You Must Move Quickly if a News Publication Defames You
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
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?
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).
“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
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, AND WHEN.
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?
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
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
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
You Can’t Prove Slander Without a Witness
You can’t prove slander without a witness.
Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.
In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.
For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.
Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.
The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what he said.
Slander is even tougher. Continue reading
Damages Do Not Prove Defamation
Damages do not prove defamation.
A quick but very important aspect of defamation law.
If someone defames you, and that defamation results in a gazillion dollars in damages, then of course those damages will be highly relevant to the action.
But if someone says something about you that is not defamatory, and you suffer the same gazillion in damages, then those damages are irrelevant to any defamation analysis.
This seems self-evident, but I find myself in this conversation on a regular basis (with varying fact patterns): Continue reading
A Statement is Not Defamatory Just Because it is False
I received a call today involving this important point of law, but when I went to forward the caller an article on the topic, I found that I have apparently never written one. I hereby correct that omission.
Here is the simple concept.
Whether a statement is defamatory will be controlled by the context provided.
But before I expand further on that, let’s take one step back. You must first understand that a statement is not defamatory, just because it is false. I would think that would be self evident, but I have the following conversation with callers at least three times a week (obviously with varying fact patterns):
“I want to sue the Los Angeles Times. The paper mentioned me in an article, and claimed that I graduated from the Arizona State University. That’s a lie. I graduated from the University of Arizona.”
“I’m sorry, but I must be missing something. How is it defamatory to claim you graduated from Arizona State University?”
“Because it’s a lie. I did not graduate from ASU.”
“Yes, I get that, but a statement is not defamatory just because it is false. If I state you drive a red car, but you really drive a blue car, I have told a lie about you, but I’m sure you will agree that you would not be able to sue me for defamation, because there is nothing wrong with driving a red car.”
“I don’t agree with that at all. It’s a lie. You told a lie. You can’t just tell lies about me and get away with it. And there is something wrong with graduating from ASU. The University of Arizona is a much better school.”
“But even if that is true – that one school is better than the other – is there some context in the article that would make that important? Such as, they are attacking your credibility based on attendance at a lesser university?”
“No, it’s just wrong, and I don’t want people thinking I graduated from ASU. This could destroy my ability to find a job.”
Sorry caller, it doesn’t work that way. Despite your school loyalty, saying you graduated from ASU will not support a defamation action, even though it is false. A statement must be false to be defamatory, but a statement is not defamatory just because it is false.
Now that you know that basic rule, we can return to the important concept. Continue reading
