What is the difference between “defamation” and “false light”?

What is the difference between “defamation” and “false light”?

I am sometimes retained to take over from other attorneys when a defamation case has gone sideways. Through this experience, I am afforded the opportunity to see how other attorneys approach defamation cases, and where they went wrong.

In these instances, I have seen that other attorneys routinely allege claims for both defamation and false light. Is that a good approach? With this article I will address the difference between the two claims, and whether it makes sense to allege both in the same complaint. I’ll use the case of Shantel Jackson v. Floyd Mayweather, Jr. as an example. The summary provided below is taken from the complaint and subsequent Court of Appeal opinion, and is not offered as a statement of facts.

The sad tale of the actress and the boxer (not to be confused with Robin Givens and Mike Tyson).

Shantel Jackson filed an action against Floyd Mayweather, Jr. in September 2014. Jackson’s complaint recounted a detailed story of the on-again, off-again abusive relationship between a young aspiring model and actress and a highly successful, well-known professional boxer.

Jackson, then 21 years old, met Mayweather while working as a hostess at an event in Atlanta in 2006. The two dated and developed a romantic, intimate relationship. Jackson soon moved to Las Vegas to live with Mayweather.

Jackson and Mayweather were a highly publicized celebrity couple for a number of years and were at one point engaged to be married. However, the relationship frayed. Jackson alleged that in August 2012, shortly after Mayweather’s release from jail following his conviction on a domestic violence charge involving another woman, she and Mayweather had an argument during which he twisted her arm, choked her and forcibly took away her cell phone so he could look through it. The couple reconciled after Mayweather apologized and promised he would never again assault Jackson.

In early April 2013, after continued difficulties between them, Jackson decided to end her relationship with Mayweather and moved to Los Angeles. Mayweather persuaded her to try again to make the relationship work, and Jackson returned to Las Vegas two weeks later. However, within a few days the couple resumed arguing, and Jackson again told Mayweather she was going to leave him. At one point during this period Mayweather grabbed Jackson, restrained her and pointed a gun at her foot while asking, “Which toe do you want me to shoot?” Jackson alleged that while forcibly restraining her and with the gun still pointing at her, Mayweather said he would not allow her to leave. During this period, according to Jackson, Mayweather kept her a virtual prisoner in his Las Vegas home, monitoring her activities and only allowing her to leave if accompanied by one of his employees.

Jackson moved back to Los Angeles in June 2013. The following month she discovered someone had broken into a storage unit she rented in Southern California and stolen personal property she valued at more than $1 million. Mayweather subsequently confessed he had arranged for the removal of the items and told Jackson he would return them if she came back to him. In late July 2013 Mayweather told Jackson he would “put things out about” her unless she agreed to return to Las Vegas. When she refused to return, Mayweather posted her Los Angeles address on his social media pages and falsely suggested he lived there. Jackson alleged she became concerned for her safety when Mayweather’s fans came to the address and then were disappointed to learn he was not there.

Mayweather continued to importune Jackson to return to him and to attempt to make their relationship work. Jackson agreed but said she would maintain her own home in California. In November 2013 Jackson became pregnant by Mayweather. Jackson alleged she told Mayweather and one friend of her pregnancy, but no one else. A December 2013 sonogram revealed Jackson was carrying twins. At Mayweather’s request Jackson gave him a copy of the sonogram. According to the complaint, “In January of 2014, Ms. Jackson’s pregnancy terminated and Mr. Mayweather was so informed.”

When Jackson refused to move back to Las Vegas during this period, Mayweather became verbally abusive and threatening. During an argument in February 2014 in Los Angeles, Mayweather once again physically restrained Jackson, blocking the door to his condominium and preventing her from leaving for more than one hour.

On April 12, 2014 Jackson attended a basketball game with the rapper Nelly and posted a photograph of the two of them on her social media pages. Mayweather threatened to post photographs he had taken of Jackson sleeping naked if she did not take down the Nelly photograph. Jackson rejected the demand and also refused to reconcile with Mayweather. In response, on May 1, 2014 Mayweather posted on his Facebook and Instagram accounts, “the real reason me and Shantel Jackson broke up was because she got an abortion, and I’m totally against killing babies. She killed our twin babies.” Mayweather also posted a copy of the sonogram of the twin fetuses and a summary medical report regarding the pregnancy. Media outlets, including TMZ, republished the sonogram and medical report. The following day Mayweather again discussed Jackson’s abortion during a radio interview and also stated she had undergone extensive cosmetic surgery procedures.

Based on the allegations regarding Mayweather’s posting of information about Jackson’s pregnancy and its termination, including the sonogram and medical report, and the broadcast of the statement she had cosmetic surgery on her face and body, Jackson’s complaint asserted causes of action for invasion of privacy (public disclosure of private facts), invasion of privacy (false light) and defamation. There were a number of other claims as well. Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1245–47.

With our summary completed, let’s look at the elements of the two claims – defamation and false light.

Elements of Defamation

Defamation “involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal. App. 4th 962, 970.

So to win on a defamation claim, the Plaintiff must prove that a false, unprivileged, defamatory statement was communicated to at least one other person. The “defamatory” element just means that it is not enough simply that it is a false statement, it must have “a natural tendency to injure.”

Elements of False Light

False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Price, supra

So to prevail on a false light claim, the Plaintiff must prove (1) that the statement was made to the “public”, (2) that the statement was highly offensive, and (3) that the Defendant knew or acted in reckless disregard as to the falsity of the statement and the false light in which the Plaintiff would be placed.

“Public” means that the publication must go to enough people to amount to the public, as opposed to only one other person in a defamation claim. A false light claim further requires the additional elements of “highly offensive” and “reckless disregard.”

For this reason, suing for both defamation and false light is a pointless act, because false light requires far more of a showing. If you can show defamation, you don’t need false light, since the damages would be the same. And if you can’t satisfy the elements of defamation, you can’t prevail on false light.

As the Court put it in Jackson v. Mayweather:

“‘A “false light” cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice [where malice is required for the libel claim].’ ” See generally Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234 [holding statutory limitations on defamation actions apply when a false light action is based on publication that is defamatory].) Indeed, “[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.”

In the Jackson case, Mayweather responded to the complaint with an anti-SLAPP motion, claiming that Jackson could not satisfy the elements for defamation and false light. The alleged false statements – that Jackson alleged were both defamatory and put her in a false light – were that (1) Mayweather ended their relationship because Jackson had aborted the twins, and (2) that she had undergone extensive cosmetic surgery. Jackson claimed these statements were false because (1) she, not Mayweather, had ended the relationship, and (2) she did not have cosmetic surgery on some of the body parts identified by Mayweather.

The trial court denied Mayweather’s anti-SLAPP motion, but the Court of Appeal reversed and granted as to the defamation and false light claims.

Given that Jackson has not contested the truth of Mayweather’s declaration that she had an abortion, the statement that Mayweather ended his relationship with Jackson for that reason does not appear to be defamatory. On its face, the allegedly false part of the posts (the cause of the breakup) did not expose Jackson to contempt, ridicule or other reputational injury.

[As to the statement about her surgeries,] Jackson fails to address how Mayweather’s exaggeration of the extent of cosmetic surgery she tacitly concedes she had (on her breasts and buttocks) created a different and negative effect on the radio audience from that which the truth would have produced. As Mayweather argues, falsity cannot be shown if the challenged statements appear substantially true. To bar liability, it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. Put another way, the statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.

It is certainly conceivable that surgical enhancement of the face is different for the reputation of an actress or model from the augmentation or sculpting of other parts of her body. But Jackson presented no evidence in opposition to Mayweather’s motion, expert or otherwise, that would permit a finder of fact to draw that distinction. It was her burden to do so. Thus, the radio comments concerning cosmetic surgery do not support a defamation cause of action.

Jackson thus lost on both her defamation and false light claims.

I won’t go so far as to state that there would never be a place for a false light claim in a complaint, but I cannot even come up with a hypothetical situation where it would be a good strategy to allege both defamation and false light in the same complaint.

Lying blogger ordered to pay $3.5 million in defamation lawsuit | PersonalInjury.com

A Shelby County, Alabama, blogger, who spent five months in jail before agreeing to remove stories from his website about the son of a former governor, has now been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for the state Attorney General.
The blogger had written about an fictional affair between the attorney general and the campaign manager. 

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

Yes, even  bloggers are subject to defamation laws.

I encounter a common belief that anything published on the Internet is somehow protected free speech. In fact, it is protected free speech until one steps over the line into defamatory speech. Defamatory speech enjoys no protection.

Of note in this case, the blogger spent five months in jail for his defamation. Not because he defamed, but because he refused to stop defaming. You see, a court cannot order you not to publish information that you want to publish, but once that information has been found to be defamatory, then the court can order you never to tell the same lies again, and can order you to remove the lies from the Internet.

In this case, the blogger was ordered after trial to remove the defamatory comments, but refused to do so. He even added more information. This amounted to contempt, and the court put him in jail until he removed the statements. He stood on his purported principles for five months, and then relented and had his wife remove the posts.

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

Wall of WrongI 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

Saying Your Letter Cannot be Published Does Not Make it True

In a prior posting, I discussed how ineffectual cease and desist letters are, and how some recipients of such letters will even post them as a sort of badge of honor.

In an apparent attempt by some attorneys to keep from having their letters published, I have now seen a number of instances where the attorney sending the letter adds the following language:

“You are not authorized to disclose the contents of this letter publicly or to disseminate it…”

Some even go so far as to claim that the letter is copyrighted, asserting that by publishing the letter the recipient will be violating copyright law. This is all hogwash, but I suppose the attorneys reason that the recipient may not know that it is hogwash, and it may prevent some of them from putting up the letter and making fun of the attorney and his or her client for sending it.

For a great example of this, and how instead of achieving the intended purpose it only invited greater comment, check out this amusing article by techdirt. The article is also a great example of not knowing when to hold them, and when to fold them.

I learned long ago to view every letter I draft as a potential trial exhibit. Don’t send a letter you would not want to see projected onto a wall for the judge and/or jury to view and critique. That rule now applies to the Internet. If an attorney feels the need to insert language falsely claiming that the recipient is not allowed to show it to anyone else, then that is a letter that probably should not be sent.

Using Offensive anti-SLAPP Deemed Frivolous

International Anti-SLAPP motionAn 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.

“Fox & Friends” Hosts Not Liable for Repeating Parody

Fox & Friends
Fox & Friends

The Internet is an amazing source for both information and misinformation.  One of the most telling examples was the case of Sarah Palin.  A fictional question and answer session was written and published, with Palin purportedly making the comment that dinosaurs had roamed the earth just 5000 years ago.  Many failed to realize (or chose not to recognize) the story was satire, and reported the dinosaur story as true.  (Leading to an almost tearful Matt Damon proclaiming during an interview that she was not fit to serve because of her dinosaur beliefs.)

So-called traditional news sources cannot ignore what is posted on the Internet because it often is a breaking source for news; the commercial airline landing in the Hudson river being a recent example.  But when parody is mistaken for truth, defamation can occur.

The cable show “Fox & Friends” reported a parody about a school principal as true.  The real story was that a middle school student had left some ham on a table frequented by Muslim students.  He was disciplined for his insensitivity.  The parody took the story to an extreme, claiming that the school principal had instituted an “anti-ham response plan,” designed to teach the children that “ham is not a toy.”  The hosts of Fox & Friends reported the parody as truth, and derided the principal for his overreaction.  The principal sued for defamation in Levesque v. Doocy.

Fox & Friends was saved by New York Times v. Sullivan, the 1964 Supreme Court decision that created the “actual malice” standard for defamation against a public figure (also referred to as “New York Times actual malice”).  But for the fact that the plaintiff was deemed to be a public figure, Fox would have been liable.

Go here for the detailed story, and here for the actual court decision.

Aaron Morris

Morris & Stone, LLP

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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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