Internet Defamation Blog

posted by Aaron Morris on Nov 1

There are still many attorneys making money representing clients on Internet defamation cases that can’t be won.  They are either ignorant of the law, or ignoring it.  My firm has been schooling others on the Communications Decency Act for years.  See, for example, Winning the Fight for Freedom of Expression on the Internet and A Victory Against Spam.  But there are still a number of firms that still need an education.  A case just came down in New York, where someone tried to sue a web host for the comments posted on his website. 

Let’s all say it together.  If a website is created that allows visitors to post their comments, under the Communications Decency Act the host of that website cannot be held liable for any defamatory remarks that others post.  The law is very black and white in this area.  The myth still continues that if the defamed party makes the website operator aware of the defamatory material, he somehow becomes liable for failing to take it down.  That is simply not true.

There is a lot of abuse on the Internet, and ideally a web host should respond to requests to remove defamatory posts, but if that were made the law then the ability to host a community forum would disappear in almost all instances. 

Consider a helpful, innocent person who decides to start a restaurant forum, discussing the local businesses.  Someone goes on and leaves a post that a local sushi restaurant is using old fish.  The sushi restaurant contacts the host, and insists that the post be taken down, claiming they use nothing but fresh fish.  How would our hypothetical web host go about investigating such a claim?  Is he required to go to the restaurant and inspect the receipts to determine the freshness of the fish?  Must he insist that the poster provide proof of the old fish?

Most likely, if faced with civil liability, the host would simply take down the post.  And when reviewing all the protests became too time consuming, the forum would disappear.  The day Congress passes a law requiring website operators to verify all the claims made by visitors to their sites is the day that most free speech ends on the Internet.  Many would prefer that, but in my opinion the open approach is the better approach.

posted by Aaron Morris on Sep 20

California Civil Code Section 47 affords certain privileges that protect a person from liability, even if he speaks or writes something that would otherwise be defamatory. Civil Code section 47, subdivision (c), provides that a communication is privileged if it is made “without malice, to a person interested therein, (1) by one who is also interested….” Trial courts, anxious to clear their dockets, sometimes read far too much into this simple statute, and find a privilege in cases the statute was never intended to cover.

In Mamou v. Trendwest Resorts, Inc., an employee brought action against his employer, alleging national origin discrimination, retaliation, and defamation. The Superior Court, Santa Clara County, granted Trendwest’s motion for summary adjudication, and employee appealed.

The defamation claim was based on Mamou’s assertion that Trendwest had told other employees that he was starting his own competing business, and had used Trendwest information for that purpose. This would be both illegal and unethical, and therefore qualifies as defamation. However, the trial court found that the communications were covered by Section 47, and on that basis granted Trendwest’s motion for summary judgment, thereby dismissing Mamou’s case.

Application of the Section 47 privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present-whether, in traditional terms, the “occasion” was “privileged.” (Taus v. Loftus.)  At trial the defendant bears the burden of proof on this question.  If he succeeds, the burden shifts to the plaintiff to show that the statement was made with malice.

For purposes of a statutory qualified privilege, “[t]he malice referred to … is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.  The factual issue is whether the publication was so motivated.  ‘Thus the privilege is lost if the publication is motivated by hatred or ill will toward plaintiff, or by any cause other than the desire to protect the interest for the protection of which the privilege is given’.” (Agarwal v. Johnson.)

The Court of Appeal found that a jury could easily find that the statements by Trendwest personnel were motivated by ill will towards plaintiff.  Mamou alleged that one was hostile toward him as a member of the “Syrian regime” some members of Trendwest management had, inferentially, undertaken to purge.  A jury would be entitled to find that these feelings would naturally engender spite and ill will toward Mamou, and that this was what motivated Trendwest personnel to make the statements Mamou claimed were defamatory.

This was just one example, but the Court of Appeal concluded that it was enough for Mamou to show evidence of a single triable issue of fact. Since he obviously did, the trial court erred by granting summary judgment on the defamation cause of action.

The analysis is somewhat circular, and sometimes escapes trial courts. Inter-office communications about an employee may well be privileged under Section 47. Say, for example, an employer believes that an employee stole from the company, and fires the employee on that basis.  Thereafter, when asked why the employee was fired, the employer tells other employees that he had stolen from he company. If the employee sues for defamation, and can prove that he never stole from the company, would he prevail?  Probably not, because in this hypothetical the employer genuinely believed that the employee was guilty.  With no showing of malice, the Section 47 privilege applies.

But where the situation gets more complicated is when the employee is claiming that the defamation itself is the evidence of the ill-will constituting malice. If in our hypothetical there was no basis for the employer to believe that plaintiff was responsible for the theft, then telling that story may be sufficient showing of malice. This is a distinction that is sometimes difficult to get through to the trial court.