How to Respond to a Cease and Desist Letter
I am frequently consulted by potential clients, who call to ask how best to respond to a cease and desist letter from an attorney, that claims the caller is guilty of defamation or some other wrongful act. The letter demands that the defamatory remarks be removed and/or the wrongful conduct cease immediately, and typically states or implies that legal action will follow if the demand is not honored.
The problem is, the caller did not make the remarks (or they were entirely truthful) and/or did not engage in the wrongful conduct. The caller is hopping mad that some attorney, without even asking the caller for their side of the story, is making these spurious claims. The caller wants to know how they should respond to the letter.
The answer is that there is no way to know the best way to respond. Thanks from coming. Be sure to tip your server.
But I can tell you this . . . .
The answer to the question depends on many variables, some of which are unquantifiable. So this is a question where the best lawyerly answer I can provide is, “it depends.” I can, however, offer the following list of factors to consider in determining how best to respond to a cease and desist letter.
The letter is not defamatory.
Let’s first get this point out of the way. Callers often want to sue the attorney and his or her client for defamation for daring to send the letter containing such false accusations. But the letter was sent to you, and you can’t be defamed to yourself. Defamation requires publication to a third party.
If you look down at the bottom of the letter and see that it is copied to a third party, that could conceivably be the basis for a defamation action, but probably not. People often add a “cc” to a letter just to make it appear more intimidating, as in, “I am really serious about this to the point that I copied the Federal Trade Commission on this letter.” It doesn’t mean that the FTC was really copied, or bothered to read it.
And, no, the fact that the clients told these horrible lies to the attorney so that he or she could write the letter will not be enough. Communicative acts done in anticipation of possible litigation are protected by the litigation privilege (Civil Code § 47). If you sue for what is stated in a cease and desist letter, you’ll almost certainly be met with an anti-SLAPP motion and end up having to pay the other side’s attorney fees (Code of Civil Procedure § 425.16).
There are exceptions to every rule, as in the case where an attorney’s letter went so far that he was successfully sued for extortion, so by all means have an attorney review the letter, but it is extremely unlikely it will form the basis for an action.
The letter may be a toothless threat.
Cease and desist and demand letters are a nice source of income for attorneys. I know of an employment attorney who charges $5,000 for a letter, and his clients are happy to pay it. After being told by 20 attorneys that due to the law regarding at-will employment they have no claim, they finally find at attorney willing to write to the employer and “give them what for.” The hope is that the letter might scare the employer enough that they pay some money to avoid the threatened legal action.
But that attorney seldom, if ever, follows through on the threat. And that is often the case with attorney letters, especially in the defamation context. The letter is sent in the hope that the person will stop saying whatever it is they are saying about the attorney’s client, but the attorney may have already concluded that it would not make economic sense to pursue the action, or that the statements do not support a defamation claim.
Look at it this way. If goal is to silence the alleged defamer, wouldn’t an actual lawsuit be far more effective? Or the attorney could send a cease and desist letter along with the unfiled complaint. It only takes a little longer to put the allegations in a complaint, as opposed to a letter.
Attached hereto is the complaint we intend to file if you do not remove your Instagram post about our client within five days.
Isn’t that far more threatening? The recipient sees that the plaintiff has already taken the time to prepare the complaint, and is ready to pull the trigger. The fact that the attorney and client elected instead to proceed by way of a letter is an indication that they want to avoid litigation.
Or they could be setting a trap.
On the other hand, a cease and desist letter is a fast way to draw a line in the sand, and to set up certain arguments that can later be made at trial.
If you comply, that will be used against you.
So you receive a letter, demanding that you remove an allegedly defamatory review you posted on Yelp. Even though everything you said is true, you decide it just is not worth fighting about, so you immediately remove the review. If the plaintiff does sue you, he will almost certainly claim at trial that you removed the post because you knew what you said were lies.
If you don’t comply, that will be used against you.
Conversely, if you don’t comply with the request to remove the review, that will be used against you as well, especially if anything you said is found to be defamatory. Given the backlog caused by Covid, it now takes around 18 months to get a case to trial. If you don’t comply with the request, plaintiff’s counsel will argue to the judge or jury that punitive damages are appropriate, because even after you were nicely asked to remove the comments, and told why they were false and defamatory, you left them up for the next 18 months.
You can do nothing, and see what happens.
Nothing says that you must respond to a cease and desist letter. As I explained above, if they really intend to sue, they would just sue. If the letter says they won’t sue you if you do what they ask, you can do nothing and see if they make good on the threat. If they were willing to walk away before the lawsuit, they will probably still be willing to do so after filing the complaint, if you then comply with the demand (although they might then demand reimbursement of the fees and costs they have incurred).
Consider how your silence will be perceived.
There is a maxim of law that silence does not mean consent. Under the law, if someone says you are lying, and you do not respond, that does not mean that you agree you are lying. But in the real world, that is not the case. We expect people to stand up for themselves.
I remember something a Judge said to me in Federal court. I represented the defendant in the case, and the plaintiff’s attorney sent discovery, seeking a certain document. My client informed me that no such document ever existed, and we responded as such.
Plaintiff’s counsel wrote twice more, demanding the document, and I responded each time that according to my client, the document had never existed. Plaintiff’s counsel wrote a third time, this time threatening to bring a motion to compel, and to seek sanctions against the client and I, if the document was not produced. I responded again that, according to my client, the document did not exist, and that if she thought a motion to compel was warranted, she should file the motion, but that I would have no further communication with her about that nonexistent document. The attorney wrote to me 18 more times about the document, but never brought the threatened motion to compel. As promised, I did not respond to any of her 18 subsequent demands.
At a status conference, opposing counsel pulled out the 21 letters demanding the document, and the exchange went something like this:
Opposing counsel: Your Honor, I’m sorry we are not further along in the litigation, but defendant and his counsel are not cooperating in the discovery process. I have written to Mr. Morris 21 times demanding production of this document, and he has never produced it. In fact, the last 18 times I have written to him, he has not even shown me the courtesy of replying.
Judge: Is that true, Mr. Morris?
Me: Partially, but Ms. Jones left out crucial facts. After I responded to her three times that, according to my client, no such document has ever existed, I told her she should bring a motion to compel if she deemed that to be appropriate, but that I would have no further communication with her regarding the document. I consider it unethical to allow opposing counsel to generate unnecessary fees for my client, and often that is the specific intent of making the same demand so many times. I had already informed her of our position regarding that document, and incurring the time and expense of responding to her 18 more times, after specifically informing her that I would not do so, would not be appropriate. And, you’ll note, Ms. Jones never brought a motion to compel, as I suspect she is well aware that the document never existed.
Judge: I practiced many years before joining the bench, and I never would have failed to respond to a letter. I mean, 18 times she accused you and your client of acting in bad faith by failing to produce this document, and you never responded. That makes you and your client look really bad.
The point of this long-winded war story is that while seemingly any rational person would agree that I was under no duty to respond to 18 more letters after I had made our position clear, something was so ingrained in this Judge’s mindset about having to respond to every letter that she concluded that failing to do so made the client and I “look really bad.”
I’m sure this Judge is not the only one who thinks that way. Contrary to the law, if you simply fail to respond to a cease and desist letter, it might be viewed as conceding the points contained therein.
Incidentally, the document in question was not particularly important, and plaintiff dismissed the case against my client about three days after the status conference. I think the case was filed entirely for leverage by making my client incur attorney fees, and seeing that I would not play the game, plaintiff gave up.
If you don’t respond, any chance at settlement may be lost.
Conversely, if you don’t respond, and the plaintiff does file the action, that momentum may destroy any settlement possibilities. It could be that the plaintiff wanted to sue, but the attorney suggested a more measured approach. “Before we incur the costs of preparing and filing a complaint, let me see if I can talk them into just removing the comments they posted.” But then you didn’t even respond, and the plaintiff is now twice as mad. His willingness to walk away is gone.
You can respond without responding.
There is one approach I have used very effectively on several occasions, when the client did not do what is being claimed in the letter.
Let’s say you receive the following letter:
Dear Ms. Johnson,
We represent Dave Jones. Mr. Jones is informed that you have communicated to his neighbors that he is operating an illegal opium den in his basement. If you do not respond to this letter within five days, promising to never again make this claim, we will be forced to bring legal action.
Very truly yours,
Joe Dokes, Esq.
But you never told anyone that Mr. Jones is doing anything illegal. In such a case, there is no problem with agreeing to what is being requested, so long as you make clear you never did it.
Dear Mr. Dokes,
I represent Ms. Johnson, and this letter is in response to your letter dated May 20, 2024. Ms. Johnson has never discussed Mr. Jones with anyone in the neighborhood or elsewhere, and has never stated he is operating an opium den.
Your client will likely want to respond with all the reasons he (erroneously) concluded that Ms. Johnson made such statements, but such response is not necessary. She agrees to your demand to never state that Mr. Dokes is operating an opium den. Based on your letter, we will assume the matter is resolved.
All best,
Aaron Morris
Historically, they almost always respond anyway, to state why they are confident my client did do what was stated in the letter, but that’s as far as it goes. On one occasion, they saber-rattled about how they were now going to sue because my client was failing to take responsibility for what had occurred, but they never did so.
So as I said at the outset, there is no one “best” way to respond to a cease and desist letter, but you now know some of the factors to consider when deciding how to proceed.
You Can Sue for Defamation in Small Claims Court
Wow. I may actually know what I’m talking about.
In one of my earliest postings on this blog (recently updated to reflect the new damage limits), I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney, or where the numbers involved would not justify the expense of an attorney. At the time I wrote that article, the maximum amount of damages that could be recovered was $5,000 as I recall, but it was raised to $10,000 in 2012, and then $12,500 in 2023. (It was originally intended to go to $15,000 that year, but apparently the Governor though that was a little too high.)
Obviously, even with this higher amount, this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won.
I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.
Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a small claims action against the defamer, and has a witness to the statements.
This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. Most likely the story goes something like this:
“Joe is such an asshole. I told Dave about how I had heard that Joe was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”
But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.
This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter starting a backfire to stop a fire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.
Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. Defamation is a tort, such as personal injury. Just as you can sue for personal injury in small claims court, you can sue for defamation. If you get any pushback, ask to speak to a higher up, and ask them to show you the court rule that prohibits defamation actions in small claims court. There is no such rule.
However, as I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor or to provide a letter of apology, as examples. That is why attorneys often don’t think to suggest Small Claims Court and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $5,000 in damages, reduced to $2,500 if the defamatory statement is removed from the Internet.)
For fun, I asked ChatGPT about suing for defamation in Small Claims Court, and it responded, “you generally cannot sue for defamation in small claims court in California.” But its reasoning for that conclusion was what I mentioned above — the inability of a small claims judge to provide injunctive relief such as ordering that the false statements be retracted. In ChatGPT’s “mind,” defamation claims can’t be brought in Small Claims Court because the judge can’t issue any order. But the strategy I am suggesting accepts that limitation in exchange for the far, far, FAR cheaper alternative of suing in that forum.
When I called out ChatGPT and asked if it could provide any authority for the position that defamation actions cannot be brought in Small Claims Court, it had to concede that “there’s no California authority expressly forbidding defamation actions in small claims court.”
And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safer from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. (There are almost no absolutes in the law, so although very unlikely, I am not saying someone could not come up with a way to bring an anti-SLAPP motion in small claims court, such as having the action reclassified to Superior Court, or by bringing an oral motion at the time of trial.) Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.
With all this said, you’ll be wasting your time in Small Claims Court if you think you can go in and wing it. You’ll be suing for thousands of dollars, so it will be time and money well spent if you buy and review Everybody’s Guide to Small Claims Court in California
A word about damages.
More proof that ChatGPT is terrible when it comes to legal analysis comes from its mention of damages. It stated that defamation actions are “not well suited” to Small Claims Court because of the complexity of proving special damages (lost income, business harm). It posited that since actions in Small Claims Court are intended to be brief, proving special damages would be too time consuming. And, rather insultingly to the judges who hear small claims matters, it opined that the issues surrounding a defamation claims are just too sophisticated for that forum. (An example of AI holding us humans in contempt?)
With all due respect to our future AI overlords, ChatGPT utterly failed to recognize the two types of damages in a defamation action — actual damages and assumed damages. Actual damages are just what the name suggests; the measurable damages that resulted from the defamation, such as loss of income. But defamation is unique among torts in that if the elements of defamation are proven, the law provides that the plaintiff MUST be awarded damages, even if no economic damages are proven. We as a society recognize that one’s reputation has value, and damages are assumed if one is defamed. These assumed damages include “mental suffering, anxiety, embarrassment, and humiliation” — even absent proof of economic or special damages. If the false statements made about you were significant and sufficiently widespread, the judge is free to award you the full jurisdictional amount based on loss of reputation and the emotional distress you suffered, even if you did not prove a penny of damages.
Think about it.
There are so many aspects to this area of the law, that my articles soon turn into tomes if I don’t control myself. The prior paragraph is an example of where I can’t just let it stand without further clarification, for fear that it will be twisted. Note that I said a statement needs to be “significant and sufficiently widespread.” When considering whether the false statement will support assumed damages, don’t analyze it from the viewpoint of a fragile wallflower who takes offense at every perceived slight. Instead, use the viewpoint of a person who understands that the occasional insult is just part of the background noise of life. If a waiter falsely stated in front of your date that your credit card had been declined, that might technically satisfy the elements of defamation, but no judge is going to be so outraged by that statement as to award you anything beyond perhaps $5 in assumed damages.
Friends and family can be used to determine the worth of a case. Sit them down with some wine and beer (but not too much), tell them you want them to realistically determine the damages, as opposed to saying what they think you want to hear, and tell them the facts of your case. After they provide their damage calculations, ask them to provide their reasoning to see if the damage amount has any relation to reality, or was just pulled out of their butt.
[Update] I had recommended to a caller that her case was perfect for my Small Claims approach. She said the defamer would not stop defaming her, so I suggested that each time she learned of another defamation, she should drag him to court again. Over a year later she was kind enough to call me to thank me for the suggestion. She stated that in the time since she spoke to me, she had sued him multiple times, and had prevailed every time, with total damages approaching $50,000. I thought about that number after the call, initially thinking it was implausible given the limits on damages in Small Claims Court, but I crunched the numbers and it can be done.
Check the current rules, but as I write this, a natural person (as opposed to an entity) can bring small claims actions for the maximum amount of $12,500 up to twice a year, and can bring an unlimited number of cases that seek $2,500 or less. The limitation to two $12,500 actions in a 12-month period is a rolling period measured from the date of filing, not January–December. So, for example, if the caller filed her first $12,500 case on March 1, 2024, and the second one on April 1, 2024, she’d be eligible to file her third and fourth actions on March 2, 2025 and April 2, 2025. So it was entirely possible that she had sued four times and been awarded $50,000 in a little over one year and one month (plus however long it took for the cases to be heard).
And I have to believe that so long as her evidence was strong, the judge would be more inclined each time to award the maximum, seeing that the defendant continues with the same bad behavior. As you can see, a Small Claims action is not only a very streamlined and cost effective way to proceed, it can also be very lucrative.
[Update] As I predicted in my parenthetical above, concerning an oral anti-SLAPP motion, a caller advised me that he was threatened with an anti-SLAPP motion in response to his small claims case. He added that he had gone to court to observe other cases as a way to prepare for his own trial, and he observed a judge grant an oral anti-SLAPP motion in a small claims case. But that’s as it should be. If a plaintiff is suing for damages in Small Claims Court, arising from protected activity, the court should dismiss the action. As a matter of public policy (as set forth in Civil Code § 47 and Code of Civil Procedure § 425.16), the law immunizes people from what they say in certain circumstances. For example, we don’t want politicians to be able to sue their constituents for defamation as a means to silence any criticism. So if you attend a City Council meeting and call the mayor a no good, lying pony soldier, he or she can’t sue you. If they nonetheless tried to do so (which was the exact fact pattern in my very first anti-SLAPP motion), the judge should (and did) dismiss the case.
But a plaintiff would still be far safer in Small Claims Court, since there would be no attorney and hence no attorney fees. But as with anything I write about the law, I can envision possible exceptions. A corporation can’t defend itself in court, because it is not a person and has no mouth. Thus, a human has to be there on behalf of the corporation, and that human could be an attorney, who might try to claim attorney fees following a successful oral anti-SLAPP motion.
California’s Litigation Privilege is Absolutely Absolute
I receive calls every week from potential clients wanting to sue for defamation for something said in court or in a court document. I’ve written about the litigation privilege before, but let me state the definitive rule up front and then explain why it is the rule.
You can’t sue for statements made in court or court documents, no matter how false, vile, or damaging.
This is called the Litigation Privilege, and the privilege is absolute. Let’s use a common scenario to show the interaction of the law and how such a case would play out.
Bob and Barb are divorcing and are embroiled in a hotly contested custody battle over their five-year-old son Billie. In a court document, Barb states the Bob is a terrible parent who should not get custody, because the once left Billie in a hot car for hours while he shopped for an RV.
Bob is outraged, because the never happened. He has never shopped for an RV – he doesn’t even want an RV – and he certainly never left Billie in a hot car. He wants to sue Barb for defamation, both because he thinks it will help with the custody battle, and because Barb has made this lie a matter of public record, and it could harm his budding career as an actor.
So he finds himself a personal injury attorney, who has no specific knowledge about defamation cases, but figures it can’t be that much different than any other personal injury tort. The attorney files a complaint against Barb for defamation for what she said in the court document. Continue reading
Understanding the Common Interest Privilege
Based on innumerable calls, and witnessing defamation actions brought by attorneys unfamiliar with privileged speech, it is clear that a discussion of the Common Interest Privilege is in order.
Let’s begin at the beginning, namely, the elements of a defamation claim. To prove a claim for defamation, the plaintiff must prove: (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. Each of those elements requires further explanation, but today we are focusing on the “unprivileged” element; perhaps the most misunderstood of the elements based on the inquiries we receive.
Certain categories of speech are privileged for various public policy reasons, and are set forth primarily in Civil Code § 47. Here are some examples from that section.
A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . ., except as follows:
. . .(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
Section 47(c) codifies the Common Interest Privilege, and it is very broad privilege. The statute is long and there is a lot to absorb, but in its simplest terms, Section 47(c) extends a conditional privilege against defamation to communications made without malice on subjects of mutual interest.
The most common example of callers who want to sue for defamation, where it is almost certain that a defamation claim would fail due to the Common Interest Privilege, involve claims of sexual harassment in the workplace. Typically, the facts are that a man said something to a woman that she found inappropriate, she complains to Human Resources, and he suffers some adverse job action as a result, from demotion to termination. He is convinced that no reasonable person could have taken what he said as sexual harassment, and wants to sue his coworker and/or the company for defamation. Continue reading
You Must Move Quickly if a News Publication Defames You
Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships as sea. The year was 1931. The Empire State Building had just been completed, the Star-Spangled Banner was adopted as the Unities States’ national anthem, and Albert Einstein began his research at the California Institute of Technology.
In California, the Legislature decided to encourage the rapid reporting of news by newspapers, by affording them some protections from liability. Civil Code § 48a was passed, and stated:
“In any action for damages for the publication of a libel in a newspaper, if the defendant can show that such libelous matter was published through misinformation or mistake, the plaintiff shall recover no more than actual damages, unless a retraction be demanded and refused as hereinafter provided.”
It was amended in 1945 to add the same protection to news reported on the radio. At that point, television* and the internet did not exist. Magazines existed, but for whatever reason, the legislature elected not to include them.
And there the statute sat for 70 years, protecting only newspapers and radio. This lead to some strange results, as other publications that should logically be afforded the same protections, simply did not fall under the wording of the statute. Continue reading
Would you want to live in a country where you could sue for that?
Happy birthday to you,
You live in a zoo,
You look like a monkey,
And you smell like one too. -Anon
I get lots of phone calls relating to defamation, where the caller wants to sue for some inconsequential slight.
For example, a caller once told the story of how he tried to use a Discover card at Costco. When the cashier informed him that Costco only accepts Visa and debit cards, he responded that he had used a Discover card the prior week. To this the cashier responded, “There’s no way you could have paid with a Discovery card last week. You’re being crazy.”
Because he was referred to as “crazy” in front of other customers, he wanted to sue for defamation.
If you actually need a legal analysis for this, calling someone crazy is not defamatory, because it is not being offered as a verifiably true statement. The cashier was not proclaiming that the caller suffers from a mental illness, only that he was “acting the fool.” As I have explained here many times, context is everything in a defamation action.
When I get this type of call, I feel like I need to accomplish more than simply explaining that the facts will not support a defamation action. I have the person’s attention, so perhaps I can get them to look at life in a different way — a way that could improve their attitude and cause them to better embrace the freedoms that we enjoy.
To that end, I ask the question, “would you want to live in a country where you could sue for that?” 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, or the damages you are seeking would not make hiring an attorney economically feasible?
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?
Is Susanna Gibson a Victim of Revenge Porn?
In case you missed it, Susanna Gibson is a candidate for a seat in Virginia’s House of Delegates. Her campaign grabbed the public’s attention when it was revealed that she streamed sex acts online in exchange for tips. Here are all the details, as reported in The Washington Post:
A Democrat running for a crucial seat in Virginia’s House of Delegates performed sex acts with her husband for a live online audience and encouraged viewers to pay them with “tips” for specific requests, according to online videos viewed by The Washington Post.
Susanna Gibson, a nurse practitioner and mother of two young children running in a highly competitive suburban Richmond district, streamed sex acts on Chaturbate, a platform that says it takes its name from “the act of masturbating while chatting online.”
Chaturbate videos are streamed live on that site and are often archived on other publicly available sites. More than a dozen videos of the couple captured from the Chaturbate stream were archived on one of those sites — Recurbate — in September 2022, after she entered the race. The most recent were two videos archived on Sept. 30, 2022. It is unclear when the live stream occurred.
Gibson, 40, can be seen in the videos soliciting “tips” for performing specific acts — in apparent violation of Chaturbate’s terms and conditions, which say: “Requesting or demanding specific acts for tips may result in a ban from the Platform for all parties involved.”
In at least two videos, she tells viewers she is “raising money for a good cause.”
In multiple videos, Gibson interrupts sex acts to type into a bedside computer. Speaking directly into the screen, she urges viewers to provide tips, which are paid through “tokens” purchased through the site. In at least two videos, she agrees to perform certain acts only in a “private room,” an arrangement that requires the viewer to pay more.
“I need, like, more tokens before I let him do that,” she responds to a request that they perform a certain act. “One token, no. More. Raising money for a good cause.”
Almost immediately, as tips apparently arrive, she says “thank you” five times and tells her husband she will agree to that act.
Gibson takes the lead in addressing viewers on videos viewed by The Post, but in one case her husband, an attorney, chimes in with, “C’mon, guys,” to echo her entreaties for tips.
So now the scene has been set for the legal analysis.
She performed the sex acts online with no reasonable expectation of privacy. In such situations, the argument is sometimes made that there is an expectation of privacy, because the acts are performed for a limited number of paid members, and not for the internet at large. But this argument seldom withstands scrutiny because, as the saying goes, “the internet is forever.” Anything streamed out to the internet can be captured by anyone watching, who can then display it to others. This is even clearer in this case because, according to the Washington Post article, although the videos are initially streamed live, they are posted on other sites following the live stream, available to any subscriber. (Although it appears that these particular videos were removed after their existence was revealed.) Continue reading
What to do if a Doctor Puts False Information in your Medical Records
We get a surprising number of calls concerning medical records, and the false information contained therein. Often it arises in the context of a patient who is prescribed pain killers. Doctors, understandably, are sensitive to over-prescribing opioids, both out of concern for the patient, and because the doctor can get in trouble for being too loose with such prescriptions.
But that concern sometimes results in the doctor being a little overzealous. The doctor is unconvinced that the patient is really in as much pain as they claim, and concludes the patient has developed an addiction. They note that conclusion in the patient’s medical records, and the patient feels they have been branded as a junkie to any and all doctors that examine their records in the future. The patient calls our office, wanting to sue for defamation, in order to get the comment removed from the record.
We have never sued on that basis, and probably never will, but keep reading, because I can offer a possible solution. Continue reading
Are News Reports Offered as Factual Assertions?
Sacramento Kings center Richaun Holmes is suing his ex-wife, Allexis Holmes, the Sacramento Bee, and one of its opinion writers, Robin Epley, for defamation. In the course of a custody battle, Allexis made allegations of abuse against Richaun, which were reported and opined on by the Sacramento Bee. Richaun claims the publication damaged his reputation.
The case illustrates an important aspect of defamation claims. Namely, when a newspaper reports what someone else has said, is it liable if the statements are false?
Let’s begin our analysis with the elements of defamation:
The elements of defamation are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).
“We apply a ‘totality of the circumstances’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense …. Next, the context in which the statement was made must be considered.” Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” Balla v. Hall, 59 Cal. App. 5th 652, 678 (2021).
In my never to be humble opinion, a report by a news outlet almost never implies the truth of the statements it is making. Unless the reporter is reporting something he or she saw, how could anyone take the statements as anything other than hearsay? Continue reading
