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. .

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Aaron Morris
Morris & Stone, LLP
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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