Internet Defamation Blog

Speedskater Shani Davis

I think there is little doubt that someday a court will permit a circumvention of the Communications Decency Act. As explained here numerous time, the CDA makes a website or website provider immune from liability for content posted by others. But there are constant skirmishes at the fringe. For example, if the website somehow “highlights” the posting or adds its own editorial comments, does it then become responsible for the content? What if a court orders the poster to remove the defamatory content, but the site refuses to cooperate in the process? Can’t the argument then be made that the website operator is then publishing the content since the original poster has disowned it? And while the CDA contemplates that the original poster will be responsible for the defamatory content, what if the person who posted the content dies and the victim is left with no remedy?

This last hypothetical is precisely the issue that is presented by a case currently pending in Illinois. The mother of US Olympic speedskater Shani Davis is suing Google for refusing to remove a blog posting that was made by a user who has since died. There is no doubt that under normal circumstances, Google would be protected from immunity under the CDA. But the blogger, Sean Healy, died of cancer a year after publishing the article in question.

The post by Healy was entitled, “Memo to Cherie Davis,” and claims that the speedskater’s mother made disparaging comments about the views of the US Speedskating Federation. Cherie Davis claims in her suit that she made no such comment. She further claims that because Healy cannot be made to answer in damages and/or remove the content, Google must step up and make things right with this now dormant blog, that just sits on Google’s server, continuing to defame plaintiff.

I’m hopeful that this will be the case that opens a tiny crack in the CDA. I applaud the CDA for protecting websites from liability. As I have explained here before, if website operators became liable for the content posted by others, none could risk having a public discussion board. But I always contended that the open marketplace of ideas can still exist even if we make website operators subject to cooperating with court orders. If a court finds that content is defamatory, there is no reason that a site should fight to maintain that content. The website will be protected by the necessity of a plaintiff having to go to court to have that determination made. Website operators contend even that is too onerous, since they will then have to remove the content, but this is belied by the fact that website hosts, including Google, already comply with demands made under the DMCA to remove copyrighted material.

I’ll keep you posted on the results of this case.

A recent decision by the California Court of Appeal, which reverses a trial court’s decision to dismiss the underlying defamation case, beautifully illustrates how trial courts still do not understand the anti-SLAPP statute. It’s unfortunate the plaintiff had to go through an appeal in order to educate this particular judge. The following summary of facts and quotes are taken from the Court of Appeal’s opinion. I apologize for the long post and multiple citations, but I want to have a place where people can be directed for the proper anti-SLAPP considerations and standards.

The action appears to have roots going back to 2003, when there was an altercation between Rabbi Chaim Seidler-Feller, Director of Hillel at UCLA, and Rachel Neuwirth, a journalist working in the Los Angeles area. Neuwirth alleged that Seidler-Feller had attacked her without provocation in October 2003. Shortly after this attack, she alleges in her complaint, “disciples of Seidler-Feller maintained in public print that [she] had provoked the attack by making inc[e]ndiary statements” to him. Neuwirth denied these allegations. As a result of her injuries, she said, she sought legal redress and reached an “amicable settlement” with Seidler-Feller and Hillel accompanied by a letter of apology from Seidler-Feller, “published in various tribunals,” in which he “acknowledged that the attack upon [Neuwirth] was unprovoked, that he took full responsibility for said attack and apologized for his actions.”

The complaint further alleges that notwithstanding Seidler-Feller’s admissions, “in an effort to vilify and damage [Neuwirth’s] reputation further,” someone named Richard Silverstein published on the Internet a statement which “in effect called [Neuwirth] a liar” and took the position that Neuwirth had, in fact, provoked the attack and that Seidler-Feller’s “original version” was more credible than Neuwirth’s. Later, on May 3, 2007, Silverstein published on the Internet an article in which he referred to Neuwirth as “a ‘Kahanist swine’ thereby accusing [her] of being a member of a terrorist organization” and exposing her to hatred, contempt and ridicule and injuring her in her occupation in violation of Civil Code section 45. “The United States Department of State has issued . . . a list of terrorist organizations which include such organizations as Al-Qaida, the Palestine Liberation Front, and Kahane Chai, among others. To refer to a person as a Kahanist is to brand that person as a terrorist.” Silverstein knew his publication was false, and it constituted libel per se, she said.

On May 13, Neuwirth alleged (in her second cause of action), Joel Beinin joined the fray and published on the Internet a statement falsely accusing her of having made a death threat against him. At the same time, Silverstein issued another statement on the Internet reiterating the allegation Neuwirth had made a death threat against Beinin, although Silverstein knew the statement to be false. Accusing her of committing this crime, she alleged, also constituted libel per se under Civil Code section 45.

In response to Neuwirth’s complaint, both Silverstein and Beinin filed anti-SLAPP motions. (Code Civ. Proc., § 425.16.) In his motion, Silverstein asserted Neuwirth’s complaint arose from speech in a public forum regarding an issue of public interest as both he and Neuwirth write about the “Middle East conflict—a highly controversial matter of great public importance and political interest.” He attached copies of the statements to his declaration. Because he has chosen to advocate tolerance and peaceful reconciliation, he said, his “work has attracted vitriolic criticism from those who, unlike him, believe that Arabs and Jews should not live together.” For his part, Beinin basically argued that the claim of a death threat was true and protected on a number of grounds.

In a 28-page ruling, the trial court granted both special motions to strike and subsequently entered judgment in favor of both Silverstein and Beinin. While the defendants proclaimed their victory, Neuwirth filed her appeal.

Analysis for an anti-SLAPP motion.

A strategic lawsuit against public participation (SLAPP) “seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16, the “anti-SLAPP” statute, was enacted as “a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Id. at pp. 1055-1056.) In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action “arises from protected activity.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)

In the Neuwirth case, the trial court properly concluded that the comments alleged to be defamatory were at least arguably protected speech. But “protected speech” does not mean that the speech is immune from prosecution, and that is the distinction that appears to baffle many judges. Defamatory speech is never protected.* “Protected” simply means that it is subject to a higher level of scrutiny. The second part of the analysis still remains.

“[O]nce the defendant establishes the challenged cause of action . . . arise[s] out of the exercise of petition or free expression rights, the burden shifts to the plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. . . . The Supreme Court has defined the probability of prevailing burden as follows: ‘[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’” (Hutton v. Hafif (2007) 150 Cal.App.4th 527, 537.)

“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ . . . In making this assessment it is ‘the court’s responsibility … to accept as true the evidence favorable to the plaintiff … .’ [Citation.] The plaintiff need only establish that his or her claim has ‘minimal merit’ . . . to avoid being stricken as a SLAPP.” (Ibid., citations and footnote omitted; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 ["the anti-SLAPP statute requires only ‘a minimum level of legal sufficiency and triability’ [citation]“], quoting Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.)

“Section 425.16 does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning. It subjects to potential dismissal only those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits (§ 425.16, subd. (b)), a provision we have read as ‘requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim’ (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412 [58 Cal. Rptr. 2d 875, 926 P.2d 1061] (Rosenthal)). So construed, ‘section 425.16 provides an efficient means of dispatching, early on in a lawsuit, [and discouraging, insofar as fees may be shifted,] a plaintiff’s meritless claims.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63.) “The purpose of section 425.16 is not to prevent lawsuits that arise from the exercise of constitutional rights, but it is to deter frivolous and improperly motivated lawsuits arising from those rights.[] Section 425.16 provides a ‘fast and inexpensive unmasking and dismissal’ of frivolous claims that are subject to the statute.” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089, citation and footnote omitted.)

Plaintiff’s claims must be taken as true.

The anti-SLAPP system fails when judges cannot make the distinction between the two parts of the analysis and engage in a weighing process. For example, assuming Neuwirth is a public figure, then she would need to show malice in the comments that were made about her. But in noting the obvious, the Court of Appeal stated that said malice could be inferred from the comment “Kahanist swine.” Some courts appear to believe that malice must be shown by some extrinsic evidence of evil intent, when in fact that proof can be taken from the words themselves.

If, in turn, there was a dispute over the meaning of that term (defendant claimed it was harmless), then the interpretation offered by plaintiff must be taken as true (who said it amounted to calling someone a terrorist). The standard is akin to that of a motion for summary judgment, where the motion must be denied if there is any material issue of fact. In other words, in determining whether the plaintiff is likely to succeed with the defamation claim, the standard is, “can the plaintiff succeed IF her evidence is believed?”, not “can her evidence overcome that being claimed by defendant?”. After all, the filing of an anti-SLAPP motion stops the discovery process, so it is to be expected that a plaintiff may have minimal evidence at that point.

The complete opinion can be found here.

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* Defamatory speech is never protected, but that must be kept in context.  For example, if Joe Citizen falsely testifies during a trial that the plaintiff cheats on his taxes, Joe can never be prosecuted for defamation for that speech.  In that instance there is no defamatory speech that is being protected because the speech by definition is not defamatory. Defamation requires a false, unprivileged statement. Comments made in court are privileged, and hence the statement cannot constitute defamation.

South Korean "Dog Poop Girl"

In America the right to make anonymous comments is protected. In fact, that is why many courts will make a victim of defamation establish a prima facie case of defamation before requiring a website to respond to a subpoena.  

South Korea is not so tolerant, and effective April 1 anonymous posting became illegal under certain circumstances. The new law is called the “Cyber Defamation Law.” The law provides that any Internet user making a comment or upload to a website that has over 100,000 unique visitors a day must append their real name to the comments they make. Sites must identify whether they meet the number of visitors threshold. If they do, the registration process must require the visitor wishing to post something to enter his national identification number.

The Cyber Defamation Law appears to have been a reaction to a story about the “dog poop girl.”  A women’s dog did his business on public transit, and she failed to clean it up.  Someone took pictures of her sitting near the dog’s leavings, posted them on the Internet, and she became a public pariah, to the point that she had to quite school and move away from her home.  Lawmakers in South Korea reasoned that the new law would make those who post Internet messages more responsible for what they say and do on-line because they can now be pursued legally.

America is unlikely to pursue such an approach anytime soon, but the case illustrates that the problems of Internet defamation and bullying are very real, and governments are struggling to find ways to deal with them.

Tom Martino

Context is everything is everything in a defamation action.

In the recent Ninth Circuit case of Gardner v. Martino, plaintiffs sold a new boat from their showroom. The buyer of the boat claimed the boat was defective, and went onto a radio show to talk about the failure of the plaintiffs to address the problems. During the show, the host, Tom Martino, listened to the complaints of the buyers and commented that the sellers were “lying” when they claimed that they had tested the boat after performing certain repairs.

The plaintiffs/sellers took umbrage with that remark, and sued Martino, the radio station and the production company for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.

I have commented here before that far too many attorneys think they can take on a defamation action, treating it like any other tort claim. This case illustrates what can happen when the attorney does not fully understand all the nuances of free speech and defamation. No doubt when the attorney was told the radio host called the plaintiffs “liars” that was viewed as an automatic case of defamation. And, in fact, in most cases calling someone a liar would constitute defamation. But here, the attorney apparently failed to consider the context of the statement.

A true opinion cannot constitute defamation unless it is offered as an assertion of fact.  While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.

The two corporate defendants in this case were Westwood One and Clear Channel Communications, both huge companies. No doubt these communication giants hired big firms that billed hundreds of hours at $650 per hour. Now the plaintiffs, who felt hurt by being attacked on the radio and just wanted to clear their reputations, are on the hook for perhaps $100,000 in legal fees.

I am all in favor of taking steps to defend your reputation – it’s what I do – but proceed with caution with an attorney that really knows this area of the law.