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

One of the strangest things to me is how much we worship celebrities in our culture. Turn on any channel or read any newspaper and you'll eventually see a story about a celebrity. This is perplexing and amusing at the same; especially for people like me, who were born and raised in Los Angeles. It's not uncommon to see an actor or director walking around or dining at a restaurant. But really, so what? They're just people, except that they're typically (not always, I know I'm generalizing) self-centered, uninteresting, and the most famous ones have people following them around all the time. These are plenty of reasons not to want to know, let alone hang out with a celebrity.

But there's yet another reason not to associate with celebrities: because the mere association with a celebrity may make you a limited purpose public figure!

In Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, the appellate court held that a housekeeper of Marlon Brando who was mentioned in his will "became involved in an issue of public interest by virtue of being named in Brando's will." This ruling is significant because the mere association with a celebrity may make a person a limited purpose public figure. This means that such a person would potentially be subject to different and higher evidentiary burdens should they decide to file a lawsuit.

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

• Email This
• Print
• Comments
• Trackbacks

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.

If you liked this article please subscribe to the California Defamation Law Newsletter to get a free copy of your "Ultimate Beginner's Guide To Defamation Law."

• Email This
• Print
• Comments
• Trackbacks

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.

If you liked this post please subscribe to our newsletter to get a FREE copy of "The Ultimate Beginner's Guide To Defamation Law."

• Email This
• Print
• Comments
• Trackbacks

"Trade libel is defined as an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff." Erlich v. Etner (1964) 224 Cal.App.2d 69, 73, 36.

• Email This
• Print
• Comments
• Trackbacks

In reviewing some of the topics that we've covered on the California Defamation Blog, I noticed that the topic of Trade Libel is conspicuously absent so I'm going to fix this over the next few posts.

Today's post is short and simple. Here are the basic elements of a cause of action for Trade Libe to get us started:

1. Defendant's false statement;
2. Publication;
3. Of matter disparaging the quality of another person's property or services;
4. which the publisher intended to cause harm to the owner, or should have recognized as being likely to cause it; and
5. Causation of pecuniary harm or loss.

Computerexpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.

In the next post we'll discuss the nature of the tort of Trade Libel.

If you liked this post please subscribe to our newsletter to get a FREE copy of "The Ultimate Beginner's Guide To Defamation Law."

• Email This
• Print
• Comments
• Trackbacks

Some people have complained lately that I've been way too focused on anti-SLAPP law here. Well, there's a reason for that. 

It's because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I'm a Lakers fan?).

But I digress.

What I'd like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I'm talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." '

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let's take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

If you liked this post please subscribe to our newsletter to get our FREE report, "The Ultimate Beginner's Guide To Defamation Law."

• Email This
• Print
• Comments
• Trackbacks

This has been an exciting year here at the California Defamation Law Blog, so I thought it'd be a good idea to highlight our top 10 favorite posts, considering page views, comments, and other forms of reader feedback. I hope you revisit and enjoy these posts. Here's to an even better 2010!

Here they are:

1. Do You Have A Case For Defamation?
2. The Three Types Of Damages In Defamation Cases
3. Small Businesses Strike Back
4. Los Angeles Superior Court Reduces Operations In Wake Of Financial Crisis
5. Twitterers Beware! Courtney Love Sues For Tweets
6. Defamation's Greatest Hits
7. The Tale Of A Model, A Blogger, And Internet Anonymity
8. Defamation Defenses Series
9. What Is The California Shield Law?
10. Perez Hilton Threatens To Sue Kirstie Alley For Twitter Defamation

If you liked this post please subscribe to the California Defamation Law Blog newsletter to receive more updates about defamation law.

• Email This
• Print
• Comments
• Trackbacks

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.

If you liked this post please subscribe to the California Defamation Law Newsletter to get more updates about defamation law and learn how to protect your reputation online. 

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

 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.

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

Defamation Defense: Other Proceedings

• Email This
• Print
• Comments
• Trackbacks

Celebrity defamation is a growing trend. Don't believe me? Click on any of the links below.

• Roger Clemens
• Courtney Love
• Perez Hilton
• Kirstie Alley
• Demi Moore
• Britney Spears

There are a number of reasons for this.

The Rise of Social Media

No one can deny the awesome rise of social media and its ability to influence our culture. Millions of people use tools like Twitter, Facebook, and LinkedIn every day to consume and share information and as a means of interacting with other like-minded people.

It is also an incredible information delivery system. That delivery system allows celebrities to communicate with their fans (to influence them) without resort to traditional media, which gives celebrities new found power.

The Immediacy of The Internet 

Everyone knows the Internet allows for instantaneous transmission of information. But people forget that publication of information on the Internet is permanent and potentially far-reaching. 

The Fiction of Invincibility

People feel invincible on the Internet. They write and post information they would never say in public. They also act in ways they would never do so in public.

I know this is hard to believe, but take a look at Twitter. How often have you seen someone tweet about their exact location; especially celebrities (I've been guilty of this myself). Well, shouldn't people be worried about disclosing their location to others? This is both a privacy and personal safety issue. Yet people tweet freely about where they are.

The Public Relations Bump

"There is no such thing as bad publicity except your own obituary." - Brendan Behan

Celebrities believe that all publicity is good. Is it good for business to start a fight with another celebrity on Twitter? You betcha.

The next post in this series will examine whether different rules apply to celebrities with respect to internet defamation.

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."

• Email This
• Print
• Comments (1)
• Trackbacks

WARNING: This post contains profanity.  If you find profanity objectionable please do not continue reading.

Someone must have hacked into Kirstie Alley's Twitter account. At least, I hope so for Alley's sake.

Yesterday in response to a tweet from one of her followers, Alley wrote that "PH" (presumably Perez Hilton) was "like a closet pedophile drawing nasty stuff on young girl's photos...makes me vomit."

But Alley did not stop there.  Then she wrote the following choice tweets:

Then Alley purports to compare Hilton to Nazis:

You would have thought that Alley would have given it a rest but she started up again tonight! Check this out (read in reverse order: scroll down).

Terms like "pornographer," "pedophile," "child pornography creep," are all serious allegations which could get Alley into some serious hot water.  And even though Hilton is a public figure, there may be some evidence of actual malice since Alley wrote she vowed to take Hilton down.

But Hilton did not take these Twitter attacks lying down.  Here's what he wrote (in reverse order: scroll down for the earlier tweets).

This incident seems to be a trend among celebrities. Instead of using tabloids to trash each other they've turned to social media tools, most notably, Twitter.

I expect a lawsuit to be filed within a week.

• Email This
• Print
• Comments
• Trackbacks

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.

Total Read Time: 6 minutes.

Courtney Love responded to Dawn Simorankir's First Amended Complaint by filing an anti-SLAPP motion.

The purpose of the so-called “SLAPP” statute is to eliminate lawsuits brought “primarily to chill the valid exercise of constitutional right of freedom of speech and petition for the redress of grievances.” Code Civ. Proc. Section 425.16(a). 

Courts engage in a two-part analysis focusing first on whether the disputed cause of action arises from protected activity under the statute, and if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576. In determining whether the moving party has met its initial burden, courts consider the pleadings, declarations, and matters that may be judicially noticed. Brill Media Co., LLC v. TCW Group, INC. (2005) 132 Cal.App.4th 324, 330. The motion must be supported (or opposed) by declarations stating facts upon which the liability or defense is based. Code Civ. Proc. § 425.16(b).

If the defendant makes a prima face showing that his conduct is protected under section 425.16, then the burden shifts to plaintiff to establish a “probability” that he will prevail on the claims asserted against the defendant. Governor Gray Davis Committee v. American Taxpayer Alliance (2002) 102 Cal.App.4th 449, 458-459.   “[T]he threshold for showing a ‘probability of success’ is quite low.” Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL, § 7:1006 (The Rutter Group 2008) (emphasis added). 

Courts do not weigh credibility or evaluate the weight of the evidence. Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700. Instead, they accept as true all evidence favorable to the Plaintiff and assess the defendant’s evidence only to determine whether it defeats Plaintiff’s cause of action as a matter of law. Id. “Only a cause of action that lacks even ‘minimal merit’ constitutes SLAPP.” Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at 700.  

I'm going to ignore the first prong of the anti-SLAPP since it is pretty apparent that Love will be satisfy her burden since she allegedly posted the comments on public spaces like Twitter and Myspace.

What I'd like to focus on is on the second prong.

Hyperbole

Love argues quite forcefully that all of the alleged defamatory statements are nothing more than hyperbole. In other words, that Love was merely expressing her opinion.

The law in this subject is that “[S]atirical, hyperbolic, imaginative, or figurative statements are protected because ‘the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of fact.”  (citation omitted). However, statements will be deemed actionable if they can “ . . . reasonably be understood as declaring or implying actual facts capable of being proved true or false." Ruiz v. Harbor View Community Ass’n (2005) 134 Cal.App.4th 1456, 1471.

So the question is whether each of the alleged defamatory statements could reasonably be understood to declare or imply actual facts capable of being proved or true or false. I believe the answer is yes with respect to some of the statements.

The allegations of past criminal history would certainly seem to declare or imply facts capable of being proved true or false. The statement that "she has a history of dealing cocaine . . . assualt,(sic) and burglary" is sufficiently specific to constitute a statement of fact the truth of which could easily be ascertained by running a criminal background check. At the very least, it would appear that the statements taken together imply undisclosed facts that may be known to Love, which may be capable of being proved true or false.

People Can Be Defamed On Twitter And Myspace

Love's attorney argued that the context of the statements negates the impression that she is seriously asserting a statement of fact. I expected her attorney to argue this but it is not very convincing as I explained in a previous post. In essence, it is not necessary that anyone believe the statements are true if they are understood in a defamatory sense. So the argument that the statements are not to be taken seriously because they were not made by a journalist or in a national publication is unpersuasive. I mean, is that the standard? So only journalists or people who write for national publications can be taken seriously? What about bloggers? No one takes them seriously?? What about micro-bloggers? This argument is absurd. Anyone is capable of being defamed in any context and that includes Twitter and Myspace. This is especially true since traditional media (e.g. CNN) is increasingly relying on Twitter for breaking news.

Now, as to statements such as "nasty hosebag lying thief" and "vile horrible lying bitch," these statements in isolation clearly would appear to be nothing more than epithets, which are protected by the First Amendment. But a court will not consider these statements in isolation. Rather, the court will consider the totality of the circumstances.

In any event, we will have to wait and see what the court decides. It will not be an easy decision. I look forward to reading the opposition brief.

Related posts:

Twitterers Beware! Courtney Love Gets Sued For Tweets

Courtney Loves Gets Sued For Tweets: Opposing Counsel Drops Two Key Claims

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."

• Email This
• Print
• Comments
• Trackbacks

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.

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

• Email This
• Print
• Comments (2)
• Trackbacks

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?

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

If defamation law had a radio station, the following 5 cases would be on heavy rotation. And not just because some of these cases involved large jury verdicts, but because each of them has greatly impacted the way we think and feel about defamation law. This is by no means a comprehensive list.  It's simply a list of some of my favorites.

1. Scheff v. Bock - Be careful who and what you blog about. Carey Bock made the mistake of making negative statements about Sue Scheff online, including, that she was a "fraud," a "crook," and a "con artist." Scheff obtained a jury verdict in the WHOPPING amount of 11.3 million dollars. This case is noteworthy because it represents the largest (that I know of) verdict in the U.S. regarding relating to defamatory comments about an individual on the Internet. It's also remarkable because Scheff knew prior to the verdict that it was unlikely she would ever collect any money from Bock. Scheff was determined to make a statement: to reclaim her reputation. I greatly admire Scheff's determination and adherence to principle.
2. Orix Capital Markets, LLC - A jury in Texas recently handed a 12.5 Million dollar verdict in favor of Orix in an internet defamation case. I like this case because it's the biggest internet defamation verdict that I know of! Plus, it demonstrates that defamation cases are important and potentially very valuable.

3. Brandon v. Wizeman - South Carolina court awarded 1.8 million libel judgment against blogger.  What is interesting about this case is that apparently, the plaintiff won on summary judgment, which I must admit, is very difficult to do in a defamation case. The take-away from this case is that blogging can be a contact sport, so, it's a good idea to beef up on the basics of internet defamation law.

4. Noonan v. Staples - The Fifth Circuit held that an employee could sue a company based on alleged defamatory statements even if the statements are true, provided the statements were made with "actual malevolent intent or ill will." Expectedly, this decision created an uproar in the free speech expansionist community. For a second, I thought the sky was going to fall. The fact of the matter is that that the Noonan case is a freakish anomaly and none of its sister courts are likely to follow.  Everyone should just come down.

5. Twitter Defamation - I was the FIRST to observe that the recent lawsuit filed against Courtney Love was the first defamation lawsuit involving tweets. And while I'm not bitter about it (can't you tell?), I can certainly tell you there was a lot of interest about the subject on my blog.  I think this is so for at least three reasons:  First, Twitter has become mainstream and people are using it, or are thinking about using it. Second, everyone "loves" (get it?) a train wreck.  And third, Twitter gives one a false sense of safety for a number reasons, primarily because it is generally used for informal means. I think a lawsuit over tweets calls into question a common belief that tweets are insignificant.

Did I miss any key internet defamation cases? Which cases would you have added to the list? Feel free to leave a comment on the blog.

If you liked this post, please subscribe to receive free updates via email or RSS.

• Email This
• Print
• Comments
• Trackbacks

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.

If you liked this post, please subscribe right now to get free updates via e-mail.

• Email This
• Print
• Comments
• Trackbacks

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?

• Email This
• Print
• Comments
• Trackbacks (2)

 "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.

• Email This
• Print
• Comments
• Trackbacks

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

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

• Email This
• Print
• Comments
• Trackbacks

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.]

• Email This
• Print
• Comments (2)
• Trackbacks (1)