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.

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

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I recently took a much needed hiatus from Twitter because I got super busy with work.  Now I'm back. But while I was gone the whole Twitter Lists phenomenon happened.  Everyone was talking about the benefits of Twitter lists.  No one could even conceive of any possible negative possibilities, which is why I find Michael Gray's post about "How To Use Twitter Lists To Create Reputation Management Problems," so interesting.

If you are concerned with managing your reputation, you need to read this article and consider it carefully.

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Many of us work incredibly hard to establish an outstanding reputation both in our personal life and in our business.

We spend countless hours learning and honing our craft.

We spend time away from our family and friends all in the name of developing our skills. We make the kind of sacrifices that only one of us would understand. We work really hard.

And then the unthinkable happens.

A negative review pops up on the internet about your business. The review appears to be written by a competitor and is incredibly libelous and untrue. You write to the website operator asking them to remove the comment but they decline. Now what do you do?

Or perhaps a scathing story is written about you in your local newspaper. The story is incredibly damaging and untrue. But everyone seems to believe the story including people you know. You speak to the reporter and tell him your side of the story but he doesn't care. Now what do you do?

Perhaps you should do nothing.

Perhaps you should do lots of things.

But one thing you should not do is let the defamation rob you of your joy.

Because ultimately it doesn't matter.

People forget. Memories fade. And ultimately in most cases you are remembered for your body of work.

Remember that.

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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.

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." 

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On August 28, 2009 at 9:00 a.m. Pacific Standard Time I'll be participating in a highly informative teleseminar with Jay Fleischmann on the topic of:

"Protecting and Maximizing Your Online Search Engine Reputation."

The best part is that it's absolutely FREE!

This call will be full of useful and valuable information you will be able to use immediately to protect and enhance your reputation.  Jay and I really want to help you "claim your name" on Google and the other search engines.

Space is limited so you need to register now before someone takes your spot.  I believe Jay will only be allowing about 250 people to be on the call, and the last I heard, there aren't many spaces left. So don't wait.

All you have to do is go to the following website and become a "fan."  That's all there is to it.

Talk to you soon!

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