Defamation Solutions

Here is How You Sue the News for Lying

Is that false news really false?

This is another article that callers have compelled me to write, so that I have a resource I can send them to that explains this important point of law.

We begin with Civil Code section 45, which defines libel:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

Thus, as a beginning point, a statement must be verifiably false to be defamatory.

But as the rest of the statute makes clear, falsity is not enough. If I publish an article falsely stating that you own a home in Beverly Hills, I have told a lie about you, but it would not be defamatory or actionable. That is the first point that many people struggle with. They grew up hearing “liar, liar, pants on fire,” and they assume that there must be some remedy against someone who tells a lie. (At a minimum, their pants should combust.)

Such is not the case. Lying about your home in Beverly Hills is not actionable, because that claim does not expose you to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” There is simply nothing wrong with owning a home in Beverly Hills.

Now as is always the case in analyzing statements to see if they are defamatory, context is everything. If you were known as the person who swore off all material possessions in order to live with and assist the homeless, and I publish a story falsely claiming you own a home in Beverly Hills, in that context the statement could be defamatory because it amounts to calling you a liar. But the first step in the analysis is to determine if the statement is false, and whether, if taken as true, the statement would subject you to hatred, contempt, etc.

Next comes the part that is at the heart of the article; the issue of what is false. Continue reading

No, I Wasn’t Kidding About the Wisdom of Walking Away

Internet Defamation - Take the Settlement Fool

Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action.  I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.

You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later.  My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage.  The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.

Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away.  There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction.  But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim.  My client declined.

With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days.  Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client.  In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.”  He suggested the parties and attorneys talk settlement again.  My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding.  Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy.  Ouch.

If you got the tie-in between the photo above and the article, give yourself a prize.  It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline.  I think I may start dressing like that for settlement conferences.

Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away

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 recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.

The movie is Taken. 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 kidnapped. 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 false 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 caregiver, 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, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.

Pick your battles. I will defend to the death your right to post honest comments on the Internet. 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 this 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.”

You CAN Remove False, Defamatory Reviews from Yelp

Yelp love hateA false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.

Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.

It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.

The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.

Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.

If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.

Yelp for a priceMy theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.

It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.

But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.

Only false reviews need apply.

Continue reading

Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney


Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.

Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney).  In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.

Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.

Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]

So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.

Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).

In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.

The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right? Continue reading

How to Remove False and Defamatory Glassdoor Reviews

Glassdoor
Although founded almost a decade ago, Glassdoor’s defamation problems seem to be a more recent phenomenon. We did not begin receiving calls about defamatory Glassdoor reviews until about two years ago.

In case you are unfamiliar with the site, Glassdoor seeks to be an online community regarding companies and employment. On the site you can find job listings, salary stats, and employee reviews regarding the companies at which they work or worked.

But like all review sites, there are those who use Glassdoor as a means to post false reviews about competitors, or for revenge purposes by falsely trashing a company that terminated the “reviewing” employee.

Again, I always feel compelled to explain the nature of the reviews of which I speak. I will fight to the death for the right of an employee to post an honest review about the terrible experience he had with an employer. But when I talk about false reviews, I am speaking of reviews where a competitor purports to be an employee and makes false statements about the company, or where an actual employee publishes verifiable lies about the company, as opposed to mere opinions. For example, in a recent Glassdoor case we handled, the employee stated in his review that the company is always late in issuing paychecks to the employees. The company had never been late with payroll.

Removing false Glassdoor reviews.

To its credit, Glassdoor is one of the more honorable review sites. Before posting a review, the user must attest that they were or are an employee of the business in question, and their email address is validated. (Email validation does little to stop someone bent on posting defamatory posts, because they can easily create an email account, but at least it provides one more hoop for the defamer to jump through.)

Like any review site, Glassdoor is protected by the Communications Decency Act (CDA) from any defamation claim for reviews posted by others, but Glassdoor does have a review process, and will remove reviews that it finds do not comply with its terms of use. In working with Glassdoor’s legal counsel, I have found a willingness to review and remove posts without legal action, if a sufficient showing of defamatory content can be made. With the recent Court of Appeal opinion holding that review sites can be ordered to take down defamatory posts, and that such orders do not run afoul of the CDA, Morris & Stone can now compel Glassdoor to remove defamatory posts, but Glassdoor already had a policy of respecting court decisions which found that posted content was defamatory. This is a policy all review sites should follow, and kudos to Glassdoor for doing so voluntarily.

As with most review sites, if you are an employer and find yourself burdened with a false review on Glassdoor, your first line of attack should be to ethically encourage positive reviews. The internet community understands for the most part that no matter how wonderful a company/employer, there will be some background noise created by trolls. But if you are faced with truly harmful fake reviews, and need them removed from Glassdoor, give Morris & Stone a call.

How to Stop Defamation When You Can’t Afford an Attorney

Bankruptcy - Business Person holding an empty wallet

Is there a way to stop Internet defamation when you have limited funds to hire an attorney?

Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.

I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.

Is there a solution for those who can’t afford representation? Continue reading

Bill Cosby Sues Beverly Johnson for Defamation

“Bill Cosby filed a lawsuit Monday against supermodel Beverly Johnson, alleging she lied when she said the comedian drugged and tried to rape her at his New York home in the mid-1980s.

Cosby’s lawsuit says Johnson joined other women making accusations against him to revive her waning career and to help sell copies of her memoir.

The lawsuit alleges defamation and intentional infliction of emotional distress, saying Cosby and Johnson never spent any time alone in his house, he never drugged her and ‘her story is a lie.'”

Sourced through Scoop.it from: www.wmur.com

 

In an earlier discussion of Bill Cosby, I mentioned the problem of coming out and denying claims made by an accuser.

In the case of Bill Cosby, several women have come forward telling similar tales. Specifically, they allege that Cosby would drug and then rape them. Even though the statute of limitations on those alleged offenses may long have passed, Cosby affords those women with a potential cause of action if he comes out and denies the claims. By denying the claims, he is in essence calling them liars, which triggers a potential defamation action.

This action is the flip side of that coin. Cosby, of course, has the ability to sue for defamation, claiming that the accusations are false and defamatory. But this strategy comes at a cost. This lawsuit is against Beverly Johnson, but other women are making the same claim. Are we then to assume that the claims by the other women are not defamatory?

As the saying goes, “in for a dime, in for a dollar.” Cosby has now created a scenario whereby he must sue all of his accusers, lest he be viewed as being guilty of the claims by those he doesn’t sue.

‘Revenge Porn’ Law Sees First Conviction In California

selfie - revenge porn

 

A man who posted nude photos of his ex-girlfriend without her consent on her employer’s Facebook page is the first person to be convicted under California’s “revenge porn” law, the Los Angeles City Attorney’s Office reported Monday.

Noe Iniguez, 36, of Los Angeles was sentenced Monday to one year in jail and 36 months of probation and will be required to attend domestic violence counseling for violating both the state’s revenge porn statute and two restraining orders.

Source: www.huffingtonpost.com

The facts of this case are horrendous, and illustrate the need for such a statute.

As I have written here before, we have successfully sued for this sort of conduct, but this law adds another means to help victims of revenge porn.

The “revenge porn” statute is contained in California Penal Code section 647. The statute is quite extensive, and contains a number of provisions. The “revenge porn” section of the code, as that term is usually meant, is contained in sub part 4(A). Basically, the statute requires a tacit approval between the parties that any intimate photos will remain private. Interestingly, that section states that “any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person” is liable under this Penal Code.

I already see a problematic loophole. In the photo above, we see a woman taking a selfie. If she then sends that photo to her boyfriend, and after they break up he posts the photo, would it still be covered under this section? After all, the boyfriend is not the person who “photographed or recorded” the intimate body parts.

Here is Penal Code 647 in its entirety:

Continue reading

Richmond Restaurant Encourages Bad Yelp Reviews

 

 

 

Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be the worst-rated restaurant in the Bay Area.

To achieve this end, Botto Bistro is encouraging all of its customers to leave one-star Yelp reviews; it is even offering deals for anyone who pens a crummy review: 25% off any pizza and a chance to win a cooking class. (Hat-tip to Richmond Standard.)

Source: insidescoopsf.sfgate.com

I applaud these restaurant owners.

In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write bad Yelp reviews. It’s just a great way to get people to realize that anyone can write anything.

Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, “Yes we are. Thank you for noticing.”

Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract.  How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the “contract” between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

Email Aaron Morris

View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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