the emotional distress claim from the lawsuit?

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I'm here to tell you that suing for defamation could be one of the biggest mistakes of your life. Why would I say this when I make a living as an internet defamation lawyer? That's a good question.

Because it's the TRUTH.

And you know what? You deserve to hear the truth.

There is nothing worse than making an important decision without knowing what you're getting into. Yet that's what a lot of people do when they file a suit for libel or slander, for example.

The mistake is not knowing what you want and not knowing what to expect. 

Let's focus on what you want first:

1. Your Purpose

Do you know what you hope to accomplish with the lawsuit? Sometimes I don't even know what to choose for dinner, let alone what my purpose is in a major deal like a lawsuit. So I understand if this question is a bit heavy. But you really have to think long and hard about this one.

Do you want the offending material removed from the internet? Do you simply want the material not to show up in the top 10 results in Google? Do you want to punish the publisher? Are you seeking money damages for loss of reputation and/or humiliation, embarrassment, emotional distress? Are you willing to pay an attorney top dollar to achieve any one of these results?

Well the answer to the above questions will greatly influence whether you should file suit. For example, there are several other cost-effective ways to manage your online reputation that don't involve bringing a defamation action. On the other hand, if you are seeking money damages,  lawsuit may be your only avenue.

2.  Your Expectations

You need to know that prosecuting an action for defamation from start to finish could set you back between 50K and 100K depending upon the nature of the case. 

You also should be aware that in some instances filing suit can make the situation worse. In some cases filing suit will cause your opponent to become increasingly aggressive and bold in his or her attacks against your reputation online. I have seen situations where the defendant has actively recruited many others to attack a client's reputation. This is known as a "mobosphere" attack and is nearly impossible to stop once it begins.

But I believe the most under appreciated result of filing a defamation suit is the emotional toll it can take on a person. Not only can lawsuits last years, but they can be very invasive and time consuming. Defense counsel will undoubtedly attempt to discover everything about you in order to discredit you. They may hire private investigators to dig up dirt on you, even stuff that may not be related to the case.

Filing suit is like becoming a celebrity without any of the benefits.

Conclusion

Now don't get me wrong. The point of this post is not to discourage you from bringing an action for defamation. It is simply meant to make you think about what are you trying to achieve and whether litigation fits with your goals and tolerance for risk.

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It happens just about every day.

I get a call from someone who's been defamed and they seek my advice. They share their situation with me and I listen intently waiting for them to finish. When they are done I give them my general take on the matter.

It never ceases to amaze me how different each person's experience is. I really enjoy hearing people's problems.

That is why I am asking YOU, my dear reader, to share with me your frustrations.

What is your biggest problem? Perhaps your situation will inspire me to write about a topic that will be helpful to your or many others like you.

Feel free to comment on this post or send me a private e-mail.  I'd love to hear from you.

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California Defamation law is not as simple as many lawyers and other people may have you believe. There are several elements necessary to prove a cause of action for defamation, and one of the most overlooked elements is publication.

Publication is a term of art. This means that it has a specific legal meaning. A statement is deemed "published" if the statement has been communicated to a third party, whether orally or in writing. For example, if John Doe comes up to you and says that you're a crook and that you've been convicted of murder and no one else hears it, the publication element is not met. But this is the easy scenario.

What happens if someone merely passes along the alleged defamatory statement? Are they liable to the same extent as the original person who published the statement? The answer is yes.

The law calls this "republishing" and will hold the republisher just as liable as the original publisher. So let's take the example from above: suppose someone overhears John Doe and then relays the statement to Joe Shmoe's employer, Bill Breaker. In this case, the person who relayed the information to Bill Breaker would be liable to you in the same way that John Doe would be liable to you.

Publication can become more complicated and I'll discuss another uncommon wrinkle in the next post.

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Please allow me to introduce myself. My name is Adrianos M. Facchetti and I'm an Internet Defamation Lawyer in Los Angeles. Check this video out for more details. . .  

I hope you enjoyed this video.  As you can tell, I'm not your average defamation lawyer. While I take my clients and my work very seriously, I don't take myself too seriously.

If you liked this video, please feel free to share it with your friends. Thank you for taking the time to read my blog.

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The California Court of Appeal reversed a jury decision awarding plaintiff a whopping $750,000 in damages based on slander per se. Regalia, the plaintiff, was a former employee of an automobile museum. He claimed that he was wrongfully terminated and that the defendants were liable for slander per se based on two allegedly defamatory statements made by Mr. Nethercutt.  The alleged statements were:

"Michael Regalia demanded a commission or finder's fee of about $230,000 to which he was not entitled"

"The Nethercutt Collection fired Michael Regalia because other employees would not work for him, and that other employees would leave if Michael Regalia remained employed"

Regalia claimed that the above statements were slander per se and the jury agreed but found that he suffered no actual damages as a result of the statements.

The court of appeal went into a lengthy (useful) analysis of slander per se vs. slander per quod.

Statements are slanderous per se if they fall within the four categories of Civil Code section 46. Statements that do not fall within those four categories are slander per quod and require proof of special damages.

"It is a question of law, for the court to determine, whether a communication is libelous or slanderous per se. But it remains within the province of the jury to determine whether the reader understood the article, in light of relevant extrinsic facts, if any to be defamatory."

In other words, it is for the court to make the threshold determination of whether the communication is indeed slanderous per se. Then it is for the jury or trier of fact to determine whether the statements is indeed defamatory.

Here, the appellate court determined that the trial court erred in deciding that the above two statements were slander per se. The firs statement was not slanderous per se because making a demand for money that is rejected does not necessarily reflect negatively on the person making the demand. This does not "directly injure him in his profession, trade or business."

The second statement was not slanderous per se because the fact that one or more employees did not want to work for another employees did not necessarily reflect adversely on the person.

Since Regalia was unable to show special damages at trial and he only claimed slander per se, the appellate court determined that he was not entitled to a retrial. Case over.

Moral of the Story: If you think the alleged defamatory statements are arguably slander per se or slander per quod, make sure you present both to the court.  Don't gamble. You never know which way the judge or jury will go.

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The California Civil Code lists four subcategories of slander which are termed slander per se. This means that the alleged statement is defamatory on its face. This is important because statements which are slanderous per se do not require proof of actual damages.

What does this have to do with slander per quod?

Well, in contrast to statements that are slanderous per se, statements that are slanderous per quod require proof of actual damages.

This makes a huge difference since it can be very difficult in certain circumstances to prove actual damages.

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I hope you don't mind a break in the action. Here is a video that reminds us that it's OK to smile no matter what kind of problems or struggles life throws our way. It has nothing to do with defamation law.

Thanks to Grant Griffiths over at BlogforProfit for posting about this video on his blog.

I hope you enjoy the video!

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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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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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 "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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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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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 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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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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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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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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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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Yesterday I wrote about the statute of limitations for an action for libel or slander, which is one year. But when does the clock start running, or in legal terms, when the does the action begin to accrue? For torts, the answer is generally when the injury occurred.  But that's not always the case.  In some situations, courts will apply the so-called "Discovery Rule."  This rule holds that the statute of limitations will not begin to run on a cause of action until such time the injured party discovered, or reasonably should have discovered, the defendant's alleged defamation.

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Defamation is the false or unjustified injury of the reputation of another person. Generally, defamation comes in two forms: Slander and Libel. Slander is an oral defamation and Libel is a written defamation (also pictures and video, and any defamatory statement on the internet).

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Defamation seems like a simple concept. Someone says or writes something damaging about someone's else's reputation, right? Wrong. The legal requirements for defamation are far more stringent than you might expect. I find that most people equate defamation with office gossip. It's true. (refer to said simple definition above). So lets clear it up. The first thing you need to know is that there are two forms of defamation: slander and libel. Slander is specifically defined in California Civil Code section 45, as ". . . a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to
him general disqualification in those respects which the office or other occupation peculiarly requires, or
by imputing something with reference to his office, profession, trade, or business that has a natural
tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

So you see, Slander has a very particular meaning under the law, and it's more than just office gossip. The other kind of defamation is libel, which is defined in California Civil Code section as, "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." So there you go. Now you know what the two primary forms of defamation are, and, knowing is half the battle.

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