Internet Defamation Blog

posted by Aaron Morris on Aug 4

I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done.  Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid.  I then envision the horrible train wreck that is waiting at the end of that track.

Today I happened to come across a news story, reporting one of those train wrecks.

The case involved a scorned woman.  She worked as a paralegal, and ended up dating her attorney boss.  As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her.  In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.

The paralegal would have none of that.  She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him.  He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat.  The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.

The result?  The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements.  As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.

Lesson to learn?  Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney.

posted by Aaron Morris on May 31

Wow. I may actually know what I’m talking about.

In one of my earliest postings on this blog, I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney. Damages are limited to $7,500 in Small Claims Court, so obviously this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won.

I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.

Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a Small Claims action against the defamer, and has a witness to the statements.

This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. More likely the story goes something like this:

“Joe is such an asshole. I told Dave about how he was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”

But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.

This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter setting a backfire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.

Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. As I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor, or to provide a letter of apology, for example. That is why attorneys often don’t think to suggest Small Claims Court, and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $2,500 in damages, reduced to $1,500 if the defamatory statement is removed from the Internet.)

And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safe from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.

posted by Aaron Morris on Feb 13

I get calls every week from people wanting to sue for defamation for something that was said in a declaration. The declaration may have been filed in support of a restraining order, or in family court where parents are fighting over custody of their children. The declaration includes terrible lies about the caller, so he or she wants to sue for defamation.

No can do. For a statement to be defamatory, it must be unprivileged. Public policy and statutes create a number of privileges that keep a statement from constituting defamation. For example, in California, and likely every other State, a statement made in conjunction with a legal action is privileged, and therefore immune from any claim of defamation. It may be hard to swallow that people can lie about you in a declaration and yet be immune from a claim for defamation, but it has to be that way. Imagine the backlogs that would occur in the courts if every declaration filed yielded another lawsuit for the lies allegedly told in the declaration. Indeed, if suing for something said in a declaration was permitted, then you would be compelled to sue every time the other side filed one. After all, if you didn’t, the Court would have to view that as an admission. Of course, the newly filed lawsuit would generate declarations, so that person would now file another lawsuit, and so it would go, ad infinitum.

When I explain this reality to callers, I generally get a response that goes something like this:

“So you’re telling me, she can say ANYTHING she wants to, and there’s NOTHING I can do about it?! She can claim I’m a murderer, and I just have to take it. She can claim that I rob banks and molest my children, and I just have to smile. Is THAT what you’re telling me?”

No, that’s not even close to what I am telling you. You can’t sue for defamation, but that doesn’t mean you have to take it. You don’t need to file a separate lawsuit for something said in a declaration, because you are already IN a lawsuit. That’s why litigation is called an adversarial system. Your ex-wife files a declaration saying you beat the children, you respond by filing your own declaration saying you don’t, supported by additional declarations from friends and family saying they have never seen you mistreat your children.  Every trial involves witnesses testifying to very different versions fo the facts, and the judge has to decide whom to believe.  Conflicting declarations are no different.

Plus, lying in a declaration is called perjury. That’s a crime. So, your spouse doesn’t get to say ANYTHING she wants, because she can go to jail. Admittedly, declarants are seldom prosecuted for perjury, but if they tell lies, they lose credibility with the judge and lose the case because your skilled attorney will show them to be the liars they are.

So, back to the Wisconsin case.

The case involved a defamation action against the Milwaukee Brewers and its longtime radio commentator, Bob Uecker. In 2006, Uecker sought an injunction against someone named Ann Ladd, claiming Ladd was harassing him. Ladd was charged with felony stalking around the same time. That criminal charge was dismissed, but the civil court issued the injunction requested by Uecker against Ladd.

Ladd then filed a defamation lawsuit against Uecker, claiming the declaration he provided in support of the injunction was defamatory. But we know a declaration filed in court can’t be defamatory because it is privileged. The judge knew that too, and held that the allegations failed to state a claim because they were privileged. (See, I don’t make this stuff up.)

But as judges often do, he continued to analyze the case under other considerations. The declaration by Uecker, which is a public document, had been published on the Internet at thesmokinggun.com. Ladd was suing for that publication, but it had occurred more than two years prior to the time she brought her action, and would therefore be barred under Wisconsin’s statute of limitations. Ladd argued that the statute had not run, because the declaration was still available on the site, and that every time someone saw the continuing publication, that started a new limitation period.

The court did not agree. It chose to follow the “single publication rule” which holds that, like something published in a newspaper, an article published on the Internet starts the statute of limitations clock running, and that clock is not reset every time someone sees the article, or even when it is republished by another site. If such were the case, the statute of limitations would go on forever on the Internet.

posted by Aaron Morris on Sep 11

A hard-fought victory for free speech.

The defendant in this case was Elvia Orrillo-Blas, an emergency room doctor at a hospital in the Inland Empire.  When it was decided that her annual contract to provide services to the hospital would not be renewed, she took to the Internet, posting multiple defamatory messages on Craigslist.com about the director she felt was responsible for the decision not to renew her contract.  In the anonymous postings, she would sometimes pretend to be a nurse or patient at the hospital when making her false claims about the director.  The director retained us to sue for Internet defamation.

One problem we had to overcome in order to prevail in this action was the fact that the director was so well regarded that witness after witness talked glowingly about him during the trial. That was great to show the falsity of the statements published by the defendant doctor, but it also showed that the Plaintiff had not suffered a significant loss of reputation since the witnesses still loved him. The jurors later explained that this love-fest was the reason they awarded a relatively moderate amount of compensatory damages, but during the trial this left me to wonder if they were fully appreciating the malice behind what defendant had done. Not to worry; the jury came roaring back in the punitive damages phase and made very clear with the amount of punitive damages that the defendant doctor needed to be punished for her conduct. In closing argument I had explained that cases like this actually promote freedom of speech and the marketplace of ideas that we hold so dear in America, because those ideals are not served by knowing falsity. The jury apparently agreed.

As the icing on the cake, the judge then granted our request for injunctive relief, prohibiting the doctor from defaming our client in the future.  Although each instance of defamation is actionable, repeatedly suing a serial defamer is not the best solution because of the expense and delay in getting to trial.  With an injunction from the court, the doctor can actually be jailed if she repeats her false claims about our client and is found to be in contempt of court for defying the court’s order.

posted by Aaron Morris on Aug 16

It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act.  In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.

But the attorney could not leave it alone.  I can almost see his mind working.  He thinks to himself, “these individuals will never be able to pay the judgment, so I’d better look around for some deep pockets.”  So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com. 

I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements.  I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy.  I know it’s a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong.  Here, twitter.com is named because the defendants sent out “tweets” sending their followers to the defamatory content.  Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com.  How could these companies possibly be liable?  Well, according to plaintiffs and their attorney, they are liable because what the defendants did amounted to an “irresponsible use of technology.”

Apparently, in this attorney’s world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server.  Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion every account that sets a domain name to forward elsewhere.  Clearly there could be no Internet if such duty and liability could be imposed.

In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content.  Among the public there is an urban legend that a company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.

A copy of the complaint can be found here, and a detailed article about the case can be found here.

posted by Aaron Morris on Aug 1

Trials are decided by humans with all their human experiences.  Whether a judge or jury is deciding a case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate.  Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts.  Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”

At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation.  In the case, the defendant took a disliking to a local dog kennel for whatever reason.  She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.”  The kennel took exception to this characterization, and sued for defamation in Small Claims Court.  (In one of my earliest postings, I sing the praises of suing for defamation in Small Claims Court.  Take note how effective that can be.)

The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages.  The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing.  But what caught my eye was the simple logic of the judge, the sort of logic that sometimes alludes other judges.  First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.”  That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass.  The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11. 

Wow.  A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business.  Thank you Canada.

posted by Aaron Morris on Jul 14

Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory today in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie I just saw.

The movie was Taken, which I thought was very good. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnaped. He hears the bad guy pick up the phone, and he calmly gives the following speech:

I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.

Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.

Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”

That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.

In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000.

Pick your battles. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in today’s case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”

posted by Aaron Morris on Jul 7

Even when a lawsuit is weak on merit it sometimes achieves its purpose.  I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.

Take the case of Tony La Russa, famous baseball manager.  Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal.  La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.

La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit.  But, obviously, this is not a typical CDA situation.  Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material.  But there are some interesting side issues.  For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books.  In that case, the Digital Millennium Copyright Act would trump the CDA.  Like a copyright, people have a pecuniary interest in there own identities.  Should Twitter be permitted to assist in those that would steal that identity?

The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account.  Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?

For more on this story, go here.

posted by Aaron Morris on Jul 2

I’ll return to explain the concept in more detail, but here is an article that very nicely summarizes the competing international approaches to the American Single Publication Rule.

posted by Aaron Morris on Jun 20

Another blogger learned this week that you are judged by what you say.

Tara Richerson is a teacher in Washington. She had been blogging since 2004 and many of her postings were about her job. According to court records, when she was demoted from her position as a coach at the school, she wrote the following missive:

“Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. … But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him. … And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community. … Mighty White Boy looks like he’s going to crash and burn.”

The 9th U.S. Circuit Court of Appeals concluded that Richerson’s blog contained “several highly personal and vituperative comments” that justified the Central Kitsap School District’s decision to transfer her from her job as a curriculum specialist and instructional coach to a classroom teaching position. The court found that Richerson’s speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers.

“Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog,” the court wrote in its Tuesday opinion. “Accordingly, the district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson’s First Amendment interests.” The court ruled that Richerson’s blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it.

According to court records, Richerson was transferred out of her coaching job in July 2007 after school officials discovered her blog months earlier. Another of the blog entries that Richerson came under fire for was one entry in which she allegedly attacked a teacher and union negotiator, who complained to school officials about it. It read: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”

The lesson to learn is that you can and will be held accountable for the things you say. Even if your comments do not cross the line into defamation, they may still be considered inappropriate for other reasons. It is disingenuous for people like Richerson to cry foul and cite the First Amendment when they are held responsible for their own comments. The First Amendment does not state that you can say whatever you want with no fear of repercussion. If someone feels strongly enough about an alleged wrong to blog about it, then they should be willing to stand by those convictions.