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.
You Can’t Sue Me, I Have the RIGHT to Defame You!
One of our current defamation suits involves a man that was accused of being a pedophile. He is not a pedophile, and the defendant freely admits that she does not really think he is a pedophile. Indeed, the Defendant says that our client has never done anything that would warrant her making such a claim. But that doesn’t stop her from making the claim anyway, because she doesn’t like him. That’s why we are suing her for defamation.
Here’s where the case gets stranger. Even though Defendant admits our client is not a pedophile, her attorney brought an anti-SLAPP motion claiming that our complaint should be thrown out because Defendant’s false statements are protected speech. Confused? Let me see if I can walk you through opposing counsel’s logic.
A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant abandons the criticism to make the lawsuit go away.
To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint. The court then decides whether the speech in question is protected free speech.
Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
So, the first three types of protected speech arise from the traditional forums – statements made in places like court, during a city council meeting or at some other public forum. The fourth criteria can be outside a public forum, such as on a blog on the Internet, but that section requires that the matter being discussed concern a “public issue.” There are many competing court decisions that have tried to define what constitutes a public issue.
In our case, defense counsel argued that the Defendant’s false claim that Plaintiff is a pedophile is protected speech because stopping that behavior is a matter of public interest. He actually argued with a straight face that even when the accusation is a complete lie, one can accuse another of being a child molester and be protected from suit because the subject matter is so important. So, under defense counsel’s approach, certain topics would automatically enjoy heightened free speech protection, regardless of the circumstances. This obviously would make the job of defamers easier, because we could simply create a list of topics we find are important enough to be matters of “public interest” and the defamer could falsely accuse intended victims of those items, knowing the speech is protected.
The judge didn’t think that was a very good idea either. Motion denied. Defamatory speech is not protected speech under the anti-SLAPP statute.
“I want a clean fight boys. Keep it clean.”
Kudos to Karl Kronenberger for concisely capturing the characteristics of Internet defamation.
I was interviewed today for the syndicated radio show Culture Shocks on the topic of Internet defamation, and the possible chilling effect on free speech by lawsuits against those who publish defamatory comments. The host, Barry Lynn, was very even-handed, but I again found myself being cast as the anti-free speech proponent because I am not opposed to suing those who defame others on the Internet. During such interviews, when I explain that there are “serial defamers” who post false reviews to extract revenge for a perceived slight, or to bash the competition, I am usually met with skepticism.
Yelp Backlash
In his piece entitled Defamation Superhighway, published in the Forum section of today’s Los Angeles Daily Journal, Kronenberger observed: “Despite this great number of prolific and legitimate reviewers, we cannot put our collective heads in the sand and deny that review sites draw some consumers who use them for unlawful purposes under the guise of legitimate free speech. . . . Also, business competitors can post negative reviews while posing as disinterested consumers.” He correctly points out that yelp.com, for example, further enables defamatory content by providing no mechanism for the victim to respond.
As I have explained in greater detail in prior posts, I don’t desire passage of a law that requires review sites to investigate claims of defamation. Such an approach would be unworkable in most instances, since every legitimate post that happened to be negative would be met with a cry of “defamation!” But if the review sites don’t want defamation attorneys to become the Internet Police, then they must permit the users to fill that role. That would include permitting the victim of a defamatory post to respond contiguously with the original post, not as a separate, far-removed post.
I’m reminded of the stereotypical boxing referee you see in the movies. Before the fight, he says to the boxers, “I want a clean fight boys. Keep it clean.” Let the boxers have at each other on review sites, but if you are going to stand back while one hits the other below the belt, then we defamation attorneys are going to step in.
Yes I’m Calling You a Spammer. What are You Going to Do About It?
I’m surprised I don’t get more of these calls.
A caller to my office today was frustrated because many of her emails are ending up in the recipients’ spam folders. It happens so often that now she has no confidence that the message was received. She routinely follows up with a phone call to confirm receipt, and often must lead the intended recipient through the process of checking their spam folder for the missing message. She said it has become enough of a problem that it is interfering with her business.
I occasionally experience this myself. A new client is eager to get me going on their urgent case, so I quickly prepare and email a fee agreement. Days later they call, frustrated because they still haven’t received the agreement, and I have to direct them to the spam folder. Often as not, they were not even award they had a spam folder. (Yes, I could request receipt notification, but that is imprecise at best.)
Back to the caller. She was frustrated because obviously someone out there in cyberspace is designating her as a spammer, and she wanted to know if she could sue for defamation. Allow me to wax nostalgic, because this exact issue arose in one of my earlier Internet cases.
The Communications Decency Act (“CDA”) immunizes “a provider . . . of an interactive computer service” who makes available to “others the technical means to restrict access to material . . . the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” My client in the earlier case had created a spam filter that was widely used by Internet service providers. A business ended up being designated as a potential spammer, and all of a sudden its messages were being blocked (although it had other email addresses that were not being blocked). The business owner sued my client, and he hired me.
Try as I might, I could not get plaintiff’s counsel to understand the plain meaning of the CDA. He conceded that the creator of a spam filter could be protected, but contended that the spam filter had to be content based. In other words, he claimed that you could block emails containing pornographic pictures, for example, but you could not block the spammer sending the emails, since he might send something other than porn.
This was a nonsensical position. The CDA says that in addition to the obvious stuff like porn, you can also block email you find “harassing or otherwise objectionable.” Anything can be harassing, like those stupid pedi-paw emails that are currently flooding my email. Not surprisingly, I got the judge to throw out the case, and the Court of Appeal agreed.
Bottom line: If there is something about your emails that is triggering spam filters (maybe changing your name to Cialis Viagra wasn’t as clever as you thought), figure out which ISPs take exception to you and why. You may be able to fix the problem on your end, and if not, they may voluntarily tweak the filters. But don’t think you can sue them.
Facts versus Law on Summary Judgment Motions
When pursuing an action for defamation, on the Internet or off, the first hurdles faced are the dispositive motion to strike under the anti-SLAPP statute and/or a motion for summary judgment. In their desire to clear their dockets, courts sometimes overreach when ruling on these motions. A recent case illustrates the point on a motion for summary judgment, where the court confused the distinction between facts an law.
In a persuasive holding the 9th Circuit Court of Appeals indirectly reiterated to litigators and the courts the importance of distinguishing questions of fact and law on motions for summary judgment.1 At the district court level in Posey v. Lake Pend Oreille School District, plaintiff Posey lost his first amendment retaliation claim on summary judgment because the court concluded that Posey acted as a public servant purely as a matter of law. Taking the issue up on appeal, Posey contested whether his conduct occurred pursuant to his official duties, providing the 9th Circuit with the opportunity to decide precisely what type of question Posey had presented to the district court, and whether the issue was proper for summary adjudication.Initially, the Court noted the elusive and vexing nature of the distinction between questions of law and fact, and chose to rely on guiding language from the U.S. Supreme Court: “Facts that can be ‘found’ by ‘application of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.’ ” Moreover, ‘An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question’ at issue . . . for ” ‘the rule of independent review’ will always require the court [to] independently . . . evaluate the ultimate constitutional significance of the facts found.”
The court went onto conclude that the issue of whether speech is made by a private citizen or public actor is a mixed one of fact and law, further concluding that the parties dispute over the scope of Posey’s precise duties presented a genuine issue of material fact sufficient to defeat the appellee’s motion. Aside from the obvious effect on 1st Amendment pleading, the case also kindly reminds of the importance of isolating each issue in opposing motions for summary judgment. As done by Posey, making a factual issue out of the basis upon which the court will decide a question of law may very well carry a matter to the trier of fact, which is exactly where distressed and sympathetic plaintiffs’ cases truly belong.
1. Posey v. Lake Pend Oreille School District, et al., 2008 DJDAR 15780.
Biegel v. Norberg — Chilling On-Line Reviews?
Yelp is based in San Francisco and is viewed there as a favored son for some reason. When someone dares to challenge Yelp or its postings, many of our Northern California neighbors get exercised. I received several calls from media outlets over the past couple of days, seeking comment on the case of Steven Biegel v. Christopher Norberg, an Internet defamation case involving Yelp.com.
The simple facts are these. Norberg was treated by Biegel, a Chiropractor. Norberg was told the treatment would cost a certain amount if he was paying for it out of his own pocket, but his insurance company was allegedly billed at a much higher rate. This apparently bothered Norberg, so he posted a review on Yelp.com, giving Biegel just one star and questioning the honesty of his billing practices. When Biegel complained about the review, Norberg replaced it with a new entry, accusing Biegel of attempting to harass him into silence. Biegel then responded by suing Norberg for defamation. The trial is set for March 2009.
Note that Yelp is not being sued, only the person that actually posted the allegedly defamatory statements. Nonetheless, many are bothered by such a lawsuit, concerned that it will have a chilling effect on the willingness of people to post their views on sites such as Yelp.com and Citysearch.com. Some have suggested to me that just as the website is immune from liability for anything said by visitors, that immunity should be extended to the visitors as well.
I fought at the forefront of cases involving the Communications Decency Act, which shields website operators from liability for the comments of others, because that make infinite sense. We would not have open forums and dialog on the Internet if the website operators had to fact check every comment posted.
But on the issue of whether those who post the comments should be protected, I find myself cast as the curmudgeon, seeking to stifle freedom of speech. Here is how the San Francisco Chronicle quoted me:
“Sites that are seemingly well intended are turning into wastelands of defamatory and unspecified allegations,” said Aaron Morris, a partner with Morris & Stone LLP in Orange County who is not involved in the case. “There needs to be some sort of blowback against unfettered speech. People should be able to go on and say, ‘That’s not a true statement about me, and I need to be able to attack this.’ “
If everyone played nice, review sites would not be a problem. But they don’t. Suits against those who post defamatory statements won’t chill free speech, but they will chill defamatory speech, and that’s a good thing. You see, those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap. Honest reviews don’t stand a chance against the bogus ones.
So what about the Norbergs of the world, who just want to post their comments without fear of legal action? Yes, the target of the criticism can file an action, but he will pay a heavy price if the posting was not defamatory. The poster can first respond with a simple anti-SLAPP motion, which stops everything including discovery and allows the court to determine whether the speech was protected and whether the plaintiff has a chance of prevailing. If the motion is granted, the plaintiff pays all of the poster’s attorney fees. He’ll then come to me, and we’ll file a SLAPP BACK action, suing the prior plaintiff for malicious prosecution, winning the poster millions of dollars and me a beach house (individual results may vary). Now who is chilled?
Dude, Who’s my plaintiff? — Courts allow anonymous plaintiffs
On August 12, 2008, the Second District U.S. Court of Appeals reaffirmed the national and local trend toward recognizing a litigant’s right to proceed anonymously through the courts. In order to sue under a pseudonym, plaintiff’s generally must show that the need for confidentiality outweighs the public’s right to know and any prejudice suffered by defendant due to the secretive pleading. While not necessarily a light burden for plaintiffs, the real strain of the increasingly minted right is on defendants.
Depending on the context of the suit, major public out-lashes could be directed at defendants helpless to stop the tide. For instance, defendants sued civilly (publicly) for sexual abuse stand to lose much in the way of reputation, and eventually income, no doubt due in large part to the public’s natural inclination to distance themselves from what might be a perpetrator. While public scrutiny of the would be victim once would serve as a blow-off valve to some extent, now defendants are not only left to deal with an unrelenting public reaction, but will dually reap heightened scrutiny for the same allegations as plaintiffs who have convinced the court of the need for confidentiality will have generally shown that they would face unwarranted injury should their identities be disclosed. In other words, defendants will have no way to call public attention to a plaintiff’s credibility, and the public will be informed, or may very well assume, that defendants or their associates had posed a threat to the plaintiff prior to or during the litigation.
Defendants’ aggressive depiction of all factors assessed by courts of their jurisdiction in deciding whether or not to permit plaintiffs to act incognito is the only recourse afforded to diminish the risk of anonymous lawsuits. Particularly, considering the public has a well established right to know who is using the court system, focusing on the lack of need to preserve a plaintiff’s identity and the severe damage that could be inflicted on a defendant’s personal and/or professional reputations as a result of the anonymous lawsuit would be key. Also, seeking an anonymous designation as a defendant may also assist in preventing unfair prejudice. Ultimately, regardless of a defendant’s choice of tactics the courts have once again increased the need to vigorously litigate cases at the earliest of stages, which requires a heightened state of readiness, and can make litigation all the more daunting.
1. Sealed Plaintiff v. Sealed Defendants, Docket No. 06-1590-cv (Dist. 2d, 2008).
2. Id. at 7-8.
How to Stop Defamation When You Can’t Afford an Attorney
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. 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?
The Small Claims Court Approach
In Superior Court, the judge can craft an equitable remedy along with awarding any damages. In other words, if you sue someone for Internet defamation, the judge can not only award money damages, he or she can order that the defendant remove all defamatory postings from the Internet. Small Claims Court, on the other hand, can only award money damages – the judge is not permitted to fashion any sort of equitable relief.
For this reason, most attorneys never think to recommend Small Claims Court for a defamation action since the court has no power to remove the offending posts. However, for a personal grudge match on the Internet, Small Claims Court can be very effective. In California, you can recover up to $10,000 in Small Claims Court – certainly enough to sting a defendant and make him think about the “value” he is receiving in return for his false statements. And while I’ve never tested the point (attorneys are not allowed in Small Claims Court), an argument could be made that an Internet defamation is an ongoing harm. Thus, after successfully suing, if the remark still remains, you could theoretically bring another action (subject to the One Publication Rule). And certainly every new defamatory post would support a new action.
Most of the time, after you obtain a judgment, unless the defendant has a mental disorder, he or she will be very willing to remove the offending material to avoid paying the damages if that option is offered. And therein lies the strength of suing in Small Claims Court when you can’t afford to sue in a higher court. Even though the court can’t order the defendant to act in a certain way, the judgment you obtain will put you in a strong bargaining position.
Don’t underestimate the power of a court judgment, even one that comes from Small Claims Court. A defendant may have no ability to pay today, but a judgment is good for ten years, and can be renewed for another ten, all the while earning interest, and all the while damaging the defendant’s credit. And defamation is an intentional tort, meaning it can’t be discharged in bankruptcy.
Finally, even if you never collect a dime, a judgment from any court can go a long way to clearing your name.
“Joe, I heard that Bill was saying you cheated him on a business deal. Is that true?”
“Bill was saying that, and I took him to court for defamation and won. The judge ruled that everything Bill was saying was a lie. I didn’t want to have to sue him, but I’m not going to let someone get away with calling me a crook.”
A famous example of this approach involved Teddy Roosevelt. During the Presidential campaign, he was accused of frequently being intoxicated. He sued and won, and all the papers reported how he had proven that he was not a drinking man. The amount he sued for and won? Six cents.
Many years ago I worked as a volunteer Small Claims Judge in Arizona, and it was sad to see cases where I knew the person was probably entitled to the damages they were seeking, but they were not able to present sufficient evidence to prove the case because they came unprepared. You are going to be suing for as much as $10,000, so take the time to do it right. An excellent guide to prepare for Small Claims Court is Everybody’s Guide to Small Claims Court in California
