Aaron Morris

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. For some reason, the typical scenario 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?

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Watch Out for Litigation Costs

litigation costs

Some attorneys (and their clients) do not consider litigation costs when performing their cost/benefit analysis. Likely, if they consider them at all, it is only from the perspective of what they will need to spend to prosecute the action. But 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

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.

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

You Can’t Prove Slander Without a Witness

rumors

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

damaged man

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.

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

Fingers crossed defamatory

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 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

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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Aaron Morris

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

Email Aaron Morris

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