You Must Move Quickly if a News Publication Defames You
Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships as sea. The year was 1931. The Empire State Building had just been completed, the Star-Spangled Banner was adopted as the Unities States’ national anthem, and Albert Einstein began his research at the California Institute of Technology.
In California, the Legislature decided to encourage the rapid reporting of news by newspapers, by affording them some protections from liability. Civil Code § 48a was passed, and stated:
“In any action for damages for the publication of a libel in a newspaper, if the defendant can show that such libelous matter was published through misinformation or mistake, the plaintiff shall recover no more than actual damages, unless a retraction be demanded and refused as hereinafter provided.”
It was amended in 1945 to add the same protection to news reported on the radio. At that point, television* and the internet did not exist. Magazines existed, but for whatever reason, the legislature elected not to include them.
And there the statute sat for 70 years, protecting only newspapers and radio. This lead to some strange results, as other publications that should logically be afforded the same protections, simply did not fall under the wording of the statute. Continue reading
What to do if a Doctor Puts False Information in your Medical Records
We get a surprising number of calls concerning medical records, and the false information contained therein. Often it arises in the context of a patient who is prescribed pain killers. Doctors, understandably, are sensitive to over-prescribing opioids, both out of concern for the patient, and because the doctor can get in trouble for being too loose with such prescriptions.
But that concern sometimes results in the doctor being a little overzealous. The doctor is unconvinced that the patient is really in as much pain as they claim, and concludes the patient has developed an addiction. They note that conclusion in the patient’s medical records, and the patient feels they have been branded as a junkie to any and all doctors that examine their records in the future. The patient calls our office, wanting to sue for defamation, in order to get the comment removed from the record.
We have never sued on that basis, and probably never will, but keep reading, because I can offer a possible solution. Continue reading
Are News Reports Offered as Factual Assertions?
Sacramento Kings center Richaun Holmes is suing his ex-wife, Allexis Holmes, the Sacramento Bee, and one of its opinion writers, Robin Epley, for defamation. In the course of a custody battle, Allexis made allegations of abuse against Richaun, which were reported and opined on by the Sacramento Bee. Richaun claims the publication damaged his reputation.
The case illustrates an important aspect of defamation claims. Namely, when a newspaper reports what someone else has said, is it liable if the statements are false?
Let’s begin our analysis with the elements of defamation:
The elements of defamation are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).
“We apply a ‘totality of the circumstances’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense …. Next, the context in which the statement was made must be considered.” Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” Balla v. Hall, 59 Cal. App. 5th 652, 678 (2021).
In my never to be humble opinion, a report by a news outlet almost never implies the truth of the statements it is making. Unless the reporter is reporting something he or she saw, how could anyone take the statements as anything other than hearsay? Continue reading
If You Want to Sue for Defamation, Here’s Your Homework
I won’t bury the lead. If you want me to determine whether you have a viable defamation action, here is the information I need. It’s your defamation homework. If you take the time to carefully read this article, it is likely to address any questions you might have about pursuing a defamation action. This is a long article, but it will leave you with a strong understanding of all the factors necessary to analyze your case.
I NEED TO KNOW EXACTLY WHAT WAS SAID, WHEN IT WAS SAID, AND TO WHOM.
When you sue for defamation, you are suing for something that was said or written about you or your company. Therefore, the complaint that is filed with the court must allege EXACTLY what was said or written that you are claiming was false and defamatory.
The most efficient way for me to determine whether you have a viable defamation action is for you to provide that information. If there is only one statement, then that is all you will list, but if there are multiple statements you deem to be false and defamatory, then limit your list to the five most egregious examples. If I read those five and determine that they won’t support a defamation action, then 95 additional statements that are even less egregious probably won’t make a difference. Continue reading
Should You Sue Family Members for Defamation?
If one is asking whether they should sue family members for defamation, I have to wonder what Thanksgiving dinners are like with these families. I get these calls often, and they are very sad because they show an estranged family. In this article, I will discuss whether it ever makes sense to sue a family member.
Common scenarios.
Family disputes arise from a few common scenarios. The one I see most often arises from disputes over property, when a family member feels cheated. For example, Joe moves in with mom to take care of her, and his brother Bill is not happy with the care Joe is providing. Additionally, Bill becomes convinced that Joe’s new found compassion is really about convincing mom to sign over the house. Bill goes to court to seek a conservatorship, and to bolster that claim, he contacts Adult Protective Services, claiming Joe is abusing dear old Mom. Joe wants to sue for defamation for what Bill put in the court documents, and for what he said to the police.
Another common scenario involves a family member with mental issues and/or a drug problem. The family is showing a little tough love in an effort to get the person back on the path, but he takes it as a personal attack. He wants to sue family members for things they have said to doctors and social workers.
And yet another common scenario, the one we’ll use for today’s discussion, involves a wife who is relatively new to the family. Apparently following the reasoning that “no woman is good enough for my ________” (son, brother, nephew, cousin – fill in the blank), a split has formed, with half the family attacking the new bride, and the other half defending her. She has had enough, and calls me, wanting to sue the family ringleader who is saying bad things about her.
Should she sue? Continue reading
Damages Do Not Prove Defamation
Damages do not prove defamation.
A quick but very important aspect of defamation law.
If someone defames you, and that defamation results in a gazillion dollars in damages, then of course those damages will be highly relevant to the action.
But if someone says something about you that is not defamatory, and you suffer the same gazillion in damages, then those damages are irrelevant to any defamation analysis.
This seems self-evident, but I find myself in this conversation on a regular basis (with varying fact patterns): Continue reading
A Statement is Not Defamatory Just Because it is False
I received a call today involving this important point of law, but when I went to forward the caller an article on the topic, I found that I have apparently never written one. I hereby correct that omission.
Here is the simple concept.
Whether a statement is defamatory will be controlled by the context provided.
But before I expand further on that, let’s take one step back. You must first understand that a statement is not defamatory, just because it is false. I would think that would be self evident, but I have the following conversation with callers at least three times a week (obviously with varying fact patterns):
“I want to sue the Los Angeles Times. The paper mentioned me in an article, and claimed that I graduated from the Arizona State University. That’s a lie. I graduated from the University of Arizona.”
“I’m sorry, but I must be missing something. How is it defamatory to claim you graduated from Arizona State University?”
“Because it’s a lie. I did not graduate from ASU.”
“Yes, I get that, but a statement is not defamatory just because it is false. If I state you drive a red car, but you really drive a blue car, I have told a lie about you, but I’m sure you will agree that you would not be able to sue me for defamation, because there is nothing wrong with driving a red car.”
“I don’t agree with that at all. It’s a lie. You told a lie. You can’t just tell lies about me and get away with it. And there is something wrong with graduating from ASU. The University of Arizona is a much better school.”
“But even if that is true – that one school is better than the other – is there some context in the article that would make that important? Such as, they are attacking your credibility based on attendance at a lesser university?”
“No, it’s just wrong, and I don’t want people thinking I graduated from ASU. This could destroy my ability to find a job.”
Sorry caller, it doesn’t work that way. Despite your school loyalty, saying you graduated from ASU will not support a defamation action, even though it is false. A statement must be false to be defamatory, but a statement is not defamatory just because it is false.
Now that you know that basic rule, we can return to the important concept. Continue reading
Can you use the Terms of Service of Twitter, Facebook, YouTube, TikTok, or Instagram to get Defamatory Content Removed?
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.
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.
This Changes Everything – You Can Now Be Sued for Calling the Police
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?”
