Is there a way to stop Internet defamation when you have limited funds to hire an attorney?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation? Continue reading
Settlement Demand Was Extortion and Not Protected by Anti-SLAPP Statute
A fired worker who sued his ex-employer for defamation and wrongful termination committed extortion when he threatened to instigate a federal investigation of the company’s business practices if his demands were not met, the Sixth District Court of Appeal ruled.
In another application of Flatley v. Mauro, the California Court of Appeal held that a pre-litigation demand letter was not protected under the litigation privilege because it crossed the line into extortion.
In a series of settlement demands prior to filing the lawsuit, the plaintiff stated that while he did not want to “make a Federal case out of” his employment dispute, he had been told by attorneys that if he initiated a qui tam action under the False Claims Act, it would “involve the United States the United States Attorney General, the Department of Justice or the DOD.” In other words, the plaintiff was using the threat of a criminal action to try and extract the payment of money.
The trial court had granted an anti-SLAPP motion, finding that the threats were protected speech, but the Court of Appeal reversed and reinstated the action.
The case is Stenehjem v. Sareen, in which the Court of Appeal provided a nice summary of the distinction between a genuine (protected) request to negotiate, and an (unprotected) extortion threat:
Here, the plain implication of Stenehjem’s August e-mail was a threat that unless Sareen accepted Stenehjem’s “extension of one last opportunity to settle … in a gentlemens [sic] manner,” he would “involve the United States Attorney General, the Department of Justice or the DOD” through a qui tam action alleging Sareen had violated the federal False Claims Act. His multiple references in the e-mail to “bottom-feeding attorneys” (including his own prospective attorney) – noting that he did not want to “enrich” them through a lawsuit – evidenced his linking a demand for negotiation and settlement of his personal claims with forgoing a threatened “Qui Tam option” and exposure of Sareen’s alleged criminal wrongdoing.
Stenehjem’s view that the e-mail was merely a benign desire to meet “face to face” to discuss his claims ignores the implied threat of exposing Sareen’s alleged criminal wrongdoing if Sareen persisted in his refusal to negotiate a settlement of Stenehjem’s claims, ones that Sareen had repeatedly said were meritless. Stenehjem’s stated “request to discuss the matter,” viewing the totality of the e-mail and the six-month history leading up to its transmission, was in reality a demand to negotiate and settle his personal claims or else face the potential exposure of unrelated allegations that Sareen had committed criminal acts. The fact that Stenehjem’s threats may have been “veiled” or “half-couched in legalese” does not disguise their essential character as extortion.
And the fact that Stenehjem did not make a specific monetary demand in the August e-mail does not preclude a finding that it was extortion as a matter of law. In Barton v. State Bar, our high court concluded that an attorney who had threatened to report to the prosecutor an oil company’s alleged practice of illegal product adulteration unless the company made “some sort of settlement'” with the attorney’s clients was conduct both warranting disbarment and “constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code”
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.
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.
The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.
Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”
Our client in this case was Spencer Kobren, a well known Consumer/Patient Advocate, author and the Founder of The American Hair Loss Association. Besides hosting a weekly radio broadcast, Kobren also owns and operates the online message forum baldtruthtalk.com where hair loss consumers can discuss and share their experiences with product and service providers in the hair loss industry, as well as provide commentary and reviews of hair transplant surgeons in the field.
As most Internet savvy people now know, the Communications Decency Act (“CDA”) shields the operator of a website from any liability for comments posted on an open forum. When someone on Kobren’s forum posted critical comments about a Beverly Hills hair transplant surgeon, the doctor took exception. However, instead of contacting Mr. Kobren or his staff to ask for help in properly addressing negative comments posted by one of his former patients, the doctor decided to defame our client by posting completely fabricated reviews and comments on various blogs, review sites and social media sites, accusing Kobren of fraud, coercion, extortion, organized crime and the running of a criminal enterprise.
As an aside, some sites encourage negative comments, and have no concern as to whether or not they are true. Operators of these sites are also protected by the CDA, but knowingly allowing false and defamatory comments to be posted was not the intention of the CDA, and we will not represent a party who is using the CDA to that end. This was not that type of case. Spencer Kobren runs a very positive and useful board, and will intervene where appropriate when the content crosses the line.
Back to the story. Despite my repeated postings of articles about the wisdom of a walk-away, and even this one, which is almost identical to this case, some defamers feel they must show bravado, claiming they can prove the truth of all of their comments. It’s as though they never think it through until I serve the first set of discovery questions, which forces them for the first time to sit down and put in writing all the facts they are contending support the statements they made. I have this image in my mind of them sitting at their kitchen table, my discovery requests spread in front of them, and after about 45 minutes of trying to answer the questions and realizing that there is not one fact they can offer that would support the defamatory statements they made, saying to themselves, “Man, I am SCREWED!”
Such a moment must have occurred in this case. Defendant first did not even respond to the complaint, then he hired an attorney to undo the default, then he fired that attorney, and agreed to remove all the defamatory comments, never to speak ill of our client again, and to pay $150,000.
I occasionally post stories here that highlight what it is like to live in countries that do not recognize freedom of speech. My perhaps naïve hope is that if we recognize what a tremendous gift we have with our right of free speech, some who might be tempted to abuse that privilege with defamatory speech might act responsibly.
Today’s example comes from Palestine. I would not anticipate that Palestine would be a bastion of free speech rights, but if that government wants to cultivate sympathy and support, this is not the way to go about it.
The Palestinian Authority doesn’t permit criticism of the government, and this week arrested Abdul-Khaleq, a Palestinian woman accused of defaming President Mahmoud Abbas on her Facebook profile. What did she say to justify two weeks in jail while she was “investigated”? The university lecturer, a single mother of two children, reportedly accused Abbas of being a traitor and demanding he resign.
Perhaps worse from a free speech standpoint, this arrest is part of a growing crackdown on writers who condemn the West Bank government, and in one case a reporter was questioned over a story he was still in the process of researching. Apparently the government wants to silence speech before it is even spoken.
Appreciate what we have.
We are seeing more and more Twitter defamation cases. Many have the false impression that they can say anything on the Internet, and for some strange reason, that sense multiplies while creating a Twitter post. Perhaps because so few words are used, the person thinks they can’t get into much trouble.
In this case, New Zealand cricket player Chris Cairns sued Lalit Modi, the commissioner of the Indian Premier League, after Modi posted a 24-word tweet, stating that Cairns had “been sacked from an Indian Cricket League team (Chandigarh Lions) because of match-fixing”. Cairns had stated that he quit due to knee problems from a charity walk in 2008.
Cairns testified that the comment had destroyed him in the cricketing community, and the court agreed, awarding him £90,000 in damages. That equals 143,442 in U.S. dollars, or about $5,977 per word.
Watch what you tweet.
The California Court of Appeal recently ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.
OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.
Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.
I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to “fire” the doctor was a protected activity.
Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. For reasons not important to the story, Dr. Nesson lost his privileges at a hospital. Dr. Nesson sought reappointment by the hospital and, after it was denied, filed a civil complaint. He retained counsel who either did not recognize the SLAPP aspects of the case or decided to take a run at it anyway, thinking they could successfully plead around them. (Which does not mean they did anything wrong, as set forth below.)
In the complaint, they alleged causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of Health and Safety Code section 1278.5; (4) violation of the Unruh Civil Rights Act; and (5) violation of the Fair Employment and Housing Act (FEHA). In summary, the grounds for Dr. Nesson’s claims were that the hospital had breached the Agreement by not giving him 30 days’ notice of termination, had retaliated against him for his complaints about patient safety, and had discriminated against him for a perceived mental disability or medical condition.
A very good try. Do you see that none of the causes of action mention defamation or any of the other causes of action that one normally associates with a SLAPP suit? Many defense attorneys would not have even spotted the SLAPP issues, and the matter would have proceeded. But here is today’s lesson. A SLAPP is a SLAPP is a SLAPP, and it doesn’t matter what you call the causes of action if the conduct arises from a protected activity.
I previously wrote about my successful anti-SLAPP motion against Freddie Fraudster, who fraudulently obtained a credit card under my client’s name. When my client reported the fraud to the bank, Freddie sued claiming that damaged his reputation with that institution. In response to my anti-SLAPP motion, he argued that my client’s communications to the bank were not protected because they were not part of any formal review process. Motion GRANTED, even though the report in question was not to any official agency.
So too, the attorneys defending against Dr. Nesson’s action did spot the SLAPP issues, and brought an anti-SLAPP motion. Dr. Nesson argued in response that his summary suspension and the subsequent termination of the Agreement did not constitute protected activity because the hospital was not involved in the peer review process or his summary suspension. Motion GRANTED, because it’s all part of the same protected activity.
The decision to suspend privileges triggers a statutory scheme for review of the decision under Business and Professions Code section 805, so the actions of the hospital and the medical examination committee were a normal part of that process. As I have repeatedly explained would happen, the trial court granted the hospital’s special motion to strike, finding that the contract termination was “inextricably intertwined with the . . . summary suspension, arose from, and was in furtherance of the protected activity.”
But what about the claim that he was terminated because of a perceived mental disability or medical condition? If he was discriminated against, how can that be protected by the anti-SLAPP statute? How can that “arise from” the protected activity? As the Court of Appeal explained:
“[T]he anti-SLAPP statute applies to claims made in connection with the protected activity, regardless of defendant’s motive, or the motive the plaintiff may be ascribing to the defendant’s conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90.) The only alleged evidence or argument in support of his claim that the Hospital perceived Nesson as disabled are the facts that the Hospital received the written special notice of summary action and the notice of medical executive committee action suspension. Nesson contends “[b]ased on the above letters and a report from the MEC, the Hospital decided to terminate Nesson’s Service Agreement.” These letters and any alleged “report” are part of the peer review process.”
In defense of the attorneys, there were complicating factors here, and sometimes you have to push the envelope. That is how statutes are interpreted under the law. The discrimination claim might have survived if the evidence had taken the alleged discrimination outside the review process. Further complicating the matter, Dr. Nesson did not exhaust his administrative remedies, and that gave pause to the court since that made it impossible for him to show a likelihood of success on the action.
Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.
In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.
With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:
“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “
But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.
The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:
I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.
This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.
Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.
I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law the Communications Decency Act. Now comes a case out of India.
India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.
In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her. “These things are serious in nature and need to be investigated,” said Bedi in her complaint.
However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.