Aaron Morris

Can you use the Terms of Service of Twitter, Facebook, YouTube, TikTok, or Instagram to get Defamatory Content Removed?

terms of service stamp

Today’s article idea was generated by a call from a potential client. Someone caught him on video, doing something he should not have been doing, and posted it to YouTube. The video had gone viral, and was ruining the caller’s life. He wanted to sue to get the video removed from YouTube.

I launched into a discussion of the elements of defamation, and how he would probably not be able to successfully sue the person who posted the video for defamation, given what he had told me thus far. To that he responded that he had no interest in suing the individual. He wanted to sue YouTube for violation of its own Terms of Service. He had taken the time to review YouTube’s Terms of Service, and right there in black and white they state:

“YouTube reserves the right to suspend or terminate your Google account or your access to all or part of the Service if (a) you materially or repeatedly breach this Agreement; (b) we are required to do so to comply with a legal requirement or a court order; or (c) we reasonably believe that there has been conduct that creates (or could create) liability or harm to any user, other third party, YouTube or our Affiliates.

From the caller’s point of view, the video was causing him harm, yet YouTube had refused to take it down even though he demanded that it do so. That was a clear violation of the Terms of Service, and he wanted to sue for breach of contract.

I get asked this question often, so I decided it was time for an article I can direct callers to when they are considering such an action. I’ll state the precise question so we can take a deep dive into the legal analysis.

Can you sue a social media site when it fails to comply with its own Terms of Service (sometimes called Terms of Use)?

No. Thank you. Come again. Be sure to tip your server.

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This Changes Everything – You Can Now Be Sued for Calling the Police

Angry Plaintiff in Jail

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate the terrible consequences of California’s new take on what speech is privileged.

The criminal across the street.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. (This is a real phenomenon, with some people believing they own the street in front of their home.) During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guests’ cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

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Morris & Stone Wins $3.9 Million Defamation Judgment

defamation
First rule of defamation defense: Don’t say anything you can’t prove.

I would think this concept would be so obvious and self-explanatory that it would never arise in my practice, but it comes up over and over.

I see it often in the case of plastic surgeons. Plastic surgeons have a tough go of it in the reputation area, given the nature of their practice. The person coming to them is unhappy with their breasts, eyes, nose, or whatever, and they are disappointed when the cosmetic change fails to change their life. They feel that the surgeon must have done something wrong. It’s not surprising that we get so many calls from plastic surgeons.

But we also get the calls from the patients, being sued by the plastic surgeons for defamation. When I explain that the analysis is simple – so long as they can prove the truth of everything they said in their review of the surgeon, they will be fine – they respond that absolutely they can. But then when I read the review, I find the statement they will likely never be able to prove:

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J. Niley Dorit v. Noe — Major Anti-SLAPP Victory for Morris & Stone

Another Day at Morris & Stone

J. Niley Dorit v. Noe

Another victory in the Court of Appeal by Morris & Stone. And while this case did not arise from a defamation claim, it did involve an anti-SLAPP motion, and thus will provide precedent for defamation claims in that context.

Here are the simple facts.

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution.

This is where the, “well that can’t be right” part comes in. Jack brought me the complaint, and asked me to defend him. I thought I must be missing something. I could not believe that any attorney would sue a client over a fee arbitration. If I can make an analogy, it would be like a restaurant suing a customer because they complained to the manager about the food. Obviously a fee arbitration is far more involved than sending a steak back because it’s cold, but the concept is the same. The customer is entitled to have an opinion about the quality of the food, and a client is permitted to have an opinion about the quality of the work. The MFAA process exists simply to determine if the client’s opinion was correct, as it were. It’s not something you sue over.

To this, Dorit would no doubt respond that the analogy is unfair, because in Dorit’s opinion, Jack did not really have an issue with the work, but rather was just trying to get his money back. Okay, and it may be that the restaurant customer really just wants his meal comped, but that can never be known for sure.

So I’m looking at Dorit’s complaint dumbfounded, and I quickly determined that Dorit’s lawsuit was a SLAPP, since it sought to challenge Jack’s use of “any other official proceeding authorized by law,” namely, the MFAA process. Dorit’s lawsuit was the quintessential SLAPP, because he was suing Jack for utilizing the very process created for fee disputes. If allowed, then the MFAA process might as well be scrapped. No rational client would arbitrate a fee dispute if they faced a potential malicious prosecution action. I could not let Dorit’s action stand, and I wanted to create a precedent so other attorneys would not follow his example.

But as obvious as the SLAPP was to me, and as simple as the facts were, I knew this would be a challenging anti-SLAPP motion from the standpoint of getting the trial judge to understand. Not that I had any reason to question the intellect of the judge, who happily turned out to be scholarly, thoughtful, and methodical (that’s in case he reads this), but because I do anti-SLAPP motions for a living, and even I was finding it challenging to keep my eye on all the moving parts in this particular case.

Here is why.

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Is it Defamatory to Call Someone “Racist”?

In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”

“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.

Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “He did a terrible job cutting my hair. Oh, and he is a racist too.”

So, the question presented by this article:

Is it defamatory to call someone “racist”?

As always, we must begin with the elements of the claim. 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.” Price v. Operating Engineers Local Union No. 3.

However, the second element, falsity, is subject to further clarification.The false statement must be verifiably false. Overstock.com, Inc. v. Gradient Analytics, Inc.  It is for this reason that cases have routinely held that calling someone a racist is not defamatory, because it is not verifiably false. There is no measure we can use to determine the truth or falsity of the statement, because it will always be a matter of opinion.

Some callers will offer all the ways they can prove that they are not a racist, including a spouse and children who belong to the race in question, years of fighting for the rights of that race, a Nobel Peace Prize for the work they have performed fighting for equal rights, and thousands of friends belonging to the race. (I obviously exaggerate to make the point.)

None of that defeats a claim of racism, at least as to the person making the claim. If that person claims the Barista at the Starbucks is a racist because they misspelled their name on the cup, who is to say that is not true?

“But I just misheard your name.”

“Then you’re a racist for not asking me to repeat it or asking for the proper spelling.”

“But the point is just so the person knows which cup is theirs; it’s not about the spelling.”

“So you don’t care how minorities spell their names? Racist.”

Ultimately, whether or not someone is a racist is always a matter of opinion, and the cases have so held. But there is a way a claim of racism can be actionable, as explained in the case of Overhill Farms, Inc. v. Lopez.

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Morris & Stone Case Creates Important Internet Defamation Authority

Super hero with computer circuit

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

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Slut or Not a Slut, that is the Question

Is calling someone a “slut” defamatory?

I have said in the past that the answer is no, because it is the sort of word that is so imprecise in its definition, that it is simply impossible to show that it is verifiably false. The speaker might think that anyone who engages in pre-marital sex is a slut, or that a woman who wears a skirt less than two inches above her knee is a slut, or whatever.

So a case out of Australia caught my eye, because they are actually trying to create some litmus test to determine what would make one a slut. The case involves one Emma Husar, who is a Federal MP. She is suing BuzzFeed Australia, because it reported that she’s a “slut who boasts about who she has had sex with.”

Here’s where it gets fun.

BuzzFeed is asserting a truth defense, arguing that it can show that Husar flashed a fellow MP, Sharon Stone style, had a relationship with another MP, and engaged in sexualized conduct toward her physiotherapist. In BuzzFeed’s estimation, that makes Husar a slut.

Counsel for Husar, however, is seeking to strike the truth defense, claiming that even if BuzzFeed can prove the listed activities, that would not make Husar a slut.

This is why I love the law.

[Update 1-19-22:] I happened across this article, and was curious as to the outcome of Husar’s suit against BuzzFeed Australia. Discussing the case, Husar said:

“I am not a bully, I am not Sharon Stone, I am not a thief and I did not deliberately misuse my work expenses.”

The judge ruled that BuzzFeed could not use the truth defense. Not because it was not available as a defense (or defence as they spell it in Australia), but because BuzzFeed could not show that she had flashed a fellow MP or that she had every sexually harassed anyone. Following the ruling by the court, BuzzFeed wisely reached an out-of-court settlement with Hussar. The terms of the settlement were confidential, but they apparently included removal of the article and an apology for publishing it, since those acts immediately occurred. BuzzFeed did not admit liability.

BuzzFeed later announced that it would be closing its operations in Australia and the UK in order to “focus on ‘news that hits big’ in the US.”

Here is How You Sue the News for Lying

Is that false news really false?

This is another article that callers have compelled me to write, so that I have a resource I can send them to that explains this important point of law.

We begin with Civil Code section 45, which defines libel:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

Thus, as a beginning point, a statement must be verifiably false to be defamatory.

But as the rest of the statute makes clear, falsity is not enough. If I publish an article falsely stating that you own a home in Beverly Hills, I have told a lie about you, but it would not be defamatory or actionable. That is the first point that many people struggle with. They grew up hearing “liar, liar, pants on fire,” and they assume that there must be some remedy against someone who tells a lie. (At a minimum, their pants should combust.)

Such is not the case. Lying about your home in Beverly Hills is not actionable, because that claim does not expose you to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” There is simply nothing wrong with owning a home in Beverly Hills.

Now as is always the case in analyzing statements to see if they are defamatory, context is everything. If you were known as the person who swore off all material possessions in order to live with and assist the homeless, and I publish a story falsely claiming you own a home in Beverly Hills, in that context the statement could be defamatory because it amounts to calling you a liar. But the first step in the analysis is to determine if the statement is false, and whether, if taken as true, the statement would subject you to hatred, contempt, etc.

Next comes the part that is at the heart of the article; the issue of what is false in the context of media reporting. Continue reading

California Supreme Court Puts Counsel for Yelp Through the Grinder in Hassell v. Bird

The tale of Hassell v. Bird.

I previously published a long article on the case of Hassell v. Bird, and I was invited to file a friend of the court brief in the California Supreme Court after it took up the case.

My original article provides much greater detail, but briefly for purposes of this article, Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc.

Here, the trial court felt that it was reasonable to require Yelp to take down the review, even though it was not a party to the action. The review had been deemed to be defamatory, and it was not Yelp’s speech that was being attacked, so certainly Yelp would have no horse in the race. Indeed, presumably Yelp wants the reviews posted on its site to be as truthful as possible, so it should welcome an order that would result in the removal of a false review.

But Yelp’s business model depends on negative reviews, so it cried foul. Even after the Court of Appeal found that the judge’s order was entirely proper, Yelp went to the Supreme Court to fight for the right to publish false and defamatory reviews.

Today, I attended the oral argument held in that case, in front of the seven justices of the California Supreme Court.

It was pretty painful to watch, given the positions counsel for Yelp was forced to defend. Continue reading

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.

This only applies to verifiably false and defamatory reviews.

I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.

Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.

But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.

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Aaron Morris

Morris & Stone, LLP
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

Email Aaron Morris

View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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