Defamation

With Anonymous Posters, it is Essential to Move Quickly

Move Quickly with Your Internet Defamation Action
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.

Even Nuns Defame; An Example of How Witness Credibility is Everything

"Notre Dame des Anges" an 1889 painting by William-Adolphe Bouguereau. (Provided photo) / AL
The report of this defamation caught my eye because of the parties involved. There is a standard joke among attorneys, that if you find yourself suing widows, orphans or nuns, your practice has probably taken a bad turn. In this case, nuns were being sued for defamation.

It started when the nuns decided to sell an old painting they had laying around. The painting was in really bad shape, not even worth hanging, but it turned out to be by a well regarded artist, William-Adolphe Bouguereau. So the nuns had it appraised by an art dealer named Mark LaSalle. Based on his appraisal, the nuns agreed to sell the painting to Mark Zaplin for $450,000. Zaplin had the painting restored to its former glory, a fact that I think is crucial to this case, and turned around and sold it for $2.15 million, netting a tidy little profit.

The nuns sued LaSalle and Zaplin under a number of theories, claiming that Zaplin had been a straw buyer, and that LaSalle was working in concert with Zaplin and had conned the Daughters of Mary by intentionally under-appraising the painting in order to buy it at a bargain price. The two Marks counter-sued for defamation, because the nuns had made these same claims to the media. (In case you’re new here, you can never sue for defamation for things said in conjunction with a lawsuit, since those statements are privileged, but you can sue if the same statements are made to the media.)

Here is the part I find interesting and the main reason for this article. The nuns had a witness. An art dealer by the name of Paul Dumont claimed to know both LaSalle and Zaplin, and testified that LaSalle had told him that they could “make a handsome profit by giving the sisters a low appraisal value of between $350,000 and $450,000 and presenting a buyer who would pay the amount of our deliberate and intentionally inaccurate appraisal.” He claimed that LaSalle had asked him to find a “money man” who would act as a straw buyer.

Wow. Pretty strong stuff. So the nuns must have won, right? Actually, they went down in flames (can I say that about nuns?). A New York jury found against them on all of their claims, and instead awarded LaSalle $250,000 for defamation against Dumont and a church Bishop, and awarded Zaplin $75,000 against Dumont for defamation. LaSalle will also recover punitive damages.

But how can that happen with a witness who is specifically corroborating the story of the fraudulent appraisal and straw buyer? And therein lies the moral of this story. Continue reading

Law Student Blogger Fights to Remain Anonymous

Blogger Defamation

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.)

A Case Study in Why Litigation Can Be So Expensive

Internet Defamation Law Firm

In February of last year I wrote about the case of Paul Anka versus Anna Anka.  Paul was suing his estranged wife Anna for defamation, claiming that Anna had defamed him by stating that she had never signed a prenuptual agreement, and that any agreement he could produce would be forged.  I happened to think of that article today, and wondered what had occurred in the litigation.  A Google search revealed no updates on the matter, so I went to the court’s website to look at the docket.

As it turns out, the case was dismissed in July 2010.  Since it was filed in February, the action lasted less than seven months.  But during those seven months, 87 entries were made onto the docket.  As I went through the entries, I could see that nothing ever really happened on the case, except for fights over service, discovery, amendments to the pleadings, etc.  In other words, nothing substantive ever occurred, and ultimately Paul’s complaint and Anna’s cross-complaint were both dismissed with prejudice.

Normally, if a plaintiff loses his desire to continue with a case and dismisses it, the case is dismissed WITHOUT prejudice, meaning that if the plaintiff changes his mind, he can file the case again (assuming the statute of limitations has not passed).  When a case is dismissed WITH prejudice, that means it cannot be refiled, and is almost always an indication that the parties entered into a settlement agreement that required the action to be dismissed with prejudice.  I surmise that the parties agreed to dismiss their actions against one another as part of a divorce settlement.

I am often asked by potential clients what it will cost to prosecute a defamation action.  In response, I always apologize for having to sound like an attorney, but the answer is, “it depends on what the other side does.”  If the other side does nothing but appear in the action, then we can decide how much time we want to devote on the case.  Theoretically, you could file an action, conduct no discovery, and show up on the first day of trial to present your case.  But it seldom works that way.  As the Anka case demonstrates, a great deal of time and energy was expended on this case, just trying to get it past the pleading stage, because everything turned into a fight.

I sometimes hear the question, “how can the other side get away with this?”  The answer is, I don’t let the other side get away with anything, but ultimately it is the court that must make them behave.  For example, in the Anka docket (see link below), there was a fight over taking a deposition.  The way a deposition is supposed to work is the plaintiff sends out a notice of the time and place, and the defendant shows up at that time and place.  But what if the defendant fails to appear, or appears and fails to properly answer the questions?  Only the court can force the defendant to behave, so the plaintiff must bring the wrongdoing to the court’s attention by bringing a motion to compel the defendant to appear and answer the questions.

Thirty days later, the motion is heard, and the court orders the defendant to appear, awarding sanctions to plaintiff which seldom equal the actual cost of bringing the motion.  The deposition is set ten days later, and this time the defendant appears, but refuses to allow the deposition to be videotaped even though the notice stated that the depo would be taped.  So it’s back to court for an order compelling the defendant to go forward with the video taped deposition.  And so it goes.

Some judges finally get fed up, and will order that a discovery referee sit in on the deposition and make any necessary orders, but that is very expensive.  Alternatively, the judge will eventually strike the answer of the defendant and enter her default, but since that is such an extreme result, judges will usually require repeated violations of the court’s orders before proceeding in that manner.

Paul Anka Docket

Paul Anka Complaint

“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.

Defamation Trial: Paralegal Taught Lesson in Reality

I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done.  Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid.  I then envision the horrible train wreck that is waiting at the end of that track.

Today I happened to come across a news story, reporting one of those train wrecks.

The case involved a scorned woman.  She worked as a paralegal, and ended up dating her attorney boss.  As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her.  In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.

The paralegal would have none of that.  She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him.  He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat.  The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.

The result?  The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements.  As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.

Lesson to learn?  Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney. I never would have taken this case because of the huge holes in the facts. You say you were fired? Can you please produce the termination documents one would normally expect to see in the case of a termination? Had you reported this alleged sexual harassment to anyone prior to the day he sent you home?

[Update]  The jury came back and awarded $100,000 in punitive damages.  Counsel for the paralegal filed a motion for new trial, with a rather novel theory.  Her comments about the attorney being a sexual predator were made to other attorneys.  Therefore, her counsel argued, the comments should be protected by the attorney-client privilege.  Novel, but I doubt it will fly.

You Can Sue for Defamation in Small Claims Court

Wow. I may actually know what I’m talking about.

In one of my earliest postings on this blog, I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney. In 2012 California raised the damages limit in Small Claims Court to $10,000!  Obviously this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won.

I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.

Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a Small Claims action against the defamer, and has a witness to the statements.

This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. Most likely the story goes something like this:

“Joe is such an asshole. I told Dave about how I had heard that Joe was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”

But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.

This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter starting a backfire to stop a fire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.

Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. As I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor, or to provide a letter of apology, for example. That is why attorneys often don’t think to suggest Small Claims Court, and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $2,500 in damages, reduced to $1,500 if the defamatory statement is removed from the Internet.)

And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safer from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. (There are almost no absolutes in the law, so although very unlikely, I am not saying someone could not come up with a way to bring an anti-SLAPP motion in small claims court, such as having the action reclassified to Superior Court, or by bringing an oral motion at the time of trial.) Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.

With all this said, you’ll be wasting your time in Small Claims Court if you think you can go in and wing it.  You’ll be suing for thousands of dollars, so it will time and money well spent if you buy and review Everybody’s Guide to Small Claims Court in California.

[Update] I had recommended to another caller that her case was perfect for my Small Claims approach. She said the defamer would not stop defaming her, so I suggested that each time she learned of another defamation, she should drag him to court again. She took my suggestion to heart, and has sued him numerous times, and has prevailed every time, with total damages approaching $50,000. As you can see, a Small Claims action is not only a very streamlined and cost effective way to proceed, it can also be very lucrative.

[Update] As I predicted in my parenthetical above, a caller advised me that he was threatened with an anti-SLAPP motion in response to his small claims case. He added that he had gone to court to observe other cases as a way to prepare for his own trial, and he observed a judge grant an oral anti-SLAPP motion in a small claims case.

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.

Indonesia Demonstrates the Other Side of Free Speech Spectrum

 

Indonesian Jail Cell

Indonesian Jail Cell

After being viciously defamed on the Internet, I think a number of my clients might think this case out of Indonesia is a pretty good solution, but in reality it stands as a stark example of what can happen when the Internet cesspool gets so bad that governments feel they must get involved (and of religious/governmental extremism).

A resident of Indonesia, Prita Mulyasari, was treated at a local hospital, but was not happy with her care.  She vented about the treatment in emails to a few friends.  Unfortunately, the friends thought their friends should also know about the hospital, so they posted the comments on their Facebook pages.

Not a good plan in a country like Indonesia.  For daring to criticize the hospital — which criticism is apparently automatically presumed to be false and defamatory when it involves medical services provided by the government — Mulyasari, 32, was arrested and charged with criminal defamation and faces six years in jail.  She sat in jail for three weeks before she was ever charged, and was fined $30,000 under a civil code even before she was charged under the criminal code.

[Update, August 16, 2009]  Prita Mulyasari became a cause celeb in Indonesia, with both Presidential candidates offering their support.  She was released under house arrest and the court then dropped the charges.  But not so fast.  With the elections over, a higher court ordered the trial court to reopen the case, stating the court had failed to offer any explanation for dropping two criminal charges.

Twitter comments basis for a Internet defamation lawsuit

Courney Love

Courtney Love

Twitter comments (along with others) have now become the basis for a Internet defamation lawsuit.

Courtney Love, always a class act, has been posting “tweets” about fashion designer Dawn Simorangkir, also known as Boudoir Queen.  Simorangkir claims that Love failed to pay money that was owed to her.  Love claims otherwise, and refered to Simorangkir as a “nasty lying hosebag thief”, as well as accusing her of being a drug addict and a prostitute, according to the Associated Press.

Assuming the comments were false, the statements are clearly defamatory, but the case will still present some interesting issues if it ever makes it to trial.  Defamation is always about reputation, and defamatory remarks do not always translate to loss of reputation.  Given the context of the statements and the person making them, will anyone believe that Simorangkir is guilty of the acts claimed by Love?

[Update]  In March 2011, Love settled the Internet defamation lawsuit by paying Dawn Simorangkir a reported $430,000. So did Love learn anything from this experience? Apparently not.

Now she is being sued by her former attorney, Rhonda Holmes. Ms. Holmes is piqued that Love allegedly tweeted:

“I was fucking devastated when Rhonda J Holmes Esq of San Diego was bought off.”

Love is also alleged to have stated that she had been “hiring and firing lawyers” and claimed that Holmes had “disappeared” and stopped taking her calls after “they got to her.”

No reasonable person could interpret these statements as meaning anything other than Love was accusing Holmes of taking a bribe, but Love’s current attorney argued the point anyway. In a demurrer to the complaint he claimed that “there is no limit to one’s imagination regarding the possible meaning of a phrase like “they got to her.”

Right.

The Los Angeles Superior Court judge hearing the matter didn’t buy it either, and overruled the demurrer.

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
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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