Defamation

Act Natural When Contemplating Litigation

I often get calls regarding wrongful termination where the terminated employee – terminated months earlier – has done nothing to find a new job, concluding that a new job would minimize his damages and hurt his case.  That’s a crazy case of the tail wagging the dog.

Lately I am receiving defamation calls where the victim of the defamation is following a similar counterintuitive strategy. The call usually goes something like this:

Caller: “The Orange County Register published an article saying I cheat on my taxes and am a bad dancer.”

Me: “Is that a false statement?”

Caller: “Entirely false. I’m an excellent dancer!”

Me: “When did they publish this article?”

Caller: “About three months ago.”

Me: “Did you ever demand a correction?”

Caller: “No, I want to sue for damages, not a retraction. If they printed a correction, that might minimize my damages.”

That mentality is problematic on several levels. First, it shows that the caller is not as interested in preserving his reputation as he is in getting money. Second, if an attorney ever did take the case, the failure to ask for a correction would be a problem for the jury. He was so upset by the defamation (the tax part, not the dancing) that he is asking us to give him millions, but he never tried to minimize the loss of reputation by asking for a correction?

Finally, California Civil Code § 48a requires someone who has been libeled by a newspaper or slandered by a radio station to demand a correction “within 20 days after knowledge of the publication or broadcast or the statements claimed to be libelous.” If a plaintiff fails to make the demand in the allotted time, he or she is limited to special damages – the actual, quantifiable damages caused by the defamation, such as loss of business. Fail to make the demand within 20 days, and you give up all general damages, which are 95% of the damages in most defamation cases.

Litigation is a solution to a problem, but it should never drive your life. Don’t act in some artificial manner to “preserve” an action. By all means, save some screen shots as evidence for your action, but if you act to keep the defamatory comments in place, that will hurt your case far more than it helps.

Blogger Can’t Sue for Defamation on His Own Site

Lord of the Rings

Lord of the Rings

In a fun bit of irony, a blogger has been hoisted on his own petard. This was a UK case, but the common law principles would likely yield the same result here.

First a little defamation law. Defamation is based on one’s loss of reputation, so you can never defame someone to them self  In other words, if you send a letter to Joe telling him what a liar he is, Joe can’t claim defamation because it is not possible that your letter caused him to lose reputation. (If it makes him realize what a liar he is, that’s just too bad.)

Further, if Joe then shows the letter to someone, you still can’t be held liable because it was Joe that published the statement to a third party.

In the UK case, the plaintiff had created a blog to tell about how he was molested by a Catholic priest. To make the story more interesting, the priest also happened to be son of writer JRR Tolkien, author of Lord of the Rings. The defendant posted a comment on the plaintiff’s blog, claiming plaintiff had created the story in order to extort money from the Catholic Church. Plaintiff brought legal action for defamation.

“No can do,” said the court. Since the blogger had the ability to screen comments (whether he had chosen to do so or not), he was responsible for publishing the content. Under common law defamation, the situation was no different than Joe showing the defamatory letter to a third party.

You Can’t Sue Me, I Have the RIGHT to Defame You!

One of our current defamation suits involves a man that was accused of being a pedophile. He is not a pedophile, and the defendant freely admits that she does not really think he is a pedophile. Indeed, the Defendant says that our client has never done anything that would warrant her making such a claim. But that doesn’t stop her from making the claim anyway, because she doesn’t like him. That’s why we are suing her for defamation.

Here’s where the case gets stranger. Even though Defendant admits our client is not a pedophile, her attorney brought an anti-SLAPP motion claiming that our complaint should be thrown out because Defendant’s false statements are protected speech. Confused? Let me see if I can walk you through opposing counsel’s logic.

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.  Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant abandons the criticism to make the lawsuit go away.

To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint.  The court then decides whether the speech in question is protected free speech.

Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)  Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

So, the first three types of protected speech arise from the traditional forums – statements made in places like court, during a city council meeting or at some other public forum.  The fourth criteria can be outside a public forum, such as on a blog on the Internet, but that section requires that the matter being discussed concern a “public issue.” There are many competing court decisions that have tried to define what constitutes a public issue.

In our case, defense counsel argued that the Defendant’s false claim that Plaintiff is a pedophile is protected speech because stopping that behavior is a matter of public interest. He actually argued with a straight face that even when the accusation is a complete lie, one can accuse another of being a child molester and be protected from suit because the subject matter is so important. So, under defense counsel’s approach, certain topics would automatically enjoy heightened free speech protection, regardless of the circumstances. This obviously would make the job of defamers easier, because we could simply create a list of topics we find are important enough to be matters of “public interest” and the defamer could falsely accuse intended victims of those items, knowing the speech is protected.

The judge didn’t think that was a very good idea either.  Motion denied.  Defamatory speech is not protected speech under the anti-SLAPP statute.

“I want a clean fight boys. Keep it clean.”

Kudos to Karl Kronenberger for concisely capturing the characteristics of Internet defamation.

I was interviewed today for the syndicated radio show Culture Shocks on the topic of Internet defamation, and the possible chilling effect on free speech by lawsuits against those who publish defamatory comments. The host, Barry Lynn, was very even-handed, but I again found myself being cast as the anti-free speech proponent because I am not opposed to suing those who defame others on the Internet. During such interviews, when I explain that there are “serial defamers” who post false reviews to extract revenge for a perceived slight, or to bash the competition, I am usually met with skepticism.

Yelp Backlash
Yelp Backlash

In his piece entitled Defamation Superhighway, published in the Forum section of today’s Los Angeles Daily Journal, Kronenberger observed: “Despite this great number of prolific and legitimate reviewers, we cannot put our collective heads in the sand and deny that review sites draw some consumers who use them for unlawful purposes under the guise of legitimate free speech. . . . Also, business competitors can post negative reviews while posing as disinterested consumers.” He correctly points out that yelp.com, for example, further enables defamatory content by providing no mechanism for the victim to respond.

As I have explained in greater detail in prior posts, I don’t desire passage of a law that requires review sites to investigate claims of defamation. Such an approach would be unworkable in most instances, since every legitimate post that happened to be negative would be met with a cry of “defamation!” But if the review sites don’t want defamation attorneys to become the Internet Police, then they must permit the users to fill that role. That would include permitting the victim of a defamatory post to respond contiguously with the original post, not as a separate, far-removed post.

I’m reminded of the stereotypical boxing referee you see in the movies. Before the fight, he says to the boxers, “I want a clean fight boys. Keep it clean.” Let the boxers have at each other on review sites, but if you are going to stand back while one hits the other below the belt, then we defamation attorneys are going to step in.

Judicial Attitudes Often Do Not Match Reality

I originally reported this as a Canadian case, but one of the parties to the action called to inform me this was a U.S. case.  Turns out there is on Ottawa, Illinois.  Who knew?  In relating the story I wasn’t particularly concerned about the location because I was using the case to illustrate a judicial attitude rather than a point of law.

The action involves a dispute over a bed and breakfast.  The plaintiffs were seeking approval of the B and B from a planning commission.  Some in the community apparently did not want the approval to go through, and posted comments about the plaintiffs on the Internet. Plaintiffs considered what was said to be defamatory, and sued.

The judge found in favor of poster “birdie1” after determining that the comments were no more than opinions and therefore were not defamatory as a matter of law.

But it was the judge’s comments about the case against “FabFive from Ottawa” that caught my eye.  The plaintiffs were seeking to force the website to disclose the identity of that poster.  In denying that request and ultimately dismissing the action, the judge concluded that “no reasonable person would give credence to comments posted anonymously at a web site.”

Virtually ALL comments are posted anonymously on the Internet, but in this judge’s estimation, no one takes them seriously.  I can just picture this judge — probably a Luddite who refuses to use a computer — reading the complaint and saying to himself, “FabFive from Ottawa?   What’s a FabFive?  No one is going to listen to someone calling himself FabFive.”

Lesson to learn:  No case is ever a “slam-dunk” (as so many potential clients like to tell me) because there are always humans in the equation.  When you read the law, keep in mind that there may be “elements” that you will need to prove that are not specified in any statute or case law but which arise from the attitudes of the judge or jury.

Biegel v. Norberg — Chilling On-Line Reviews?

Yelp Reviews and DefamationYelp is based in San Francisco and is viewed there as a favored son for some reason. When someone dares to challenge Yelp or its postings, many of our Northern California neighbors get exercised. I received several calls from media outlets over the past couple of days, seeking comment on the case of Steven Biegel v. Christopher Norberg, an Internet defamation case involving Yelp.com.

The simple facts are these. Norberg was treated by Biegel, a Chiropractor. Norberg was told the treatment would cost a certain amount if he was paying for it out of his own pocket, but his insurance company was allegedly billed at a much higher rate. This apparently bothered Norberg, so he posted a review on Yelp.com, giving Biegel just one star and questioning the honesty of his billing practices. When Biegel complained about the review, Norberg replaced it with a new entry, accusing Biegel of attempting to harass him into silence. Biegel then responded by suing Norberg for defamation. The trial is set for March 2009.

Note that Yelp is not being sued, only the person that actually posted the allegedly defamatory statements. Nonetheless, many are bothered by such a lawsuit, concerned that it will have a chilling effect on the willingness of people to post their views on sites such as Yelp.com and Citysearch.com. Some have suggested to me that just as the website is immune from liability for anything said by visitors, that immunity should be extended to the visitors as well.

I fought at the forefront of cases involving the Communications Decency Act, which shields website operators from liability for the comments of others, because that make infinite sense. We would not have open forums and dialog on the Internet if the website operators had to fact check every comment posted.

But on the issue of whether those who post the comments should be protected, I find myself cast as the curmudgeon, seeking to stifle freedom of speech. Here is how the San Francisco Chronicle quoted me:

“Sites that are seemingly well intended are turning into wastelands of defamatory and unspecified allegations,” said Aaron Morris, a partner with Morris & Stone LLP in Orange County who is not involved in the case. “There needs to be some sort of blowback against unfettered speech. People should be able to go on and say, ‘That’s not a true statement about me, and I need to be able to attack this.’ “

If everyone played nice, review sites would not be a problem. But they don’t. Suits against those who post defamatory statements won’t chill free speech, but they will chill defamatory speech, and that’s a good thing. You see, those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap.  Honest reviews don’t stand a chance against the bogus ones.

So what about the Norbergs of the world, who just want to post their comments without fear of legal action? Yes, the target of the criticism can file an action, but he will pay a heavy price if the posting was not defamatory. The poster can first respond with a simple anti-SLAPP motion, which stops everything including discovery and allows the court to determine whether the speech was protected and whether the plaintiff has a chance of prevailing. If the motion is granted, the plaintiff pays all of the poster’s attorney fees. He’ll then come to me, and we’ll file a SLAPP BACK action, suing the prior plaintiff for malicious prosecution, winning the poster millions of dollars and me a beach house (individual results may vary). Now who is chilled?

A Showing of Ill-Will Sufficient to Establish Defamation

California Civil Code Section 47 affords certain privileges that protect a person from liability, even if he speaks or writes something that would otherwise be defamatory. Civil Code section 47, subdivision (c), provides that a communication is privileged if it is made “without malice, to a person interested therein, (1) by one who is also interested….” Trial courts, anxious to clear their dockets, sometimes read far too much into this simple statute, and find a privilege in cases the statute was never intended to cover.

In Mamou v. Trendwest Resorts, Inc., an employee brought action against his employer, alleging national origin discrimination, retaliation, and defamation. The Superior Court, Santa Clara County, granted Trendwest’s motion for summary adjudication, and employee appealed.

The defamation claim was based on Mamou’s assertion that Trendwest had told other employees that he was starting his own competing business, and had used Trendwest information for that purpose. This would be both illegal and unethical, and therefore qualifies as defamation. However, the trial court found that the communications were covered by Section 47, and on that basis granted Trendwest’s motion for summary judgment, thereby dismissing Mamou’s case.

Application of the Section 47 privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present-whether, in traditional terms, the “occasion” was “privileged.” (Taus v. Loftus.)  At trial the defendant bears the burden of proof on this question.  If he succeeds, the burden shifts to the plaintiff to show that the statement was made with malice.

For purposes of a statutory qualified privilege, “[t]he malice referred to … is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.  The factual issue is whether the publication was so motivated.  ‘Thus the privilege is lost if the publication is motivated by hatred or ill will toward plaintiff, or by any cause other than the desire to protect the interest for the protection of which the privilege is given’.” (Agarwal v. Johnson.)

The Court of Appeal found that a jury could easily find that the statements by Trendwest personnel were motivated by ill will towards plaintiff.  Mamou alleged that one was hostile toward him as a member of the “Syrian regime” some members of Trendwest management had, inferentially, undertaken to purge.  A jury would be entitled to find that these feelings would naturally engender spite and ill will toward Mamou, and that this was what motivated Trendwest personnel to make the statements Mamou claimed were defamatory.

This was just one example, but the Court of Appeal concluded that it was enough for Mamou to show evidence of a single triable issue of fact. Since he obviously did, the trial court erred by granting summary judgment on the defamation cause of action.

The analysis is somewhat circular, and sometimes escapes trial courts. Inter-office communications about an employee may well be privileged under Section 47. Say, for example, an employer believes that an employee stole from the company, and fires the employee on that basis.  Thereafter, when asked why the employee was fired, the employer tells other employees that he had stolen from he company. If the employee sues for defamation, and can prove that he never stole from the company, would he prevail?  Probably not, because in this hypothetical the employer genuinely believed that the employee was guilty.  With no showing of malice, the Section 47 privilege applies.

But where the situation gets more complicated is when the employee is claiming that the defamation itself is the evidence of the ill-will constituting malice. If in our hypothetical there was no basis for the employer to believe that plaintiff was responsible for the theft, then telling that story may be sufficient showing of malice. This is a distinction that is sometimes difficult to get through to the trial court.

Decisions Mixed on Whether On-Line Reviews are Matters of Public Concern

Castle under attack for online reviews

“I wish I’d never posted that online review!”

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.

To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint. The court then decides whether the speech in question is protected free speech. Claims stemming from these acts are subject to a special motion to strike unless the trial court determines that the plaintiff has demonstrated a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).)

Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ( Id., subd. (e).)

But note that the section requires a “public issue.” Many parties and judges forget this element, as illustrated by the recent, unreported decision, European Spa, Inc. v. Kerber, decided by the First District Court of Appeal on August 28, 2008.

In European Spa, a Yahoo.com user posted a review of the Spa, which stated:

“My first impression was its tacky décor. Then I encountered an extremely rude European gentlemen, I believe this is the owner. From what I could see, the employees are miserable and tired. When I went into the steam room I saw mildew and brown spots on the walls…. I could not even sit in there. I went for my massage, and that was ok. But the room had a strange smell and the blankets were dingy. It was also very cold. I guess the owner does not put on the heat. There is just too much to go on about. I will never go there again, and I will make sure I will tell as many people as I can about the horrible experience that I had.”

Another review, posted on Yelp.com, stated:

“One star is even too much for this place. First of all, when I walked in there it looked like selling a whole bunch of useless things you’ll wind up selling at a garage sale. The service was horrible. I had this creepy old European man helping me and he was just outright rude. The guy was acting as if he was doing me a favor by letting me come to his spa…. And what was with the 18 percent service charge? ? ? It’s questionable that the therapists or the providers ever receive it. My massage was ok and that was the only highlight of this…. And their sauna and steam room … was really disgusting. Their lounge are was just full of tacky decorations as what I’ve heard they’ve been around for a long time, and I really don’t understand why…. I would never come back and much would rather go to the spa at my gym.”

The owners of the spa were convinced that these posts came from a former employee that had started her own competing spa, not from customers. (As it turned out they were right, but they suspected the wrong employee.) They sued the former employee, who brought an anti-SLAPP motion, claiming that whether or not she was the person who had made the posts, they were protected free speech.

Resolving the merits of an anti-SLAPP motion requires a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if so, proceeding next to whether the plaintiff can establish a probability of prevailing on the merits. (Overstock.Com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)

Several years ago the court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero) made inroads into articulating the boundaries of what constitutes a “public issue” or issue of “public interest” as those terms are used in section 425.16, subdivision (e). Surveying the pertinent case law, the Rivero court identified three categories of statements that fit the bill: (1) the subject of the statement concerned a person or entity in the public eye; (2) the statement or activity involved conduct that could directly affect large numbers of people beyond the direct participants; or (3) the statement or activity concerned a topic of widespread public interest.

The court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 also addressed the issue, delineating some attributes of an issue which would render it one of public, rather than merely private, interest: “First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relative small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy….’ Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of persons.”

In European Spa, the court concluded defendant was wrong in concluding that reviews posted on the Internet are subject to an anti-SLAPP motion, because they did not meet the “public interest” element. The reviews did not connect with or encourage any larger discussion or public debate of general societal or consumer issues related to the spa industry. For example in Gilbert v. Sykes (2007) 147 Cal.App.4th 13, a patient/consumer created a Web site that related the consumer’s experiences with plastic surgery performed by a prominent, widely known plastic surgeon, as well as information and advice for those considering plastic surgery. As the reviewing court explained, these statements concerned a matter of public interest within the meaning of section 425.16. The assertions that a high profile surgeon produced nightmare results that prompted extensive revision surgery contributed toward public discussion about the risks and benefits of plastic surgery in general. Equally important, the Web site was not limited to attacking the plastic surgeon, but contained advice, information and other features, including tips on choosing a plastic surgeon, that contributed to the general debate over the pros and cons of undertaking cosmetic surgery. (Gilbert v. Sykes, supra, at pp. 23-24.) The (fraudulent) spa reviews did not rise to that level, and the trial court denied the anti-SLAPP motion on that basis.

The same week, the Second District Court of Appeal came to a different conclusion in the unpublished decision of Kim v. IAC/InterActive Corp. There, a review about a dentist was posted on Citysearch, which read:

“Don’t go there-worse dentist in Glendale.”

I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. “Because you’re an HMO patient, we cannot schedule you at convenient times.” He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!”

The dentist filed a complaint and subpoenaed the records from Citysearch, and then filed an action against the poster, Citysearch.com and other defendants. The defendants filed an anti-SLAPP motion, which the trial court granted based entirely on the fact that the dentist was unlikely to prevail in his action.

The result was correct, but the reasoning was flawed. The statement did not cross the line into defamation or trade libel, and the action against Citysearch.com would never have survived under the Communications Decency Act, which shields Websites from liability for information posted by others. But the court never considered whether the post was a matter of public interest.

Print-on-Demand Publishers not Liable for Defamation, Maine Court Holds

When is a publisher not a publisher? When it is a copy machine. Confused? Consider the following case.

In Sandler v. Calcagni, a defamation action was filed in the federal district court in Maine over a book that was printed and distributed by BookSurge, a print-on-demand service owned by Amazon.com. In case you are not yet familiar with these services, they are “publishers” that permit anyone to upload a tome and have it made into a book. The author can buy copies of his own book to sell or distribute, and in the case of BookSurge and others, the book will be added to Amazon’s catalog of available books. If someone comes across the author’s book, it can be ordered, printed and shipped.

In the Sandler case, a dispute arose among some high school students and one of the parents came up with the creative idea of publishing a book in order to tell her side of the story. The target of her vitriol responded by suing her for defamation, along with BookSurge as the publisher of the book. With traditional books, the publisher can be held liable for defamatory content, because it is presumed that the publisher reviewed and edited the book and therefore had the opportunity to make certain the author could back up the claims. But can that model be applied to a print-on-demand service that never sees the material?

In Sandler, the court said no. The court correctly concluded that print-on-demand publishers are really no different than electronic copy machines. The author uploads the text to BookSurge’s servers, and whenever someone wants a copy they can cause the book to be printed. Since the “publisher” has nothing to do with the content of the book, the court found that it could not be held responsible for the defamatory content

This is just one case, and it is not controlling on other states, but I predict every state will reach the same conclusion. If the publisher is merely acting as a copy machine, it makes no more sense to hold it liable than you would hold Microsoft or Adobe liable for providing the publishing tools.

Subpoenas not subject to anti-SLAPP in Internet Defamation Case

Defamation of Character SLAPP Subpoena

Plaintiff obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Defendants, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 425.16 motion to strike (anti-SLAPP motion). The threat of having to pay defendants’ attorney fees was sufficient for him to withdraw his request for subpoenas. Nonetheless, the Does proceeded on their section 425.16 motion to strike.

The trial court granted the Does’ anti-SLAPP motion to strike, and awarded them their attorney fees. The trial court concluded that a request for subpoenas was sufficient to trigger the anti-SLAPP procedure. The Court of Appeal disagreed, and concluded that a request for subpoenas does not fall within section 425.16, and therefore the trial court erred in granting the motion and in awarding attorney’s fees.

This was another example of a trial court misusing the anti-SLAPP procedure to try to clear its trial docket. In a standard action, where defendant tries to strike the complaint by way of an anti-SLAPP motion, the trial court must afford reasonable discovery so that plaintiff can try to find sufficient evidence to create a prima facie case. If a plaintiff could be subjected to an anti-SLAPP motion from the mere request for discovery, that would greatly reduce his ability to defend his reputation.

Tendler v. jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802

Aaron Morris

Morris & Stone, LLP
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(714) 954-0700

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