Uncategorized

To be Defamatory, a Statement Must be Offered as a True Fact

defamation tennis player

A news article caught my eye today that beautifully illustrates an important aspect of defamation law. Here are the facts:

According to Sky News and others, an Australian tennis player by the name of Nick Kyrgios was playing in the Wimbledon final. Kyrgios was given a code violation for swearing, after a spectator called out before a second serve. Kyrgios then asked the umpire to eject the woman “who looks like she’s had about 700 drinks.” The woman is now reportedly suing for defamation for that statement, alleging that while it is true she had been drinking, she had not consumed 700 drinks.

Was the statement defamatory? Before I answer, let’s use an extreme example to illustrate the point. Continue reading

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.

Saying Your Letter Cannot be Published Does Not Make it True

In a prior posting, I discussed how ineffectual cease and desist letters are, and how some recipients of such letters will even post them as a sort of badge of honor.

In an apparent attempt by some attorneys to keep from having their letters published, I have now seen a number of instances where the attorney sending the letter adds the following language:

“You are not authorized to disclose the contents of this letter publicly or to disseminate it…”

Some even go so far as to claim that the letter is copyrighted, asserting that by publishing the letter the recipient will be violating copyright law. This is all hogwash, but I suppose the attorneys reason that the recipient may not know that it is hogwash, and it may prevent some of them from putting up the letter and making fun of the attorney and his or her client for sending it.

For a great example of this, and how instead of achieving the intended purpose it only invited greater comment, check out this amusing article by techdirt. The article is also a great example of not knowing when to hold them, and when to fold them.

I learned long ago to view every letter I draft as a potential trial exhibit. Don’t send a letter you would not want to see projected onto a wall for the judge and/or jury to view and critique. That rule now applies to the Internet. If an attorney feels the need to insert language falsely claiming that the recipient is not allowed to show it to anyone else, then that is a letter that probably should not be sent.

Using Offensive anti-SLAPP Deemed Frivolous

International Anti-SLAPP motionAn international defamation action has ended up here in California. Out of the UK, Tyneside councillors (that’s the way they spell it over there) are very upset that an anonymous blogger who calls himself “Mr. Monkey” has been defaming them.

The council has backed a three-year hunt to discover the identity of Mr. Monkey, with the legal fees now exceeding six figures. So far, since they did not retain Morris & Stone, the attempts to uncover the identity of Mr. Monkey have been unsuccessful.

Enter Coun Ahmed Khan, a councillor from a rival political party. The four plaintiff councillors successfully moved to have Khan’s personal computer records disclosed, because they apparently suspected him of being Mr. Monkey. Khan denies that he is the primate in question, but has cried “enough is enough”, and wants to put an end to the search.

To that end, he brought what I can only characterize as an offensive anti-SLAPP motion (not offensive as in crude, but as in the opposite of defensive). He intervened in the San Mateo Superior Court action and filed an anti-SLAPP motion, asserting that even though he is not Mr. Monkey, the comments of Mr. Monkey are protected and the action should therefore be dismissed.

Motion DENIED. Indeed, the court found the motion to be so frivolous that it awarded attorney fees of £40,000 to the plaintiffs. (I once obtained a judgment in Los Angeles Superior Court in British pounds. It’s worth it just to see the court clerks try to figure out how to enter it into the system and calculate interest and the like.)

Khan has now appealed the denial of his anti-SLAPP motion and the award of attorney fees. The complete story can be found here.

[Correction]  The sources upon which I was relying may have jumped the gun as to the award of attorney fees. One of the parties to the action contacted me to state that the £40,000 figure is what is being sought, but that the motion for those fees has been stayed pending the appeal.

“Fox & Friends” Hosts Not Liable for Repeating Parody

Fox & Friends
Fox & Friends


The Internet is an amazing source for both information and misinformation.  One of the most telling examples was the case of Sarah Palin.  A fictional question and answer session was written and published, with Palin purportedly making the comment that dinosaurs had roamed the earth just 5000 years ago.  Many failed to realize (or chose not to recognize) the story was satire, and reported the dinosaur story as true.  (Leading to an almost tearful Matt Damon proclaiming during an interview that she was not fit to serve because of her dinosaur beliefs.)

So-called traditional news sources cannot ignore what is posted on the Internet because it often is a breaking source for news; the commercial airline landing in the Hudson river being a recent example.  But when parody is mistaken for truth, defamation can occur.

The cable show “Fox & Friends” reported a parody about a school principal as true.  The real story was that a middle school student had left some ham on a table frequented by Muslim students.  He was disciplined for his insensitivity.  The parody took the story to an extreme, claiming that the school principal had instituted an “anti-ham response plan,” designed to teach the children that “ham is not a toy.”  The hosts of Fox & Friends reported the parody as truth, and derided the principal for his overreaction.  The principal sued for defamation in Levesque v. Doocy.

Fox & Friends was saved by New York Times v. Sullivan, the 1964 Supreme Court decision that created the “actual malice” standard for defamation against a public figure (also referred to as “New York Times actual malice”).  But for the fact that the plaintiff was deemed to be a public figure, Fox would have been liable.

Go here for the detailed story, and here for the actual court decision.

Aaron Morris

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

Email Aaron Morris

DISCLAIMERS

NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.