Aaron Morris
Morris & Stone Case Creates Important Internet Defamation Authority
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
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.
This usually arises from a news story, reporting an arrest. The caller was arrested for, say, credit card fraud. He owns a business, and customers claimed that he was making unauthorized charges on their cards. He is ultimately arrested, and several media outlets report that he was arrested for credit card fraud. And just to set up the story for another point, let’s say he was charged with 15 counts of credit card fraud, but some of the outlets reported it as 20 counts.
Then one of three things occurs. Although he was arrested, the District Attorney takes a look at the case and decides not to prosecute. Alternatively, he goes to trial and is found not guilty. Or, he goes to trial and is found guilty, but the charges are later expunged or he is pardoned.
Now this person calls me and wants to sue the media outlets for defamation, claiming that he never committed credit card fraud, as evidenced by the dropped charges, acquittal, or expungement/pardon.**
The FACT that the arrest occurred is true.
It doesn’t work that way, because the statements by the news organizations were ENTIRELY TRUE. The caller WAS arrested for credit card fraud. Whatever occurred thereafter as regards the caller’s guilt does not negate the fact that the caller was arrested, so the statement was not false.
Sometimes callers cannot be made to see this fact. They argue that they could not have been arrested for a crime they did not commit, so the statement is therefore false. In their minds, the statement, “Joe Dokes was arrested by the Riverside Police for 20 counts of credit card fraud” translates to “Joe Dokes committed credit card fraud.”
Taking it a step further, after I explain the concept of falsity, they will assert that this case is different, because the news came right out and reported that he had committed the crime. They will ask if they can send me the video from the news station, where the reporter supposedly flat-out states that this person is guilty of credit card fraud. I explain, without seeing the video, I can say with 95.7% certainty that the report will contain enough “allegedly” and “as reported” language to make clear that the reporter is not making a claim of guilt, but they assure me such is not the case. I agree to watch the video if they will give me the timestamp for that portion where the reporter looks into the camera and states that they committed the crime.
Every time I have been provided a video where the caller swears that the reporter claims they are guilty of the offense, when I get to that point in the video, is simply says something like, “Police Investigator John Billingsworth stated that the customers claimed that after signing up for fitness training, they would later find charges on their credit card statements for sessions they did not authorize or attend.”
It is surprising to me that after going through the video in the detail necessary to find me the time stamp, the caller still believes that statement is an affirmation that they committed the crime. Unless it is the case that Investigator Billingsworth never made such a statement to the media, then presumably it is true that is what the customers told him, and the media report is therefore, again, entirely true.
That is not to say you can never sue a news outlet. A caller once reported to me that a news commentator identified him by name, stated that he was a member of Al-Qaeda, and implied he had participated in attacks against the United States. I watched the report, and was shocked to see the commentator say exactly that, claiming it was based on his own personal knowledge. It turned out he had confused him with someone with a similar name. We obtained a large settlement for the client, and the commentator was never seen on the air again.
In performing your analysis, look for the disclaimers in the video or article. The format is usually the same. The opening paragraph will set forth the accusation of criminal conduct, and end with, “authorities said.” The next paragraph will throw in additional details about the time, place, and location. In the next paragraph, it’s back to the disclaimers, ending with something like, “police said” or “records show.” Some paragraphs may not contain a disclaimer, but that does not make the article defamatory since the disclaimers in the other paragraphs make clear that the news item is based on third-party statements. Indeed, a news article is never a first-person account unless the reporter claims to have witnessed the crime.
Some attorneys fail to see this as well.
And lest you think this misunderstanding is limited to potential clients, rest assured that many attorneys fail to comprehend this point as well.
A recent example came out of Ohio. There, an attorney was sued by her former client, and the Medina Gazette newspaper reported on the lawsuit, stating that the client had sued the attorney for fraud, breach of duty, and failure to provide competent services. The article then repeated verbatim some of the allegations contained in the complaint.
The attorney sued the newspaper, claiming that it had “falsely accused her of numerous allegations that on their face reflect upon her character in a manner that will cause her to be ridiculed, hated, held in contempt, or in a manner that will injure her in her trade or profession as an attorney.”
The newspaper brought a motion to dismiss, which was granted. The trial court found, as it had to, that the newspaper had accurately reported the basis for the lawsuit, without ever stating that any of the allegations were true.
Still missing the point, the attorney appealed, and the appellate court upheld the dismissal, stating: “[i]t is clear based on a plain reading of the article attached to the complaint that the Medina Gazette does not accuse [the attorney] of mortgage fraud, but rather reports that her former client is suing her for mortgage fraud.”
Showing that she really, REALLY did not get the point, the attorney had argued on appeal that the newspaper was liable for failing to investigate the truthfulness of the allegations before reporting them. The truth of the allegations is irrelevant to reporting that they exist. Only if the newspaper was going to report that the allegations were true, would it then have a duty to investigate whether that was the case.
Another hurdle – The Fair Report Privilege
One more hurdle to suing a media outlet comes in the form of the Fair Report Privilege, set forth in Civil Code section 47, which lists a number of privileges. Stated simply, under subdivision (e), someone publishing information is protected against a claim for defamation so long as they publish “a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”
Also, subdivision (d) provides the same protections against legal action for “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.”
This can all be summarized as follows. The defendant will be safe from your lawsuit if he can show (1) his source was an official public document or statement by a public official on a matter of public concern; (2) he properly attributed the information to that source; and (3) he fairly and accurately reported the information from the document or statement.
Generally speaking, a person who republishes a defamatory statement is as liable as the person who first spoke the lie. Under that reasoning, if the police falsely told a newspaper that you had committed arson, and the newspaper reported that claim, it would be liable for defamation. BUT, it is because of the Fair Report Privilege that a newspaper would NOT be liable for reporting the false statement of the police.
But what if the story contains false statements?
I already hear the gears turning. Under this last privilege, the statement must be “a fair and true report” of the proceedings, statement, or document. Using our example, what about the point that the some media outlets reported 20 charges, when there were only 15? That’s not true.
The law requires only that the “gist” of the statement be true, and that is determined by whether the statement “would have a different effect on the mind of the reader from that with the pleaded truth would have produced.” Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 517.
Let me give you a real life example that just came down today.
A CBS station did a story on a pain killer epidemic in West Virginia, detailing how some doctors were allegedly running pain killer dispensaries, assisted by a named pharmacy that “was filling more than 150 pain prescriptions a day from one clinic alone.” The pharmacy sued CBS, claiming that it was not doing anything illegal, and it was certainly not filling 150 prescriptions per day.
The defamation case was dismissed today on a motion for summary judgment, after the court found that the statements, while potentially misleading, correctly captured the “gist” of the situation.
The pharmacy contended that the quoted statement implied that it was filling over 150 pain killer prescriptions per day, when in fact that had only occurred on seven occasions. The court found that this difference between reality and how it was reported would not have a different effect on the mind of the reader.
The Employment Test
I use what I call the employment test, to help callers analyze their case. Let’s use the case of this pharmacist to illustrate the point. Let’s say he is applying to be a pharmacist at CVS, in two parallel universes. In one universe, he tells the interviewer the true version – that he was filling lots and lots of pain killer prescriptions, and on seven but only seven days he filled more than 150 pain killer prescriptions from a single clinic. In the other universe, he provides the media version, telling the interviewer that he “was filling more than 150 pain prescriptions a day from one clinic alone.”
If the CVS interviewer sees such a difference between those two versions, that he or she hires the pharmacist in the first universe but not the second, then that would be a sufficiently “different effect on the mind of the reader” to support an action.
We haven’t yet figured out how to move between parallel universes, but the mental test is sound. If the caller can honestly claim that he would be hired under one interpretation but not the other, then the case is viable. Some will actually try and argue that it is the case that they would be hired with just 15 charges of credit card fraud, but 20 charges is too many, but they are not able to provide any basis for that position.
At this point in the conversation, the caller will often, out of frustration, exclaim, “so you are telling me they can tell all the lies they want about me and there is nothing I can do about it?”
I’m not saying that at all. The entire point is that they are not lies, and that is the point the caller is refusing to accept. In my 30 years of practice, I have taken just two cases against media outlets, and I have prevailed on both, specifically because they did precisely what all these callers are claiming; they went beyond merely reporting what had occurred and stated guilt as a fact. So it does happen, but it is very rare.
If the news station did in fact report that you committed credit card fraud when you didn’t, that would be false and that would be actionable. But in the vast, vast majority of cases, the station will not make such a claim.
And one final point on the situation where someone’s criminal record was expunged or they were pardoned. They get into an on-line argument, and the opposition does a little digging and uses the former conviction as ammunition in the debate. They call me wanting to sue, asserting that it is a false statement to claim that they were convicted of domestic abuse, since that conviction was expunged.
Again, the statement is true. At a point in time, the caller was in fact convicted of domestic abuse. The fact that a court later decided to give the caller a fresh start by expunging the conviction does not alter the fact that it occurred. It may help in the case of a subsequent conviction since it will not be used as a prior, and there may be some rule that the person no longer needs to report it on a job application, but none of that alters the fact that the online troll is truthfully reporting a prior conviction. A ruling by the court does not alter reality.
Another hurdle – The Statute of Limitations.
This topic needs its own article, but a high percentage of the time when someone calls wanting to sue a media outlet, the Statute of Limitations has passed, so I will touch on the topic briefly.
The statute of limitations for defamation on the internet is just one year from the date of publication. It is often the case that a person who is arrested for a crime they did not commit, does not think about suing for defamation until the criminal matter is resolved. But by then, the year may have already passed. Alternatively, they did not fully contemplate the ramifications of the news story until living with it for a couple of years. They want to sue for defamation, hoping to force its removal. Their hopes are dashed when I have to tell them that the deadline to bring the action has already passed.
To this the callers will respond, “but the story is still available on the internet, so the injury is ongoing.” Absolutely true, but that doesn’t change the statute of limitations. California follows what is called the single-publication rule. Simply stated, the one-year clock starts ticking from the date the news story is published, and that does not change simply because it remains on the internet. Go to this court opinion explaining the single-publication rule if you want more details.
Additionally, internet defamation is not subject to the discovery rule. If you saw the offending news article for the first time today, the statute of limitations will nonetheless run from the date of publication.
And one more hurdle – Civil Code 48a.
Civil Code section 48a was written way back in 1872, in a very different media world, but it is a dangerous trap for some litigation actions. Here is what is says:
(a) In any action for damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section. Plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that those statements be corrected. The notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.
So, if you are defamed by a newspaper or radio station, or some sort of weekly publication, you will be limited to special damages if you fail to demand a retraction within 20 days. What are “special damages?” That is defined in the same statute:
“Special damages” means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other.
Often in defamation cases, there are no special damages, or they can’t be proven. Typically potential customers to your business won’t call to say they are not doing business with you due to what they read. That’s okay; you can still recover damages for loss of reputation, shame, mortification, and hurt feelings, as well as punitive damages, but only if you complied with Civil Code section 48a.
One thing you can do if you have no basis for a defamation action.
So as not to be a complete bearer of bad news, I will leave you with one possible course of action.
If after reading this, you determine you do not have a basis to sue the news outlet (of course none of this is legal advice and you should consult with other attorneys), then go to the news outlet and see what they are willing to do. They concluded that your arrest was newsworthy, so the fact that you were acquitted or whatever should be equally newsworthy. It is unlikely that they will agree to remove the news item, but they may update it, or give you the opportunity to respond. Not a perfect solution, but if the item is ruining your reputation and keeping you from finding work, better to have it include the fact that you were found not guilty, as opposed to creating the impression that you committed the crime.
Use your best people skills. Don’t threaten them with legal action, since that would be a toothless threat, and will immediately make the interaction adversarial. The better approach is to appeal to their humanity. Something like:
“A couple of years ago, you published an article about my arrest, and even though I was cleared of any charges, the article is really interfering with my ability to find work. Who do I talk to to see if the article can be removed?” For a number of reasons, news outlets are loath to remove articles. For one, if ten years from now you are charged with a similar crime, people might be interested to know that you had been arrested for the same offense previously, even if charges were not pursued. But go ahead and start with a request to have the article removed. If the request is denied, then move to the back-up. “I understand, and I really appreciate you taking the time to talk to me. If the article can’t be removed, can we at least update it to reflect that the charges were dropped?” Be prepared to provide any documentation necessary for verification of your claim.
** Sometimes I even get some calls from people who were found guilty, or accepted a plea deal, and still want to sue for defamation. I absolutely understand and accept that in either case, that does not necessarily mean the caller actually committed the offense. Especially in the case of a plea deal, it might make infinite sense to take the offer, rather than face the cost and uncertainty of a trial.
But both suffer from conceptual hurdles. The burden of proof for a criminal conviction is very high. If 12 jurors were convinced, beyond a reasonable doubt, that the caller committed the crime, then why would the outcome be different in a civil action? Similarly, if the uncertainly of the outcome was sufficient that the caller was willing to take a plea deal, that likely indicates there are some troublesome facts to overcome. .
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.
Being a member of a group won’t necessarily give you standing for a defamation claim
Another story illustrating the point I make here over and over, namely, that a statement must accuse you of something bad before it is defamatory.
Today a Federal Court in New York threw out defamation action against Rolling Stone Magazine. Rolling Stone had published an article about a coed named “Jackie” who contended that she had been raped by seven men at the Phi Kappa Psi fraternity house in September 2012.
Three members of that fraternity — George Elias IV, Stephen Hadford and Ross Fowler — sued for defamation, claiming that the article implied that there was an initiation ritual that required new members to rape a coed. The plaintiffs were not named or identified in the article, but since they were members of the fraternity, they alleged that was enough to cause them humiliation and emotional distress.
When the police later investigated, they could find no support for Jackie’s story, and Rolling Stone eventually retracted the story.
Claims of this sort are often too attenuated. In the first place, the judge concluded that “Viewed in the overall context of the article, the quotes cannot reasonably be construed to state or imply that the fraternity enforced a rape requirement as part of an initiation ritual or a pre-condition for membership.” But equally problematic, if the article does not mention any of the plaintiffs by name, then how can they claim that it accuses them of rape? Even it the article left no doubt that the fraternity has such a requirement, perhaps these individuals refused to participate.
The fraternity itself might have a good claim, and if the membership is small enough that a reasonable argument could be made that it damaged the reputation of these three members, then they could have a claim as well.
By way of example, I once received a call from a police officer, wanting to sue for defamation based on what a newspaper had said about the police officers in his community. He was fed up with all the cop bashing, and he never commits the acts that the article attributes to all police, so he wanted to sue.
Context is everything. If the article stated that “every police officer on the Springfield police department is guilty of using excess force,” then the argument could be made that it is directed at this individual officer. But if the article stated that “more police officers on the Springfield police department are guilty of using excess force than any other department,” then it can’t reasonably be argued that the statement identifies any particular officers. Simply stated, your membership in a group won’t be sufficient basis to support a defamation claim, unless the publication specifically states or implies that you committed the acts. Absent extraordinary circumstances, being a member of a group won’t give you standing for a defamation claim.
Ironically and tragically, the frat members probably caused far more damage to themselves than the Rolling Stone article ever would have. The attorney for these fraternity members should have explained what would result from this action. Had the members done nothing, then at worst, in the future when they mentioned that they were former members of this fraternity, they might on very rare occasions have been met with the question, “Isn’t that the frat that has a rape ritual?” They could have answered, “Rolling Stone published a crazy story about that, but it was false, and the magazine later apologized.” Now, they have forever attached their names to this story, and future prospective employers who do an internet search for their names will be presented with this rape story.
[UPDATE – June 13, 2017] Rolling Stone agreed to settle an action brought by the fraternity for $1.65 million. The frat has originally demanded $25 million, but settled for this lesser amount, giving “a significant portion” of the proceeds to charities related to fighting sexual assault.
[UPDATE – September 19, 2017] The 2nd U.S. Circuit Court of Appeals reversed the dismissal of the action brought by fraternity members George Elias IV, Ross Fowler, and Stephen Hadford, finding that, given the small membership of the fraternity, they may be able to successfully show that the Rolling Stone article individually damaged their reputations.
Another Example of How Facebook Can Kill Your Lawsuit
In today’s cautionary tale, a woman, Nancy Nicolauo, was bitten by a tick, and later began suffering symptoms such as numbness, fatigue and lower back pain. Things got worse, and she eventually had problems walking and was confined to a wheelchair.
Given the tick bite, Lyme disease was suspected, but the results came back as negative. She went to a passel of doctors, and was eventually diagnosed with multiple sclerosis.
Nine years after the symptoms started, she got tested again for Lyme disease, and this time the results came back positive. Nicolaou decided to sue for medical malpractice, claiming her medical issue had been improperly diagnosed, causing her to suffer for all those years.
Now comes the key issue. Nicolaou received the results from the Lyme discease test in 2010, and filed her suit in 2012. She claimed she was within the two year statute of limitations (SOL) for a medical malpractice claim because she did not “discover” the misdiagnosis until she received the test results in 2010. But when a claim is based on discovery, the SOL runs from the date that the plaintiff “knew or should have known” of the negligence.
However, counsel for defendants had done a little snooping into Nicolaou’s Facebook postings. As argued by defense counsel, “As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, ‘I had been telling everyone for years i thought it was lyme…,’ to which one of her Facebook friends responded, ‘[Y]ou DID say you had Lyme so many times!'”
Thus, as evidenced by her own Facebook postings, Nicolaou had suspected “for years” that she was suffering from Lyme disease. Therefore, she “knew or SHOULD HAVE KNOWN” that the doctors had misdiagnosed her condition years earlier. The court did not agree that the clock did not start ticking on the SOL until she had actual confirmation from the lab test. She was under a reasonable duty to investigate her suspicions.
The trial court dismissed her claims on a motion for summary judgment, and that decision was upheld by the appellate court.
Posting on Facebook is a little like playing poker with all your cards face up on the table. It can be done, but the other side knows exactly what you have.
Facebook Postings Can Kill Your Personal Injury Case
Yet another cautionary tale about how the things you post on Facebook can come back to haunt you.
On Friday I received a call from a prospective client, wanting to sue her employer. The caller had filed a workers compensation claim, and she was convinced that her employer was having her followed. I explained to her that, assuming she is not just imagining that she is being followed, such conduct is not unusual. Many a workers compensation claim, personal injury claim, and disability claim has been defeated by videos showing the plaintiff engaging in activities he or she claimed were prevented by their injuries.
The caller was shocked by such an invasion of privacy, and asked if it is legal. In response to that question, allow me to introduce the case of Xiong v. Knight Trans, out of the 10th Circuit.
A woman by the name of Pahoua Xiong suffered a back injury when her vehicle collided with a Knight Transportation truck. Xiong successfully sued for her injuries, with a jury finding that she was 40% liable for the injury, and Knight was liable for the remaining 60%. She was awarded $499,200.
Knight then moved for a new trial, on two grounds. First, Knight argued that there was insufficient evidence to support the damages awarded, and second because there was new evidence, found after the trial, proving that Xiong had committed a fraud on the court.
What was this new evidence? Well, given the opening paragraph of this article, you probably figured out that it was something Xiong posted on Facebook. Indeed, after the trial, a member of Knight’s legal team happened across pictures of Xiong on Facebook, showing her partying with friends and family, seemingly pain free, despite her claims that she was in such severe pain that she was taking five or six Percocet every day.
Based on the photos, Knight conducted more discovery on social media, and then hired a private investigator to follow Xiong and record her as she went about her days.
In Federal court, to successfully argue for a new trial based on the post-trial discovery of evidence, the party must show a number of factors, the most important for this discussion being that the party was diligent prior to trial in seeking out the evidence. So Knight showed the evidence obtained on Facebook and what the private investigator uncovered, but the trial court denied the motion for new trial, holding that the evidence could have been discovered earlier with more diligence.
Knight appealed, but the 10th Circuit came to the same conclusion. That appellate court concluded that the same steps that were taken after the trial, that revealed the evidence, could have been taken before the trial. Although Knight apparently did search social media prior to the trial, its efforts failed to turn up the photos of Xiong due to a misspelling of her name. As to what the private investigator uncovered, he could have been hired just as easily prior to the trial.
So, in answer to the caller’s question about whether it is legal to have someone followed in the hope of refuting their injury claims, according to the 10th Circuit, doing so is necessary part of the investigation in order to show due diligence.
You CAN Remove False, Defamatory Reviews from Yelp
A false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.
Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.
It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.
The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.
Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.
If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.
My theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.
It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.
But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.
Only false reviews need apply.
Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.
Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney). In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.
Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]
So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.
Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).
In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.
The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right? Continue reading
