September 2009

Internet Defamation Cases Present Challenging Issues for Jurors

My firm’s latest Internet defamation trial in conservative Orange County provided some valuable insight into what goes through the jurors’ minds as they decide this type of case.  (That's not the actual jury in the photo, but it pretty well captures the jurors' expressions throughout the trial.)

In this dispute, when an independent contractor’s annual contract was not renewed, she took to the Internet, posting defamatory comments about our client, the person she blamed for her termination. She apparently hoped to create enough controversy about our client that he would be removed, leaving her free to return to work under whomever took his position. All of her Internet postings were anonymous, with her creating different identities for the various postings, but we were able to determine her identity by means of a subpoena to the website operator.

After the jury found in our client’s favor, both in the trial and punitive damage phases, Defense counsel called for the jurors to be polled. This proved to be entertaining. As we later discovered when we spoke to the jurors following the punitive damages phase, most were in the middle of the damages range, but some wanted to award much more and one wanted to award little or nothing. They got nine jurors to the agree on the amount, but the other two ends of the spectrum took the opportunity of the polling to give a very emphatic "NO!" when asked if they had agreed to the dollar amount. One juror who had wanted to award more seemed especially upset.

The comments of the jurors following the action were very enlightening, and illustrate some of the issues that arise in any Internet defamation action. First there is the issue as to whether anyone actually saw the postings. Just because defamatory comments are posted on a given site does not mean that anyone read them. Thankfully, we had located a witness unrelated to the action who had seen the postings, so we were able to put a face on "Jane Internet Browser" for the jury so they would know that people actually saw the postings.

But that only leads to the second issue. Assuming the postings were seen, did they have any impact on the reputation of the Plaintiff? Our Jane Browser had never heard of the Plaintiff, and testified that she formed no opinion about Plaintiff good or bad after reading the postings. Indeed, that lack of an impact was only strengthened by our own parade of witnesses, all testifying that our client was a wonderful guy with a great reputation. That testimony was necessary in order to show the false and defamatory nature of the postings, but also served to support Defendant’s claim that despite her best efforts to harm Plaintiff’s reputation, she had not succeeded.

Then there is the issue of actual damages. Of course, general damages are presumed in a defamation action, but we prefer to show actual damages whenever possible to overcome the jury’s resistence to awarding damages when no quantifiable damages have been shown. It’s a little like asking a jury in a personal injury action to award damages for pain and suffering even though the victim had no visible injuries. In our business defamation cases we are almost always able to show actual damages by means of the loss of income to the business. Here, however, we took actual damages out of the special verdict because there was just no proof of any and an award by the jury would have been grounds for appeal.

Limited to presumed damages only, the jury gave a fairly modest award, but came back much bigger on the punitive damages. As suspected, the jurors said that they fought hard over the presumed damages because they did not get a sense that anyone thought less of the Plaintiff because of the postings. However, they had far less difficulty awarding the punitive damages because it was clear that the Defendant needed to be punished and deterred from engaging in the conduct in the future. The judge agreed, and added an injunction against defendant, prohibiting her from repeating the comments about Plaintiff. Indeed, he advised defense counsel (Defendant did not stay for the jury verdict) that Defendant would do well to cease all comments about Plaintiff.

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August 2009

Communications Decency Act Still Unknown to Many Attorneys

It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act.  In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.

But the attorney could not leave it alone.  I can almost see his mind working.  He thinks to himself, "these individuals will never be able to pay the judgment, so I'd better look around for some deep pockets."  So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com. 

I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements.  I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy.  I know it's a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong.  Here, twitter.com is named because the defendants sent out "tweets" sending their followers to the defamatory content.  Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com.  How could these companies possibly be liable?  Well, according to plaintiffs and their attorney, they are liable because what they defendants did amounted to an "irresponsible use of technology."

Apparently, in this attorney's world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server.  Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion ever account that sets a domain name to forward elsewhere.  Clearly there could be no Internet if such duty and liability could be imposed.

In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content.  Among the public there is an urban legend that a company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.

A copy of the complaint can be found here, and a detailed article about the case can be found here.

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July 2009

More Judges Catching Up to the Times

Trials are decided by humans with all their human experiences.  Whether a judge or jury is deciding your defamation case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate.  Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts.  Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”

At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation.  In the case, the defendant took a disliking to a local dog kennel for whatever reason.  She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.”  The kennel took exception to this characterization, and sued for defamation in Small Claims Court.

The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages.  The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing.  But what caught my eye was the simple logic of the judge, the sort of logic that sometimes alludes other judges.  First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.”  That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass.  The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11. 

Wow.  A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business.  Thank you Canada.

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June 2009

Mistaken Reporting Does Not Amount to Actual Malice

A case indirectly involving Ozzy “Bark at the Moon” Osbourne affords me another opportunity to illustrate what a legal minefield a defamation case can present.

The case arose from statements made about Osbourne’s former physician, Dr. David Kipper. The New York Times published a story which included Osborne’s allegations that his former physician had overprescribed medication to him during his appearance on the MTV reality series “The Osbornes.” In that same article, the Times reported that the Medical Board had “moved to revoke” Dr. Kipper’s license.

The New York Post published a condensed version of the Time’s article, but during the summary process stated instead that the doctor’s license had been revoked. Under normal circumstances that would certainly constitute defamation, but let’s test your legal prowess. Do you see the problem? What if I tell you that Dr. Kipper is a public figure; now do you see the problem?

In order to prevail in his case against the Post, Kipper had to prove “[New York Times] actual malice.” He had the burden of showing that the Post had knowledge that the statement was false or made the statement with reckless disregard for whether it was true.

The Post brought a motion for summary judgment which was denied, but the appellate court reversed and ordered the case dismissed. The justice wrote, “Other than the fact that the rewrite contains erroneous statements, there is no evidence that anyone at the Post set out to falsely defame plaintiff in this instance, or other individuals regularly, to increase its sales.”

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May 2009

Lawyers Still Treating Defamation Claims Like Any Other Tort

The raison d'être of the California Defamation Lawyers Association is to improve the representation of libel and slander clients through education and the open exchange of ideas.  I received three reminders this week of the importance of the CDLA, all three of which confirmed that there are still a number of attorneys handling defamation actions without an understanding that defamation is not just another tort.  

In the first instance, I read about an attorney in New York who brought action on behalf of a client for the comments posted on the defendant's website, even though those comments were posted on the public forum page by a third party.  Let’s all say it together.  If a website is created that allows visitors to post their comments, under the Communications Decency Act the host of that website cannot be held liable for any defamatory remarks that others post. 

The law is very black and white in this area.  The myth still continues among the public that if the defamed party makes the website operator aware of the defamatory material, he somehow becomes liable for failing to take it down.  That is simply not true, and apparently many attorneys do not advise them otherwise.

There is a lot of abuse on the Internet, and ideally a web host should respond to requests to remove defamatory posts, but if that were made the law then the ability to host a community forum would disappear in almost all instances.

The second incident came in the form of a phone call.  A potential client called to say that she had been defamed in a newspaper article, but she was looking for new counsel because it had been several months and her current attorney still had not filed an action.  I asked if the current attorney had made the necessary demand for a correction, and she said no such demand was ever made.  California Civil Code section 48a requires such a demand within 20 days or the plaintiff is limited to actual damages.

Finally, I was asked to consult on an Internet defamation case that has been pending for more than two years.  The case had been dismissed by the trial court pursuant to an anti-SLAPP motion.  The plaintiff's attorney did a brilliant job of obtaining a reversal by the Court of Appeal, and the plaintiff was hoping I would associate into the case now that the matter was back on the trial calendar.  When I reviewed the case, I found that the complaint did not contain a cause of action or prayer for any equitable relief.  Thus, there would be no mechanism for the court to order the defamatory statements to be removed, nor for an order that they not be repeated.  The omission can be readily repaired by a motion to amend, but the complaint serves to provide another example of an attorney who was thinking strictly in terms of tort damages, not defamation remedies.

Sadly, this was not an atypical week.  There is a real need for education in this area of the law, and through the activities of the CDLA we can hopefully be a part of that educational process.

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Aaron P. Morris is the 2009 President of the California Defamation Lawyers Association, and a partner of Morris & Stone LLP.  He can be reached at (714) 954-0700 or by email.