Act Natural When Contemplating Litigation
I often get calls regarding wrongful termination where the terminated employee – terminated months earlier – has done nothing to find a new job, concluding that a new job would minimize his damages and hurt his case. That’s a crazy case of the tail wagging the dog.
Lately I am receiving defamation calls where the victim of the defamation is following a similar counterintuitive strategy. The call usually goes something like this:
Caller: “The Orange County Register published an article saying I cheat on my taxes and am a bad dancer.”
Me: “Is that a false statement?”
Caller: “Entirely false. I’m an excellent dancer!”
Me: “When did they publish this article?”
Caller: “About three months ago.”
Me: “Did you ever demand a correction?”
Caller: “No, I want to sue for damages, not a retraction. If they printed a correction, that might minimize my damages.”
That mentality is problematic on several levels. First, it shows that the caller is not as interested in preserving his reputation as he is in getting money. Second, if an attorney ever did take the case, the failure to ask for a correction would be a problem for the jury. He was so upset by the defamation (the tax part, not the dancing) that he is asking us to give him millions, but he never tried to minimize the loss of reputation by asking for a correction?
Finally, California Civil Code § 48a requires someone who has been libeled by a newspaper or slandered by a radio station to demand a correction “within 20 days after knowledge of the publication or broadcast or the statements claimed to be libelous.” If a plaintiff fails to make the demand in the allotted time, he or she is limited to special damages – the actual, quantifiable damages caused by the defamation, such as loss of business. Fail to make the demand within 20 days, and you give up all general damages, which are 95% of the damages in most defamation cases.
Litigation is a solution to a problem, but it should never drive your life. Don’t act in some artificial manner to “preserve” an action. By all means, save some screen shots as evidence for your action, but if you act to keep the defamatory comments in place, that will hurt your case far more than it helps.
Blogger Can’t Sue for Defamation on His Own Site
Lord of the Rings
In a fun bit of irony, a blogger has been hoisted on his own petard. This was a UK case, but the common law principles would likely yield the same result here.
First a little defamation law. Defamation is based on one’s loss of reputation, so you can never defame someone to them self In other words, if you send a letter to Joe telling him what a liar he is, Joe can’t claim defamation because it is not possible that your letter caused him to lose reputation. (If it makes him realize what a liar he is, that’s just too bad.)
Further, if Joe then shows the letter to someone, you still can’t be held liable because it was Joe that published the statement to a third party.
In the UK case, the plaintiff had created a blog to tell about how he was molested by a Catholic priest. To make the story more interesting, the priest also happened to be son of writer JRR Tolkien, author of Lord of the Rings. The defendant posted a comment on the plaintiff’s blog, claiming plaintiff had created the story in order to extort money from the Catholic Church. Plaintiff brought legal action for defamation.
“No can do,” said the court. Since the blogger had the ability to screen comments (whether he had chosen to do so or not), he was responsible for publishing the content. Under common law defamation, the situation was no different than Joe showing the defamatory letter to a third party.
