Defamation Solutions

Morris & Stone Wins $1.5 Million for Internet Defamation Victims

In this case, we represented a business and the individual who owns that business. The defendant, a medical doctor named Pankaj Karan, was starting his own business, MDTelexchange, and traveled to an overseas company also owned by our client (we’ll call that the “foreign company”) and entered into a contract for the creation of some custom call center software.

And that is where the divergence in the two versions of the story begins. Our clients asserted (and proved at trial) that the working software was delivered on time by the foreign company. The defendant, Dr. Karan, claimed otherwise, and blamed the failure of his start-up company on the software. 

Dr. Karan’s claims never made sense, because while the software would have been useful in his business, it was in no way essential. Blaming the software for the failure of the business was akin to saying a business failed due to a lack of business cards. But for whatever reason, Dr. Karan chose to blame our clients, and in an email announced that he was going to “work night and day to inflict the maximum amount of financial pain that is allowed under the law.” To that end, he ignored the fact that his contract was with the foreign company, and instead attacked our client personally, along with his other company, taking to the Internet to trash their reputations.

This is a scenario that I see over and over in defamation cases. Someone becomes unhappy with a business or individual, and decides to criticize them on-line. It might even begin with a laudable motive – just putting out the word to the public to avoid a business that did not satisfy the critic. I will vigorously defend the right of anyone to go on line and publish a legitimate criticism of a business.

But something happens that takes the person beyond a legitimate review. As the person types the words, he or she decides it’s just not stinging enough and won’t cause enough harm. In this case, Dr. Karan must have felt that a legitimate review of the foreign company, stating that in his opinion the software did not work as promised or was not delivered on time, just wasn’t hurtful enough. He posted two articles on his own blog, and sent an email to our clients’ customers. In the email and postings, Dr. Karan’s comments had almost nothing to do with the alleged problems with the software. Indeed, he abandoned his claim that the software was late, and instead claimed that it had never been delivered at all. He added that our client had cheated an employer ten years earlier, and that his company had failed to pay vendors hundreds of thousands of dollars. Although our clients had never received a single complaint from a customer, Dr. Karan claimed that “they are swindlers of the highest kind and have milked many of their clients of money and time.”

At trial, Dr. Karan could not identify a single customer that our clients had “swindled”, he could not identify a single vendor they had failed to pay, could not specify how he had cheated his former employer, and acknowledged that the software was in fact delivered. Today, an Orange County jury, known for being very conservative with damage awards, awarded $1.5 million jointly and individually to both of our clients for the damage to their reputations and business, caused by Dr. Karan.

In a standard civil action, the plaintiff has the burden to prove the case. This is true in a defamation action as well, but since truth is a defense to defamation, the burden of proving a statement is true falls on the defendant. I can’t fathom how defendant thought he would get away with what he published in this email and on his blog, but I think he may have thought he would be safe because we could not prove a negative. In other words, how do you show that you have never defrauded any of your customers? Bring in every customer you have ever worked with to testify that you did not defraud them? That would be impossible, and that is why the law puts the burden on defendant to prove the TRUTH of the statements. Dr. Karan could not prove his statements were true, and was therefore liable for Internet defamation.

Pankaj Karan was admirably represented at various times during the action by Randolph Catanese and Douglas Hume from Catanese & Wells, David R. Calderon from Barth, Berus & Calderon, and Palak Chopra from the Law Offices of Palak Chopra.

[UPDATE — January 2, 2014]  Dr. Karan did not go silently into the good night. His attorneys appealed the $1.5 million verdict, claiming there was insufficient evidence to support an award of that size. To that claim, and in denying the appeal, the court opened its opinion with the sentence, “All things considered, appellant Dr. Pankaj Karan got off cheaply in the trial court.” Better yet, in commenting on our brief, the court stated:

[Dr. Karan] has misstated the record in numerous particulars, as shown in a respondents’ brief so devastating it has left Karan, like Job, with no reply but silence and a hand over his mouth.

Yelp Sues the McMillan Law Group, Claiming it Posted Fake Reviews

YelpI get probably two calls a month from potential clients, complaining that after they refused to subscribe to Yelp’s services, Yelp responded by removing most or all of their positive reviews. If true, then Yelp cannot seriously contend that it is interested in the integrity of its reviews.

The claims seem supported by a recent action by Yelp. In this case, a small San Diego law firm, the McMillan Law Group, subscribed to Yelp’s services, allegedly based on representations that were made about the number of page views it would receive. When the results fell below what the McMillan Law Group says was promised, it demanded a refund. Yelp balked, and the law firm sued in small claims court. The firm prevailed, and obtained a $2,700 judgment against Yelp.

Yelp appealed, and doubled-down by filing its own action back against the McMillan Law Group. It seems that Yelp had been busy looking into the law firm’s positive reviews, and decided that they did not all adhere to Yelp’s terms of use. Yelp’s complaint is a sight to behold, alleging that the McMillan Law Group is liable for breach of contract, intentional interference with contractual relations, unfair competition and false advertising. Yelp alleges:

“The McMillan Law Group, a San Diego law firm specializing in bankruptcy, exemplifies the behavior that Yelp combats daily through its algorithms and investigations—the planting of fake reviews intended to sway potential clients with false testimonials. The McMillan Law Group’s efforts to mislead consumers are particularly brazen and disappointing given they have targeted some of the most vulnerable consumers of all—individuals who may be facing bankruptcy and who are looking for potential legal representation.”

In the complaint, Yelp details its investigative results, alleging that multiple Yelp user accounts were created from a computer located at the same McMillan Law Group IP address used to create reviews about that law firm.

In an interview with Bloomberg Law, Julian McMillan stated, “It’s bullying tactics. I get it. They want me to spend some money but I just don’t see how they come a winner in this [from a PR standpoint].”

As McMillan also notes, Yelp’s lawsuit seems like a really bone-headed move from a discovery standpoint. Since Yelp is claiming that false reviews by the McMillan Law Group have interfered with its contractual relations and caused it damages, it has now made all of its business practices and income fair game for discovery. It will also be very interesting to learn whether Yelp routinely brings such lawsuits to maintain the integrity of its reviews, or does so only in response to being sued.

For a detailed discussion of the love fest between Yelp and the McMillan Law Group, see the article at Bloomberg Law.

[UPDATE: May 6, 2015]  Yelp apparently realized the folly of its actions, and today filed a Request for Dismissal, disposing of its action against McMillan Law Group. No doubt Yelp will claim that the case settled, and likely it did, but not in the manner that would imply. A plaintiff always has the power to dismiss their own case — there is nothing the defendant can do to stop a dismissal — but a dismissal entitles the defendant to court costs. Often plaintiff’s counsel will approach defense counsel and offer to dismiss the action in exchange for a waiver of costs. Since costs are usually pretty nominal in the grand scheme of things, it is rare that a defendant will refuse this offer.

I’d be willing to bet any non crucial part of my anatomy that McMillan did not pay any money to Yelp as a part of any settlement. Yelp had no way to show any damages, so McMillan was not facing any risk of liability; only the costs of defense. Had it been me, and Yelp had offered a walkaway in exchange for a waiver of costs, I would have refused, knowing that Yelp would dismiss anyway, but I would have the satisfaction of a cost judgment against Yelp. I’m sure McMillan would have come to the same conclusion.

Alternatively, if the parties become cagey about the terms of the “settlement,” with both sides refusing to give any details, then that will likely mean that money went from Yelp to McMillan. In other words, McMillan would not give up the ability to set the record straight just to avoid the comical trial and full access to Yelp’s internal records. There would have to be some strong motivation for McMillan to remain mum about any settlement.

Alternatively to that alternative, if Yelp really did have some dirt on McMillan posting fake reviews, the consideration for silence about the settlement could have been that Yelp would keep that information to itself.

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.”

Morris & Stone Defamation Victory – Hair Transplant Doctor Stipulates to $150,000 Judgment

Internet Defamation Victory

Our client in this case was Spencer Kobren, a well known Consumer/Patient Advocate, author and the Founder of The American Hair Loss Association. Besides hosting a weekly radio broadcast, Kobren also owns and operates the online message forum baldtruthtalk.com where hair loss consumers can discuss and share their experiences with product and service providers in the hair loss industry, as well as provide commentary and reviews of hair transplant surgeons in the field.

As most Internet savvy people now know, the Communications Decency Act (“CDA”) shields the operator of a website from any liability for comments posted on an open forum. When someone on Kobren’s forum posted critical comments about a Beverly Hills hair transplant surgeon, the doctor took exception. However, instead of contacting Mr. Kobren or his staff to ask for help in properly addressing  negative comments posted by one of his former patients, the doctor decided to defame our client by posting completely fabricated reviews and comments on various blogs, review sites and social media sites, accusing  Kobren of fraud, coercion, extortion, organized crime and the running of a criminal enterprise.

As an aside, some sites encourage negative comments, and have no concern as to whether or not they are true. Operators of these sites are also protected by the CDA, but knowingly allowing false and defamatory comments to be posted was not the intention of the CDA, and we will not represent a party who is using the CDA to that end. This was not that type of case. Spencer Kobren runs a very positive and useful board, and will intervene where appropriate when the content crosses the line.

Back to the story. Despite my repeated postings of articles about the wisdom of a walk-away, and even this one, which is almost identical to this case, some defamers feel they must show bravado, claiming they can prove the truth of all of their comments. It’s as though they never think it through until I serve the first set of discovery questions, which forces them for the first time to sit down and put in writing all the facts they are contending support the statements they made. I have this image in my mind of them sitting at their kitchen table, my discovery requests spread in front of them, and after about 45 minutes of trying to answer the questions and realizing that there is not one fact they can offer that would support the defamatory statements they made, saying to themselves, “Man, I am SCREWED!”

Such a moment must have occurred in this case. Defendant first did not even respond to the complaint, then he hired an attorney to undo the default, then he fired that attorney, and agreed to remove all the defamatory comments, never to speak ill of our client again, and to pay $150,000.

Facebook Defamation — Free Speech Deserves Respect and Responsibility

I occasionally post stories here that highlight what it is like to live in countries that do not recognize freedom of speech. My perhaps naïve hope is that if we recognize what a tremendous gift we have with our right of free speech, some who might be tempted to abuse that privilege with defamatory speech might act responsibly.

Today’s example comes from Palestine. I would not anticipate that Palestine would be a bastion of free speech rights, but if that government wants to cultivate sympathy and support, this is not the way to go about it.

The Palestinian Authority doesn’t permit criticism of the government, and this week arrested Abdul-Khaleq, a Palestinian woman accused of defaming President Mahmoud Abbas on her Facebook profile. What did she say to justify two weeks in jail while she was “investigated”? The university lecturer, a single mother of two children, reportedly accused Abbas of being a traitor and demanding he resign.

Perhaps worse from a free speech standpoint, this arrest is part of a growing crackdown on writers who condemn the West Bank government, and in one case a reporter was questioned over a story he was still in the process of researching. Apparently the government wants to silence speech before it is even spoken.

Appreciate what we have.

Show Some Love for California’s Anti-SLAPP Statute

A real Jones for the Basketball coach

Not the coach in question.

I get frequent calls from people who have run afoul of the anti-SLAPP statute, basically asking, “what can we do about this terrible law?”

Here’s the deal. Every law eventually gets subverted. The Americans With Disabilities Act sounded like a great idea, but then you ended up with attorneys who use it as an extortion racket, forcing fast food restaurants to pay thousands because a counter was 17 ½ inches high instead of 18.

So it is with California’s anti-SLAPP statute. It is a great statute, and for the most part attorneys have not found an effective way to misuse it, except for right to appeal an adverse decision, which many now use as a delaying tactic. Opposing counsel in one of my cases recently brought a motion for permission to file a very late (by two years) anti-SLAPP motion on the eve of trial, and when the motion was quite properly denied, then filed an appeal from that denial. Of course I had no difficulty getting the Court of Appeal to dismiss the frivolous appeal, but it delayed the trial a month. Except for this type of abuse, in most other regards California’s anti-SLAPP law provides a very useful tool to get rid of lawsuits designed to silence free speech or frustrate the right of redress. The point is, if you are complaining about California’s SLAPP statute, and your complaint has nothing to do with an attorney using it for delay purposes, then you probably filed a SLAPP action and the system worked by getting rid of it.

However, in case you still have it out for California’s anti-SLAPP law, I bring you an example out of Illinois that should make you feel a little better. California pioneered the anti-SLAPP concept, and most states have used that law as a template, but that hasn’t prevented some from coming up with their own strange hybrids.

Enter the case of Steve Sandholm, a high school basketball coach/athletic director in Illinois. In the case of Sandholm v. Kuecker, some parents decided they didn’t like Sandholm’s coaching style, so they really went after him, hoping to get him replaced. They posted useful, positive comments such as “[he is] a psycho nut who talks in circles and is only coaching for his glory.” The efforts were to no avail, because the school board decided to keep him. However that decision only fanned the flames, and the parents kept up their campaign. Sandholm found some of the statements to be defamatory, so he brought a defamation action.

But wait. Illinois has an anti-SLAPP statute that states that speech and petition activities are “immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” Wow that’s a broad standard. A school district is a government entity, and the parents were trying to get that government entity to do something (removing the coach), so did that fall under Illinois’ anti-SLAPP statute? If I read the statute correctly, that means that even if the parents got together and decided to fabricate lies about the coach, they are immune from a defamation action so long as those lies were “genuinely aimed at procuring a favorable government . . . outcome.” (I’m not saying that happened, I’m only using the case to present a hypothetical.) And how in the world is a court going to determine if the actions were “genuine”?

Incredibly, that’s exactly how the Court of Appeal interpreted the statute. Read this excellent summary of the case by John Sharkey to see just how convoluted the anti-SLAPP process can become.

Peer Review Process for Doctors is a Protected Activity Under SLAPP Statute

Anti-SLAPP Motion against doctor
The California Court of Appeal recently ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.

OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.

Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.

I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to “fire” the doctor was a protected activity.

Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. For reasons not important to the story, Dr. Nesson lost his privileges at a hospital. Dr. Nesson sought reappointment by the hospital and, after it was denied, filed a civil complaint. He retained counsel who either did not recognize the SLAPP aspects of the case or decided to take a run at it anyway, thinking they could successfully plead around them. (Which does not mean they did anything wrong, as set forth below.)

In the complaint, they alleged causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of Health and Safety Code section 1278.5; (4) violation of the Unruh Civil Rights Act; and (5) violation of the Fair Employment and Housing Act (FEHA). In summary, the grounds for Dr. Nesson’s claims were that the hospital had breached the Agreement by not giving him 30 days’ notice of termination, had retaliated against him for his complaints about patient safety, and had discriminated against him for a perceived mental disability or medical condition.

A very good try. Do you see that none of the causes of action mention defamation or any of the other causes of action that one normally associates with a SLAPP suit? Many defense attorneys would not have even spotted the SLAPP issues, and the matter would have proceeded. But here is today’s lesson. A SLAPP is a SLAPP is a SLAPP, and it doesn’t matter what you call the causes of action if the conduct arises from a protected activity.

I previously wrote about my successful anti-SLAPP motion against Freddie Fraudster, who fraudulently obtained a credit card under my client’s name. When my client reported the fraud to the bank, Freddie sued claiming that damaged his reputation with that institution. In response to my anti-SLAPP motion, he argued that my client’s communications to the bank were not protected because they were not part of any formal review process. Motion GRANTED, even though the report in question was not to any official agency.

So too, the attorneys defending against Dr. Nesson’s action did spot the SLAPP issues, and brought an anti-SLAPP motion. Dr. Nesson argued in response that his summary suspension and the subsequent termination of the Agreement did not constitute protected activity because the hospital was not involved in the peer review process or his summary suspension. Motion GRANTED, because it’s all part of the same protected activity.

The decision to suspend privileges triggers a statutory scheme for review of the decision under Business and Professions Code section 805, so the actions of the hospital and the medical examination committee were a normal part of that process. As I have repeatedly explained would happen, the trial court granted the hospital’s special motion to strike, finding that the contract termination was “inextricably intertwined with the . . . summary suspension, arose from, and was in furtherance of the protected activity.”

But what about the claim that he was terminated because of a perceived mental disability or medical condition? If he was discriminated against, how can that be protected by the anti-SLAPP statute? How can that “arise from” the protected activity? As the Court of Appeal explained:

“[T]he anti-SLAPP statute applies to claims made in connection with the protected activity, regardless of defendant’s motive, or the motive the plaintiff may be ascribing to the defendant’s conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90.) The only alleged evidence or argument in support of his claim that the Hospital perceived Nesson as disabled are the facts that the Hospital received the written special notice of summary action and the notice of medical executive committee action suspension. Nesson contends “[b]ased on the above letters and a report from the MEC, the Hospital decided to terminate Nesson’s Service Agreement.” These letters and any alleged “report” are part of the peer review process.”

In defense of the attorneys, there were complicating factors here, and sometimes you have to push the envelope. That is how statutes are interpreted under the law. The discrimination claim might have survived if the evidence had taken the alleged discrimination outside the review process. Further complicating the matter, Dr. Nesson did not exhaust his administrative remedies, and that gave pause to the court since that made it impossible for him to show a likelihood of success on the action.

Judge Orders Man to Apologize to Ex-Wife on Facebook

CensorshipClients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.

In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.

With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:

“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “

But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.

The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:

I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.

This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.

Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.

How India Deals with Twitter Defamation

Pooja Bedi suffers Twitter Libel

Pooja Bedi

I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law the Communications Decency Act. Now comes a case out of India.

India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.

In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her.  “These things are serious in nature and need to be investigated,” said Bedi in her complaint.

However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.

Is Rush Limbaugh Facing a Claim for Defamation?

Rush Limbaugh Liable for SlanderI’m getting calls from media outlets about some comments made by Rush Limbaugh, and whether they constitute defamation. I’m always happy to talk to you reporters and provide comments, but thought I’d put this post up to provide some background for your articles.

Apparently Rush Limbaugh weighed in on the controversy over religious organizations being forced to pay for birth control for their employees. Following an appearance by Sandra Fluke, a Georgetown University student, at an informal House Democratic hearing last month. Ms. Fluke testified in favor of Mr. Obama’s mandate, which Georgetown and other Catholic institutions have roundly condemned as an infringement on their religious rights.

At the hearing, Ms. Fluke said fellow students at her Jesuit university pay as much as $1,000 a year for contraceptives that are not covered by student health plans.

On Wednesday, during his radio show, Limbaugh allegedly said:

“What does that make her? It makes her a slut, right? It makes her a prostitute . . . she wants to be paid to have sex … She’s having so much sex she can’t afford contraception.”

Accusing a woman of being unchaste is the classic, old-school form of slander. Here is the definition of slander under California’s Civil Code § 46:

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

I’ll bet you never knew it was slander to accuse a man of being impotent, but I digress. There it is in black and white – it is slander to impute to a woman a “want of chastity”. (For those of you who carefully read the section and see that it said “imputes to HIM . . . a want of chastity”, you get bonus points. However, there is a catchall statute that provides statements of gender in statutes don’t exclude the other gender, so you can’t accuse men or women of being loose.)

So is Rush Limbaugh toast?

Not at all, because defamation law makes clear that context is everything. Back in 2009 I wrote about the case of radio commentator Tom Martino who stated on his consumer show that the sellers of a boat were “lying”. The plaintiffs/sellers took umbrage with that remark, and sued Martino 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.

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.

So it is with Rush Limbaugh. He knows nothing about this woman who believes others should pay for her birth control, and he was engaging in a little hyperbole about what that makes her. He was creating a false syllogism to make a point, claiming that based on her testimony she wants to have sex, she can’t have sex without birth control, she wants someone else to pay for her birth control, so she is being paid to have sex.

As the old saying goes, you can sue for anything, but a defamation action by Ms. Fluke would not survive the first motion.

Aaron Morris

Morris & Stone, LLP

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Tustin, CA 92780

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

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