How to Stop Defamation When You Can’t Afford an Attorney

Bankruptcy - Business Person holding an empty wallet

Is there a way to stop defamation when you have limited funds to hire an attorney?

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?

The Small Claims Court Approach

In Superior Court, the judge can craft an equitable or injunctive remedy along with awarding any damages. In other words, if you sue someone for Internet defamation, the judge can not only award money damages, he or she can order that the defendant remove all defamatory postings from the Internet. Small Claims Court, on the other hand, can only award money damages – the judge is not permitted to fashion any sort of equitable relief. The jurisdictional limits of Small Claims Court are set forth in California Code of Civil Procedure section 116.220, which provides: “(a) The small claims court has jurisdiction in the following actions: . . . (5) For an injunction or other equitable relief only when a statute expressly authorizes a small claims court to award that relief.”

Thus, a judge in Small Claims Court can only grant an injunction or other equitable relief if there is a statute that authorizes the judge to do so. There is no statute authorizing an injunction or other equitable relief as regards a defamation action. (Read to the end for a possible way to get around this problem. And, if you are not a resident of California, check whether your state has the same restriction.)

Perhaps for this reason, most attorneys never think to recommend Small Claims Court for a defamation action since the court has no power to remove the offending posts. However, for a personal grudge match on the Internet, Small Claims Court can be very effective. In California, you can recover up to $10,000 in Small Claims Court – certainly enough to sting a defendant and make him think about the “value” he is receiving in return for his false statements. And while I’ve never tested the point (attorneys are not allowed in Small Claims Court), an argument could be made that an Internet defamation is an ongoing harm. Thus, after successfully suing, if the remark still remains, you could theoretically bring another action (subject to the One Publication Rule).  And certainly every new defamatory post would support a new action.

Most of the time, after you obtain a judgment, unless the defendant has a mental disorder, he or she will be very willing to remove the offending material to avoid paying the damages if that option is offered.  And therein lies the strength of suing in Small Claims Court when you can’t afford to sue in a higher court.  Even though the court can’t order the defendant to act in a certain way, the judgment you obtain will put you in a strong bargaining position.

Don’t underestimate the power of a court judgment, even one that comes from Small Claims Court. A defendant may have no ability to pay today, but a judgment is good for ten years, and can be renewed for another ten, all the while earning interest, and all the while damaging the defendant’s credit. And defamation is an intentional tort, meaning it can’t be discharged in bankruptcy.

Finally, even if you never collect a dime, a judgment from any court can go a long way to clearing your name.

“Joe, I heard that Bill was saying you cheated him on a business deal.  Is that true?”

“Bill was saying that, and I took him to court for defamation and won.  The judge ruled that everything Bill was saying was a lie.  I didn’t want to have to sue him, but I’m not going to let someone get away with calling me a crook.”

A famous example of this approach involved Teddy Roosevelt.  During the Presidential campaign, he was accused of frequently being intoxicated.  He sued and won, and all the papers reported how he had proven that he was not a drinking man.  The amount he sued for and won?  Six cents.

Many years ago I worked as a volunteer Small Claims Judge in Arizona, and it was sad to see cases where I knew the person was probably entitled to the damages they were seeking, but they were not able to present sufficient evidence to prove the case because they came unprepared.  You are going to be suing for as much as $10,000, so take the time to do it right. Here is an excellent guide to prepare for Small Claims Court:

An untested, but possible approach to “injunctive relief” in Small Claims Court

After reading this article, a reader was kind enough to call me and let me know about Small Claims Form SC-105, which you can find here. The form is called “Request for Court Order and Answer,” and appears to provide a mechanism whereby a party to the action can ask the judge to issue an order. We already know that pursuant to CCP section 116.220, a Small Claims Court Judge cannot grant an injunction in a defamation action. But as with most things in the law, the fact that you are procedurally prohibited from doing something is only an issue if someone objects.

Again, I do not purport to be an expert on actions in Small Claims Court, since parties cannot be represented by counsel there, but I note that the form calls for the opposing party to either object or agree to the requested order. Section 3 of the form asks for the order you want, and section 4 asks you to explain why you want that order. Just brainstorming, it occurs to me that in section 3 you could enter something like, “I want the court to order defendant to remove the defamatory post from Facebook [obviously you’ll have to identify the post in some way], and not to re-post the comment on Facebook or any other internet site.” Then, in section 4, you could state, “I ask for this order because if the defendant takes down the post and agrees not to post it again, there is no need to conduct the trial.” The defendant could decide that agreeing to the order is a simple way to avoid having to go to trial.

This form also offers a great way to seek specificity on the court’s verdict. When you successfully sue for defamation in Small Claims Court, you can then tell the world that you proved the statements made by defendant were false. But what if the defendant made multiple statements? Technically, an award of damages only proves that the judge agreed that you were defamed by the defendant. It does not specify which of the statements the judge found defamatory. With form SC-105, you could ask for an order, specifying that the court found specific statements to be defamatory, if that would be beneficial to your particular situation.

In case I haven’t provided enough disclaimers, this approach is just speculation on my part, so don’t curse my name if it doesn’t work. This is pretty creative stuff, and many Small Claims judges have no interest in being creative. But if you try it, let me know if it worked.

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

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