Lawyers Still Ignorant of Communications Decency Act
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.
What are the Elements of Defamation?
We can answer all your questions about defamation, but sometimes if you have a general understanding of the law, you can ask better questions about the facts of your case. Some attorneys think a defamation action is like a personal injury case, but the proof necessary for a defamation action is very different. As a nation, we put such a value on free speech that the burden is high to prove defamation.
Defamation is the inclusive term, including both slander and libel. In other words libel and slander are both defamation, but libel is printed and slander is spoken. Defamation occurs when someone makes a false, unprivileged statement about someone to a third party, which attacks the person’s professional character or standing, claims that an unmarried person is unchaste, claims the person has a sexually transmitted disease, or that the person has committed a crime of moral turpitude. Stated another way, to constitute defamation the statement must falsely accuse the plaintiff of immoral, illegal or unethical conduct. Generally, the statement must harm the reputation of the person, but in the case of per se defamation, damages will be presumed. This last point is very important, because if a plaintiff had to prove actual damage, the burden of proof in most cases would be nearly impossible.
Let’s examine each element more closely:
1. False Statement of Fact
Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, it a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion. Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.
On the other hand, some believe that they can escape liability by casting a fact as an opinion. A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion. Adding the word “opinion” to a defamatory statement does not automatically shield the speaker from liability. The determining factor is whether the “opinion” is about a verifiable fact. For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, “in my opinion the food was horrible and the restaurant has rats,” the statement about rats is defamation (assuming it is false) because it is a verifiable fact. Similarly, “In my opinion, he cheats on his taxes” is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.
2. Unprivileged
There are many statutes that afford a “privilege” to someone to speak, and in those cases the person is shielded from defamation. (See Civil Code section 47.)
For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window. Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out. You’ve just made a false statement to a third party, claiming that your neighbor was breaking the law. Can you be sued for defamation?
No, because there is a statutory privilege afforded to anyone making a good-faith report to the police. There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action. We often get calls from people wanting to sue a witness because “he lied on the stand” or submitted a false declaration. But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege (although a witness who testifies falsely can be criminally prosecuted for perjury). Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report. They want to sue the evaluator for the “lies” contained in the report. Such actions are barred in almost every case because of the litigation privilege. The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong.
One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were. An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance. Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.
3. Statement made to a third party
No statement, no matter how false and vile, can constitute defamation if it is made only to the person that is the basis of the statement. Defamation arises from a loss of reputation. How can you lose reputation if the statement is made only to you. And if you repeat the slander or show someone the libelous statement, the speaker or publisher remains free from liability, because you are the one that “published” the statement.
4. Immoral, illegal or unethical conduct
A statement is not defamatory just because it is false, even if it arguably casts the person in a bad light. Your application to join the local bowling league is rejected, and you later find out that one of the people on the board stated you were a really bad bowler. In fact, you are an outstanding bowler. Nonetheless, it is not defamation since being a bad bowler is neither immoral, unethical or illegal.
5. Harm to reputation
Finally, even if all the elements for defamation are met, the facts can sometimes present a difficult case to prove. For example, assume that while at a party, a stranger approaches your spouse and falsely tells him or her that you are having an affair. If your spouse laughs it off, then how has there been a loss of reputation? The statement is defamatory, because it falsely accuses you of immoral conduct, but how were you damaged? If, on the other hand, your spouse storms from the party, drives home and puts all your belongings in the front yard, then what was your reputation to begin with? If your spouse was willing to believe such a statement from a stranger with no further investigation or collaboration, then he or she did not hold you in very high regard in the first place. You apparently did not lose any reputation, because it was not there to start. This is just one example of the nuances that arise in a defamation action.
What can I do?
Most attorneys think in terms of suing, and will want to run to court. At Morris & Stone, we carefully examine your goals to determine the best plan for your specific situation. We are ready and able to go to court if that is the best approach, but sometimes other approaches better fit your goal. For example, in one case our client was defamed by a newspaper. He walked around with a cloud over his head, knowing that many people had read and believed the horrible, false accusations printed about him in the paper. Even if the paper printed a retraction, it would be a little paragraph buried on page 12 that no one would read. Similarly, money damages would do nothing to restore his good reputation.
The solution? We prepared and served a complaint to apply pressure, and then negotiated a settlement that was beyond anything our client could have hoped for. In addition to paying our client damages, the paper agreed to provide four pages for our client’s use. He was free to use one page at a time over several weeks, or use all four pages at once, to publish a retraction of the things that were said about him. In other words, he was given a blank canvas to use however he wanted to clear his good name.
That was the perfect remedy for that client, and we will work to find the prefect solution for you.
Your reputation is priceless
Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged. Silence is perceived as acceptance. If you did nothing about what was being said about you, it must be true. The goal in a defamation action can be to recover damages, but often that is not the primary goal. The priceless value of a defamation action is to gain back your reputation. When someone says to you, “but didn’t I hear or read somewhere that you [fill in the blank]?”, you can answer, “yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages.”
Subpoenas not subject to anti-SLAPP in Internet Defamation Case
Plaintiff obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Defendants, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 425.16 motion to strike (anti-SLAPP motion). The threat of having to pay defendants’ attorney fees was sufficient for him to withdraw his request for subpoenas. Nonetheless, the Does proceeded on their section 425.16 motion to strike.
The trial court granted the Does’ anti-SLAPP motion to strike, and awarded them their attorney fees. The trial court concluded that a request for subpoenas was sufficient to trigger the anti-SLAPP procedure. The Court of Appeal disagreed, and concluded that a request for subpoenas does not fall within section 425.16, and therefore the trial court erred in granting the motion and in awarding attorney’s fees.
This was another example of a trial court misusing the anti-SLAPP procedure to try to clear its trial docket. In a standard action, where defendant tries to strike the complaint by way of an anti-SLAPP motion, the trial court must afford reasonable discovery so that plaintiff can try to find sufficient evidence to create a prima facie case. If a plaintiff could be subjected to an anti-SLAPP motion from the mere request for discovery, that would greatly reduce his ability to defend his reputation.
Tendler v. jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802
