Understanding the Common Interest Privilege

Woman talking to man

Based on innumerable calls, and witnessing defamation actions brought by attorneys unfamiliar with privileged speech, it is clear that a discussion of the Common Interest Privilege is in order.

Let’s begin at the beginning, namely, the elements of a defamation claim. To prove a claim for defamation, the plaintiff must prove: (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. Each of those elements requires further explanation, but today we are focusing on the “unprivileged” element; perhaps the most misunderstood of the elements based on the inquiries we receive.

Certain categories of speech are privileged for various public policy reasons, and are set forth primarily in Civil Code § 47. Here are some examples from that section.

A privileged publication or broadcast is one made:

(a) In the proper discharge of an official duty.

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . ., except as follows:
. . .

(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.

Section 47(c) codifies the Common Interest Privilege, and it is very broad privilege. The statute is long and there is a lot to absorb, but in its simplest terms, Section 47(c) extends a conditional privilege against defamation to communications made without malice on subjects of mutual interest.

The most common example of callers who want to sue for defamation, where it is almost certain that a defamation claim would fail due to the Common Interest Privilege, involve claims of sexual harassment in the workplace. Typically, the facts are that a man said something to a woman that she found inappropriate, she complains to Human Resources, and he suffers some adverse job action as a result, from demotion to termination. He is convinced that no reasonable person could have taken what he said as sexual harassment, and wants to sue his coworker and/or the company for defamation.  Continue reading

Would you want to live in a country where you could sue for that?

Two women fighting

Happy birthday to you,
You live in a zoo,
You look like a monkey,
And you smell like one too.    -Anon

I get lots of phone calls relating to defamation, where the caller wants to sue for some inconsequential slight.

For example, a caller once told the story of how he tried to use a Discover card at Costco. When the cashier informed him that Costco only accepts Visa and debit cards, he responded that he had used a Discover card the prior week. To this the cashier responded, “There’s no way you could have paid with a Discovery card last week. You’re being crazy.”

Because he was referred to as “crazy” in front of other customers, he wanted to sue for defamation.

If you actually need a legal analysis for this, calling someone crazy is not defamatory, because it is not being offered as a verifiably true statement. The cashier was not proclaiming that the caller suffers from a mental illness, only that he was “acting the fool.” As I have explained here many times, context is everything in a defamation action.

When I get this type of call, I feel like I need to accomplish more than simply explaining that the facts will not support a defamation action. I have the person’s attention, so perhaps I can get them to look at life in a different way — a way that could improve their attitude and cause them to better embrace the freedoms that we enjoy.

To that end, I ask the question, “would you want to live in a country where you could sue for that?”  Continue reading

Is Susanna Gibson a Victim of Revenge Porn?

Porn key on computer keyboard

In case you missed it, Susanna Gibson is a candidate for a seat in Virginia’s House of Delegates. Her campaign grabbed the public’s attention when it was revealed that she streamed sex acts online in exchange for tips. Here are all the details, as reported in The Washington Post:

A Democrat running for a crucial seat in Virginia’s House of Delegates performed sex acts with her husband for a live online audience and encouraged viewers to pay them with “tips” for specific requests, according to online videos viewed by The Washington Post.

Susanna Gibson, a nurse practitioner and mother of two young children running in a highly competitive suburban Richmond district, streamed sex acts on Chaturbate, a platform that says it takes its name from “the act of masturbating while chatting online.”

Chaturbate videos are streamed live on that site and are often archived on other publicly available sites. More than a dozen videos of the couple captured from the Chaturbate stream were archived on one of those sites — Recurbate — in September 2022, after she entered the race. The most recent were two videos archived on Sept. 30, 2022. It is unclear when the live stream occurred.

Gibson, 40, can be seen in the videos soliciting “tips” for performing specific acts — in apparent violation of Chaturbate’s terms and conditions, which say: “Requesting or demanding specific acts for tips may result in a ban from the Platform for all parties involved.”

In at least two videos, she tells viewers she is “raising money for a good cause.”

In multiple videos, Gibson interrupts sex acts to type into a bedside computer. Speaking directly into the screen, she urges viewers to provide tips, which are paid through “tokens” purchased through the site. In at least two videos, she agrees to perform certain acts only in a “private room,” an arrangement that requires the viewer to pay more.

“I need, like, more tokens before I let him do that,” she responds to a request that they perform a certain act. “One token, no. More. Raising money for a good cause.”

Almost immediately, as tips apparently arrive, she says “thank you” five times and tells her husband she will agree to that act.

Gibson takes the lead in addressing viewers on videos viewed by The Post, but in one case her husband, an attorney, chimes in with, “C’mon, guys,” to echo her entreaties for tips.

So now the scene has been set for the legal analysis.

She performed the sex acts online with no reasonable expectation of privacy. In such situations, the argument is sometimes made that there is an expectation of privacy, because the acts are performed for a limited number of paid members, and not for the internet at large. But this argument seldom withstands scrutiny because, as the saying goes, “the internet is forever.” Anything streamed out to the internet can be captured by anyone watching, who can then display it to others. This is even clearer in this case because, according to the Washington Post article, although the videos are initially streamed live, they are posted on other sites following the live stream, available to any subscriber. (Although it appears that these particular videos were removed after their existence was revealed.) Continue reading

You Must Move Quickly if a News Publication Defames You

Man with briefcase running to court.

Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships as sea. The year was 1931. The Empire State Building had just been completed, the Star-Spangled Banner was adopted as the Unities States’ national anthem, and Albert Einstein began his research at the California Institute of Technology.

In California, the Legislature decided to encourage the rapid reporting of news by newspapers, by affording them some protections from liability. Civil Code § 48a was passed, and stated:

“In any action for damages for the publication of a libel in a newspaper, if the defendant can show that such libelous matter was published through misinformation or mistake, the plaintiff shall recover no more than actual damages, unless a retraction be demanded and refused as hereinafter provided.”

It was amended in 1945 to add the same protection to news reported on the radio. At that point, television* and the internet did not exist. Magazines existed, but for whatever reason, the legislature elected not to include them.

And there the statute sat for 70 years, protecting only newspapers and radio. This lead to some strange results, as other publications that should logically be afforded the same protections, simply did not fall under the wording of the statute. Continue reading

What to do if a Doctor Puts False Information in your Medical Records

Doctor standing in front of patient in bed.

We get a surprising number of calls concerning medical records, and the false information contained therein. Often it arises in the context of a patient who is prescribed pain killers. Doctors, understandably, are sensitive to over-prescribing opioids, both out of concern for the patient, and because the doctor can get in trouble for being too loose with such prescriptions.

But that concern sometimes results in the doctor being a little overzealous. The doctor is unconvinced that the patient is really in as much pain as they claim, and concludes the patient has developed an addiction. They note that conclusion in the patient’s medical records, and the patient feels they have been branded as a junkie to any and all doctors that examine their records in the future. The patient calls our office, wanting to sue for defamation, in order to get the comment removed from the record.

We have never sued on that basis, and probably never will, but keep reading, because I can offer a possible solution. Continue reading

Are News Reports Offered as Factual Assertions?

factual assertion

Sacramento Kings center Richaun Holmes is suing his ex-wife, Allexis Holmes, the Sacramento Bee, and one of its opinion writers, Robin Epley, for defamation. In the course of a custody battle, Allexis made allegations of abuse against Richaun, which were reported and opined on by the Sacramento Bee. Richaun claims the publication damaged his reputation.

The case illustrates an important aspect of defamation claims. Namely, when a newspaper reports what someone else has said, is it liable if the statements are false?

Let’s begin our analysis with the elements of defamation:

The elements of defamation are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).
But the second element, requiring that the statement be false, has an added qualifier under the law. It must imply a “provably false factual assertion.”

“We apply a ‘totality of the circumstances’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense …. Next, the context in which the statement was made must be considered.” Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” Balla v. Hall, 59 Cal. App. 5th 652, 678 (2021).

In my never to be humble opinion, a report by a news outlet almost never implies the truth of the statements it is making. Unless the reporter is reporting something he or she saw, how could anyone take the statements as anything other than hearsay? Continue reading

If You Want to Sue for Defamation, Here’s Your Homework

defamation homework

I won’t bury the lead. If you want me to determine whether you have a viable defamation action, here is the information I need. It’s your defamation homework. If you take the time to carefully read this article, it is likely to address any questions you might have about pursuing a defamation action. This is a long article, but it will leave you with a strong understanding of all the factors necessary to analyze your case.

I NEED TO KNOW EXACTLY WHAT WAS SAID, WHEN IT WAS SAID, AND TO WHOM.

When you sue for defamation, you are suing for something that was said or written about you or your company. Therefore, the complaint that is filed with the court must allege EXACTLY what was said or written that you are claiming was false and defamatory.

The most efficient way for me to determine whether you have a viable defamation action is for you to provide that information. If there is only one statement, then that is all you will list, but if there are multiple statements you deem to be false and defamatory, then limit your list to the five most egregious examples. If I read those five and determine that they won’t support a defamation action, then 95 additional statements that are even less egregious probably won’t make a difference.  Continue reading

Should You Sue Family Members for Defamation?

family defamation

If one is asking whether they should sue family members for defamation, I have to wonder what Thanksgiving dinners are like with these families. I get these calls often, and they are very sad because they show an estranged family. In this article, I will discuss whether it ever makes sense to sue a family member.

Common scenarios.

Family disputes arise from a few common scenarios. The one I see most often arises from disputes over property, when a family member feels cheated. For example, Joe moves in with mom to take care of her, and his brother Bill is not happy with the care Joe is providing. Additionally, Bill becomes convinced that Joe’s new found compassion is really about convincing mom to sign over the house. Bill goes to court to seek a conservatorship, and to bolster that claim, he contacts Adult Protective Services, claiming Joe is abusing dear old Mom. Joe wants to sue for defamation for what Bill put in the court documents, and for what he said to the police.

Another common scenario involves a family member with mental issues and/or a drug problem. The family is showing a little tough love in an effort to get the person back on the path, but he takes it as a personal attack. He wants to sue family members for things they have said to doctors and social workers.

And yet another common scenario, the one we’ll use for today’s discussion, involves a wife who is relatively new to the family. Apparently following the reasoning that “no woman is good enough for my ________” (son, brother, nephew, cousin – fill in the blank), a split has formed, with half the family attacking the new bride, and the other half defending her. She has had enough, and calls me, wanting to sue the family ringleader who is saying bad things about her.

Should she sue? Continue reading

Watch Out for Litigation Costs

litigation costs

Some attorneys (and their clients) do not consider litigation costs when performing their cost/benefit analysis. I’m not talking about the attorney fees. All parties are likely painfully aware of the attorney fees. I’m referring to the costs — deposition fees, filing fees, expert fees, etc. From my experience, if opposing counsel considers the costs at all, it is only from the perspective of what they will need to spend to prosecute the action. But the prevailing party in litigation is entitled to recover their costs. As our recent case illustrates, how much the opposition is going to spend must be considered. Continue reading

To be Defamatory, a Statement Must be Offered as a True Fact

defamation tennis player

A news article caught my eye today that beautifully illustrates an important aspect of defamation law. Here are the facts:

According to Sky News and others, an Australian tennis player by the name of Nick Kyrgios was playing in the Wimbledon final. Kyrgios was given a code violation for swearing, after a spectator called out before a second serve. Kyrgios then asked the umpire to eject the woman “who looks like she’s had about 700 drinks.” The woman is now reportedly suing for defamation for that statement, alleging that while it is true she had been drinking, she had not consumed 700 drinks.

Was the statement defamatory? Before I answer, let’s use an extreme example to illustrate the point. Continue reading

Aaron Morris

Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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