Internet Defamation

California Prohibits “You Can’t Review Me” Contracts

no criticism contractsFrom my recollection, doctors were the first to try this nonsense. They would slip in a provision in all the intake paperwork, stating that the patient agrees not to post any negative reviews about the doctor, with a $500 penalty if the patient violates the clause.

These contract clauses gained more and more popularity. I came across one in the repair estimate I received from my Ford dealership.

Occasionally, I would receive a call from a doctor or some other business, asking me to write a letter to a customer, demanding that they take down a review based on such a contract clause. I was happy to demand removal if the posting was defamatory, but I would not agree to use the clause as a basis, because I found them so offensive.

Apparently the California Legislature found them offensive as well, and created Civil Code section 1670.8. This section makes it ILLEGAL to include one of these “you can’t review me” provisions in any contract. If a business includes such a provision in a contract, it can be hit with a penalty of up to $2,500, and $5,000 for each subsequent violation, even if it never seeks to enforce the provision.

If you encounter a contract with “you can’t review me” language, then contact me immediately. I’d love to take these to court.

Here is section 1670.8 in its entirety:

1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

(c) Any person who violates this section shall be subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation, and five thousand dollars ($5,000) for the second and for each subsequent violation, to be assessed and collected in a civil action brought by the consumer, by the Attorney General, or by the district attorney or city attorney of the county or city in which the violation occurred. When collected, the civil penalty shall be payable, as appropriate, to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.

(d) In addition, for a willful, intentional, or reckless violation of this section, a consumer or public prosecutor may recover a civil penalty not to exceed ten thousand dollars ($10,000).

(e) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law. This section shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.

James Woods Demands Court Order To ID Twitter User Who Called Him A “Cocaine Addict”

Actor James Woods says a Twitter user who called him a “cocaine addict” has no right to demand anonymity.

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

The James Woods case presents a good illustration of the legal process and certain constitutional rights.

Someone on Twitter, using the pseudonym “Abe List” or AL for short, got into it with Woods, and let fly with a series of put-downs, referring to Woods as a Joke, clown-boy and scum. Counsel for Woods understood defamation law well enough to know that those claims are not offered as verifiable facts, and therefore cannot be defamatory.

But AL also called Woods a “cocaine addict”, and that is where his counsel drew the line. They filed what is called a DOE action, suing an unknown defendant for defamation. (Here is the actual complaint.) Once a DOE action is filed, the plaintiff can then subpoena the records (here, from Twitter) to determine the identity of the anonymous poster.

Here’s where things get interesting.

What many do not realize is that someone posting comments on the Internet has a constitutional right to remain anonymous. It hearkens back to the days of “pamphleteering”, when those disagreeing with the government would produce and distribute anonymous pamphlets. If the government could require that the identity of protesters be known, it could intimidate critics into silence.

Because of this constitutional right, if someone wishes to remain anonymous, they can oppose the motion anonymously, forcing the plaintiff to make a sufficient showing that the speech is defamatory, and therefore not entitled to protection.

That is just what occurred here. AL has gone to court and challenged Woods’ right to discover his identity.

“How do you appear anonymously in a court proceeding?”, you ask. It’s easy. You retain counsel, usually Morris & Stone, who moves to quash the subpoena on behalf of the person, using the pseudonym. The identity of the person is never revealed. (In a couple of cases, we have seen other counsel attempt this procedure, only to make the effort pointless when they accidentally identify their client in correspondence.) Continue reading

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

Can the Dead Be Defamed?

Defaming the DeadI don’t receive these calls very often, but they are heart wrenching when I do. I have received multiple calls over the years arising from television portrayals of deceased people. They typically arise from those “true detective” shows. An unsolved case is discussed, and the family of the prime suspect elects to point the finger at someone close to the case who has since died. A dead person is the perfect scapegoat, because he can’t defend himself.

As you can imagine, having the loving memory of a former, spouse, sibling and/or parent sullied by a false accusation of murder does not sit well with those involved. Their love-one is being defamed, and they call wanting to sue for defamation.

But consider the very basis of defamation. The damage that defamation causes is the loss of reputation AND the emotional distress that flows therefrom. We’ve all been taught not to speak ill of the dead, and no doubt it causes tremendous heartache for the family of the deceased when lies are told about him, but he isn’t here to suffer. This is why the law provides that you can’t defame the dead.

When I present this bad news to callers, inevitably it is followed up with the classic quantum of harm argument. Potential clients always look first to the harm that is being caused, and assume there must be a remedy.

“But these claims are destroying my life because now everyone thinks my deceased husband was a murderer. There must be something we can do.”

I understand this logic, and indeed it is seemingly embraced by the most fundamental of all legal maxims, “equity will not suffer a wrong to be without a remedy.”

The problem is the definition of “wrong”. If the law says that you can’t defame the dead, then the fact that you speak poorly of the dead does not make your speech defamatory, and you have thus committed no “wrong” in a legal sense. Thus, the fact that you are doing something that causes emotional distress to others does not mean that there is a basis for a legal action. Some vegans are no doubt very upset that there is so much meat being eaten around them, but they can’t sue because meat-eating is not a legal wrong. The harm suffered does not necessarily determine whether a wrong was committed.

Go here for a very interesting discussion of defaming the dead, with many historical examples.

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.

The Girl in the Red Bikini — A Facebook Tale

girl in red bikini
High School Sued for Defamation for a Posting on Facebook

I present now a fascinating case that serves to illustrate a couple of points about Internet defamation. We’ll call this one the Girl in the Red Bikini.

Enter the Fayette County School District in Georgia. School District administrators decided it would be a good idea to warn their high school students about the dangers of posting photographs on social sites such as Facebook. They came up with a presentation with the theme, “once it’s there, it’s there to stay.” A perfectly valid message to teach the high schoolers.

But then they did something strange. They decided that to really drive home the point, the presentation needed embarrassing photos posted by current students. They snooped around on their students’ Facebook pages to find what they considered illustrative examples of the poor choices being made by their students.

One photo they decided was a good illustration was a photo of student Chelsea Chaney. Ms. Chaney had dared to post a picture of her standing beside a cardboard cut-out of the artist formerly know as Snoop Dogg (he now goes by Snoop Lion in case you missed the memo). Snoop (or, rather, his cardboard cut-out) is holding a can of something. I really can’t identify it from the photo. It could be a beer but it could just as easily be an energy drink. Worse, though, in the minds of the Fayette County School District, Ms, Chaney was wearing a bikini. Put those facts together, and you have what is obviously a very embarrassing photo that never should have been posted, apparently because it shows public drunkeness and promiscuity, at least in the warped minds of the District.

In reality, the photo was entirely innocent and implied nothing. (Obviously Ms. Chaney was not happy that the photo was posted so I won’t republish it, but it is already published here.) But imagine the shock of Chaney, seeing her photo come up on the screen at a school assembly, used as an example of poor choices. She didn’t think that was very cool, and is now suing the school district.

So what are the takeaways from this case (aside from not going to school in Fayette County)? The school district was idiotic to create this presentation, but it does serve to illustrate that the photos you post can have very unforeseen consequences, even if they aren’t inappropriate. Also, this is yet another example of the Barbara Streisand Effect. Chaney was justifiably embarrassed and angry that the photo was posted, but whereas before only her schoolmates saw it, now she has made it a topic of discussion all over the Internet. That may be a price she is willing to pay in order to combat this behavior, but just be aware that any action can fan the very flames you were hoping to extinguish.

“Revenge Porn” Now a Crime in California

Revenge Porn
Revenge Porn

I get a number of calls about this every month, and I now have a better means to deal with this form of cyber-stalking.

The scenario is almost always the same. A girlfriend (foolishly if you ask me) provides some naked photos to her boyfriend, and when they break up, he posts them on the Internet as a form of revenge. I’m not being sexist here. Either because guys are just not as generous about providing naked pictures, or because ex-girlfriends at least have the couth not to post them, I have never received a call from a male complaining that his ex is posting naked pictures of him.

We have been successful in the past in getting the photos taken down by pursuing actions for infliction of emotional distress, and sometimes even copyright infringement. Guys who post naked pictures of their ex-girlfriends are usually not Rhodes Scholars, but even they can figure out that going to court and arguing that there is nothing wrong with that behavior is probably not a bright idea. Faced with a lawsuit, the pictures usually come down.

Now California has made my job easier by providing even greater incentive. These miscreants who engage in this form of “revenge porn” now face jail time and fines under a law signed by Gov. Jerry Brown. They face up to six months in jail and a fine of $1,000.

The bill that Brown signed into law on October 2, 2013, takes effect immediately.

Defamation is Bad, but it Doesn’t Justify Chilling Free Speech

Blocked in Canada

Our neighbors to the North are very American-like, until you get to issues of free speech. Most view Canada as the “least protective of free speech in the English-speaking world.” Reasonable minds can differ on some of Canada’s laws, such as prohibiting the media from identifying criminals until they have been convicted, but most of the law is still based on policies designed to prevent any criticism of the government. Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.

A recent parody video posted on You Tube illustrates just how lacking the concept of free speech is in Canada. The video is a fake cable company ad posted by Extremely Decent Films. It does not mention any cable company by name, and indeed it is specifically directed at American cable companies. Nonetheless, someone lodged a complaint in Canada, and that was sufficient to scare You Tube into removing the video, given the vagaries of Canada’s libel laws (although the video has since been reposted in response to articles such as this one).

Understanding the Wall of Wrong — Shaheed Sadeghi v. Delilah Snell

Shaheed Sadeghi and the wall of wrong

Shaheen Sadeghi and the Wall of Wrong.

I just wish counsel would run their defamation cases past me before filing. Here is a tale of a SLAPP that should have been spotted a mile away.

The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.

But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:

Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,'” she says.

Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)

The article then goes on to tell Sadeghi’s side of the story:

Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”

“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”

The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.

Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.”

A Quick Aside to Discuss the “Wall of Wrong”.

A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. They have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.

The reason this exercise is so important is because the client has a perception of being slammed by the defendant, and is absolutely convinced that all that wrongdoing must equate to an action, but when all the conduct that does not support the action is stripped away, the client will often see that what is left remaining is pretty petty.

So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a defamation action. Continue reading

Court Finds that Statement about Cause of Suicide is an Opinion

An interesting defamation case out of New York, involving the world of music and illustrating the burden of proof.

As explained here on various occasions,  truth is a defense (a point sadly lost on many defense attorneys). Thus, the burden of proof is on the defendant to show the truth of whatever it is he said or published.

In one of our recent cases, the defendant falsely stated that our client had cheated customers. Throughout the case, no matter how many times I explained to defense counsel that it would be his burden to prove that my client cheated customers, he kept responding, “you’ll never be able to prove that your client didn’t cheat customers.”

Really? My client took the stand and testified that he has never cheated a customer. That’s all it takes. The defendant then had the burden to prove the truth of the statement, and could not name a single customer our client had cheated. Judgment for plaintiff.

In today’s case, Tom Scholz, guitarist from the 70’s rock band Boston, sued the Boston Herald newspaper, claiming that certain articles falsely claimed that he was responsible for the suicide of fellow band member Brad Delp in 2007.

The judge in the case dismissed the action, because although it is the burden of the defendant to prove the truth of the statement, the judge concluded that the truth or falsity of the statement could never be determined. He didn’t use this example, but to borrow an example from that era, it’s a little like blaming Yoko Ono for the break-up of the Beatles, when John Lennon isn’t here to testify. The judge ruled that why Delp killed himself will forever be an imponderable, making any statement about the suicide merely an opinion, and opinions are not actionable.

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
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Tustin, CA 92780

(714) 954-0700

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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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