Aaron Morris
You Can Sue for Defamation in Small Claims Court
Wow. I may actually know what I’m talking about.
In one of my earliest postings on this blog (recently updated to reflect the new damage limits), I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney, or where the numbers involved would not justify the expense of an attorney. At the time I wrote that article, the maximum amount of damages that could be recovered was $5,000 as I recall, but it was raised to $10,000 in 2012, and then $12,500 in 2023. (It was originally intended to go to $15,000 that year, but apparently the Governor though that was a little too high.)
Obviously, even with this higher amount, this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won.
I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.
Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a small claims action against the defamer, and has a witness to the statements.
This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. Most likely the story goes something like this:
“Joe is such an asshole. I told Dave about how I had heard that Joe was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”
But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.
This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter starting a backfire to stop a fire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.
Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. Defamation is a tort, such as personal injury. Just as you can sue for personal injury in small claims court, you can sue for defamation. If you get any pushback, ask to speak to a higher up, and ask them to show you the court rule that prohibits defamation actions in small claims court. There is no such rule.
However, as I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor or to provide a letter of apology, as examples. That is why attorneys often don’t think to suggest Small Claims Court and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $5,000 in damages, reduced to $2,500 if the defamatory statement is removed from the Internet.)
For fun, I asked ChatGPT about suing for defamation in Small Claims Court, and it responded, “you generally cannot sue for defamation in small claims court in California.” But its reasoning for that conclusion was what I mentioned above — the inability of a small claims judge to provide injunctive relief such as ordering that the false statements be retracted. In ChatGPT’s “mind,” defamation claims can’t be brought in Small Claims Court because the judge can’t issue any order. But the strategy I am suggesting accepts that limitation in exchange for the far, far, FAR cheaper alternative of suing in that forum.
When I called out ChatGPT and asked if it could provide any authority for the position that defamation actions cannot be brought in Small Claims Court, it had to concede that “there’s no California authority expressly forbidding defamation actions in small claims court.”
And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safer from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. (There are almost no absolutes in the law, so although very unlikely, I am not saying someone could not come up with a way to bring an anti-SLAPP motion in small claims court, such as having the action reclassified to Superior Court, or by bringing an oral motion at the time of trial.) Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.
With all this said, you’ll be wasting your time in Small Claims Court if you think you can go in and wing it. You’ll be suing for thousands of dollars, so it will be time and money well spent if you buy and review Everybody’s Guide to Small Claims Court in California
A word about damages.
More proof that ChatGPT is terrible when it comes to legal analysis comes from its mention of damages. It stated that defamation actions are “not well suited” to Small Claims Court because of the complexity of proving special damages (lost income, business harm). It posited that since actions in Small Claims Court are intended to be brief, proving special damages would be too time consuming. And, rather insultingly to the judges who hear small claims matters, it opined that the issues surrounding a defamation claims are just too sophisticated for that forum. (An example of AI holding us humans in contempt?)
With all due respect to our future AI overlords, ChatGPT utterly failed to recognize the two types of damages in a defamation action — actual damages and assumed damages. Actual damages are just what the name suggests; the measurable damages that resulted from the defamation, such as loss of income. But defamation is unique among torts in that if the elements of defamation are proven, the law provides that the plaintiff MUST be awarded damages, even if no economic damages are proven. We as a society recognize that one’s reputation has value, and damages are assumed if one is defamed. These assumed damages include “mental suffering, anxiety, embarrassment, and humiliation” — even absent proof of economic or special damages. If the false statements made about you were significant and sufficiently widespread, the judge is free to award you the full jurisdictional amount based on loss of reputation and the emotional distress you suffered, even if you did not prove a penny of damages.
Think about it.
There are so many aspects to this area of the law, that my articles soon turn into tomes if I don’t control myself. The prior paragraph is an example of where I can’t just let it stand without further clarification, for fear that it will be twisted. Note that I said a statement needs to be “significant and sufficiently widespread.” When considering whether the false statement will support assumed damages, don’t analyze it from the viewpoint of a fragile wallflower who takes offense at every perceived slight. Instead, use the viewpoint of a person who understands that the occasional insult is just part of the background noise of life. If a waiter falsely stated in front of your date that your credit card had been declined, that might technically satisfy the elements of defamation, but no judge is going to be so outraged by that statement as to award you anything beyond perhaps $5 in assumed damages.
Friends and family can be used to determine the worth of a case. Sit them down with some wine and beer (but not too much), tell them you want them to realistically determine the damages, as opposed to saying what they think you want to hear, and tell them the facts of your case. After they provide their damage calculations, ask them to provide their reasoning to see if the damage amount has any relation to reality, or was just pulled out of their butt.
[Update] I had recommended to a caller that her case was perfect for my Small Claims approach. She said the defamer would not stop defaming her, so I suggested that each time she learned of another defamation, she should drag him to court again. Over a year later she was kind enough to call me to thank me for the suggestion. She stated that in the time since she spoke to me, she had sued him multiple times, and had prevailed every time, with total damages approaching $50,000. I thought about that number after the call, initially thinking it was implausible given the limits on damages in Small Claims Court, but I crunched the numbers and it can be done.
Check the current rules, but as I write this, a natural person (as opposed to an entity) can bring small claims actions for the maximum amount of $12,500 up to twice a year, and can bring an unlimited number of cases that seek $2,500 or less. The limitation to two $12,500 actions in a 12-month period is a rolling period measured from the date of filing, not January–December. So, for example, if the caller filed her first $12,500 case on March 1, 2024, and the second one on April 1, 2024, she’d be eligible to file her third and fourth actions on March 2, 2025 and April 2, 2025. So it was entirely possible that she had sued four times and been awarded $50,000 in a little over one year and one month (plus however long it took for the cases to be heard).
And I have to believe that so long as her evidence was strong, the judge would be more inclined each time to award the maximum, seeing that the defendant continues with the same bad behavior. As you can see, a Small Claims action is not only a very streamlined and cost effective way to proceed, it can also be very lucrative.
[Update] As I predicted in my parenthetical above, concerning an oral anti-SLAPP motion, a caller advised me that he was threatened with an anti-SLAPP motion in response to his small claims case. He added that he had gone to court to observe other cases as a way to prepare for his own trial, and he observed a judge grant an oral anti-SLAPP motion in a small claims case. But that’s as it should be. If a plaintiff is suing for damages in Small Claims Court, arising from protected activity, the court should dismiss the action. As a matter of public policy (as set forth in Civil Code § 47 and Code of Civil Procedure § 425.16), the law immunizes people from what they say in certain circumstances. For example, we don’t want politicians to be able to sue their constituents for defamation as a means to silence any criticism. So if you attend a City Council meeting and call the mayor a no good, lying pony soldier, he or she can’t sue you. If they nonetheless tried to do so (which was the exact fact pattern in my very first anti-SLAPP motion), the judge should (and did) dismiss the case.
But a plaintiff would still be far safer in Small Claims Court, since there would be no attorney and hence no attorney fees. But as with anything I write about the law, I can envision possible exceptions. A corporation can’t defend itself in court, because it is not a person and has no mouth. Thus, a human has to be there on behalf of the corporation, and that human could be an attorney, who might try to claim attorney fees following a successful oral anti-SLAPP motion.
How to Stop Defamation When You Can’t Afford an Attorney
Is there a way to stop defamation when you have limited funds to hire an attorney, or the damages you are seeking would not make hiring an attorney economically feasible?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation?
Yelp Wins Fight to Post False and Defamatory Reviews
In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.
Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting. Continue reading
No, I Wasn’t Kidding About the Wisdom of Walking Away
Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action. I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.
You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later. My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage. The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.
Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away. There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim. My client declined.
With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days. Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client. In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.” He suggested the parties and attorneys talk settlement again. My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding. Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy. Ouch.
If you got the tie-in between the photo above and the article, give yourself a prize. It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline. I think I may start dressing like that for settlement conferences.
Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.
The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.
Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”
P.S. I hadn’t noticed this point until I listened to the trailer for this article. He’s talking to his daughter, and she says, “Oh my God, they got Amanda.” He then gives the above speech to the bad guy. What I hadn’t focused on was the line, “If you let my daughter go now, that will be the end of it.” No mention of Amanda. He knew about Amanda, but apparently was willing to let the kidnappers keep her if they let his daughter go. Very dark.
Bill Cosby Sues Beverly Johnson for Defamation
“Bill Cosby filed a lawsuit Monday against supermodel Beverly Johnson, alleging she lied when she said the comedian drugged and tried to rape her at his New York home in the mid-1980s.
Cosby’s lawsuit says Johnson joined other women making accusations against him to revive her waning career and to help sell copies of her memoir.
The lawsuit alleges defamation and intentional infliction of emotional distress, saying Cosby and Johnson never spent any time alone in his house, he never drugged her and ‘her story is a lie.'”
Sourced through Scoop.it from: www.wmur.com
In an earlier discussion of Bill Cosby, I mentioned the problem of coming out and denying claims made by an accuser.
In the case of Bill Cosby, several women have come forward telling similar tales. Specifically, they allege that Cosby would drug and then rape them. Even though the statute of limitations on those alleged offenses may long have passed, Cosby affords those women with a potential cause of action if he comes out and denies the claims. By denying the claims, he is in essence calling them liars, which triggers a potential defamation action.
This action is the flip side of that coin. Cosby, of course, has the ability to sue for defamation, claiming that the accusations are false and defamatory. But this strategy comes at a cost. This lawsuit is against Beverly Johnson, but other women are making the same claim. Are we then to assume that the claims by the other women are not defamatory?
As the saying goes, “in for a dime, in for a dollar.” Cosby has now created a scenario whereby he must sue all of his accusers, lest he be viewed as being guilty of the claims by those he doesn’t sue.
James Woods Demands Court Order To ID Twitter User Who Called Him A “Cocaine Addict”
Actor James Woods says a Twitter user who called him a “cocaine addict” has no right to demand anonymity.
Sourced through Scoop.it from: www.buzzfeed.com
The James Woods case presents a good illustration of the legal process and certain constitutional rights.
Someone on Twitter, using the pseudonym “Abe List” or AL for short, got into it with Woods, and let fly with a series of put-downs, referring to Woods as a Joke, clown-boy and scum. Counsel for Woods understood defamation law well enough to know that those claims are not offered as verifiable facts, and therefore cannot be defamatory.
But AL also called Woods a “cocaine addict”, and that is where his counsel drew the line. They filed what is called a DOE action, suing an unknown defendant for defamation. (Here is the actual complaint.) Once a DOE action is filed, the plaintiff can then subpoena the records (here, from Twitter) to determine the identity of the anonymous poster.
Here’s where things get interesting.
What many do not realize is that someone posting comments on the Internet has a constitutional right to remain anonymous. It hearkens back to the days of “pamphleteering”, when those disagreeing with the government would produce and distribute anonymous pamphlets. If the government could require that the identity of protesters be known, it could intimidate critics into silence.
Because of this constitutional right, if someone wishes to remain anonymous, they can oppose the motion anonymously, forcing the plaintiff to make a sufficient showing that the speech is defamatory, and therefore not entitled to protection.
That is just what occurred here. AL has gone to court and challenged Woods’ right to discover his identity.
“How do you appear anonymously in a court proceeding?”, you ask. It’s easy. You retain counsel, usually Morris & Stone, who moves to quash the subpoena on behalf of the person, using the pseudonym. The identity of the person is never revealed. (In a couple of cases, we have seen other counsel attempt this procedure, only to make the effort pointless when they accidentally identify their client in correspondence.) Continue reading
Lying blogger ordered to pay $3.5 million in defamation lawsuit | PersonalInjury.com
A Shelby County, Alabama, blogger, who spent five months in jail before agreeing to remove stories from his website about the son of a former governor, has now been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for the state Attorney General.
The blogger had written about an fictional affair between the attorney general and the campaign manager.
Sourced through Scoop.it from: www.personalinjury.com
Yes, even bloggers are subject to defamation laws.
I encounter a common belief that anything published on the Internet is somehow protected free speech. In fact, it is protected free speech until one steps over the line into defamatory speech. Defamatory speech enjoys no protection.
Of note in this case, the blogger spent five months in jail for his defamation. Not because he defamed, but because he refused to stop defaming. You see, a court cannot order you not to publish information that you want to publish, but once that information has been found to be defamatory, then the court can order you never to tell the same lies again, and can order you to remove the lies from the Internet.
In this case, the blogger was ordered after trial to remove the defamatory comments, but refused to do so. He even added more information. This amounted to contempt, and the court put him in jail until he removed the statements. He stood on his purported principles for five months, and then relented and had his wife remove the posts.
Court tosses lawyer’s libel suit over ‘The Good, The Bad and The Ugly’
TORONTO – Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”
In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.
“In our view, this defamation action was ill-conceived,” the Appeal Court said.
Source: The Hamilton Spectator
Two lessons from this Canadian case. First, consider whether your colorful writing style is going to get you into trouble, and second that context is everything.
Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”
In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.
“In our view, this defamation action was ill-conceived,” the Appeal Court said.
Midanik’s complaint against the Toronto Star writer and publisher John Wiley & Sons turned on a paragraph in Powell’s book about a Toronto street gang, the Galloway Boys.
In one paragraph, the author wrote that the lawyer — he was acting for one of the gang members accused of murder — identified with Tuco Ramirez in the 1966 Italian spaghetti western classic, and paraphrased a quotation from the character, saying, “I like big men because they fall hard.” Midanik took offense at this comment, and sued for defamation. He argued that by equating him with Tuco Ramirez, the author implied that he was a murderer, rapist, dishonest and sleazy.
The case was doomed to failure, both legally and conceptually.
When one quotes from a fictional character, that does not mean or even imply that the quote is meant to pull in all the traits of the character in question. If I’m doing a hockey story, and I show a player making a slap shot, with the caption, “Say hello to my little friend,” am I implying that the hockey player is a drug lord?
The trial court and Court of Appeal agreed with my interpretation, and dismissed the case. Under Canadian law, the loser pays, so this ill-conceived case (the court’s words) cost the thin-skinned attorney about 100,000 Canadian dollars, eh.
Firefighter pictured in sex scandal article loses libel claims against Daily News, appeals | Pennsylvania Record
Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.
Source: news.google.com
This was an interesting case that really could have gone either way, and well may be reversed on appeal.
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 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.
I would have anticipated that the defamation claim he filed would fail, but he also filed a claim for false light invasion of privacy, and that claim certainly had some merit.
Here is the jury instruction for false light (in California):
1802. False Light
[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] publicized information or material that showed [name of plaintiff] in a false light;
2. That the false light created by the publication would be highly offensive to a reasonable person in [name of plaintiff]’s position;
3. [That there is clear and convincing evidence that [name of defendant] knew the publication would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;]
[or]
[That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;]
4. [That [name of plaintiff] was harmed; and]
[or]
[That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]
5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
[In deciding whether [name of defendant] publicized the information or material, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information or material was substantially certain to become public knowledge.]
Defamation is an intentional tort, but false light can be established with a showing of negligence. A jury could certainly find that it is negligent to post a picture of a random firefighter in an article about a sex scandal, and that an average reader might assume that the firefighter must in some way be involved with the scandal.
But the judge in Pennsylvania disagreed, and threw out all of Cheney’s claims. The judge found that the photo provided sufficient context such that a reader would know that no link between the photo of Cheney and the sex scandal was intended.
This is an important factor in any defamation (or false light) claim. The fact that a statement or photo can be interpreted in a defamatory sense is not enough. The statement must be given a reasonable interpretation.
