Privilege

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.

Single Publication Rule Found to Apply to Internet

Internet Defamation Single Publication Rule

I get calls every week from people wanting to sue for defamation for something that was said in a declaration. The declaration may have been filed in support of a restraining order, or in family court where parents are fighting over custody of their children. The declaration includes terrible lies about the caller, so he or she wants to sue for defamation.

No can do.

For a statement to be defamatory, it must be unprivileged. Public policy and statutes create a number of privileges that keep a statement from constituting defamation. For example, in California, and likely every other State, a statement made in conjunction with a legal action is privileged, and therefore immune from any claim of defamation. It may be hard to swallow that people can lie about you in a declaration and yet be immune from a claim for defamation, but it has to be that way. Imagine the backlogs that would occur in the courts if every declaration filed yielded another lawsuit for the lies allegedly told in the declaration. Indeed, if suing for something said in a declaration was permitted, then you would be compelled to sue every time the other side filed one. After all, if you didn’t, the Court would have to view that as an admission. Of course, the newly filed lawsuit would generate declarations, so that person would now file another lawsuit, and so it would go, ad infinitum.

When I explain this reality to callers, I generally get a response that goes something like this:

“So you’re telling me, she can say ANYTHING she wants to, and there’s NOTHING I can do about it?! She can claim I’m a murderer, and I just have to take it. She can claim that I rob banks and molest my children, and I just have to smile. Is THAT what you’re telling me?”

No, that’s not even close to what I am telling you. You can’t sue for defamation, but that doesn’t mean you have to take it. You don’t need to file a separate lawsuit for something said in a declaration, because you are already IN a lawsuit. That’s why litigation is called an adversarial system. Your ex-wife files a declaration saying you beat the children, you respond by filing your own declaration saying you don’t, supported by additional declarations from friends and family saying they have never seen you mistreat your children.  Every trial involves witnesses testifying to very different versions fo the facts, and the judge has to decide whom to believe.  Conflicting declarations are no different.

Plus, lying in a declaration is called perjury. That’s a crime. So, your spouse doesn’t get to say ANYTHING she wants, because she can go to jail. Admittedly, declarants are seldom prosecuted for perjury, but if they tell lies, they lose credibility with the judge and lose the case because your skilled attorney will show them to be the liars they are.

So, back to the Wisconsin case.

The case involved a defamation action against the Milwaukee Brewers and its longtime radio commentator, Bob Uecker. In 2006, Uecker sought an injunction against someone named Ann Ladd, claiming Ladd was harassing him. Ladd was charged with felony stalking around the same time. That criminal charge was dismissed, but the civil court issued the injunction requested by Uecker against Ladd.

Ladd then filed a defamation lawsuit against Uecker, claiming the declaration he provided in support of the injunction was defamatory. But we know a declaration filed in court can’t be defamatory because it is privileged. The judge knew that too, and held that the allegations failed to state a claim because they were privileged. (See, I don’t make this stuff up.)

But as judges often do, he continued to analyze the case under other considerations. The declaration by Uecker, which is a public document, had been published on the Internet at thesmokinggun.com. Ladd was suing for that publication, but it had occurred more than two years prior to the time she brought her action, and would therefore be barred under Wisconsin’s statute of limitations. Ladd argued that the statute had not run, because the declaration was still available on the site, and that every time someone saw the continuing publication, that started a new limitation period.

The court did not agree. It chose to follow the “single publication rule” which holds that, like something published in a newspaper, an article published on the Internet starts the statute of limitations clock running, and that clock is not reset every time someone sees the article, or even when it is republished by another site. If such were the case, the statute of limitations would go on forever on the Internet.

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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