Internet Defamation Law Clarified
Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.
I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.
The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.
Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.
The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.
Judge Ariadne Symons
Esquire sued Painter for breach of the covenant of quiet enjoyment as to her lease, and for defamation for the fraudulent Yelp reviews. Painter cross-complained for breach of lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.
At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint against Painter. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. Judge Symons simply did not understand some basic evidentiary principles, dealing with the authentication of web postings and indirect evidence.
How to Authenticate Yelp Reviews
For example, to authenticate a review posted on Yelp, all that is required is a witness (usually the client) who can testify that the copy of the review being offered as evidence is an accurate depiction of what the witness saw when he or she visited the Yelp site. This does not mean that you can introduce anything you find on the Internet as proof of whatever it says, it means only that pursuant to Evidence Code section 1552, a witness can testify that “this is the review I saw posted on Yelp,” and that review becomes admissible as to its existence. Although we provided very clear authority, Judge Symons erroneously ruled that a representative of Yelp must be present to authenticate the existence of the reviews.
The Law of Indirect Evidence
Then there was the issue of the indirect evidence. We had the defendant dead to rights as the party who had posted the fraudulent reviews, because the IP information showed that the reviews had been posted from defendant’s home and office internet accounts. In an internet defamation case, unless the defendant confesses to posting the reviews, you can never prove unequivocally that the defendant’s fingers typed the reviews, but the jury is permitted to make the reasonable inference that defendant posted the reviews if they were posted from his account (on the very day that plaintiff has successfully sued defendant in court on another matter). But despite all the authority we provided to the contrary, Judge Symons erroneously held that indirect evidence was not admissible. An appeal was necessary to reverse all of the evidentiary errors by Judge Symons.
As anticipated, the Court of Appeal for the Sixth District found in favor of Esquire on the evidentiary rulings, and reversed the trial court. It took Judge Symons to task, referring to her conclusions as “perplexing”. More important for the legal community at large, the Court of Appeal used the opportunity to provide a very detailed explanation to all trial courts as to the admissibility of information posted on the internet, as well as the proper determination of the admissibility of indirect evidence.
In a perfect world, Judge Symons would have followed the authority we provided, and our case would have proceeded directly to verdict. But we take solace in the fact that even though the case was delayed and will now have to go back for a new trial (in front of a different judge), that detour served to create a precedential blueprint for all judges and attorneys to follow in future internet defamation cases.
Judge Symons has been moved to Family Court.
For a detailed discussion of this important opinion, click on the play button beneath the image, for the California SLAPP Law Podcast.