Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.
Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney). In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.
Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]
So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.
Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).
In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.
The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right? Continue reading
How to Remove False and Defamatory Glassdoor Reviews
Although founded almost a decade ago, Glassdoor’s defamation problems seem to be a more recent phenomenon. We did not begin receiving calls about defamatory Glassdoor reviews until about two years ago.
In case you are unfamiliar with the site, Glassdoor seeks to be an online community regarding companies and employment. On the site you can find job listings, salary stats, and employee reviews regarding the companies at which they work or worked.
But like all review sites, there are those who use Glassdoor as a means to post false reviews about competitors, or for revenge purposes by falsely trashing a company that terminated the “reviewing” employee.
Again, I always feel compelled to explain the nature of the reviews of which I speak. I will fight to the death for the right of an employee to post an honest review about the terrible experience he had with an employer. But when I talk about false reviews, I am speaking of reviews where a competitor purports to be an employee and makes false statements about the company, or where an actual employee publishes verifiable lies about the company, as opposed to mere opinions. For example, in a recent Glassdoor case we handled, the employee stated in his review that the company is always late in issuing paychecks to the employees. The company had never been late with payroll.
Removing false Glassdoor reviews.
To its credit, Glassdoor is one of the more honorable review sites. Before posting a review, the user must attest that they were or are an employee of the business in question, and their email address is validated. (Email validation does little to stop someone bent on posting defamatory posts, because they can easily create an email account, but at least it provides one more hoop for the defamer to jump through.)
Like any review site, Glassdoor is protected by the Communications Decency Act (CDA) from any defamation claim for reviews posted by others, but Glassdoor does have a review process, and will remove reviews that it finds do not comply with its terms of use. In working with Glassdoor’s legal counsel, I have found a willingness to review and remove posts without legal action, if a sufficient showing of defamatory content can be made. With the recent Court of Appeal opinion holding that review sites can be ordered to take down defamatory posts, and that such orders do not run afoul of the CDA, Morris & Stone can now compel Glassdoor to remove defamatory posts, but Glassdoor already had a policy of respecting court decisions which found that posted content was defamatory. This is a policy all review sites should follow, and kudos to Glassdoor for doing so voluntarily.
As with most review sites, if you are an employer and find yourself burdened with a false review on Glassdoor, your first line of attack should be to ethically encourage positive reviews. The internet community understands for the most part that no matter how wonderful a company/employer, there will be some background noise created by trolls. But if you are faced with truly harmful fake reviews, and need them removed from Glassdoor, give Morris & Stone a call.
Yelp Ordered to Remove Defamatory Posts
As I have stated here many times, although wrongdoers have been able to use it as a shield, the Communications Decency Act (“CDA”) is an essential statute if we want to live in a country where one can freely offer their opinions about products and businesses.
But I have also argued for a simple fix to the abuses of the CDA. If someone posts a defamatory review on Yelp, the CDA prevents any legal action against Yelp; only the person who posted the comment is liable for the defamatory comments. Fair enough. If Yelp could be made to research every review the subject of that review claims is defamatory, it could not exist, and the process of finding a good sushi restaurant would be made far more difficult.
But would it be so burdensome to require Yelp to take down a review, AFTER a court has determined that review to be false and defamatory? It is a long and arduous journey to take a case to trial and prove that a review is defamatory. There would be very few judgments coming out the other side of that process, and hence very few posts Yelp would need to take down. Indeed, Yelp should embrace such an approach, because it claims to want only legitimate reviews. If after presentation of evidence, a court has determined that a review posted on Yelp is false, Yelp should be thrilled that a false review was rooted out and jump to remove it.
The CDA is a necessary evil, but it makes no conceptual sense that after the person who posted the comment has been found to be liable for defamation, that the post can remain, still damaging the reputation of the plaintiff. At least in the case of Yelp, the court can order the defendant to remove the post, and the defendant has the ability to do so, but what about sites like Rip Off Report, where the site prevents the defendant from removing his own post? I have long called for a mechanism to force sites to remove defamatory posts after a court has found them to be so.
Finally, a Court in San Francisco apparently heard my plea, and entered a judgment ordering Yelp to take down a post. The conventional wisdom has always been (1) you can’t get a court to order an injunction against Yelp since it is not a party to the action, and (2) obtaining such an order would violate the CDA, because is somehow amounts to finding liability against Yelp.
But I have long railed against that conventional wisdom. Continue reading
How to Stop Defamation When You Can’t Afford an Attorney
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?
California Prohibits “You Can’t Review Me” Contracts
From my recollection, doctors were the first to try this nonsense. They would slip in a provision in all the intake paperwork, stating that the patient agrees not to post any negative reviews about the doctor, with a $500 penalty if the patient violates the clause.
These contract clauses gained more and more popularity. I came across one in the repair estimate I received from my Ford dealership.
Occasionally, I would receive a call from a doctor or some other business, asking me to write a letter to a customer, demanding that they take down a review based on such a contract clause. I was happy to demand removal if the posting was defamatory, but I would not agree to use the clause as a basis, because I found them so offensive.
Apparently the California Legislature found them offensive as well, and created Civil Code section 1670.8. This section makes it ILLEGAL to include one of these “you can’t review me” provisions in any contract. If a business includes such a provision in a contract, it can be hit with a penalty of up to $2,500, and $5,000 for each subsequent violation, even if it never seeks to enforce the provision.
If you encounter a contract with “you can’t review me” language, then contact me immediately. I’d love to take these to court.
Here is section 1670.8 in its entirety:
1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.
(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.
(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.
(c) Any person who violates this section shall be subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation, and five thousand dollars ($5,000) for the second and for each subsequent violation, to be assessed and collected in a civil action brought by the consumer, by the Attorney General, or by the district attorney or city attorney of the county or city in which the violation occurred. When collected, the civil penalty shall be payable, as appropriate, to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.
(d) In addition, for a willful, intentional, or reckless violation of this section, a consumer or public prosecutor may recover a civil penalty not to exceed ten thousand dollars ($10,000).
(e) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law. This section shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.
Bill Cosby Sues Beverly Johnson for Defamation
“Bill Cosby filed a lawsuit Monday against supermodel Beverly Johnson, alleging she lied when she said the comedian drugged and tried to rape her at his New York home in the mid-1980s.
Cosby’s lawsuit says Johnson joined other women making accusations against him to revive her waning career and to help sell copies of her memoir.
The lawsuit alleges defamation and intentional infliction of emotional distress, saying Cosby and Johnson never spent any time alone in his house, he never drugged her and ‘her story is a lie.'”
Sourced through Scoop.it from: www.wmur.com
In an earlier discussion of Bill Cosby, I mentioned the problem of coming out and denying claims made by an accuser.
In the case of Bill Cosby, several women have come forward telling similar tales. Specifically, they allege that Cosby would drug and then rape them. Even though the statute of limitations on those alleged offenses may long have passed, Cosby affords those women with a potential cause of action if he comes out and denies the claims. By denying the claims, he is in essence calling them liars, which triggers a potential defamation action.
This action is the flip side of that coin. Cosby, of course, has the ability to sue for defamation, claiming that the accusations are false and defamatory. But this strategy comes at a cost. This lawsuit is against Beverly Johnson, but other women are making the same claim. Are we then to assume that the claims by the other women are not defamatory?
As the saying goes, “in for a dime, in for a dollar.” Cosby has now created a scenario whereby he must sue all of his accusers, lest he be viewed as being guilty of the claims by those he doesn’t sue.
James Woods Demands Court Order To ID Twitter User Who Called Him A “Cocaine Addict”
Actor James Woods says a Twitter user who called him a “cocaine addict” has no right to demand anonymity.
Sourced through Scoop.it from: www.buzzfeed.com
The James Woods case presents a good illustration of the legal process and certain constitutional rights.
Someone on Twitter, using the pseudonym “Abe List” or AL for short, got into it with Woods, and let fly with a series of put-downs, referring to Woods as a Joke, clown-boy and scum. Counsel for Woods understood defamation law well enough to know that those claims are not offered as verifiable facts, and therefore cannot be defamatory.
But AL also called Woods a “cocaine addict”, and that is where his counsel drew the line. They filed what is called a DOE action, suing an unknown defendant for defamation. (Here is the actual complaint.) Once a DOE action is filed, the plaintiff can then subpoena the records (here, from Twitter) to determine the identity of the anonymous poster.
Here’s where things get interesting.
What many do not realize is that someone posting comments on the Internet has a constitutional right to remain anonymous. It hearkens back to the days of “pamphleteering”, when those disagreeing with the government would produce and distribute anonymous pamphlets. If the government could require that the identity of protesters be known, it could intimidate critics into silence.
Because of this constitutional right, if someone wishes to remain anonymous, they can oppose the motion anonymously, forcing the plaintiff to make a sufficient showing that the speech is defamatory, and therefore not entitled to protection.
That is just what occurred here. AL has gone to court and challenged Woods’ right to discover his identity.
“How do you appear anonymously in a court proceeding?”, you ask. It’s easy. You retain counsel, usually Morris & Stone, who moves to quash the subpoena on behalf of the person, using the pseudonym. The identity of the person is never revealed. (In a couple of cases, we have seen other counsel attempt this procedure, only to make the effort pointless when they accidentally identify their client in correspondence.) 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.
Court tosses lawyer’s libel suit over ‘The Good, The Bad and The Ugly’
TORONTO – Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”
In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.
“In our view, this defamation action was ill-conceived,” the Appeal Court said.
Source: The Hamilton Spectator
Two lessons from this Canadian case. First, consider whether your colorful writing style is going to get you into trouble, and second that context is everything.
Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”
In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.
“In our view, this defamation action was ill-conceived,” the Appeal Court said.
Midanik’s complaint against the Toronto Star writer and publisher John Wiley & Sons turned on a paragraph in Powell’s book about a Toronto street gang, the Galloway Boys.
In one paragraph, the author wrote that the lawyer — he was acting for one of the gang members accused of murder — identified with Tuco Ramirez in the 1966 Italian spaghetti western classic, and paraphrased a quotation from the character, saying, “I like big men because they fall hard.” Midanik took offense at this comment, and sued for defamation. He argued that by equating him with Tuco Ramirez, the author implied that he was a murderer, rapist, dishonest and sleazy.
The case was doomed to failure, both legally and conceptually.
When one quotes from a fictional character, that does not mean or even imply that the quote is meant to pull in all the traits of the character in question. If I’m doing a hockey story, and I show a player making a slap shot, with the caption, “Say hello to my little friend,” am I implying that the hockey player is a drug lord?
The trial court and Court of Appeal agreed with my interpretation, and dismissed the case. Under Canadian law, the loser pays, so this ill-conceived case (the court’s words) cost the thin-skinned attorney about 100,000 Canadian dollars, eh.
Firefighter pictured in sex scandal article loses libel claims against Daily News, appeals | Pennsylvania Record
Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.
Source: news.google.com
This was an interesting case that really could have gone either way, and well may be reversed on appeal.
The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.
I would have anticipated that the defamation claim he filed would fail, but he also filed a claim for false light invasion of privacy, and that claim certainly had some merit.
Here is the jury instruction for false light (in California):
1802. False Light
[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] publicized information or material that showed [name of plaintiff] in a false light;
2. That the false light created by the publication would be highly offensive to a reasonable person in [name of plaintiff]’s position;
3. [That there is clear and convincing evidence that [name of defendant] knew the publication would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;]
[or]
[That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;]
4. [That [name of plaintiff] was harmed; and]
[or]
[That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]
5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
[In deciding whether [name of defendant] publicized the information or material, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information or material was substantially certain to become public knowledge.]
Defamation is an intentional tort, but false light can be established with a showing of negligence. A jury could certainly find that it is negligent to post a picture of a random firefighter in an article about a sex scandal, and that an average reader might assume that the firefighter must in some way be involved with the scandal.
But the judge in Pennsylvania disagreed, and threw out all of Cheney’s claims. The judge found that the photo provided sufficient context such that a reader would know that no link between the photo of Cheney and the sex scandal was intended.
This is an important factor in any defamation (or false light) claim. The fact that a statement or photo can be interpreted in a defamatory sense is not enough. The statement must be given a reasonable interpretation.
