California Defamation Law Blog

The Public Figure Doctrine And The Internet

Adrianos Facchetti — Thu, 16 May 2013 17:40:01 -0800

In the future, everyone will be world-famous for 15 minutes. - Andy Warhol

In the future, everyone will be world-famous to 15 people. -Momus

No one can dispute that the Internet has changed the world as we know it. From the ways in which we communicate with each other, to the ways in which we access information and make decisions, every aspect of our lives is to some extent governed by the Internet. This technological wonder has greatly enhanced our lives, and it has created some complexities that Andy Warhol could never have imagined when he uttered his famous words in 1968. One of these complexities is the application of legal principles to the Internet. And one area of law where jurists need to provide further guidance is the public figure doctrine as it applies to people and activities on the Web. My purpose in writing this post is not to provide a comprehensive discussion of these issues, but hopefully it serves as a good start to anyone who's interested in this area.

A preliminary and potentially significant issue in every defamation action is whether the plaintiff is a public figure. This is because public figures are held to a higher standard of proof than private individuals. Indeed, the standard is so high that few public individuals are able to meet it.

There are two different kinds of public figures: the all-purpose public figure, and the limited purpose public figure. The all-purpose public figure is one who has achieved such pervasive fame or notoriety that he or she becomes a public figure in all contexts (think Michael Jordan or Oprah). The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited number of issues. In most cases there are no facts to suggest that the plaintiff is in all–purpose public figure. Therefore, typically the fight is over whether the plaintiff is a limited purpose public figure.

California courts have adopted a 3-part test to determine whether a plaintiff is a limited purpose public figure. First, there must be a public controversy. This means that the controversy was debated publicly and had substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard, it is enough that the plaintiff “attempt to thrust him or herself into the public eye.” And finally, the alleged defamation must be germane or relevant to the plaintiff's participation in controversy.

So what exactly is a public controversy and how might that be applied to the Internet? In one case, the court wrote: “A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.” “Courts must exercise care in deciding what is a public controversy.” “To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question.”

So how should courts handle this issue in light of the fact that people debate all kinds of issues on the Internet? In other words, what is a “public controversy?” Unfortunately, California courts have done very little to flesh out this concept, and so it remains to be seen what qualifies as a public controversy. However, courts should make clear that private disputes should not be interpreted as public controversy solely because the purported dispute draws attention from the public. Stated another way, private beefs or disagreements do not become public controversies simply because they gain attention. Otherwise, one could argue that every business that is listed on Yelp.com that has customer reviews is embroiled in a public controversy.

A second an important issue is the level of the alleged public figure's voluntary involvement in the controversy. In fact, voluntariness appears to be one of the most important elements in determining whether someone is a public figure. For example, issuing press releases and posting letters to a website was enough for one court to find that the plaintiff had inserted itself into a public controversy. And in another case, the fact that plaintiff had invited media attention for a commitment ceremony and posted information about that ceremony on a website was sufficient to make the plaintiff a limited purpose public figure. But what about situations where the “voluntary involvement” only happens on the Internet and is only disseminated to a limited number of people? There are scores of people who write tweets or post comments on forums about the issues of the day. How should the law treat those? We need more published decisions in this area.

How to stay in touch with the California Defamation Law Blog after Google Reader goes away

Adrianos Facchetti — Fri, 05 Apr 2013 13:29:48 -0800

For those of you who use Google Reader, here's a short video I created to let you know how you can continue receiving updates from the California Defamation Law Blog.

How to find the right lawyer for you

Adrianos Facchetti — Mon, 25 Mar 2013 14:04:07 -0800

There are a number of competent defamation lawyers in Los Angeles to choose from. And I've written in the past about how to find and select the right one. But I thought I would revisit the issue given that I just stumbled across a great resource page for people out there who might be looking for a lawyer.

Yesterday as I was reviewing my California State Bar profile to make sure that it was accurate, I came across a section on the website called “How Can I Find And Hire The Right Lawyer.” This pamphlet answers 16 common questions that clients have when making the important decision of whom to hire as their attorney. I think it is absolutely excellent, and given that it comes from the State Bar of California (instead of an attorney), you know it's reliable.

Getting the answers to questions number 6 and 16 I believe are the most important if you want to forge a successful attorney/client relationship. Number 6 deals with the question of whether you should hire the specific lawyer you've spoken to or met with. Some of things that are mentioned are items that I discuss with all my potential new clients. For example, I let them know to be wary of any attorney who guarantees results, and I let them know that I'll be handling the case personally; and ultimately, I tell them that they should hire the attorney they feel most comfortable with.

Question number 16 is also fundamental. It answers the question of how you can help build a successful lawyer/client relationship. At the end of the day, you and your lawyer are a team, and you should be working in concert to achieve common goals. It's really no different than any other human relationship. If you have an open line of communication with your lawyer and reasonable expectations, you'll have a productive relationship with your attorney. And under those circumstances, a high likelihood that you'll achieve a positive result.

There's a lot of good information on the State Bar website which I urge you to review. You can check it out here.

Anatomy of an Internet Defamation Lawsuit

Adrianos Facchetti — Wed, 20 Mar 2013 10:55:39 -0800

Every defamation attorney knows it's exceedingly easy to post something negative online. Whether it is on review sites like Yelp, CitySearch, or RipOffreport, any disgruntled person can ruin your business or reputation with a click of a button. This is why it is vital that you hire an experienced internet defamation attorney who understands the technology behind the web. You cannot leave this to a generalist like a real estate attorney or a personal injury lawyer. You need a specialist, someone who is an expert in this area to explain what the primary legal principles are and to do a risk/benefit analysis with you.

With that introduction, let me give you a basic outline of the typical internet defamation lawsuit from start to finish. Here's how it usually goes.

Let's use the example from the plaintiff's perspective. I get a call from an online business owner or other professional who is under siege from another competitor or a former customer. Depending on the nature of the situation, and assuming the claim is valid (I do not under any circumstances knowingly push an invalid claim, and I routinely reject efforts to infringe on people's First Amendment rights), I will advise the person to allow me to draft a cease-and desist letter or contact the other person through a neutral intermediary, if appropriate. If this doesn't work, I will explore other forensic and proprietary methods I have developed with the client. If that doesn't work, and the client is willing to go all the away, we will file a lawsuit. Unlike other attorneys, I only advise clients to take this step if they are willing to go all the way. I have my "go to the ends of the earth" talk with my client.

In some cases the internet commenter is anonymous, so we determine whether to file a John Doe or Jane Doe lawsuit and then use court methods and other forensic tools to locate the offender. Once we do that, I make contact with the person (or their attorney) in an effort to reason with them and come to an agreement (sometimes defendant files an anti-SLAPP motion but we are ready for that). If they are unreasonable, we push the case. We will engage in the discovery process and secure the information we need through depositions and written discovery. If necessary, we will go to trial on the case. In one instance, I was representing individuals who had been blasted by a former customer on more than 30 review type sites. Even after a court judgment was obtained, this individual repeatedly violated the Judge's orders. As a result, this scofflaw was nearly imprisoned. Yes, sometimes drastic measures need to be taken.

In any event, once a settlement is reached or a permanent injunction is issued by the court, we likely will have the ability to persuade most review sites and/or the reviewer to remove the offending sites.

The above is a just a very general summary. Each case is different. But If you've been the victim of online libel, or you've been wrongful accused of defaming a business on the internet, you need to know that there are only a handful of lawyers who handle these kinds of issues.

Los Angeles Superior Court Continues to Reduce Staff

Adrianos Facchetti — Wed, 13 Mar 2013 09:52:21 -0800

The Los Angeles Superior Court, the biggest court system on earth, continues to take extraordinary measures to deal with the budget crisis in California. Here is an article from Courthouse News that lays out some of the current issues facing the courts. One thing is clear: these cuts will delay trials, which will delay justice. Something must be done at the legislative level.

Los Angeles Branch of the Better Business Bureau Ousted

Adrianos Facchetti — Tue, 12 Mar 2013 16:26:35 -0800

The BBB of the Southland, the organization that served the greater Los Angeles area, was expelled from the national organization today. According to the Better Business Bureau, the BBB of the Southland was voted out "for recurrent noncompliance with BBB standards." Although the article is short on specifics, it gives the unmistakable impression that the BBB of the Southland failed to adhere to the national group's standards in numerous respects.

BBB has chosen not to release any information regarding the "confidential, internal review." I suppose this is to be expected. But for a company that prides itself in providing information to customers about businesses and "communicating with honesty and candor," one would think that it would provide more information about it's review of the BBB of the Southland. I guess we will have to wait and see.

You can read the entire press release here.

OFF TOPIC: This is a great billboard

Adrianos Facchetti — Tue, 19 Feb 2013 16:38:11 -0800

My good friend Ted Tedford (who is a personal injury lawyer in Pasadena) recently put up one of the coolest billboards I've ever seen. But not so much because of the design--although, to be sure, it is elegant. What makes it great is the beautiful rainbow shining into the middle of the board!

In the interest of full disclosure, Ted and I work on a lot of serious/catastrophic personal injury cases together, e.g., auto, motorcycle, and trucking accidents as well as police brutality matters. Still, it's a fantastic board, don't you think?

Tom Cruise's Defamation Lawsuit Subject to anti-SLAPP treatment?

Adrianos Facchetti — Mon, 18 Feb 2013 14:35:08 -0800

Having just heard that Tom Cruise filed a lawsuit against Bauer Publishing (same company that David Beckham sued for alleged libel), I decided to read the Complaint myself rather than rely on secondhand accounts in the papers.

After reading the Complaint, it's clear that both of the claims (defamation and invasion of privacy) fall under the first prong of the anti-SLAPP statute. No surprise here. Tom Cruise is an actor and just about anything he does--including stories about his daughter--would be considered a matter of public interest. So, then, the issue is whether he'll be able to show a probability of prevailing on the merits. Well, it depends on a number of different things. But by far the most important will be whether the appointed judge allows Cruise to conduct discovery while the motion is pending and what that discovery turns up. A key issue in this case will be whether Cruise--as a public figure--can show that Bauer published the alleged defamatory statements with knowledge of falsity or a reckless disregard for the truth by clear and convincing evidence. As David Beckham knows, since his lawsuit was dismissed at the District Court level, this is a very heavy burden to meet. In most cases, the public figure is unable to put together evidence sufficient to get past the anti-SLAPP stage.

If I had to bet (and I'm not a betting man) I would predict a settlement prior to the anti-SLAPP motion or a dismissal of the lawsuit under the anti-SLAPP statute. It is unlikely given the available information and the stringent legal standards that Cruise will be able to prevail. But you never know. Cruise may uncover information that shows a reckless disregard for the truth. It has happened before.

Malicious Prosecution

Adrianos Facchetti — Sun, 20 Jan 2013 08:50:19 -0800

Malicious prosecution is extremely difficult to prove and is disfavored by the law. It requires the plaintiff to plead and prove four distinct elements in order to prevail. These elements are: (1) initiation of a prior proceeding; (2) favorable termination; (3) lack of probable cause; and (4) malice.

The first element is pretty self-explanatory: it requires the initiation of some formal proceeding, e.g. filing of a complaint. The second element is a bit more nuanced, but an example of a favorable termination would be a defense jury verdict or dismissal with prejudice of the underlying claims.

The existence of probable cause is determined by an objective test: “a suspicion founded upon circumstances warranting a reasonable man’s belief that grounds exist for initiating proceedings.”

If an attorney is being sued for malicious prosecution, the test for probable cause is whether, as an objective matter, “any reasonable attorney would have thought the claim tenable.” That is, the “ . . . standard [] is satisfied if the issues presented in the underlying action were arguably correct, even if it was extremely unlikely the client would win.”

And in order to show malice, plaintiff must plead and prove either ill will or some ulterior purpose distinct from that of enforcement of the alleged cause of action.

Those are the elements of a malicious prosecution. But beware: courts do not like these kinds of claims. And they are automatically subject to anti-SLAPP treatment.

Defamation Is A Personal Injury

Adrianos Facchetti — Mon, 12 Nov 2012 20:06:22 -0800

Personal injury lawyers get a bad rap because of years of tort reform and hokey advertisements. But personal injury law is much broader than just auto accident and slip and fall cases. Every time a doctor misdiagnoses a patient causing injury, a personal injury lawyer steps in and advocates on behalf of the patient's safety, which makes the entire community safer. The same is true when a pharmaceutical company puts profits over safety and causes injury.

But have you ever considered the fact that defamation is a personal injury, too? This injury may even be more serious than a physical injury because your reputation is at stake--and in many cases, your reputation may not be something you can fix, unlike a physical injury.

Although our right to an undefamed reputation must be balanced against the First Amendment rights of others, it's important and must be recognized for what it is: a personal injury.

The Meaning of Libel Per Se

Adrianos Facchetti — Tue, 14 Aug 2012 19:53:19 -0800

Here is a short post describing what libel per se means. In California an allegedly defamatory statement is said to be libelous per se if it is defamatory on its face. Meaning that it does not need any explanation. For example, accusing someone of a crime is libelous on its face. If a statement is libelous per se the plaintiff does not need to prove special damages. This is significant because many individual plaintiffs cannot demonstrate any special damages--they usually can only show general damages. But without evidence of any special damages, juries are typically reluctant to award any considerable amount of general damages.

Travolta & Singer Sued For Alleged LIbel

Adrianos Facchetti — Thu, 21 Jun 2012 19:59:58 -0800

Here's a good article by the Hollywood Reporter about a lawsuit that was filed today against John Travolta and Martin Singer, which serves as a good illustration as to what dangers await those who file defamation lawsuits.

Robert Randolph, who wrote You'll Never Spa In This Town Again is suing John Travolta and Martin Singer for Trade Libel, Intentional Interference With Prospective Economic Advantage, and Negligent Interference With Prospective Economic Advantage. Basically, Mr. Randolph is upset about statements Mr. Singer made on behalf of his client, John Travolta, about Mr. Randolph in a letter to Gawker.

But the face of the Complaint reveals a number of issues, which lead me to conclude that the case will either be voluntarily dismissed with prejudice or struck under the anti-SLAPP statute. First, it looks fairly clear that the letter is protected by the litigation privilege, which is an absolute bar to the Trade Libel claim. And since the remaining claims are derivative of that claim, the rest will fail as well.

But let's assume for the sake of argument that the litigation privilege argument doesn't carry the day, plaintiff still faces an uphill battle on the trade libel claim. As I've discussed here before, I see no advantage (ever) to bringing a trade libel claim as opposed to a regular libel claim. With trade libel, you need to show falsity, malice, and a specific showing of pecuniary loss, which is hard to do--especially if you get hit with an anti-SLAPP motion, which stays all discovery in the matter. I think it will be very difficult for plaintiff to establish malice at this point, if ever.

With respect to the intentional interference claim, these are difficult because plaintiffs must establish an actual economic relationship or a protected expectancy with a third person, not merely a hope of future transactions. Again if an anti-SLAPP motion is filed, plaintiff will need to produce competent and admissible evidence of specific existing relationships that were interfered with as a result of defendant's statements. Tough to do normally.

With regard to the negligent interference claim, plaintiff must show that a duty existed between the parties. A duty may arise through statute, contract, or the general character of the activity. None of these seems to apply here given the allegations of the Complaint. Nor does there seem to be a special relationship between the parties such that a duty could arise here. So the claim doesn't seem likely to survive.

The above is by no means an exhaustive analysis of the Complaint, but I do see some problems up ahead for the plaintiff. Problems that usually cannot be overcome. It' likely this case will go away fairly soon.

A Cross-Complaint Is Rarely The Answer

Adrianos Facchetti — Sun, 13 May 2012 09:57:48 -0800

I routinely hear prospective clients ask me whether they should file a cross-complaint in response to a SLAPP action. In most cases, they ask me this question because a previous attorney has advised them to do it. While filing a cross-complaint certainly escalates the litigation, it rarely serves the interests of the client.

So why do attorneys recommend such a course of action? Because they think that by raising the stakes they are shifting some of the risk of loss to the plaintiff. In most cases, however, this is wrong. First, what many attorneys don't realize is that by filing a cross-complaint in response to a complaint, they may be subjecting their clients to the risk of an anti-SLAPP motion. Even if plaintiff's motion turns out to be frivolous, the client will still have to pay his attorney to oppose it. And, the risk is not worth it since in most cases you can respond to a complaint with an ant-SLAPP motion and then file a cross-complaint (if necessary, warranted, and within the SOL) after the Court rules on the motion.

However, if the the statute of limitations is running, or if the nature of the cross-complaint is such that the risk of an anti-SLAPP motion is low, it may be wise to file a cross-complaint. Otherwise, try to avoid it. So beware if someone is quick to advise you to file a cross-complaint.

How to read a consumer review

Adrianos Facchetti — Fri, 30 Mar 2012 07:14:08 -0800

At least 2 or 3 times a week I get a call from an anguished business owner about a negative review on the internet. Sometimes it's on Yelp, other times it's on other sites like Citysearch, Ripoffreport, or Avvo. Negative reviews can be extremely damaging to a business, but in many cases, it's best not to get too upset about them, unless they appear credible and they are defamatory. Even where a claim may be actionable, it's best not to sue for a variety of reasons that I've discussed previously on this blog.

But something I haven't written about yet is how you, as a potential consumer, should read a review. In other words, what should you consider in order to determine whether a review is to be trusted or not? After all, we all know that many businesses (affiliate marketers, in particular) write shill reviews in order to make it appear like they have a great reputation. Some of them even write malicious reviews to destroy their competition. So how do we know which reviews to trust?

Here are a number of guidelines to consider when you're reading a consumer review. Some of these are common sense, but as the old saying goes, I've found that common sense isn't so common.

1. The "Gestalt" - the first thing I look at is the whole of the business' internet reputation. I look at multiple review sites to see what the general trend is. Not surprisingly, if most of the reviews are fairly positive, that's a good sign. But I go beyond this. What do the positive reviews have in common? What do the negative reviews have in common? If positive reviews repeat certain things about the business I generally view this favorably, unless the language and sentence structure is so similar as to draw my suspicion. In addition, if the company has no negative reviews I look at this with a bit of skepticism. While it's possible that they have no unsatisfied customers, it's more likely that they're either fairly new or that they're using proactive methods to keep customers from making reviews, or to suppress reviews they don't like with SEO methods. But really, at the end of the day every business will and should expect to have a handful of negative of reviews. Every business owner has encountered the unreasonable or unhinged customer. And every consumer has come in contact with a business owner who just doesn't care.

2. The Language - I tend to look at the grammar, punctuation, and other similar characteristics of a review too. Is it well-written? If the review is badly written or is in ALL CAPS, then I tend to give it less credence. Why, you may ask? It's because I think people who write well tend to think well too. There are exceptions, of course. And people who use ALL CAPS in their reviews are often emotionally fired up. I tend to look at those kinds of reviews with an extra grain of salt. While their review may be 100% true, I'm more likely to believe a review that seemed to have been written by a cool and calm customer.

Also, is the language of the post specific? If the post is vague, general, or contradictory, this is a red flag for me. It tells me a few things. First, that it could be a post from a jealous competitor who is attempting to disparage the competition (not altogether common in my experience). Second, it's a disgruntled customer who will never be satisfied and may be seeking to exact revenge on the business owner. Or third, and worse, it is a person who may be emotionally disturbed or who is attempting to extort the business owner. Sadly, this happens.

3. The number of reviews - This is an obvious one. If the vast majority of reviews are positive and there are only one or two negative reviews, this is a good sign. The opposite is also true.

4. Anonymous online reviews - It's very easy to take potshots at somebody when you think there are no consequences. It's much more difficult to put your name on a statement, especially a negative or a controversial one. For this reason, I find that anonymous posts on the whole are less credible. There are exceptions, of course.

5. The reviewer - the last thing I look at is the reviewer. Has this person posted multiple negative reviews about different businesses on a number of sites? If so, this is a major red flag. Most people do not post reviews on the internet at all. Even fewer post multiple negative reviews about different businesses. This suggests to me that the person may have emotional issues, unreasonable, or is simply a malicious individual. Or worse, that the person is a professional extortionist, which is a growing problem.

It is inevitable that most, if not all business owners will deal with a negative online review at some point. You simply can't make everyone happy, no matter what you do.

Can filing a petition for a restraining order subject you to the risk of an anti-SLAPP motion?

Adrianos Facchetti — Mon, 12 Mar 2012 17:50:54 -0800

Every day in countless courts in Los Angeles and elsewhere in California, people are filing petitions to enjoin harassment, whether for domestic violence, internet harassment, or stalking. But while Code of Civil Procedure 527.6 was meant to be a summary procedure, what few realize is that filing a petition for harassment may subject the filer to an anti-SLAPP motion, and thus attorneys' fees.

In a case several years back, a landlord filed a petition to enjoin defendant and others from demonstrating and leafletting against landlord's practices as a landlord of multiple rental units. Defendant filed an anti-SLAPP motion and the trial court found that the anti-SLAPP procedure was not applicable to petitions seeking relief under 527.6. But the First District Court of Appeal disagreed, reversing the decision, not only finding that defendant's activities were protected under the first prong of the SLAPP statute, but also ruling that petitioner was unable to show a probability of prevailing on the merits.

While not applicable to every petition for harassment, it is clear that the anti-SLAPP procedure is a trap for the unwary in this context. Few attorneys are even aware of this. For this reason, it is important that you contact an experienced restraining order attorney who is knowledgeable in the anti-SLAPP area.

What are the stages of SLAPP litigation?

Adrianos Facchetti — Sat, 10 Mar 2012 20:09:46 -0800

Here is a brief outline of the typical stages of anti-SLAPP litigation:

After being served with a Complaint, a defendant will have 30 calendar days in which to file a responsive pleading. Typically a responsive pleading comes in the form of an answer, motion to strike, demurrer, or other such document. Defendant will then have 60 days from the date he is served in which to file an anti-SLAPP motion. Once the anti-SLAPP motion is filed, all discovery is stayed in the case. Discovery is the method by which the parties exchange information with one another, and is typically the most expensive part of litigation. Seeking to reduce the cost of litigation to SLAPP targets, the law freezes discovery until the motion is decided by the judge, unless the plaintiff makes a motion for specified discovery, which is granted by the court.

Following the filing of the anti-SLAPP motion, the plaintiff will have an opportunity to respond. This is called an opposition, which will typically include a memorandum of points and authorities in opposition to the anti-SLAPP motion, declarations, evidence, and objections to defendant's evidence. Plaintiff's opposition must be filed no later than 9 court days before the scheduled hearing. Defendant will then have an opportunity to respond to the opposition. This is called a reply, and will generally include a memorandum of points and authorities as well as supplemental declarations, evidence, and objections to plaintiff's evidence.

As I mentioned above, in some cases, prior to the anti-SLAPP motion being decided, the plaintiff will seek limited discovery on certain issues. If the Court grants the motion, the anti-SLAPP motion hearing will likely be continued and the plaintiff will be allowed to conduct limited discovery, e.g., a short deposition or obtain documents. If the Court denies the motion for discovery, then the anti-SLAPP hearing will proceed.

At the hearing on the anti-SLAPP motion, assuming there are multiple causes of action, the Court will determine whether defendant has successfully defeated one or more of plaintiff's claims. If defendant is successful, defendant can ask the Court for its reasonable attorneys' fees in defending against the SLAPP.

After the anti-SLAPP motion is decided, either party may immediately appeal the Court's decision. If defendant is successful at the appellate level, then defendant may incur any fees he has incurred at the appellate level.

What is a SLAPP?

Adrianos Facchetti — Sat, 10 Mar 2012 19:50:20 -0800

SLAPP is an acronym for strategic lawsuit against public participation. It is a lawsuit that targets a person's free speech or petitioning activity. In California, the so-called anti-SLAPP statute is codified in section 425.16 of the Code of Civil of Procedure. The statute allows defendants to file a special motion to strike. In order to prevail, the defendant must show that its speech or conduct fits within one of the categories spelled out in the statute. If it does, the burden shifts to the plaintiff to show that he can show a probability of prevailing on the merits. If the defendant is successful in striking some or all of plaintiff's claims, defendant will be entitled to collect its reasonable attorney's fees.

Google Search Results Can Be Used to Show Public Interest Under Prong One of the SLAPP Statute

Adrianos Facchetti — Thu, 08 Mar 2012 18:49:09 -0800

Under California's anti-SLAPP statute, a defendant must meet its threshold burden to show that plaintiff's cause of action arises from protected activity. One of the ways to do this is to demonstrate that the protected activity involves a matter of public interest, generally speaking. In cases involving alleged defamatory consumer reviews, one of the challenges a defendant must meet is to show that the issue is of interest to a significant number of people--not merely a private dispute involving parochial matters. One way to do this is to perform a Google search of the purported public issue involved. For example, if you do a Google search for "Lakers" it returns about 102,000,000 results. So obviously, this is a matter of great interest. I have done this in several cases and it has proven to be very effective. In fact, recently, in a published anti-SLAPP decision, the Court of Appeal relied upon such evidence in determining whether the disputed matter involved a public issue. In short: Google search results can be used to show a matter of public interest.

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More Twitter Defamation In The News

Adrianos Facchetti — Sat, 18 Feb 2012 16:51:38 -0800

I haven't had a lot of time lately to blog, but here are a couple of stories involving twitter libel that you should check out. The first involves the lawsuit filed by Courtney Love's former attorneys over alleged defamatory tweets. If you recall, Love posted a less than flattering comment about one of her previous attorneys, or so the allegation goes. The attorney and the firm filed suit in Los Angeles County alleging defamation. While no anti-SLAPP motion was filed, Love's attorney has filed at least one demurrer (that I know of) claiming, among other things, that the statements are not "of and concerning" the lawyer. What is most interesting, though, is the analysis of the principle of "defamation by implication." For a fuller discussion, check out THR, Esq. It's worth your time.

In another case, an Australian man is suing Twitter over a tweet posted by a user accusing the man of having written a hate blog. Unfortunately for Twitter, there is nothing like the Communications Decency Act in Australia. Nor is there any other potentially available procedural device like an anti-SLAPP motion. I've previously given an expert opinion regarding California defamation and Choice of Law issues in an Australian case, so I'll be watching this one with interest. For more information, check out CNN's report here.

8 strategies to help avoid being sued for libel

Adrianos Facchetti — Tue, 17 Jan 2012 12:00:00 -0800

[Editor's note: This post was written by my good friend, Gordon Firemark. He's a media and entertainment lawyer in Los Angeles, California. He is the author of the Podcast, Blog & New Media Producer's Legal Survival Guide, and host of the Entertainment Law Update Podcast. http://www.firemark.com]

Enter Gordon:

Do you post blogs, podcasts, videos or other material on the web? Do you ever talk about other people in this context?

If you answered yes, you could someday be on the wrong end of a libel lawsuit.

Libel is defamation that's been recorded, printed, or broadcast, as opposed to slander which refers to spoken-word defamation.

In this post, I'll share some simple strategies and best practices you can use to avoid being sued for libel.

First, check your sources… Your source for information could have a vendetta against the subject and willfully or unintentionally misrepresent the facts for his or her own purposes. Or, your source could just be mistaken. Even large media outlets sometimes screw up and get things wrong. Don’t rely on someone else to be accurate.

Get independent corroboration whenever possible. Sources may disappear or recant what they said in the face of a lawsuit. Having multiple sources for your information lends credence to the assertions you make, and can provide 'safety in numbers'.

Although public figures and public officials are subject to higher standards of proof in libel suits, it's still smart to verify the accuracy of a story. Journalists are trained to contact the subject of a story for comment. Juries do not respond favorably to reporters or other writers who fail in this regard. Whether a blogger is considered a journalist or not, he or she needs to be aware of the standards to which they'll be held.

Be sure your story is accurate and complete. If you edit aggressively, it is possible to convey a false impression by omitting relevant details, or even from a carelessly constructed string of true statements. Make sure the story does not mislead the reader or listener because of poor editing.

Don't talk about matters you don't fully understand. If you're talking about a legal case or controversy, be sure you get the facts (not the allegations, the facts) right, and report accurately on things.

Opinion is not-defamatory, so when you express yours, be sure it's clear that you're doing so. The more facts and data you bring out to support your views, the more likely your piece will be construed as factual, and can subject you to liability if you're wrong. (Note from Adrianos: Opinions can be actionable if they imply provably false facts.)

Be judicious in your use of generic stock photos or footage to illustrate stories about controversial subject matter. It is possible to defame someone by juxtaposing his or her image with a story about someone else.

Don't republish information without corroboration. Just because someone else said it does not mean that you won't be sued for republishing it.

If you do find yourself on the receiving end of a lawsuit or threatened suit, contact a lawyer right away. Publishing a retraction or an apology can actually be a bad idea if not handled properly.