Defamation

Former 49er Ray McDonald sues rape accuser for defamation

“Former San Francisco 49ers defensive end Ray McDonald has gone on the offensive, filing a lawsuit Monday against the woman who accused him of sexual assault in December, as a way to try to clear his name in hopes of restarting his career.”

Source: www.usatoday.com

This will be an interesting case to follow.

McDonald was accused of rape after spending the night with a woman me met at a San Jose bar. She claimed that while partying with McDonald at his home, she bumped her head during a hot tubbing incident, and did not recall anything that followed until she woke up naked in his bed the following morning. She spent the day with him, but sought medical treatment the next day. McDonald never denied that he had sex with the woman, but said it was consenual.

For reasons I have explained here before, reports to the police are privileged and will not support a defamation action. If that is the basis for the claim, this case will soon be gone on an anti-SLAPP motion. But if the woman alleged rape outside of that context, then McDonald’s case will survive.

[MAY 23, 2016 UPDATE:] The attorney for the woman brought an anti-SLAPP motion, based on the fact that the rape was reported only to the police. As I predicted, since McDonald was unable to identify anyone other than the police who received the allegedly defamatory claim, the anti-SLAPP motion was granted and McDonald’s case was dismissed.

Reports to the police are privileged, and can never form the basis of a defamation claim. This case makes clear why that MUST be the rule.

For sake of argument, let’s say McDonald did rape the woman. (Her story seems a little dubious, but let’s assume it was true for sake of this discussion.)

McDonald, who probably has some money from his NFL days, wants to silence this woman and hopefully get her to drop the charges. So he sues her for defamation, knowing that she will have to spend tens of thousands of dollars fighting against that legal action. She may very well get worn down by the time and expense of the legal action, and agree to drop her criminal charges in exchange for McDonald dropping his civil action.

We can never permit criminal defendants to use civil proceedings as a means to intimidate witnesses, and that is why reports to the police are privileged.

That does not leave McDonald without a remedy if the claims were false. If he is found not guilty in the criminal trial, he can then sue his accuser for malicious prosecution, if he can show that the claim was made with malice. Malice can be shown by proving that the woman could not have believed what she claimed.

Defamation in False Online Review

In a case brought by a US law firm in respect of a defamatory allegation on the firm’s Google Maps profile, it was held that the posting of a false online review by an English poster amounted to defamation deserving of substantial damages. In The Bussey Law Firm PC & Anor v. Page [2015] EWHC 563 (QB), the offending post read as follows:

 

‘Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.

Not a happy camper’

 

Source: www.scl.org

bowling ball knocking down false pins
A case out of England that is interesting for a couple of reasons.

When I mention that I represent clients who are suing for false online reviews, I sometimes get a shocked look. People feel that reviews should be off limits, since they are matter of opinion.

In a perfect world that would be entirely true, but as this case illustrates, a review is not a matter of opinion if it is a complete fabrication by someone who has never done business with the company. Here, the defendant charges $5 to write fake reviews. The reviews can be good or bad, depending on what the purchaser wants. Keep that in mind whenever you are reading on-line reviews.

The damages awarded are also interesting. No doubt, the plaintiff could not show any direct loss of business because of this one bad review, but the court nonetheless awarded the maximum amount permitted under the law. One’s reputation has value, and the court felt a stiff damage award was appropriate for damaging the reputation.

Fake Social Media Account by Police Allowed Without Warrant

Keep your friends close, and your Instagram friends even closer.   One of your online friends might be the police and a search warrant is not needed to befriend you on social media.

Source: www.thenationaltriallawyers.org

The Social Media Police Strike Again

To quote Bugs Bunny, “What a maroon!”

When a string of burglaries occurred, the police had a pretty good idea who it might me. They found the suspect’s Instagram account, and asked (under an undercover account) to become “friends”. The suspect agreed.

The suspect then proceeded to send out pictures of all the stolen property to his “friends”, which now included the police. Busted.

The suspect sought to exclude the evidence, claiming the police needed a search warrant, but the court disagreed.

“Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment” as in the case of U.S. v. Meregildo (883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)) where a Facebook “friend” was a cooperating witness and allowed law enforcement to access Meregildo’s posts regarding his violent acts and gang activity.

‘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 subpart 4(A) (highlighted below). 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 couple of problematic loopholes. 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. Also, how will she show that he posted the photo “with the intent to cause serious emotional distress”?

Here is Penal Code 647 in its entirety: Continue reading

Google has free speech right in search results, court confirms

A San Francisco court ruled last week that Google has the right to arrange its search results as it pleases, which confirms the company’s long-held view, while underscoring the stark difference in how U.S. and European seek to regulate the search giant.

Source: gigaom.com

The number of callers have gone down as the defamed public becomes more educated on the topic, but I still get a lot of calls from potential clients wanting to sue Google for the information reported in its search results.

I always viewed this as wanting to sue the telephone company because it listed the phone number of a con artist in the phone book. Just as the phone book simply lists the names and telephone numbers of people with telephones, Google results are just a report of what is out on the internet. Google, quite appropriately in my opinion, has always argued that its search results are neutral, and it cannot be responsible for whatever its search spiders happen to find.

With that said, the frustration of defamation victims is understandable. The squib that Google creates in conjunction with the search results can often be more damning than the defamatory posting itself, because of the truncated nature. 

It this recent challenge to Google, the plaintiff added a slight twist. CoastNews was miffed that it was ranked high on Bing and Yahoo, but that Google was pushing it far down the search results because it perceived CoastNews as a competitor. It sued, claiming that Google was being unfair, and should not be able to determine the position of websites returned in the search results.

Google brought an anti-SLAPP motion, which was granted.

Court of Appeals upholds $14.5 million defamation verdict against State Farm in hail fight

The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals.

In a decision issued Tuesday, the three-judge panel found Hamilton Superior Court Judge Steven R. Nation correctly denied the insurance giant’s request for a new trial based on a claim that roofing contractor Joseph Radcliff obtained the judgment through fraud on the court.

The case grew out of a 2006 storm that battered Central Indiana with golf-ball-size hail and ravaged thousands of homes. The damage tally topped $1 billion, with State Farm alone paying out more than $200 million on about 50,000 damage claims.

The payout to Radcliff, however, was not the result of damage to homes or cars — but for what a Hamilton County jury determined was damage State Farm did to the roofing contractor’s reputation.

Source: www.indystar.com

These cases are becoming so commonplace, I’ve taken to calling them the “second appeal.” Here’s the way they work.

The defendant loses in the trial court, then they lose on appeal. Left with no other way to challenge the outcome, they bring their own action, claiming the original verdict was achieved by a “fraud on the court,” usually based on some evidence the defendant claims would have resulted in a different result. There is support for such an action, but the circumstances for a successful fraud on the court claim are extremely narrow.

So it was in this case. The insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. It claimed that was a fraud on the court, and the judgment should therefore be thrown out. That approach won’t fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a “Mulligan” because it failed to vigorously defend the case the first time around.

In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had “defrauded” the court by allowing it to enter a judgment, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.

Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit

Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.

“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”

What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”

Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”

Source: www.washingtonpost.com

This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.

See on Scoop.itDefamation Law

Sleeping Fan Sues New York Yankees, MLB, ESPN for Defamation

Andrew Rector proved today that you really can sue anyone – even MLB, ESPN or the New York Yankees – for just about anything.

Source: www.rantsports.com

Clients often call and say, “can this person sue me for defamation if I [fill in the blank].” As I always say, and as this case illustrates, anyone can sue anybody for anything. The question is, can they do so successfully? Here, a sleeping baseball fan by the name of Andrew Rector is suing for the comments made by the sportscasters when the camera captured him napping.

Can he sue for defamation? Well, there is absolutely no basis for a legal action here, but yes he could type up a complaint and file it with the court. But will he be successful? The answer here will be, no. A ridiculous and frivolous suit. Defamation requires a verifiably false statement that would cause one to be shunned by society. The sportscasters did not make even one negative comment about Rector.

“But what about using his image without permission?” some will ask.

This question illustrates an interesting phenomenon, whereby people live their lives witnessing some reality, yet cannot apply what they have seen and know. In every television newscast we see people being filmed, often in a very unflattering light, such as when they are doing the “perp walk” after being arrested. Do the people who ask this question think that the network ran around getting signed waivers from everyone who appeared on camera?

One does not have a right of privacy if filmed out in public. If you are allowing yourself to be seen, you are allowing yourself to be recorded.

Of course there are limitations, based on a reasonable expectation of privacy. A pervert can’t hold his phone over a bathroom stall and claim it was ok because the person was using a public restroom.

And California recognizes what is called a “right of publicity,” meaning that one can’t record you and then use that recording for profit. If the MLB started a campaign to advertise that their stadiums are a great place to sleep, and used Rector’s image to promote the campaign, he might have a valid right of publicity claim.

But this matter really just came down to Rector being embarrassed that the sportscasters commented on his nap. He was probably teased about it at work for a few days. That is not a basis for legal action.

[UPDATE:] My prediction was correct. As reported by the New York Daily News, the court threw out (or should I say, put to sleep?) Rector’s ridiculous legal action.

Here is the video of the incident in question, which resulted in the unsuccessful legal action:

Bitcoin Extortion Letters Threaten Pizza Restaurants with Yelp Libel

Pizza restaurant owners in America have been bombarded with letters threatening them with bad online publicity including bad reviews on sites such as Yelp, as well as physical damage such as food contamination — and demanding payment in Bitcoin, according to a report by veteran security blogger Brian Krebs.

Source: www.welivesecurity.com

The pizza in the photo looks like it deserves a bad review, but setting that aside, here is yet another example of Yelp reviews being used as a form of extortion. Click on the photo to get the complete article.

How Not to Write a Yelp Review

How to Write a Yelp Review
Picture a typical fight on the playground at an elementary school. One child gets mad at another because she lost at tetherball, so she screams, “I don’t like you and nobody else does either!” It’s not hurtful enough for the girl to say that she doesn’t like the other girl, she seeks to add credibility to her argument by speaking for the rest of humanity.

Some people never grow up. I get calls from potential clients, needing me to defend them against a defamation action for a review they posted on Yelp. A call I received today illustrates why these people find themselves being sued for defamation. Changing the facts to protect the confidentiality of the client, here is what happened:

The caller hired a contractor to add a room to her home. The contractor did his thing, but the caller wasn’t happy with the result. She then paid another contractor to come in and do the work the way she thought it should have been done. Then she sat down at her computer to tell the world via a Yelp review what she thought about the first contractor.

She wrote about her experience with the contractor, and why she was unhappy with the work he did. So far so good. I would defend to the death her right to post that review.

But like the girl on the school yard, a dry dissertation of the problems is just not stinging enough. Someone might still do business with this contractor, and she owes the world a duty to make sure that the no good, son-of-a-gun never gets another job. Continue reading

Aaron Morris

Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

Email Aaron Morris

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