Using Offensive anti-SLAPP Deemed Frivolous
An international defamation action has ended up here in California. Out of the UK, Tyneside councillors (that’s the way they spell it over there) are very upset that an anonymous blogger who calls himself “Mr. Monkey” has been defaming them.
The council has backed a three-year hunt to discover the identity of Mr. Monkey, with the legal fees now exceeding six figures. So far, since they did not retain Morris & Stone, the attempts to uncover the identity of Mr. Monkey have been unsuccessful.
Enter Coun Ahmed Khan, a councillor from a rival political party. The four plaintiff councillors successfully moved to have Khan’s personal computer records disclosed, because they apparently suspected him of being Mr. Monkey. Khan denies that he is the primate in question, but has cried “enough is enough”, and wants to put an end to the search.
To that end, he brought what I can only characterize as an offensive anti-SLAPP motion (not offensive as in crude, but as in the opposite of defensive). He intervened in the San Mateo Superior Court action and filed an anti-SLAPP motion, asserting that even though he is not Mr. Monkey, the comments of Mr. Monkey are protected and the action should therefore be dismissed.
Motion DENIED. Indeed, the court found the motion to be so frivolous that it awarded attorney fees of £40,000 to the plaintiffs. (I once obtained a judgment in Los Angeles Superior Court in British pounds. It’s worth it just to see the court clerks try to figure out how to enter it into the system and calculate interest and the like.)
Khan has now appealed the denial of his anti-SLAPP motion and the award of attorney fees. The complete story can be found here.
[Correction] The sources upon which I was relying may have jumped the gun as to the award of attorney fees. One of the parties to the action contacted me to state that the £40,000 figure is what is being sought, but that the motion for those fees has been stayed pending the appeal.
With Anonymous Posters, it is Essential to Move Quickly
We were just able to help a client dodge a bullet, and the fact pattern provides a cautionary tale for all.
If you or your business is the victim of Internet defamation by an anonymous poster, and you decide to go after that person, you have many hoops to jump through to get the necessary information. Say you are being trashed on WeTrashPeople.com by an unknown person. (I just made up that name, but I’m sure someone will snatch up the URL.) Unless the site is one of the few that displays the IP address of the poster, you may have to go through three rounds of subpoenas to work your way back to the Internet Service Provider (ISP), such as Cox, Time Warner, or whomever. Complicating things, most ISPs use dynamic IP addresses. In other words, every IP address is used by different subscribers at different times. It is not enough just to know the IP address of the person who posted the lies about you, you must find out who that address was assigned to at the precise time and date the comment was posted.
And that is why you must move quickly. The ISPs all have their own policies on how long they retain that information. If you wait six months to retain counsel to go after the person who is defaming you, by the time the attorney works through the subpoena process, the essential information may be gone.
It appeared that was going to be the case with our client, who waited too long before contacting us. We traced the information all the way back to the ISP, who responded to our subpoena by stating that the information was not retained. With some additional pressing by us, the ISP revised its position and coughed up the information, but that could have been the end of the road for the client’s action.
Bottom line: If you are the victim of defamation, and you think you want to pursue an action, move quickly. Filing an action does not mean you are committing yourself to going to court. More often than not, once we have identified the defamer, an informal resolution can be reached. On multiple occasions we have discovered that the defamer is a competing business who is posting false reviews. They are more than willing to remove the comments once they have been exposed to the light.
SLAPP Statute Still Finding Its Way in D.C.
The District of Columbia instituted an anti-SLAPP procedure back in March but the judges are having a heck of a time figuring it out. (Don’t feel bad D.C., California has had a SLAPP statute since 1992, and some judges still don’t get it.)
Judge Rufus G. King III of the D.C. Superior Court got it right. A local television station did a report on the ridiculous amounts of overtime that was being paid to certain government officials. In one reported case of a fire department Lieutenant, his annual salary was $90,000 but he had earned as much as $119,000 in overtime pay one year.
That Lieutenant took exception with the fact that the news story had used terms like “racked up” and “month after month”, claiming those statements were defamatory. His attorney apparently failed to explain or he refused to understand that only the “gist” of the statement need be true in order to defeat a defamation action, so he filed a defamation action against the television station, and the station quite properly brought an anti-SLAPP motion.
Judge King ruled that the report was a matter of public interest and therefore fell under the anti-SLAPP statute, and that the Lieutenant failed to demonstrate a likelihood that he could establish damages. Motion GRANTED, case DISMISSED. Good job D.C.
But then there was Judge Richard Leon. You may recall that a U.S. Department of Agriculture official named Shirley Sherrod left her job after a video was released, seemingly showing her confessing to discriminating against white farmers. It later came to light that the comments were arguably taken out of context due to the editing of the video. Sherrod didn’t appreciate that, and sued blogger Andres Breitbart, among others, asserting in her complaint that the “deceptively edited” clip constituted defamation. Breitbart responded by bringing an anti-SLAPP motion, asserting that the posting of the clip was an act of protected speech.
Sure sounds like a SLAPP to me, but Judge Leon denied the motion out-of-hand with only a two sentence order. The U.S. Court of Appeals for the D.C. Circuit was stumped by that one as well, and today ordered Judge Leon to explain himself.
Less than a week ago, Judge Robert L. Wilkins out of the U.S. District Court for the District of Columbia was not nearly as concise as Judge Leon, and issued a 55-page opinion denying an anti-SLAPP motion, finding “that the special motion to dismiss procedure under the Anti-SLAPP Act does not apply to a federal court sitting in diversity.”
Britain’s ASA Announces that Restaurant Reviews May Not Be Trustworthy
I found this news squib interesting because it follows the precise example I often use to explain the difference between opinion and a statement of fact, and it shows how one country is dealing with reviews posted for extortionist purposes.
First, the example. If you eat at a restaurant and later post a review that says the food tasted like poison, you are probably safe from a claim for defamation. Most would agree that your statement is mere hyperbole; that you are offering your opinion that the food tasted bad, not that you actually meant it contained poison.
On the other hand, if you say that the food did, indeed, poison you, then you’d better be able to back it up with hard evidence. The first cannot be measured – what you think poison tastes like is your opinion. The second statement can be tested, because we can see if the food that day could have led to food poisoning.
Now to the real life application. It seems that one of the latest fads in Internet extortion is for a reviewer to post a review claiming that he suffered food poisoning at a restaurant. The extortionist then offers to accept, say, $5,000 for the pain and suffering of the poisoning and, oh, incidentally, offers to take down the terrible review as well. Other times the offer to remove the post never comes, because the false allegation of food poisoning is from a competitor.
This scam has become so rampant in Great Britain that the Advertising Standards Authority (ASA) has informed TripAdvisor that it can no longer claim or even imply that its restaurant reviews can be trusted. The news item added that it is not always the case that the reviewer knows he or she is publishing a falsehood. When one suffers legitimate food poisoning, they almost always blame the last place they ate, not realizing that the incubation period for a good case of food poisoning is usually one or two days, and can take as long as a week. In most cases, it is impossible to know which restaurant is responsible for the poisoning except by finding a common restaurant among a group of victims.
Law Student Blogger Fights to Remain Anonymous
As I’ve discussed here before, there is a constitutional right to remain anonymous on the Internet. The concept harkens back to the days of “pamphleteers” — those who would distribute anonymous pamphlets, usually criticizing the government. The authors of these pamphlets needed to remain anonymous lest they be harassed by the government officials they were criticizing. Any requirement that pampleteers sign their work was deemed to be an unconstituional violation of the First Amendment.
Today’s pamphleteers use the Internet, and sometimes have a compelling need to remain anonymous. Even if their tomes are not directed at the government, they may feel the need to, say, report unsafe working conditions at their place of employment. We certainly would not want to require someone to disclose their identity under such a circumstance, nor should we permit the subpoena power to be used to determine such a person’s identity.
On the other hand, we cannot allow unfettered defamatory speech. So, to protect both interests, the courts have determined that a poster has the right to remain anonymous, unless and until the person or entity seeking that person’s identity makes a preliminary showing that the speech is defamatory.
This is a reasonable compromise. I have never had a court deny my request for the information when I am on the plaintiff’s side. The reason is simple. I don’t bring frivolous actions. If I’m suing for defamation, then it will always be the case that I can make a showing that the speech is defamatory. Conversely, other attorneys do not have such high standards. I have successfully quashed subpoenas and thereby blocked the disclosure of client information, by showing that the statements made by my anonymous clients are not defamatory.
Which leads me an article I saw today that involves all of these issues. It seems that a law student at Thomas M. Cooley Law School was not happy with that institution, and started a blog called Thomas M. Cooley Law School Scam, telling tales of wrongdoing. The school was not amused, and sued the anonymous author as a DOE defendant, and is now seeking the identity of that student. The student is fighting to remain anonymous. Read the article if you want to see how this all plays out.
In an interesting twist, the school did learn the identity of the student through some confusion by the Internet service provider over whether the subpoena was being challenged, and even put his name in some court records that could be accessed on-line. However, the attorneys representing the student convinced the court to unring the bell and remove his name from court documents. If the school cannot show the postings were defamatory, the case will have the interesting result of having to be dismissed because the identity of the DOE is unknown, even though in reality it is known. (Although, if the school can’t make that showing now, there is no reason to assume it would be successful at trial.)
“Who you calling a thief?” said the cannibal.
A story in this month’s California Lawyer magazine caught my eye as an excellent case study on a point I try to explain to clients, sometimes unsuccessfully, about defamation actions.
Travel with me back to 1847 to the ill-fated Donner Party. While crossing the Sierra Nevada Mountains near present day Truckee, the wagon train could go no further and the travelers had to hunker down and try to wait out the extreme winter weather. Of the original 89 pioneers, only 45 were rescued, and it was soon learned that they had survived by eating the others.
One of the survivors was a German immigrant name Lewis Keseberg. Keseberg admitted to cannibalism, but the authorities became convinced that Keseberg had not always waited for someone to die from exposure before using them as a food source, and he was put on trial for six murders. Although he was acquitted for lack of evidence, one of the rescuers told gruesome stories about Keseberg’s cannibalistic ways, and those stories were printed in the newspaper.
Keseberg sued for defamation, which was an amazing feat in and of itself because California was not yet a state, so such a suit must have been a procedural nightmare. He sought $1,000 in damages.
In what may have been the first defamation action on state soil, Keseberg won his lawsuit, but the court awarded only $1, and ordered Keseberg to pay the court costs.
And therein lies the lesson that some potential clients refuse to accept. Winning a defamation action is more than just proving each of the elements of libel or slander. Context is everything. The damages in a defamation action arise from the loss of reputation. A person can have a reputation that is so bad, that defamatory statements simply don’t make it any worse.
In Keseberg v. Coffeemeyer, Keseberg had been falsely accused of stealing from the people he ate. He was very offended by that accusation, and headlines in the paper that read, “Where Did Keseberg Hide the Donner Treasure?” But here’s the thing, Keseberg, YOU ATE DEAD PEOPLE! You are already off most dinner invitation lists. The added claim that you took the money of the DEAD PEOPLE YOU ATE is not a big blow to your reputation.
I’m reminded of the line from Star Wars.
Princess Leia shouts at Han Solo, “Why, you stuck up, half-witted, scruffy-looking, nerf-herder.”
To which Han Solo responds, “Who’s scruffy-looking?”
You will not succeed in a defamation action if, out of five terrible things said about you, only one is false.
Privileged Statements Become Defamatory Outside Court
Thinking about yesterday’s post, I thought I should add one more point to the discussion of how false statements made in conjunction with a court action cannot form the basis for a defamation lawsuit.
I explained that under California Civil Code Section 47, and similar code sections in probably every other State, declarations made as part of a legal action are privileged, and therefore do not constitute defamation, since by definition defamation must consist of a false, unprivileged statement.
And the definition of a “legal action” is very broad, and can include statements made in anticipation of litigation. For example, Joe Client goes to an attorney and falsely tells him that Jane Defendant embezzled money from the company. The attorney sends a nasty letter to Jane, setting forth the lie about the embezzlement and stating that if she does not return the money in ten days, he will be filing a lawsuit against her.
Can Jane sue for defamation? After all, Joe Client just told a lie about her to a third party, the attorney. The answer is no. The statements to the attorney were made in anticipation of litigation, and are therefore privileged. (But whether a statement was made in anticipation of litigation can be a hotly contested issue, so be sure to run it past an attorney.)
But it is often the case that someone who lies in conjunction with litigation, will not confine himself to telling those lies only in conjunction with that litigation. As an example, I offer the current divorce case of singer Paul Anka versus his wife, Anna Anka. Paul claims they had a prenuptial agreement, Anna says they did not. She claims that if he produces a signed prenuptial agreement, that will mean he forged her signature because she never signed such a document. (I have no idea who is telling the truth, and offer the case only as an illustrative fact pattern.)
Falsely accusing someone of forgery is defamation, but not if it is said in court. So, she can sign court declarations all day, and testify on the stand, that Paul is a forger, and there would be nothing he could do in terms of defamation.
But Paul is suing for defamation, because he claims she made the statement, or at least implied it, to reporters. Such a statement, if she made it and if it is false, is pure defamation that enjoys no immunity since it was made outside the litigation context.
When clients call to say they want to sue because of lies contained in a court document, I explain why that is not possible, but tell them to be on the look out for the statement being made outside of the litigation. It is often the case that the person will have told the same lies to friends or neighbors, posted them on a blog, or published them via Facebook.
Single Publication Rule Found to Apply to Internet
I get calls every week from people wanting to sue for defamation for something that was said in a declaration. The declaration may have been filed in support of a restraining order, or in family court where parents are fighting over custody of their children. The declaration includes terrible lies about the caller, so he or she wants to sue for defamation.
No can do.
For a statement to be defamatory, it must be unprivileged. Public policy and statutes create a number of privileges that keep a statement from constituting defamation. For example, in California, and likely every other State, a statement made in conjunction with a legal action is privileged, and therefore immune from any claim of defamation. It may be hard to swallow that people can lie about you in a declaration and yet be immune from a claim for defamation, but it has to be that way. Imagine the backlogs that would occur in the courts if every declaration filed yielded another lawsuit for the lies allegedly told in the declaration. Indeed, if suing for something said in a declaration was permitted, then you would be compelled to sue every time the other side filed one. After all, if you didn’t, the Court would have to view that as an admission. Of course, the newly filed lawsuit would generate declarations, so that person would now file another lawsuit, and so it would go, ad infinitum.
When I explain this reality to callers, I generally get a response that goes something like this:
“So you’re telling me, she can say ANYTHING she wants to, and there’s NOTHING I can do about it?! She can claim I’m a murderer, and I just have to take it. She can claim that I rob banks and molest my children, and I just have to smile. Is THAT what you’re telling me?”
No, that’s not even close to what I am telling you. You can’t sue for defamation, but that doesn’t mean you have to take it. You don’t need to file a separate lawsuit for something said in a declaration, because you are already IN a lawsuit. That’s why litigation is called an adversarial system. Your ex-wife files a declaration saying you beat the children, you respond by filing your own declaration saying you don’t, supported by additional declarations from friends and family saying they have never seen you mistreat your children. Every trial involves witnesses testifying to very different versions fo the facts, and the judge has to decide whom to believe. Conflicting declarations are no different.
Plus, lying in a declaration is called perjury. That’s a crime. So, your spouse doesn’t get to say ANYTHING she wants, because she can go to jail. Admittedly, declarants are seldom prosecuted for perjury, but if they tell lies, they lose credibility with the judge and lose the case because your skilled attorney will show them to be the liars they are.
So, back to the Wisconsin case.
The case involved a defamation action against the Milwaukee Brewers and its longtime radio commentator, Bob Uecker. In 2006, Uecker sought an injunction against someone named Ann Ladd, claiming Ladd was harassing him. Ladd was charged with felony stalking around the same time. That criminal charge was dismissed, but the civil court issued the injunction requested by Uecker against Ladd.
Ladd then filed a defamation lawsuit against Uecker, claiming the declaration he provided in support of the injunction was defamatory. But we know a declaration filed in court can’t be defamatory because it is privileged. The judge knew that too, and held that the allegations failed to state a claim because they were privileged. (See, I don’t make this stuff up.)
But as judges often do, he continued to analyze the case under other considerations. The declaration by Uecker, which is a public document, had been published on the Internet at thesmokinggun.com. Ladd was suing for that publication, but it had occurred more than two years prior to the time she brought her action, and would therefore be barred under Wisconsin’s statute of limitations. Ladd argued that the statute had not run, because the declaration was still available on the site, and that every time someone saw the continuing publication, that started a new limitation period.
The court did not agree. It chose to follow the “single publication rule” which holds that, like something published in a newspaper, an article published on the Internet starts the statute of limitations clock running, and that clock is not reset every time someone sees the article, or even when it is republished by another site. If such were the case, the statute of limitations would go on forever on the Internet.
Morris & Stone Victory — Another Blow Against Internet Defamation
A hard-fought victory for free speech.
The defendant in this case was Elvia Orrillo-Blas, MD, an emergency room doctor at a hospital in the Inland Empire. When it was decided that her annual contract to provide services to the hospital would not be renewed, she took to the Internet, posting multiple defamatory messages on Craigslist.com about the director she felt was responsible for the decision not to renew her contract. In the anonymous postings, she would sometimes pretend to be a nurse or patient at the hospital when making her false claims about the director. The director retained us to sue for Internet defamation.
One problem we had to overcome in order to prevail in this action was the fact that the director was so well regarded that witness after witness talked glowingly about him during the trial. That was great to show the falsity of the statements published by the defendant doctor, but it also showed that the Plaintiff had not suffered a significant loss of reputation since the witnesses still loved him. The jurors later explained that this love-fest was the reason they awarded a relatively moderate amount of compensatory damages, but during the trial this left me to wonder if they were fully appreciating the malice behind what defendant had done.
Not to worry; the jury came roaring back in the punitive damages phase and made very clear with the amount of punitive damages that the defendant doctor needed to be punished for her conduct. In closing argument I had explained that cases like this actually promote freedom of speech and the marketplace of ideas that we hold so dear in America, because those ideals are not served by knowing falsity. The jury apparently agreed.
As the icing on the cake, the judge then granted our request for injunctive relief, prohibiting the doctor from defaming our client in the future. Although each instance of defamation is actionable, repeatedly suing a serial defamer is not the best solution because of the expense and delay in getting to trial. With an injunction from the court, the doctor can actually be jailed if she repeats her false claims about our client and is found to be in contempt of court for defying the court’s order.
Communications Decency Act Still Unknown to Many Attorneys
It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act. In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.
But the attorney could not leave it alone. I can almost see his mind working. He thinks to himself, “these individuals will never be able to pay the judgment, so I’d better look around for some deep pockets.” So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com.
I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements. I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy. I know it’s a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong. Here, twitter.com is named because the defendants sent out “tweets” sending their followers to the defamatory content. Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com. How could these companies possibly be liable? Well, according to plaintiffs and their attorney, they are liable because what the defendants did amounted to an “irresponsible use of technology.”
Apparently, in this attorney’s world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server. Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion every account that sets a domain name to forward elsewhere. Clearly there could be no Internet if such duty and liability could be imposed.
In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content. Among the public there is an urban legend that a company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.
A copy of the complaint can be found here, and a detailed article about the case can be found here.
