With Anonymous Posters, it is Essential to Move Quickly
We were just able to help a client dodge a bullet, and the fact pattern provides a cautionary tale for all.
If you or your business is the victim of Internet defamation by an anonymous poster, and you decide to go after that person, you have many hoops to jump through to get the necessary information. Say you are being trashed on WeTrashPeople.com by an unknown person. (I just made up that name, but I’m sure someone will snatch up the URL.) Unless the site is one of the few that displays the IP address of the poster, you may have to go through three rounds of subpoenas to work your way back to the Internet Service Provider (ISP), such as Cox, Time Warner, or whomever. Complicating things, most ISPs use dynamic IP addresses. In other words, every IP address is used by different subscribers at different times. It is not enough just to know the IP address of the person who posted the lies about you, you must find out who that address was assigned to at the precise time and date the comment was posted.
And that is why you must move quickly. The ISPs all have their own policies on how long they retain that information. If you wait six months to retain counsel to go after the person who is defaming you, by the time the attorney works through the subpoena process, the essential information may be gone.
It appeared that was going to be the case with our client, who waited too long before contacting us. We traced the information all the way back to the ISP, who responded to our subpoena by stating that the information was not retained. With some additional pressing by us, the ISP revised its position and coughed up the information, but that could have been the end of the road for the client’s action.
Bottom line: If you are the victim of defamation, and you think you want to pursue an action, move quickly. Filing an action does not mean you are committing yourself to going to court. More often than not, once we have identified the defamer, an informal resolution can be reached. On multiple occasions we have discovered that the defamer is a competing business who is posting false reviews. They are more than willing to remove the comments once they have been exposed to the light.
SLAPP Statute Still Finding Its Way in D.C.
The District of Columbia instituted an anti-SLAPP procedure back in March but the judges are having a heck of a time figuring it out. (Don’t feel bad D.C., California has had a SLAPP statute since 1992, and some judges still don’t get it.)
Judge Rufus G. King III of the D.C. Superior Court got it right. A local television station did a report on the ridiculous amounts of overtime that was being paid to certain government officials. In one reported case of a fire department Lieutenant, his annual salary was $90,000 but he had earned as much as $119,000 in overtime pay one year.
That Lieutenant took exception with the fact that the news story had used terms like “racked up” and “month after month”, claiming those statements were defamatory. His attorney apparently failed to explain or he refused to understand that only the “gist” of the statement need be true in order to defeat a defamation action, so he filed a defamation action against the television station, and the station quite properly brought an anti-SLAPP motion.
Judge King ruled that the report was a matter of public interest and therefore fell under the anti-SLAPP statute, and that the Lieutenant failed to demonstrate a likelihood that he could establish damages. Motion GRANTED, case DISMISSED. Good job D.C.
But then there was Judge Richard Leon. You may recall that a U.S. Department of Agriculture official named Shirley Sherrod left her job after a video was released, seemingly showing her confessing to discriminating against white farmers. It later came to light that the comments were arguably taken out of context due to the editing of the video. Sherrod didn’t appreciate that, and sued blogger Andres Breitbart, among others, asserting in her complaint that the “deceptively edited” clip constituted defamation. Breitbart responded by bringing an anti-SLAPP motion, asserting that the posting of the clip was an act of protected speech.
Sure sounds like a SLAPP to me, but Judge Leon denied the motion out-of-hand with only a two sentence order. The U.S. Court of Appeals for the D.C. Circuit was stumped by that one as well, and today ordered Judge Leon to explain himself.
Less than a week ago, Judge Robert L. Wilkins out of the U.S. District Court for the District of Columbia was not nearly as concise as Judge Leon, and issued a 55-page opinion denying an anti-SLAPP motion, finding “that the special motion to dismiss procedure under the Anti-SLAPP Act does not apply to a federal court sitting in diversity.”
Britain’s ASA Announces that Restaurant Reviews May Not Be Trustworthy
I found this news squib interesting because it follows the precise example I often use to explain the difference between opinion and a statement of fact, and it shows how one country is dealing with reviews posted for extortionist purposes.
First, the example. If you eat at a restaurant and later post a review that says the food tasted like poison, you are probably safe from a claim for defamation. Most would agree that your statement is mere hyperbole; that you are offering your opinion that the food tasted bad, not that you actually meant it contained poison.
On the other hand, if you say that the food did, indeed, poison you, then you’d better be able to back it up with hard evidence. The first cannot be measured – what you think poison tastes like is your opinion. The second statement can be tested, because we can see if the food that day could have led to food poisoning.
Now to the real life application. It seems that one of the latest fads in Internet extortion is for a reviewer to post a review claiming that he suffered food poisoning at a restaurant. The extortionist then offers to accept, say, $5,000 for the pain and suffering of the poisoning and, oh, incidentally, offers to take down the terrible review as well. Other times the offer to remove the post never comes, because the false allegation of food poisoning is from a competitor.
This scam has become so rampant in Great Britain that the Advertising Standards Authority (ASA) has informed TripAdvisor that it can no longer claim or even imply that its restaurant reviews can be trusted. The news item added that it is not always the case that the reviewer knows he or she is publishing a falsehood. When one suffers legitimate food poisoning, they almost always blame the last place they ate, not realizing that the incubation period for a good case of food poisoning is usually one or two days, and can take as long as a week. In most cases, it is impossible to know which restaurant is responsible for the poisoning except by finding a common restaurant among a group of victims.
Court of Appeal Applies SLAPP Law to Zimbabwe Case
The California Court of Appeal has interpreted the term “official proceeding” as used in Code of Civil Procedure section 426.16 (the anti-SLAPP statute) to include even foreign litigation. The fact pattern here is rather involved, but to summarize, the action began in Zimbabwe when a wife allegedly took marital property to various locations in that country and then fled with her children to Northern California. The husband was convinced that his sister-in-law had assisted with the removal of the property, so he obtained a “writ of arrest” against her and she spent the night in jail. After a contested hearing, the Zimbabwe court found that there was insufficient evidence to prove that the sister-in-law had assisted in the removal of the property.
The sister-in-law then filed a civil action against the husband in Los Angeles Superior Court for false arrest. A jury found in favor of the husband, but the Court of Appeal reversed and ordered a new trial for various reasons. Back in Zimbabwe, the husband filed for permission to appeal from the final judgment on the arrest case. That application was supported by several declarations, including one from the husband’s California attorney, Donald C. Randolph of Randolph & Associates. The Zimbabwe court denied the application, and the sister-in-law then sued Randolph for malicious prosecution back here in California.
Quite appropriately, Randolph brought an anti-SLAPP motion seeking to strike the malicious prosecution complaint. Clearly, the declaration provided by Randolph was related to litigation and was in furtherance of a right of redress, even if that right was being pursued in Zimbabwe. Unfortunately for Randolph, Los Angeles Superior Court Judge Mel Red Recana was unwilling to take Section 426.16 that far, and denied the anti-SLAPP motion, concluding that it did not apply to activity in a foreign country.
But the Court of Appeal looked at the controversy from a slightly different angle. Although the declaration was provided to a court in Zimbabwe, it “contained statements about the effect of the Zimbabwe order in the Los Angeles case and the facts supporting probable cause for the writ of arrest,” which “were made in connection with issues under consideration in the Los Angeles case.” On that basis, the justices concluded, the statements were made “to influence the determination of issues pending in the Los Angeles case,” and therefore were a part of the right of petition in the Los Angeles case.
The story was reported by the Metropolitan News-Enterprise and can be found here.
“Stealth” SLAPP Suit Victory
One of our latest anti-SLAPP victories provides a beautiful illustration of a “stealth” SLAPP suit that the plaintiff’s attorney failed to recognize, to the great expense of his client.
In this case our (future) client’s business partner, we’ll call him Freddy Fraudster, opened a credit card account at a local bank using our client’s personal information. When our client discovered what Freddy had done, he contacted the bank and informed the personnel there that Freddy had committed fraud, and based on this report the bank closed the account and reported the matter to the police. Our client also filed a police report, and filed for a restraining order against Freddy.
Freddy was not happy. He had a long term relationship with the bank, and based on the report by our client, the bank closed his accounts and would have nothing further to do with him. Apparently thinking the best defense is a good offense, and hoping that winning the race to the courthouse might give him some leverage, Freddy filed an action against our client. He claimed that our client had authorized him to open the account, and that the report to the bank was therefore defamatory since it accused him of fraud.
Do you see why Freddy’s action in Superior Court was a SLAPP suit? Opposing counsel didn’t, but we recognized that this was a SLAPP suit and successfully brought an anti-SLAPP motion. You see, a SLAPP suit is one that tries to block a person’s right of petition. Freddy’s attorney realized that the report to the police and the application for the restraining order were protected rights of petition, but he mistakenly thought that the report to the bank, requesting that the credit card be cancelled, was not a petition for redress and therefore did not fall under the SLAPP statute because it did not involve any government agency. No doubt, he thought that by suing our client for defamation, he could make all his evil deeds go away and get back in good stead with the bank by offering to dismiss the case if our client would withdraw his remarks to the bank, court and police. Now it sounds like a SLAPP, doesn’t it?
The interpretation of the SLAPP statutes by Freddy’s attorney was far too narrow. Consider. One day you run a credit report on yourself and you find that someone has fraudulently opened a credit card in your name. What is the first thing you are going to do? Call an official government agency? You might do that eventually, but first you are going to call the credit card company and tell them to cancel the card. Thus, contacting the credit card company, or in our case the bank, is a natural part of the entire “right of petition.”
It’s very similar to the litigation privilege. I occasionally see cases where a defendant tries to sue the plaintiff and his attorney, claiming that the demand letter sent by the attorney was defamatory because it falsely claimed the defendant did something illegal. But under Civil Code section 47, anything said in conjunction with litigation is privileged and therefore not defamatory. The demand letter from the attorney takes place before legal action is ever filed, but it is still part of the litigation process.
So it was here. The report to the bank occurred before any “right of petition” was pursued with a government agency, but calling to cancel the credit card was a natural part of that process. If a plaintiff were permitted to SLAPP a defendant by focusing on the activities leading up to the actual right of petition, then the intent of the anti-SLAPP statutes would be subverted. We explained that to the court, and our motion was granted.
“Who you calling a thief?” said the cannibal.
A story in this month’s California Lawyer magazine caught my eye as an excellent case study on a point I try to explain to clients, sometimes unsuccessfully, about defamation actions.
Travel with me back to 1847 to the ill-fated Donner Party. While crossing the Sierra Nevada Mountains near present day Truckee, the wagon train could go no further and the travelers had to hunker down and try to wait out the extreme winter weather. Of the original 89 pioneers, only 45 were rescued, and it was soon learned that they had survived by eating the others.
One of the survivors was a German immigrant name Lewis Keseberg. Keseberg admitted to cannibalism, but the authorities became convinced that Keseberg had not always waited for someone to die from exposure before using them as a food source, and he was put on trial for six murders. Although he was acquitted for lack of evidence, one of the rescuers told gruesome stories about Keseberg’s cannibalistic ways, and those stories were printed in the newspaper.
Keseberg sued for defamation, which was an amazing feat in and of itself because California was not yet a state, so such a suit must have been a procedural nightmare. He sought $1,000 in damages.
In what may have been the first defamation action on state soil, Keseberg won his lawsuit, but the court awarded only $1, and ordered Keseberg to pay the court costs.
And therein lies the lesson that some potential clients refuse to accept. Winning a defamation action is more than just proving each of the elements of libel or slander. Context is everything. The damages in a defamation action arise from the loss of reputation. A person can have a reputation that is so bad, that defamatory statements simply don’t make it any worse.
In Keseberg v. Coffeemeyer, Keseberg had been falsely accused of stealing from the people he ate. He was very offended by that accusation, and headlines in the paper that read, “Where Did Keseberg Hide the Donner Treasure?” But here’s the thing, Keseberg, YOU ATE DEAD PEOPLE! You are already off most dinner invitation lists. The added claim that you took the money of the DEAD PEOPLE YOU ATE is not a big blow to your reputation.
I’m reminded of the line from Star Wars.
Princess Leia shouts at Han Solo, “Why, you stuck up, half-witted, scruffy-looking, nerf-herder.”
To which Han Solo responds, “Who’s scruffy-looking?”
You will not succeed in a defamation action if, out of five terrible things said about you, only one is false.
Defamation Trial: Paralegal Taught Lesson in Reality
I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done. Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid. I then envision the horrible train wreck that is waiting at the end of that track.
Today I happened to come across a news story, reporting one of those train wrecks.
The case involved a scorned woman. She worked as a paralegal, and ended up dating her attorney boss. As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her. In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.
The paralegal would have none of that. She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him. He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat. The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.
The result? The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements. As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.
Lesson to learn? Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney. I never would have taken this case because of the huge holes in the facts. You say you were fired? Can you please produce the termination documents one would normally expect to see in the case of a termination? Had you reported this alleged sexual harassment to anyone prior to the day he sent you home?
[Update] The jury came back and awarded $100,000 in punitive damages. Counsel for the paralegal filed a motion for new trial, with a rather novel theory. Her comments about the attorney being a sexual predator were made to other attorneys. Therefore, her counsel argued, the comments should be protected by the attorney-client privilege. Novel, but I doubt it will fly.
Morris & Stone Victory — Another Blow Against Internet Defamation
A hard-fought victory for free speech.
The defendant in this case was Elvia Orrillo-Blas, MD, an emergency room doctor at a hospital in the Inland Empire. When it was decided that her annual contract to provide services to the hospital would not be renewed, she took to the Internet, posting multiple defamatory messages on Craigslist.com about the director she felt was responsible for the decision not to renew her contract. In the anonymous postings, she would sometimes pretend to be a nurse or patient at the hospital when making her false claims about the director. The director retained us to sue for Internet defamation.
One problem we had to overcome in order to prevail in this action was the fact that the director was so well regarded that witness after witness talked glowingly about him during the trial. That was great to show the falsity of the statements published by the defendant doctor, but it also showed that the Plaintiff had not suffered a significant loss of reputation since the witnesses still loved him. The jurors later explained that this love-fest was the reason they awarded a relatively moderate amount of compensatory damages, but during the trial this left me to wonder if they were fully appreciating the malice behind what defendant had done.
Not to worry; the jury came roaring back in the punitive damages phase and made very clear with the amount of punitive damages that the defendant doctor needed to be punished for her conduct. In closing argument I had explained that cases like this actually promote freedom of speech and the marketplace of ideas that we hold so dear in America, because those ideals are not served by knowing falsity. The jury apparently agreed.
As the icing on the cake, the judge then granted our request for injunctive relief, prohibiting the doctor from defaming our client in the future. Although each instance of defamation is actionable, repeatedly suing a serial defamer is not the best solution because of the expense and delay in getting to trial. With an injunction from the court, the doctor can actually be jailed if she repeats her false claims about our client and is found to be in contempt of court for defying the court’s order.
More Judges Catching Up to the Times
Trials are decided by humans with all their human experiences. Whether a judge or jury is deciding a case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate. Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts. Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”
At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation. In the case, the defendant took a disliking to a local dog kennel for whatever reason. She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.” The kennel took exception to this characterization, and sued for defamation in Small Claims Court. (In one of my earliest postings, I sing the praises of suing for defamation in Small Claims Court. Take note how effective that can be.)
The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages. The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing. But what caught my eye was the simple logic of the judge, the sort of logic that sometimes eludes other judges. First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.” That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass. The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11.
Wow. A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business. Thank you Canada.
Tony La Russa Drops Action Against Twitter
Even when a lawsuit is weak on merit it sometimes achieves its purpose. I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.
Take the case of Tony La Russa, famous baseball manager. Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal. La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.
La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit. But, obviously, this is not a typical CDA situation. Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material. But there are some interesting side issues. For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books. In that case, the Digital Millennium Copyright Act would trump the CDA. Like a copyright, people have a pecuniary interest in there own identities. Should Twitter be permitted to assist in those that would steal that identity?
The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account. Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?
For more on this story, go here.
