Daily Mail publisher loses challenge to JK Rowling ruling
Associated Newspapers objected to parts of the statement that the author plans to read in open court as part of the settlement of her libel claim
Source: www.theguardian.com
In California, if a plaintiff wants to sue a newspaper (or radio station) for defamation, the plaintiff must first demand a retraction. If no such demand is made, then the plaintiff is limited to special damages (the actual damages that flow from the defamation. Failing to demand a retraction can kill the action, because it is often the case that no actual damages can be shown. If the demand is made, the newspaper can avoid any award for general damages by printing a retraction.
Here is the statute in its entirety, Civil Code section 48a:
Required Retraction Demand
1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. 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 the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.
2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.
3. A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.
4. As used herein, the terms “general damages,” “special damages,” “exemplary damages” and “actual malice,” are defined as follows:
(a) “General damages” are damages for loss of reputation, shame, mortification and hurt feelings;
(b) “Special damages” are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;
(c) “Exemplary damages” are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice;
(d) “Actual malice” is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.
You can still sue a newspaper for defamation even if you don’t demand a retraction within 20 days, but failing to do so limits any damage recover to “special damages”. In many cases, special damages are not worth pursuing, since they consist primarily of loss of income. Under proper circumstances, special damages can be significant (we recently won $1.5 million dollars of special damages for a client), but in most cases the plaintiff will have a hard time proving that specific business was lost because of the newspaper article.
Across the pond, they have a similar process, but with a couple of twists. The newspaper must print an apology, and if it does so, the plaintiff cannot recover any damages unless he, she or it can show that the article was printed with malice.
The dust up between Rowling and the Daily Mail arose from an online article in which the paper claimed an article written by Rowling about her time as a single mother in Scotland was a misleading “sob story”. The Daily Mail subsequently published an apology to Rowing, in which it accepted that Rowling made no false claims in the article and said that it had paid her “substantial damages”, which she was donating to charity.
But then Rowling announced she was going to read a statement in open court, stating that the Daily Mail had falsely accused her of being dishonest. The Daily Mail felt that was inappropriate, and unsuccessfully sought to block Rowling’s statement.
I can appreciate the newspaper’s frustration. The apology procedure is designed to undo the defamation, and to that end, the paper published an apology and paid a substantial settlement. If Rowling can now go to court and come up with her own characterization of what was said, which will then be reported by all the media, she is afforded the means to now damage the newspaper, even though she accepted the settlement.
For example, let’s say a newspaper publishes that you cheat customers. You demand a retraction, and the newspaper prints an apology stating that you never cheated customers, and pays you money. Now you call the media to court, and state on the record that the newspaper has apologized for saying you cheated on your taxes. The newspaper never said you cheated on your taxes, it might indeed believe that you do cheat on your taxes, and yet it is put in a bad light that goes beyond the original claim that you cheat customers, since the impression is now that the newspaper also apologized for a tax remark.
The newspaper’s position was that it never said Rowling was dishonest, and that Rowling should not be able to claim that it did, or that it apologized.
Gay Lawyer Takes Stand in Defamation Suit
The gay attorney suing Anapol Schwartz for defamation took the stand Tuesday to outline his departure from the firm and his decision to accept a job at Raynes McCarty…
Source: www.thelegalintelligencer.com
Quite the case. The law firm associate, Jeffrey Downs, was planning to make a lateral move from a law firm called Anapol Schwartz to Raynes McCarty, but allegedly his former firm informed the new firm that Downs was preparing to sue the former firm for discrimination. Raynes McCarty then revoked its offer.
It’s like second had discrimination. If Downs purportedly suffered discriminated because he is gay, and decided to sue on that basis, is it then discrimination to refuse to hire someone who sued someone else for discrimination? I’m sure Raynes McCarty did not give one whit about Downs being gay, so revoking the offer likely had nothing to do with that fact.
Let’s say I run a products liability defense firm, and I extend an offer to a woman to come join the firm. But then I find out that the woman is a plaintiff in a products liability case against a manufacturer we represent, and I decide that the optics of having a products liability plaintiff working at my defense firm would be really bad for business, and revoke my offer. It would be a crappy thing to do, and she might have a violation of public policy claim, since I am terminating her for exercising her right to pursue legal action, but it would have nothing to do with gender discrimination.
Ironically, Downs is now suing Raynes McCarty for discrimination and defamation. Presumably, if the allegations are true, the firm revoked the offer because it feared that Downs was litigious and wanted to avoid being sued, but in the process bought itself a lawsuit in any event.
Equally ironic, before leaving Downs had sent an email to his firm, seeking eight months of severance pay. That is the email that the firm is pointing to to claim that Downs was threatening litigation before his departure, which would make the warning to the new firm absolutely true.
[Update 1-19-2022:] I didn’t take a deep dive into the status of the case, but I came across my own blog post and was curious. Downs ended up suing both firms in the same action. He sued Anapol for (1) retaliation in violation of the Philadelphia Fair Practices Ordinance (“PFPO”); (2) defamation (Count II); and (3) false light invasion of privacy (Count III), and the Raynes Defendants for (1) sexual orientation discrimination (Count IV); (2) retaliation in violation of the PFPO (Count V); and (3) defamation, against Stephen Raynes only (Count VI).
Both firms moved for summary judgment, and as to the Anapol Defendants, the motion was granted with respect to Counts II and III (leaving the retaliation claim), and as to the the Raynes Defendants, it was granted as to Counts IV and VI (again leaving the retaliation claim). Here is the ruling.
I saw two headlines for articles behind paywalls that don’t appear to bode well for Downs: Jury Absolves Anapol Schwartz in Philly Gay Bias Trial and Defense Seeks Sanctions Against Gay Lawyer in Defamation Suit. Obviously I can’t speak to the veracity of either headline.
Former 49er Ray McDonald sues rape accuser for defamation
“Former San Francisco 49ers defensive end Ray McDonald has gone on the offensive, filing a lawsuit Monday against the woman who accused him of sexual assault in December, as a way to try to clear his name in hopes of restarting his career.”
Source: www.usatoday.com
This will be an interesting case to follow.
McDonald was accused of rape after spending the night with a woman me met at a San Jose bar. She claimed that while partying with McDonald at his home, she bumped her head during a hot tubbing incident, and did not recall anything that followed until she woke up naked in his bed the following morning. She spent the day with him, but sought medical treatment the next day. McDonald never denied that he had sex with the woman, but said it was consenual.
For reasons I have explained here before, reports to the police are privileged and will not support a defamation action. If that is the basis for the claim, this case will soon be gone on an anti-SLAPP motion. But if the woman alleged rape outside of that context, then McDonald’s case will survive.
[MAY 23, 2016 UPDATE:] The attorney for the woman brought an anti-SLAPP motion, based on the fact that the rape was reported only to the police. As I predicted, since McDonald was unable to identify anyone other than the police who received the allegedly defamatory claim, the anti-SLAPP motion was granted and McDonald’s case was dismissed.
Reports to the police are privileged, and can never form the basis of a defamation claim. This case makes clear why that MUST be the rule.
For sake of argument, let’s say McDonald did rape the woman. (Her story seems a little dubious, but let’s assume it was true for sake of this discussion.)
McDonald, who probably has some money from his NFL days, wants to silence this woman and hopefully get her to drop the charges. So he sues her for defamation, knowing that she will have to spend tens of thousands of dollars fighting against that legal action. She may very well get worn down by the time and expense of the legal action, and agree to drop her criminal charges in exchange for McDonald dropping his civil action.
We can never permit criminal defendants to use civil proceedings as a means to intimidate witnesses, and that is why reports to the police are privileged.
That does not leave McDonald without a remedy if the claims were false. If he is found not guilty in the criminal trial, he can then sue his accuser for malicious prosecution, if he can show that the claim was made with malice. Malice can be shown by proving that the woman could not have believed what she claimed.
Defamation in False Online Review
In a case brought by a US law firm in respect of a defamatory allegation on the firm’s Google Maps profile, it was held that the posting of a false online review by an English poster amounted to defamation deserving of substantial damages. In The Bussey Law Firm PC & Anor v. Page [2015] EWHC 563 (QB), the offending post read as follows:
‘Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.
Not a happy camper’
Source: www.scl.org
A case out of England that is interesting for a couple of reasons.
When I mention that I represent clients who are suing for false online reviews, I sometimes get a shocked look. People feel that reviews should be off limits, since they are matter of opinion.
In a perfect world that would be entirely true, but as this case illustrates, a review is not a matter of opinion if it is a complete fabrication by someone who has never done business with the company. Here, the defendant charges $5 to write fake reviews. The reviews can be good or bad, depending on what the purchaser wants. Keep that in mind whenever you are reading on-line reviews.
The damages awarded are also interesting. No doubt, the plaintiff could not show any direct loss of business because of this one bad review, but the court nonetheless awarded the maximum amount permitted under the law. One’s reputation has value, and the court felt a stiff damage award was appropriate for damaging the reputation.
Fake Social Media Account by Police Allowed Without Warrant
Keep your friends close, and your Instagram friends even closer. One of your online friends might be the police and a search warrant is not needed to befriend you on social media.
Source: www.thenationaltriallawyers.org
The Social Media Police Strike Again
To quote Bugs Bunny, “What a maroon!”
When a string of burglaries occurred, the police had a pretty good idea who it might me. They found the suspect’s Instagram account, and asked (under an undercover account) to become “friends”. The suspect agreed.
The suspect then proceeded to send out pictures of all the stolen property to his “friends”, which now included the police. Busted.
The suspect sought to exclude the evidence, claiming the police needed a search warrant, but the court disagreed.
“Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment” as in the case of U.S. v. Meregildo (883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)) where a Facebook “friend” was a cooperating witness and allowed law enforcement to access Meregildo’s posts regarding his violent acts and gang activity.
‘Revenge Porn’ Law Sees First Conviction In California
A man who posted nude photos of his ex-girlfriend without her consent on her employer’s Facebook page is the first person to be convicted under California’s “revenge porn” law, the Los Angeles City Attorney’s Office reported Monday.
Noe Iniguez, 36, of Los Angeles was sentenced Monday to one year in jail and 36 months of probation and will be required to attend domestic violence counseling for violating both the state’s revenge porn statute and two restraining orders.
Source: www.huffingtonpost.com
The facts of this case are horrendous, and illustrate the need for such a statute.
As I have written here before, we have successfully sued for this sort of conduct, but this law adds another means to help victims of revenge porn.
The “revenge porn” statute is contained in California Penal Code section 647. The statute is quite extensive, and contains a number of provisions. The “revenge porn” section of the code, as that term is usually meant, is contained in subpart 4(A) (highlighted below). Basically, the statute requires a tacit approval between the parties that any intimate photos will remain private. Interestingly, that section states that “any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person” is liable under this Penal Code.
I already see a couple of problematic loopholes. In the photo above, we see a woman taking a selfie. If she then sends that photo to her boyfriend, and after they break up he posts the photo, would it still be covered under this section? After all, the boyfriend is not the person who “photographed or recorded” the intimate body parts. Also, how will she show that he posted the photo “with the intent to cause serious emotional distress”?
Here is Penal Code 647 in its entirety: Continue reading
Google has free speech right in search results, court confirms
A San Francisco court ruled last week that Google has the right to arrange its search results as it pleases, which confirms the company’s long-held view, while underscoring the stark difference in how U.S. and European seek to regulate the search giant.
Source: gigaom.com
The number of callers have gone down as the defamed public becomes more educated on the topic, but I still get a lot of calls from potential clients wanting to sue Google for the information reported in its search results.
I always viewed this as wanting to sue the telephone company because it listed the phone number of a con artist in the phone book. Just as the phone book simply lists the names and telephone numbers of people with telephones, Google results are just a report of what is out on the internet. Google, quite appropriately in my opinion, has always argued that its search results are neutral, and it cannot be responsible for whatever its search spiders happen to find.
With that said, the frustration of defamation victims is understandable. The squib that Google creates in conjunction with the search results can often be more damning than the defamatory posting itself, because of the truncated nature.
It this recent challenge to Google, the plaintiff added a slight twist. CoastNews was miffed that it was ranked high on Bing and Yahoo, but that Google was pushing it far down the search results because it perceived CoastNews as a competitor. It sued, claiming that Google was being unfair, and should not be able to determine the position of websites returned in the search results.
Google brought an anti-SLAPP motion, which was granted.
Richmond Restaurant Encourages Bad Yelp Reviews
Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be the worst-rated restaurant in the Bay Area.
To achieve this end, Botto Bistro is encouraging all of its customers to leave one-star Yelp reviews; it is even offering deals for anyone who pens a crummy review: 25% off any pizza and a chance to win a cooking class. (Hat-tip to Richmond Standard.)
Source: insidescoopsf.sfgate.com
I applaud these restaurant owners.
In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write bad Yelp reviews. It’s just a great way to get people to realize that anyone can write anything.
Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, “Yes we are. Thank you for noticing.”
Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract. How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the “contract” between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?
Court of Appeals upholds $14.5 million defamation verdict against State Farm in hail fight
The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals.
In a decision issued Tuesday, the three-judge panel found Hamilton Superior Court Judge Steven R. Nation correctly denied the insurance giant’s request for a new trial based on a claim that roofing contractor Joseph Radcliff obtained the judgment through fraud on the court.
The case grew out of a 2006 storm that battered Central Indiana with golf-ball-size hail and ravaged thousands of homes. The damage tally topped $1 billion, with State Farm alone paying out more than $200 million on about 50,000 damage claims.
The payout to Radcliff, however, was not the result of damage to homes or cars — but for what a Hamilton County jury determined was damage State Farm did to the roofing contractor’s reputation.
Source: www.indystar.com
These cases are becoming so commonplace, I’ve taken to calling them the “second appeal.” Here’s the way they work.
The defendant loses in the trial court, then they lose on appeal. Left with no other way to challenge the outcome, they bring their own action, claiming the original verdict was achieved by a “fraud on the court,” usually based on some evidence the defendant claims would have resulted in a different result. There is support for such an action, but the circumstances for a successful fraud on the court claim are extremely narrow.
So it was in this case. The insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. It claimed that was a fraud on the court, and the judgment should therefore be thrown out. That approach won’t fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a “Mulligan” because it failed to vigorously defend the case the first time around.
In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had “defrauded” the court by allowing it to enter a judgment, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.
Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit
Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.
“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”
What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”
Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”
Source: www.washingtonpost.com
This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.
See on Scoop.it – Defamation Law
