What is Defamation? California’s Definition of Defamation

Defamation of character – often referred to as the tort of defamation – is an all-encompassing legal term defined as the act, communication, or publishing of a false statement to a third-party, resulting in damage and harm to another party’s reputation and good standing. In Common Law jurisdictions, such as the U.S., Canada, and United Kingdom, the tort of defamation is classified as a civil wrong, and may commonly be broken down into two specific types:

  • Libel: a written or published (photograph, media, etc…) communication of a false statement to a third-party that damages another’s reputation and good standing.
  • Slander: a spoken communication of a false statement to a third-party, which damages another’s reputation and good standing.

 

For the rest of this comprehensive blog post, keep the above two definitions in mind, as the general public often mixes up these two legal definitions and uses “slander” as a catch-all term for defamation. It’s especially important to understand the differences between both libel and slander, as most U.S. states have differing laws and statutes of limitations for bringing libel and slander claims – oftentimes, slander actions are required to be brought significantly earlier than a libel action.

Keep in mind when dealing with defamation – look to the form in which the communication was conveyed, and start from there.

The tort of defamation may also be commonly referred to as:

  • Calumny,
  • Vilification,
  • Character Assassination, &
  • Disparagement.

 

Note – If you’d like to read up further on the concept of commercial/business disparagement, check out our detailed blog post titled, “What is Business/Commercial Disparagement.” In the aforementioned post, we tackle the policy behind disparagement laws, the require elements for proving business/commercial disparagement, food disparagement laws (veggie libel laws), common defenses to commercial disparagement actions, and how to hold defaming and disparaging parties liable for commercial disparagement.

Additionally, parties who publish, communicate, and speak defamatory statements may typically be referred to as:

  • Defamers,
  • Libelers (for written defamation),
  • Slanderers (for spoken defamation), &
  • Famacide – a rarely used and somewhat archaic term.

 

Note that famacide is rarely ever used and literally translates to, “a person who destroys another’s reputation.”

Now, let’s take a look at California’s definition of defamation and the required elements a defamation plaintiff will be required to prove in order to succeed in their claim.

The state of California defines defamation as a statement “which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Mattel, Inc. v. Luce, No. B143260, 2001 WL 1589175, at *8 (Cal. Ct. App. Dec. 13, 2001), as modified (Jan. 8, 2002) (quoting Cal. Civ. Code § 45).

For those wondering, ‘obloquy’ simply means “strong public condemnation,” coming from the Latin word ‘ob’ – meaning ‘against’ – and ‘loqui’ – meaning ‘to speak’.

Furthermore, in order for a California defamation plaintiff to succeed in their defamation claim, they must prove the following four (4) elements.

 

California’s Required Elements of Defamation

California defamation plaintiffs must prove:

  • There was a false statement of fact;
  • Which was published without privilege to a third-party;
  • With fault of at least negligence on the part of the defendant; &
  • The statement was either (a) defamatory per se or (b) caused special damage to the plaintiff (defamatory per quod). See  Cal. Civ. Code § 44, 45, and 46.

 

Note that the burden to prove falsity is not always the plaintiff’s prima facie task and as a matter of law, the defendant has the burden to prove the statement’s truth if the matter is of purely private concern. Smith v. Maldonado, 72 Cal. App. 4th 637, 646 & n.5 (Cal. Ct. App. 1999); Lipman v. Brisbane Elementary School Dist. 55 Cal.2d 224, 233, 11 Cal.Rptr. 97, 359 P.2d 465 (1961).

And, in cases involving matters of public concern or public figures, a California defamation plaintiff has the burden of proving falsity. Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996).

We will dive into both the ideas of public and private plaintiffs, and matters of public and private concern, further down in this blog post. If you’d like to read up on them now, you can skip to Section 3: Private vs. Public Persons: Which One Are You?

Additionally, all four fundamental elements of California defamation will be addressed in further detail in this blog post.

Defamation of Character Tip: Setting up a Google Alerts account is a free and effective way to monitor your online reputation. Enter your name, along with a string of words for the algorithm to look out for, and sit back. Once your name is mentioned, or mentioned in conjunction with your string of entered words, you’ll be notified of where it was posted. When dealing with online defamation law, proactivity – not reactivity – is essential.

If you’ve been the victim of an online defamation of character or slanderous attack, reach out to the Cleveland-based defamation removal lawyers of Minc Law today!

At Minc Law, we have storied experience in removing malicious, defamatory, and other false posts from websites, and have secured countless removals from cheater websites, scam websites, consumer advocacy websites, and more. Ohio SuperLawyer Aaron Minc and his team of online defamation removal lawyers know who to work with and how to work with them, having litigated in over 19 states and 3 countries, securing hundreds of permanent takedowns.

Reach out today to schedule an initial, free, no-obligation consultation by calling us at (216) 373-7706, or schedule a meeting online!

 

At Minc Law, we’re here to fight for your reputation.

Now, let’s turn to California’s defamation pleading standard and what exactly pleadings are.

 

California’s Defamation Pleading Standard

California Pleading Standard

Pleadings are required formal documents that are filed by both plaintiff and defendant with a court, stating their basic claims and positions against one another. In order to get a more comprehensive understanding of what exactly pleadings are, let’s take a look at some common examples of pre-trial pleadings.

 

  • Complaint: the document(s) establishing the plaintiff’s claims and version of case facts, issues, and damages.
  • Answer: the defendant’s response to the plaintiff’s complaint, countering any claims, and usually arguing why the plaintiff shouldn’t succeed in their claim.
  • Reply: an answer by either party, responding to new facts, issues, claims, which were raised in previous pleadings.
  • Counterclaim: a separate and opposing claim made by the defendant in order to offset a plaintiff’s claim.

 

For example, certain states may require shorter filing deadlines or more concise statements when bringing a claim, while a different state may have a more lenient timeframe and relaxed scope of substance.

Pleadings and other formal requirements often vary by the area of law and state in which they are brought, therefore, it’s extremely important to familiarize yourself with your state’s specific pleading requirements and formalities, or consult an experienced defamation removal attorney. Doing so will maximize your chances of meeting deadlines, completing the correct forms and documents, and succeeding in your claim.

Generally, in California, a plaintiff’s complaint must plead the exact words of the alleged defamation. Des Granges v. Crall, 27 Cal. App. 313, 314-15 (1915).

However, in certain circumstances, California requires plaintiffs to plead extra requirements:

 

 

In the subsequent paragraphs, we will address the legal doctrines of defamation per se and defamation per quod, and in Section 4, we will discuss the commonly relied on defenses of absolute and qualified privilege.

 

Which Statements Are Considered ‘Defamation Per Se’ in California?

Depending on the nature of the statement, some statements will be considered so inherently defamatory that a plaintiff need not prove they suffered actual damages as a result of the statement. Defamation per se may also be commonly referred to as ‘libel per se’ or ‘slander per se’, depending on the form in which it is delivered.

California defines words to be defamation per se “if they tend to expose the plaintiff to public hatred, contempt, ridicule, aversion, or disgrace, and to induce an evil opinion of him in the minds of right-thinking persons and deprive him of their friendly intercourse or society,” without the aid of innuendo, extrinsic evidence, or “allegations of special damages.” Jimeno v. Commonwealth Home Builders, 47 Cal. App. 660 (1920).

As opposed to other states which typically outline four (4) core statements which are so inherently defamatory that a plaintiff need not prove damages, California goes above and beyond and has nine (9). The following nine (9) statements California considers defamatory per se are:

  • Statements charging a plaintiff with a crime, or with having been indicted, convicted, or punished or a crime;
  • Statements imputing a plaintiff has the present existence of an infectious, contagious, or loathsome disease;
  • Statements imputing a plaintiff’s impotence or want of chastity;
  • Statements charging a plaintiff with a violation of confidence reposed in him;
  • Statements charging a plaintiff with treachery done to those with whom he associates;
  • Statements that tend to cause a person to be shunned or avoided;
  • Statements that tend to injure a person with respect to his office, profession, trade, or business;
  • Statements that tend to subject a person to public hatred, ridicule, or contempt; &
  • Statements that associate a plaintiff with the Communist Party.

 

(1) Albertini v. Schaefer, 97 Cal. App. 3d 822, 829 (1979); (2) Cal. Civ. Code § 46; (3) Montandon v. Triangle Publications, Inc., 45 Cal. App. 3d 938, 944-45 (1975); (4, 5) Dethlefsen v. Stull, 86 Cal.App.2d 499 (App. 1 Dist. 1948); (6) Washburn v. Wright, 261 Cal.App.2d 789 (App. 4 Dist. 1968); (7) Harris v. Curtis Pub. Co., 49 Cal.App.2d 340 (App. 4 Dist. 1942);(4, 5) Semple v. Andrews, 27 Cal. App. 2d 228, 232 (1938); (8) Jimeno, 47 Cal. App. 660; (9) MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 546 (1959).

Keep in mind that if a plaintiff is subject to any one of the above nine (9) statements, then when bringing their defamation claim, they need not prove damages.

Now, let’s further solidify the principle of defamation per se by looking at eleven (11) examples and cases ruled on in California.

 

Speaking of Yelp and the world of online defamation, if you’d like to read up on defamatory Yelp reviews and how to remove them, check out our in-depth post here.

 

What is Defamation Per Quod?

Now, let’s take a look at the legal principle which is completely opposite to the doctrine of defamation per se – defamation per quod. Defamation per quod does not presume damages, as the statements in question are not inherently defamatory and often require a plaintiff to provide supplemental and supporting evidence to support their defamation claim.

Like defamation per se, written statements requiring extrinsic evidence may be referred to as ‘libel per quod’, and spoken statements requiring extrinsic evidence may be referred to as ‘slander per se’.

Put simply, in California, a libel per quod action requires that “the injurious character or effect [of the statement] be established by allegation and proof.” Slaughter v. Friedman, 32 Cal. 3d 149, 154 (Cal. 1982); see also Cal Civ Code § 45a (defining libel).

Additionally, a California libel per quod plaintiff must plead and prove special damages. Cal Civ Code § 45a.

If you’re curious about the damages associated with the legal principles of defamation per se and defamation per quod, please see Section 5: California Defamation Damages.

 

Defamation By Implication

California also recognizes a cause of action for ‘defamation by implication,’ which is when a defendant makes or publishes a true statement that contains a false implication. Kapellas v. Kofman, 1 Cal. 3d 20, 33 (Cal. 1969); Hawran v. Hixson, 209 Cal. App. 4th 256, 293 (Cal. App. 4th Dist. 2012).

Keep in mind, when bringing a defamation of character claim, there are specific requirements and formalities you (the plaintiff) must follow in order to lodge a successful claim – this will be addressed below.

 

Important California Defamation Formalities & Requirements

Important Defamation Requirements & Formalities

Let’s take a look at one of the most common questions asked by injured and defamed parties who are looking to bring a claim against an out-of-state party.

 

Do California Courts Have Jurisdiction Over Out-of-State Defendants?

Simply put, yes. California courts will generally have jurisdiction over nonresident and out-of-state defendants who intend to cause a tortious effect within the state of California. Jones v. Calder, 138 Cal.App. 3d 128, 134 (1982), aff’d, 465 U.S. 783 (1984).

However, California courts do NOT have jurisdiction over defendants who publish statements online without “something more,” even if the plaintiff suffered harm and injury in the state of California. Nicosia v. De Rooy, 72 F.Supp. 2d 1093, 1098 (N.D. Cal. 1999); see also Burdick v. Superior Court, 233 Cal. App. 4th 8, 25 (2015).

“Merely posting on the Internet, negative comments about the plaintiff and knowing the plaintiff is in the forum state are insufficient” to establish jurisdiction over out-of-state defendants.

In determining whether personal jurisdiction is appropriate over out-of-state defendants who post malicious material online, California courts look at the “totality of the circumstances” and consider the following six (6) factors:

  • Whether the defendant posted material online expressly aimed at or intentionally targeted at a California audience, “as opposed to any other jurisdiction”;
  • Whether multiple California residents view the material;
  • Whether the plaintiff is domiciled in California;
  • Whether the plaintiff’s domicile was known by the defendant;
  • Whether the defendant has real-world contacts with California; and/or
  • Whether the plaintiff’s California domicile is not “the only link between the defendant and [California].”

 

Id.; McGibney v. Retzlaff, No. 14-CV-01059-BLF, 2015 WL 3807671, at *4 (N.D. Cal. June 18, 2015); Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014).

Keep in mind that merely knowing the plaintiff is located in the state of California in itself are insufficient to establish jurisdiction over out-of-state defendants.

 

So, what’s the takeaway from the above jurisdictional requirements set forth in California?

It takes a plethora of factors that all must line up and be viewed in their totality for a California court to be able to exercise jurisdiction over an out-of-state defendant who posted online statements harming the plaintiff.

Libel Removal Tip: Remember, the form in which the defamation is communicated could have drastically differing consequences and requirements for you and your defamation claim.

Now that you’ve familiarized yourself with California’s definition of defamation and whether you can bring a suit against an out-of-state defamation defendant, let’s take a look at the venue in which you can bring your defamation suit.

 

In Which Venue Can California Defamation Plaintiffs Sue a Defendant? Where Can I Sue a Defaming Party?

In California, generally and except where otherwise prescribed by law, a plaintiff may sue a defendant in the county:

  • Where any defendant resides, or
  • Where the plaintiff’s injury occurs.

Cal. Code Civ. Proc. §395.5; Tingley v. Times Mirror Co., 144 Cal. 205, 206 (1904).

However, a subsequent ruling in Graham v. Mixon held, venue will be improper in the county where a plaintiff’s injury occurs in a defamation action because the California legislature “used the phrase ‘injury to person’ in section 395 to refer only to injuries of a physical or bodily nature, and not injuries to character or reputation.” Graham v. Mixon, 177 Cal. 88 (1917); Carruth v. Superior Court, 80 Cal.App. 3d 215, 219 (1978).

 

What is California’s Statute of Limitations For Bringing a Defamation Claim?

Before tackling how long California’s statute of limitations is for bringing defamation claims, let’s take a look at what exactly a statute of limitations is. A statute of limitations if a law and limiting mechanism, requiring plaintiffs (all plaintiffs) to initiate and bring their claim within a specified period of time after the injury occurs.

More specifically, statutes of limitations were enacted for three fundamental reasons:

  • To encourage plaintiffs to bring their actions within a timely and efficient manner, and with reasonable diligence,
  • To prevent the possibility of lost or destroyed evidence by the defendant, &
  • To eliminate more “cruelty than justice.”

 

Should a plaintiff fail to lodge or bring their claim within the prescribed period of time outlined under a statute of limitations law, they’ll likely be barred from filing there claim and oftentimes have their case dismissed (absent extenuating circumstances).

In California, defamation plaintiffs have one year (1) to bring both a libel or slander claim. Cal. Civ. Proc. Code § 340.

 

Single Publication Rule

The ‘single publication rule’ is a widely adopted and enforced legal principle, which governs the accrual dates for a plaintiff’s cause of action – and ultimately, affects defamation statutes of limitations. Under the single publication rule, defamation plaintiffs may only bring one claim for each mass publication and dissemination of a statement by a publisher, and may not bring multiple claims for each subsequent copy or publishing.

The single publication rule arose out of practicality. We in the United States, already have a clogged up legal system, where we afford to be trying unnecessary cases and wasting valuable resources. The litany of defamation claims following the publication from a newspaper, news outlet, or magazine who prints multiple copies is not constructive for our judicial system.

The United States legal system needs to operate like a well-oiled machine, and unnecessary and multiple cases for the same statement will gradually erode at the overall efficacy.

California follows the single publication rule, and in California, a cause of action for defamation will accrue upon the first general distribution of the publication to the public. Canatella v. Van de Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007).

A California court also held that the cause of action will accrue upon the first general distribution of website publications to the public. Traditional Cat Ass’n, Inc. v. Gilbreath, 118 Cal. App. 4th 392 (2004). However, “changes to defamatory material on a website may begin a new limitations period.” LegacyQuest v. Rosen, No. A129177, 2012 WL 267509, at *5 (Cal. Ct. App. Jan. 27, 2012).

Defamation Law Tip: If you’ve been the victim of online defamation or false online attacks, there are several free steps you can take to suppress negative search results on the Internet. (1) Make your social media profiles public and begin actively posting and commenting, (2) Create a blog and start updating it frequently, & (3) Link your social media accounts, blog, and other public profiles to one another. Doing so will create one powerhouse of positive search results, ultimately suppressing false and baseless online accusations.

 

How Does California’s Statute of Limitations Compare to Other States?

Typically, most states boast a one (1) to two (2) year statute of limitations timeframe for bringing libel and slander claims. For reference, here’s a chart listing several other states and their defamation statutes of limitations.

OhioOne (1) year
TexasOne (1) year
FloridaTwo (2) years
South CarolinaTwo (2) years
New HampshireThree (3) years
Massachusetts Three (3) years

To familiarize yourself with all fifty (50) states and their statutes of limitations, check out this comprehensive state-by-state guide here.

If you’re a resident of California, or any other U.S. state, and are the victim of online libel or slander, the defamation removal lawyers of Minc Law want to fight for you. At Minc Law, we boast a nearly 100% online defamation takedown rate, and all for a flat, reasonable fee.

Ohio SuperLawyer Aaron Minc and his team of defamation removal lawyers have litigated in over 19 states and 3 countries, securing hundreds of online removals and takedowns, and proving that they know who to work with and how to get results. Aaron and his team will work with website administrators, online content managers, and third-party arbitration services to secure a swift and permanent removal.

Reach out to the defamation removal lawyers of Minc Law today and schedule your free, initial, no-obligation consultation by calling us at (216) 373-7706, or by scheduling a meeting online.

 

Private vs. Public Persons: Which One Are You?

Private Persons vs. Public Persons

It’s important to understand that when dealing with defamation of character claims, your perceived and actual status in the community and society will affect your rights under defamation law. That’s right, if you’re a celebrity, you’ll likely have different legal rights and opportunities for remedy under defamation law than a private party.

So, let’s take a look at the various rights afforded to both private and public persons under defamation law, how they differ, and which category you fall under. You might just be surprised to find out which category you fall in.

First, why does it matter that we distinguish between public and private persons in defamation law?

First ruled on in the 1964 landmark defamation case of New York Times Co. v. Sullivan, the U.S. Supreme Court ultimately found the need to differentiate between private and public persons for the furtherance of “uninhibited debate of public issues” and the First Amendment. In Sullivan, the court found that in order for a plaintiff to succeed in a defamation claim, there would need to be a distinguishing between private and public plaintiffs – along with two separate burdens of proof.

Let’s take a look at those burdens of proof.

 

  • Private Persons: If you’ve never entered the spotlight in any significant way and aren’t a celebrity, then you likely fall under the category ‘private person’. In order to succeed in a defamation of character claim, private persons are required to prove a defendant acted with ordinary negligence when making or publishing a false statement. Ordinary negligence is the key phrase here, and is defined as the care that would be exercised by a reasonably prudent person in the same circumstances.
  • Public Persons: Think of your Justin Biebers of the world, Lindsay Lohans, and famous politicians. All of the aforementioned have availed themselves to a higher degree of public scrutiny and have a stricter burden of proof they have to meet when bringing a defamation claim. After all, it’s in the best interest of public and social policy and free speech for the general public to feel protected and safe when discussing contentious and hot-topic issues. Free debate would likely be deterred should the average person fear legal repercussion every time they entered into a conversation or debate surrounding a public figure. When bringing a defamation claim, public persons are required to prove a defendant acted with actual malice when publishing or making a statement. Actual malice includes statements that were made with actual knowledge it was false or with reckless disregard of its veracity.

 

If you’d like to read up further on the burdens of ordinary negligence and actual malice, check out our detailed blog post here.

California, like most of the other 50 U.S. states, expands upon the traditional notion of there being two kinds of defamation plaintiffs, following the standard established by landmark defamation case Gertz v. Robert Welch, Inc., which widens the scope of defamation plaintiffs to four (4).

 

  • Private Persons,
  • Public Officials,
  • All-Purpose Public Figures (APPFs), &
  • Limited-Purpose Public Figures (LPPFs).

 

Gertz v. Robert Welch, Inc., 418 US 323, 345 (1972).

Following the standard set forth in Gertz, public figure plaintiffs face different burdens of proof when establishing a prima facie case for defamation depending on whether they are an all-purpose public figure, limited-purpose public figure, or private figure.

Below is a comprehensive chart comparing the four core types of defamation plaintiffs in California and the necessary burdens of proof they need to meet in order to successfully recover defamation damages.

California's Four Classifications of Defamation PlaintiffsPrivate PersonsPublic OfficialsAll-Purpose Public Figures (APPFs)Limited-Purpose Public Figures (LPPFs)
DefinitionPrivate persons/plaintiffs are plaintiffs not described in any of the other three categories.Public official plaintiffs are persons who has, or currently appears to the public to have, substantial responsibility for, or control over, the conduct of government affairs. Id. (adopting the public official standard set forth in Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)).APPFs are plaintiffs who are in “positions of such pervasive power and influence” that they invite “attention and comment” on all matters public and private.LPPFs are plaintiffs who “have thrust themselves to the forefront of particular controversies in order to influence the resolution of issues involved.” California distinguishes itself from other states who follow the Gertz standard by including persons who even merely attempt to thrust themselves to the forefront of particular controversies. Copp v. Paxton, 52 Cal. Reptr. 2d 831, 844 (1983).
Burden of proofNegligence* - Private individuals burden of proof does not rise to the level of “malice” unless a defendant’s claim and allegedly defamatory statement involves an issue of public concern. Actual Malice - As distinguished from public figures, public official plaintiffs must establish that the defendant defamed the plaintiff with actual malice on all matters public and private. Tague v. Citizens for Law & Order, Inc., 75 Cal. App. 3d Supp. 16, 21 (1977). Actual Malice - APPFs may only establish a prima facie case for defamation if they prove that the defendant acted with actual malice when the defendant defamed the APPF. Actual Malice* - An LPPF must only establish that the defendant defamed the LPPF with actual malice regarding the defamatory statements the defendant made that concern the particular controversies to which the LPPF has thrust himself to the forefront of. In other circumstances, courts consider LPPFs to be on the same plane as private persons and therefore, LPPFs need only establish that the defendant negligently defamed the plaintiff.
ExampleA teenager who used a website to pursue an entertainment career was not considered a public figure and thus, ultimately was found to be a private person because the teen was exceedingly unsuccessful at garnering any public attention, despite some evidence of attempts to do so. D.C. v. R.R., 181 Cal. App. 4th 1190 (2010). A local pastor was not considered to be a public figure because he neither “sought [nor] received” any public attention due to his work as a pastor. Gallagher v. Connell, 123 Cal. App. 4th 1260, 1273 (2004).A publically employed social worker is considered to be a public official in California. Kahn v. Bower, 232 Cal. App. 3d 1599, 1613 (1991). An assistant public defender was ruled to be a public official. Tague v. Citizens for Law & Order, Inc., 75 Cal. App. 3d Supp. 16, 21 (1977). Police officers are considered public officials in California. Gomes v. Fried, 136 Cal. App. 3d 924, 933-34 (1982). Finally, a superintendent of a charter school was found to be a public official. Ghafur v. Bernstein, 131 Cal. App. 4th 1230, 1240 (2005). A well-known land developer who sought public approval for a housing construction project near a toxic chemical plant was considered to be an APPF. Hofmann Co. v. E.I Du Pont De Nemours & Co., 202 Cal. App. 3d 390, 404-05 (1988).A former lesbian partner in a child custody battle who sought to draw attention to the gay rights movement was ruled to be an LPPF in California. Annette F. v. Sharon S., 119 Cal. App. 4th 1146 (2004). A doctor and CEO of a publicly traded biotechnology company who conducted a clinical trial for a new drug was considered an LPPF. Harkonen v. Fleming, 2012 WL3026400 at *7 (N.D. Cal, July 24, 2012). The president of two corporations located in a California village that opposed the rezoning of property adjacent to his property was determined to be an LPPF. Kaufman v. Fidelity Fed. Sav. & Loan Ass’n, 189 Cal. Rptr. 818 (1983). An individual who publicly claimed to be an expert in earthquake safety and veteran in earthquake rescue operations was classified as an LPPF. Copp v. Paxton, 45 Cal. App. 4th 829, 842 (1996). A corporation who received notoriety for an attempted venture into internet television broadcasting was ruled to be an LPPF. Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569 (2005).

Defamation Law Fact: In the realm of defamation law, the United States is typically considered a pro-defendant jurisdiction due to its strict adherence and promotion of free speech and the First Amendment, while European and other Commonwealth countries (Canada, UK) are typically considered a more plaintiff-friendly jurisdiction. Due to the differences in enforcement and rulings, some plaintiffs engage in what is commonly referred to as “forum shopping,” or bringing a defamation suit in the jurisdiction that will likely be most favorable for them.

Now that we’ve nailed down the core differences between defamation plaintiffs in California, let’s take a look at what issues the United States Supreme Court and California Courts consider to be of private and public concern. Similar to the different burdens placed on private and public figures, depending on the nature of the statement in issue, some statements may receive greater protection from defamation liability.

 

Issues of Private vs. Public Concern

Generally, statements of public concern are granted greater protection from defamation liability due to the promotion and furtherance of maintaining a well-informed and open society. Without such protection, think of the numerous parties, such as media organizations, journalists, and newspapers, who would be restricted from disseminating valuable information to the American Public – information that helps us form opinions and thoughts on social, economic, financial, and political issues.

It’s no surprise, heightened censorship and free speech restrictions will lead to an overall less-informed and docile society, where the general public hinges off every word put forth by centralized information outlets.

Note that depending on the nature of the statement at hand, private plaintiffs may be required to prove more than just mere negligence (ordinary negligence) in order to recover defamation damages in California.

When understanding the burdens of proof required for private and public issues, we can look to the United States Supreme Court’s ruling in Rosenbloom v. Metromedia, which held that in the case of private persons against media defendants – when the issue at hand is “an event of public or general concern” – defamation plaintiffs will be required to prove the defendant acted with actual malice. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).

 

So, How Does This Compare to California?

In California, if a private individual is defamed by defamatory speech which is regarded as a matter of “public concern,” then the defamed individual cannot recover unless he or she proves malice or actual injury. Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 747 (1989).

 

What Exactly is Classified as a Matter of Public Concern?

California defines matters of public concern as “something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Herdegen v. City of Los Angeles, No. B196819, 2008 WL 224011, at *6 (Cal. Ct. App. Jan. 29, 2008) (quoting San Diego v. Roe, 543 U.S. 77, 83-84 (2004)).

California courts also noted what cannot be considered an issue of public concern and interest. Issues of public interest cannot “solely [concern] the individual interest of the speaker and [his] specific … audience” or solely concern the speaker’s personal “desire for profit.” Carney v. Santa Cruz Women Against Rape, 221 Cal. App. 3d 1009, 271 Cal. Rptr. 30 (Ct. App. 1990). The court noted that statements concerning a speaker’s personal desire for profit may constitute unprotected commercial speech.

To recap, matters of public concern are issues that are important to the general public at the time of their publication and of legitimate news interest. Additionally, they can not solely be made for the speaker’s individual desire to profit.

Now, let’s take a look at some cases where California courts analyzed whether the statement(s) at hand constituted matters of public concern.

 

Keep in mind that there is an important exception to the aforementioned burdens of proof when the statement or issues constitute “Commercial Speech.”

 

Issue of Public Concern Exception

A California plaintiff is not required to prove that the defendant acted with malice for issues of public concern that constitute “Commercial Speech.” Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 683 (2010).

So, what exactly is considered ‘Commercial Speech’?

Commercial Speech is defined as a statement that “is likely to influence consumers in their commercial decisions.” Kasky v. Nike, 27 Cal. 4th 939, 964 (2002). However, the rule set forth in Kasky is only applied in California when concerning statements about a defendant’s:

  • Internal business operations, or
  • Specific product advertisements.

 

Baba v. Board of Supervisors, 124 Cal. App. 4th 504 (2004); Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322 (2004), cert denied, 125 S. Ct. 373 (2004).

To help explain the exception to matters of public concern when involving commercial speech, below are two California cases.

  • Nike’s statements about its own labor policies, practices, and working conditions in shoe factories constituted commercial speech because such statements concerned the defendant’s internal business operations. Kasky, 27 Cal. 4th at 964.
  • Planned Parenthood’s statements about safety risks with its abortion services were not considered commercial speech because such statements did not concern a specific product. Bernardo, 115 Cal. App. 4th 322.

 

Online Defamation Removal Tip: If you’ve been the victim of online defamation, it’s important to preserve as much evidence as you can. The best way? By screenshotting the allegedly defamatory material. Doing so is one of the most effective ways to support your claim and ensure you aren’t fabricating any details. Additionally, we recommend reaching out to a friend or family member to also screenshot and document such materials, in case you need to refute a claim over evidence tampering.

 

Popular Defenses to Defamation in California

Common Defenses to Defamation

In the wild wild west of defamation law, even if a party makes or publishes a defamatory statement, there are still numerous defenses they can rely on to protect themselves from defamation liability.

Below is a list of several of the most commonly used defenses to the tort of defamation in California (and the United States).

 

  • Opinion
  • Truth/Falsity,
  • Privilege (Absolute, Qualified, Statutory, Fair Report)
  • Wire Service Defense, &
  • Libel-Proof Plaintiff Doctrine.

 

First, let’s acquaint ourselves with possibly the most commonly used defamation defense and one which is enforced in nearly every U.S. state – the defense of opinion.

 

Opinion

Under California law, opinion may be raised as an affirmative defense – a pleaded set of facts otherwise mitigating the defendant’s unlawful conduct – and is a complete defense to defamation claims.

When determining whether statements are actionable for defamation, California courts rely on the distinction between facts and opinions, despite the U.S. Supreme Court ruling in Milkovich v. Lorain Journal Co., which allowed some opinion statements to support a claim for defamation. After all, a claim for defamation is not actionable if the statement(s) in question is actually true. Moyer v. Amador Valley Joint Union High Sch., 225 Cal.App. 3d 720, 724-25 (1990).

When determining whether a statement is opinion or fact, California courts apply a “totality of the circumstances” test. Baker v. Los Angeles Herald Exam’r, 42 Cal. 3d 254, 260-61 (1986).

Under the “totality of circumstances” test set forth in Baker v. Los Angeles Herald Exam’r, California courts  choose from one of two tests:

  • “The Totality of Circumstances Test,” &
  • “The Unelko Test.”

 

Let’s take a look at these two tests in further detail to see exactly how similar they are.

The Totality of Circumstances Test

Under the Totality of Circumstances Test, courts look to:

  • Whether the specific language used must be understood in a defamatory sense;
  • If the statement is cautiously phrased in terms of apparency;
  • The context in which the statement was made and the facts surrounding the publication, including;
    • The communication’s nature and full content; &
    • The audience’s knowledge and understanding of the statement.

 

See Moyer, 225 Cal.App. 3d at 724; see also Baker, 42 Cal. 3d at 267 & n.7.

The Unelko Test

The statement takes a bit more of an objective approach and considers:

  • Whether figurative or hyperbolic language was used that would negate an impression that the statement was serious;
  • Whether the general tenor of the statement negated this impression; &
  • Whether the statement is susceptible of being proved true or false.

 

Considering defamatory statements concern false assertions of fact, determining whether a statement is able to be proved or false sits at the very core of defamation claims.

See Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990).

Below are five examples which will help paint a more complete picture of how the above tests are used in order to determine whether a statement is one of opinion or fact.

  • Unbiased & Specialized Knowledge: In a case involving internet postings, a defendant who represented himself as “unbiased” and “having specialized knowledge,” while claiming his posts were “Research Reports,” “bulletins,” and “alerts” supported a court finding that the associated statements were assertions of fact and not opinion. Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418 (2013).
  • SEC Investigations: Statements made on a Yahoo! message board that the plaintiff company was the subject of SEC investigations were deemed to be statements of opinion because the message board conveyed an informal nature, the defendant used lax grammar construction, the message board website contained specifically worded disclaimers that warned viewers that the statement on the site were opinions, and – what the court found most compelling was – the phrase “sniffing around” was too “vague and hyperbolic.” Rocker Management LLC v. John Does, No. 03-MC-33, 2003 WL 22149380, at *3 (N.D. Cal. May 29, 2003).
  • Impending Bankruptcy: A defendant’s internet post that claimed the plaintiff corporation was going “to go bankrupt” was a verifiable assertion of fact, because the defendant implied he had obtained undisclosed financial information about the plaintiff. Ampex Corp. v. Bettini, No. A097630, 2003 WL 1558183 (Cal. Ct. App. Mar. 26, 2003).
  • Ripoffreport.com: A defendant’s statements on Ripoffreport.com that accused the plaintiff of fraud, perjury, and accepting an “under the table bribe” constituted verifiable assertions of fact. Sanders v. Walsh, 219 Cal. App. 4th 855 (2013).
  • Embezzlement: A defendant’s statement, “Yeah, I would not trust [the plaintiffs] with anything … Did you know [the plaintiffs] embezzle money from [the company]?” constituted a verifiable statement of fact for purposes of defeating the defendant’s anti-SLAPP motion to strike. Atencio v. Feriante, No. A102655, 2004 WL 1759731, at *14 (Cal. Ct. App. Aug. 6, 2004).

 

Curious about exactly what a SLAPP lawsuit and Anti-SLAPP motion are? Jump to Section 7 of this blog post to read up further.

As a California court opined, both tests “in essence … are identical” and serve the same function. Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1076 (N.D. Cal. 1994).

 

Truth/Falsity

As noted above, defamation of character claims are fundamentally based on whether the statement involves a false assertion of fact, therefore, it shouldn’t be any surprise that truth or falsity is a complete and absolute defense to a claim of defamation.

In California, truth is a complete defense to defamation when pleaded and proved by the defendant. Francis v. Dun & Bradstreet, Inc., 3 Cal.App. 4th 535, 540 (1992); Swaffield v. Universal Ecsco Corp., 271 Cal. App. 2d 147, 164 (1969).

Typically, a defendant will argue and prove the defense of truth or falsity when they are able to show the defamatory statement in question is substantially true – or when any of the false aspects of the statement fail to pervert the “gist” or sting” of the statement as a whole. Maheu v. Hughes Tool Co., 569 F.2d 459, 465-66 (9th Cir. 1977); Gantry Constr. Co. v. Am. Pipe & Constr. Co., 49 Cal.App. 3d 186 (1975). Id.; Gilbert v. Sykes, 147 Cal. App. 4th 12, 28 (2007).

That’s right, even if the allegedly defamatory statement errs in small and minor details, but still packs a punch and conveys the overall and material message, it will be considered to be substantially true and protected under law.

For example, in an online review of a dental visit, a defendant’s statements were considered substantially true when the defendant accurately detailed the events of the visit, but reported imprecise timelines and improperly interpreted staff motives. Kim v. IAC/InterActive Corp., No. B200079, 2008 WL 3906427, at *5 (Cal. Ct. App. Aug. 26, 2008).

Note that the material elements of the visit were recited, getting the core message across to the audience.

 

Privilege

Privilege might sound like a complex legal defense, when in reality it’s actually quite simple. Privilege simply means a legal right, enjoyment, or entitlement to communicate and publish a statement – regardless of the statement’s contents.

The defense of privilege exists to drive and further the very core of all decision making and administrative processes, allowing for open discussion and free debate – all without the fear of legal repercussion. Democracy thrives on the open discussion of contentious and hot-topics, and privilege is an essential tool for ensuring such growth.

After all, if we lived in a highly-censored society, then ultimately, our policies, laws, and regulations would not be robust or as (likely) fair.

In California, the defense of privilege can be classified into four fundamental types:

  • Absolute,
  • Qualified,
  • Fair Report, &
  • Neutral Report.

 

Absolute

Absolute privilege is the apex form of privilege granted to speakers of defamatory statements, and is the unqualified and unequivocal right to make such statement and at a specific time – even if the contents of the statement are considered defamatory. Absolute privilege is all-encompassing and even applies to speakers who communicated or published a defamatory statement with actual malice or reckless disregard.

Think of absolute privilege as an integral mechanism for free speech and debate in our official, judicial, administrative, and judicial proceedings, as those are some of the most important forums for defining and drafting social, political, economic, and legal policy and regulation.

For sake of clarity and guidance, the California Legislature has codified most common law absolute privileges in Cal.Civ.Code § 47, and has outlined four core situations where absolute privilege will apply:

  • Legislative proceedings,
  • Judicial proceedings,
  • Other official proceedings authorized by law, &
  • In the initiation of any other proceeding authorized by law.

 

However, even sometimes the California legislature forgets to include another situation invoking absolute privilege – consent-to-publish. Consent-to-publish is the only absolute privilege absent from § 47 and recognized by California courts. Pouchan v. Godeau, 167 Cal. 692, 694 (1914); Royer v. Steinberg, 90 Cal. App. 3d 490, 498 (1979).

 

Qualified

Now, let’s turn to qualified privilege, which can be seen as absolute privilege’s less comprehensive and far reaching younger sibling. Statements that aren’t protected under absolute privilege may still be protected under the defense of qualified privilege – or common interest privilege.

Like absolute privilege, qualified privilege is the entitlement, joy, or right to communicate or publish a specific statement and in specific circumstances. However, the scope of qualified privilege is much narrower, and it does not protect statements made by speakers with actual malice – meaning, the speaker may still be held liable for defamation of character.

Qualified privilege is usually granted in circumstances involving persons in positions of trust and authority, who have a legal, social, or moral duty to make and disseminate certain statements to a specific audience – and that audience has a reciprocal interest in hearing those statements.

California Civil Code §47(c) protects defamatory statements made between parties who:

  • Are professionally interested in the subject communication;
  • Stand in such a relation to interested parties as to afford a reasonable ground for supposing the motive for the communication to be innocent; &
  • Are requested by interested parties to give the information.

 

California’s definition of qualified privilege is quite broad, and protects an array of statements, as long as there is a professional interest or a party is requested by another to relay certain information.

Below are five California cases where a court found qualified privilege exists.

 

Five Examples of Qualified Privilege in California

 

If you’ve found defamatory news articles or other information about you online and you’d like to take it down, check out our article titled, “How to Remove News Articles From Google and The Internet – Yes, It Can Be Done.”

 

Fair Report

Fair report privilege is essential for ensuring journalists, news media outlets, and other individuals who rely on official, legislative, judicial, and other administrative reports are not held liable after they publish information contained within said reports. Fair report privilege exists in order to further the general public’s trust in executive, administrative, and other official bodies, and accept their issued reports and documents as accurate and factual.

After all, it would be a scary day for democracy should our legal system come down on a party who relied on a report issued by that very same system.

In California, if a defendant publishes reports of official, judicial, or legislative proceedings, that report cannot form the base of a defamation action if such report “captures the substance, the ‘gist’ or ‘sting’ of the subject proceedings or documents … measured by the nature and probable effect [the publication] would have on the mind of the average reader.” Dorsey v. Nat’l Enquirer, Inc., 973 F.2d 1431 (9th Cir. 1992).

 

Neutral Report

Commonly referred to as “neutral reportage,” neutral report privilege is a common law privilege immunizing news media and other publishing outlets who specifically republish unverified allegations about public persons and figures.

Neutral report is an extremely limited exception to that rule that any person who repeats or republishes a defamatory statement is equally as culpable and guilty as the original publisher.

The heart of neutral report privilege rests on the fact that the republishing party – typically a newspaper or magazine – isn’t agreeing with or supporting the truthfulness of the alleged defamatory statement, but are merely disseminating it in a neutral way.

Parties relying on the privilege of neutral reportage are usually required to show:

  • Their reporting & republishing was unbiased, &
  • The publishing was in the public’s best interest.

In California, the California Supreme Court has never formally adopted the neutral report privilege, but they have ruled that the neutral report privilege does not extend to reports that regard private figures. Khawar v. Globe Int’l, Inc., 19 Cal. 4th 254, 258 (1998).

However, two federal district courts allow neutral reportage to cover neutral and accurate press reports that publish statements by one public figure about another public figure. Barry v. Time, 584 F. Supp. 1110, 1122-28 (N.D. Cal. 1984); Ward v. News Group Int’l, 733 F. Supp. 83 (C.D. Cal. 1990).

Think about it, private persons are private for a reason, and have not availed themselves to the public scrutiny and limelight celebrities, politicians, and other notable figures have.

For reference, below is a comprehensive chart comparing the four types of privilege acknowledged and enforced in California.

 

California Privilege Defense Comparison Chart

 

TypeAbsoluteQualifiedFair ReportNeutral Report
DefinitionA party’s absolute or unequivocal right, entitlement, or joy to publish or communicate a statement - even if the statement is defamatory in nature. A party’s - typically in a position of authority or trust - legal right, entitlement, or joy to publish, communicate, or relay a statement - even if such statement is defamatory in nature. A legal right granted to parties who publish information and reports from judicial, legislative, and official proceedings. A legal right typically granted to media outlets, newspapers, magazines, and other media organizations who republish defamatory statements - as long as they do so in the interest of the public and in an unbiased manner.
Can it be defeated?No - even if the speaker communicates or publishes the statement with actual malice. Yes - if the speaker communicates or publishes the statement with actual malice.Yes - if the speaker communicates or publishes the statement, information, document, or report with actual malice. Probably Yes - but this has still yet to be clarified in California.
ExamplesJudicial, legislative, official proceedings authorized by law, in the initiation of any other proceeding authorized by law, and where the defamed party consented to its publication. Physician’s complaint to a local bar (law) association, employer communications about the dismissal of an employee, a confidential report concerning an employee’s alleged kickbacks, an administrator’s letter about a physician’s qualifications, and any statement made by Google through their PageRank feature. Parties who publish reports of official, judicial, or legislative proceedings. Does not extend to reports on private figures, however, it will cover accurate and neutral press reports that publish statements by one public figure about another public figure.

 

Online Defamation Law Fact: Signed into effect by former President Barack Obama, American publishers and journalists are protected from foreign libel suits and judgments which are deemed incompatible with the U.S. Constitution’s First Amendment – the right to free speech.

 

Wire Service Defense

Although relatively uncommon in the world of defamation defenses, the wire service defense is still occasionally relied upon in the realm of defamation and libel law. For starters, the wire service defense bears some similarity to the fair report privilege, as it immunizes news media and other publishing organizations who rely on statements and communications sent by reputable and verified wire service and then publish them.

Generally, California courts do not recognize the wire service defense. However, there is one instance and trial where a California court recognized the defense, allowing the defendant, CNN, to escape liability for libelous statements published in a report based on an Associated Press Article. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003).

 

Libel-Proof Plaintiff Doctrine

Sometimes there are some plaintiffs who are just so reviled in their own community that even a defamatory statement(s) has minimal or zero affect on their overall reputation. Remember, a core element of a libel and slander claim is that the plaintiff suffered damage. But, what happens when your reputation can’t possibly sink any lower? Cue the libel-proof plaintiff doctrine.

As of 2018, no California court has recognized the libel-proof plaintiff doctrine. However, with a proper set of facts, courts have not ruled out the possibility that the doctrine could apply in future cases.

For example, a California court in 2010 case Lutfi v. Spears stated, “We find that [the plaintiff’s] reputation was not so badly tarnished [that the plaintiff’s reputation ‘cannot sustain further damage’] as to be immune from further damage. Thus, we decline to be the first California state court to apply the doctrine, and we affirm the trial court’s decision.” See Lutfi v. Spears, No. B218211, 2010 WL 4723437, at *9 (Cal. Ct. App. Nov. 23, 2010).

If you’ve been the victim of libel, slander, or false and malicious online attacks, reach out to the defamation removal attorneys of Minc Law today!

At Minc Law, we specialize in uncovering malicious online posters and trolls and holding them accountable for their defamatory acts. Ohio-based defamation attorney Aaron Minc and his team of defamation removal attorneys know who to contact and how to work with them.

To learn how you can take the first step in uncovering a malicious online poster who is tarnishing your reputation and hold them accountable, reach out to the defamation removal lawyers of Minc Law today at (216) 373-7706, or by scheduling a meeting online.

 

California Defamation Damages

California Defamation Damages

As outlined in Section 1 – What is Defamation? – defamation plaintiffs bringing slander or libel claims are required to prove they suffered damages as a result of the allegedly defamatory statement(s). In the world of defamation damages, damages are usually quantified in a monetary sum, which acts as compensation and reimbursement for the plaintiff’s loss or injury.

In California, defamation damages are typically quantified into several core categories, all of which require their own specific pleading requirements and formalities:

  • Special Damages,
  • Presumed Damages,
  • Actual Damages, &
  • Punitive Damages.

 

Special Damages

As we differentiated in Section 1, defamation per se will arise when a defendant makes a statement deemed so inherently defamatory (falling into 1 of the 9 prescribed categories in California) that a plaintiff need not prove actual damages when lodging their defamation claim. On the flipside, we have defamation per quod, which requires a plaintiff produce supporting evidence of the defamatory nature of the statement in question.

Special damages are damages that are typically associated with defamation per quod, and are damages which are special and unique to the particular situation at hand. When recovering special damages, defamation plaintiffs are required to prove – often with extrinsic and supporting evidence – that they suffered a unique injury or harm.

In California, when a defamatory statement is not classified as defamatory per se and a plaintiff seeks to recover special damages, they must plead and prove the defamatory statements in question proximately caused special damage to them. Fellows v. Nat’l Enquirer, Inc., 42 Cal. 3d 234, 235, 721 P.2d 97, 97 (1986). For the purposes of the tort of defamation, ‘proximately’ is meant to mean that the event or statement in question is sufficiently related to the unique injury argued by the plaintiff.

In the context of defamation actions, California Civil Code § 48a defines special damages as:

“‘Special damages’ are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other.” Cal. Civ. Code § 48a.

Think back to Section 1, where we tackled pleadings and how some states may require stricter pleading requirements than others. California courts require plaintiffs to plead special damages with a high-degree of:

  • Specificity, &
  • Particularity.

For example, a plea by a plaintiff that they lost “70-80 percent” of their business due to the defendant’s defamatory statement would be insufficient. Wu v. Doucette, No. 07-1584, 2010 U.S. Dist. LEXIS 34814, 41-42 (C.D. Cal. Apr. 8, 2010); see also Anschutz Entm’t Grp., Inc. v. Snepp, 171 Cal. App. 4th 598 (2009), as modified (Mar. 3, 2009), as modified on denial of reh’g (Mar. 23, 2009).

In the above case, the plaintiff’s complaint alleged that they suffered damage to their reputation in an amount to be proven at trial. This was considered insufficient for the purposes of specificity and particularity as it is just too vague and leaves too much uncertainty on the table.

 

Presumed Damages

Now, as we just addressed with the type of damages associated with defamation per quod, let’s take a look at the damages associated with defamation per se – presumed damages. Presumed damages are damages that are as their name implies – presumed. California courts will presume damages for statements that are defamatory per se, meaning that the defendant may not contest the plaintiff’s assertion of damages. Contento, 28 Cal. App. 3d at 357 (1972).

Once again, there are nine (9) categories of statements recognized in California defamation law that will lead to the presumption of damages.

  • Statements charging a plaintiff with a crime, or having been indicted, convicted, or punished for a crime;
  • Statements imputing a plaintiff has an infectious, contagious, or loathsome disease;
  • Statements imputing a plaintiff’s impotence or want of chastity;
  • Statements charging a plaintiff with a violation of confidence reposed in him;
  • Statements charging a plaintiff with treachery done to those with whom he associates;
  • Statements that tend to cause a person to be shunned or avoided;
  • Statements that tend to injure a person with respect to his office, profession, trade, or business;
  • Statements that tend to subject a person to public hatred, ridicule, or contempt; &
  • Statements that associate a plaintiff with the Communist Party.

 

Actual Damages

Also commonly referred to as “compensatory damages,” actual damages are monetary awards issued to plaintiffs experience actual (real) loss, injury, or harm due to the libelous and defamatory statements and communications made by a defendant.

In California, defamation plaintiffs must plead and prove actual injury in order to recover for libelous or slanderous statements made about them or their business. Burnett v. Nat’l Enquirer, Inc., 144 Cal.App. 3d 991, 1013 (1983).

“Actual injury is not limited to out-of-pocket loss, but includes the more customary types of actual harm inflicted by defamatory falsehood, such as impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” 50 Am. Jur. 2d Libel and Slander § 360; Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

As a procedural matter, California libel and slander plaintiffs must still plead and prove actual injury when the plaintiff is entitled to a punitive (punishment) award, despite the plaintiff suffering no “real” harm. Contento v. Mitchell, 28 Cal. App. 3d 356, 357-58 (Ct. App. 1972). In such instance, the court will presume actual injury, and a plaintiff will only need to plead nominal actual damages. Id.

 

Punitive Damages

Think of punitive damages as damages which are awarded to a plaintiff after a defendant acted in a malicious or wanton manner. They are commonly referred to as “punishment damages” or “exemplary damages,” and are awarded when a defamation defendant’s behavior exceeds that of even a reasonable defamation defendant.

To recover punitive damages in the state of California, a plaintiff must not only show:

 

Broken down even further, this means that a California defamation plaintiff must show:

  • Willful & Conscious Disregard: The defendant made the defamatory statement with a willful and conscious disregard of others’ rights in a “despicable” manner that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Lackner v. North, 135 Cal. App. 4th 1188, 2110 (2006); &
  • Hatred & Ill Will: The defendant made the defamatory statement with a “state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.” Cal. Civ. Code § 48a(4)(d).

 

To recap, below is a comparison table showing the fundamental differences between each type of defamation damages.

 

California Defamation Damages Comparison Table

 

 Special DamagesPresumed DamagesActual DamagesPunitive Damages
DefinitionDamages proximately caused by a defendant’s defamatory and false statements or communications, suffered in respect to one’s property, business, trade, profession, or occupation. Special damages are also typically associated with defamation per quod actions. Damage which need not be proved by the plaintiff, as the statements in question are so inherently defamatory that they fall under the category of defamation per se. Real and tangible loss, injury, or damage to a plaintiff, not limited to out-of-pocket loss, but impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Damages awarded to a plaintiff for a defendant’s behavior that goes above and beyond normal standards of decency. Punitive damages are intended to punish defendants who acted with a certain level of malice when publishing and communicating the statements in question.
How to ProvePlaintiffs must prove the defamatory statements were the proximate cause of the special damages. Additionally, they must be plead with a high-degree of specificity and particularity.As the damages are presumed, plaintiffs are not required to prove they suffered damage, injury or loss. Defendants are not given the opportunity to contest a plaintiff’s assertion of damages.Plaintiffs must still plead and prove actual injury, even when they are entitled to a punitive award (despite having suffered no “real” harm. Plaintiffs must not only prove actual malice, but also, common-law malice.

Online Reputation & Brand Management Tip: Establishing a budget for your online reputation and brand monitoring is a crucial step in ensuring your brand and business survives the bumpy waters of the Internet and online defamation. Not only will setting up an online reputation management budget allow you to gain a better understanding of how your customers and the public view your brand, it is also an effective way to combat and catch intellectual property infringers.

 

What are SLAPP Lawsuits? California’s Anti-SLAPP Laws

 

What are SLAPP Lawsuits?

California has such comprehensive and robust Anti-SLAPP legislation, that we’ve dedicated an entire section to addressing what SLAPP lawsuits are, why they pose a threat to defamation plaintiffs, and the various laws protecting innocent parties who are threatened with malicious and frivolous SLAPP lawsuits.

First, let’s take a look at what exactly a SLAPP lawsuit is. Short for “Strategic lawsuits against public participation’, SLAPP lawsuits are frivolous and meritless lawsuits filed by a person or entity seeking to intimidate, censor, burden, or scare a person away from entering into a lawsuit. The overall goal? Threaten an opposing party with legal costs and they’ll likely back out.

Keep in mind that SLAPP lawsuits are employed in virtually every area of law and are highly unethical.

 

California’s Anti-SLAPP Laws

In California, a defendant may file a special motion to strike, or an “Anti-SLAPP” motion, if they believe they are a victim of a strategic lawsuit against public participation, aka “SLAPP.” If a defendant is able to successfully persuade and move the court, the court will dismiss the case and award the defendant attorney’s fees and court costs. Cal. Civ. Proc. Code § 425.16.

 

So, what was the legislature’s reasoning behind this?

 

The California legislature passed this law to “establish a summary-judgment-like procedure available at an early stage of litigation [for cases that pose] a potential chilling effect on speech-related activities.” Taus v. Loftus, 40 Cal. 4th 683, 714 (2007).

For a defendant to succeed on the merits of their Anti-SLAPP motion, the court must sequentially find:

  • Petition/Free Speech: The defendant acted “in furtherance of [the defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue;” & then,
  • Plaintiff Probability of Success: The plaintiff failed to show a probability that he will prevail on his defamation claim despite the fact that the defendant’s statements fall within § 425.16’s ambit. Lafayette Morehouse, Inc. v. The Chronicle Publ’g Co., 37 Cal. App. 4th 855, 862-63 (1996).

 

First, the defendant must make a prima facie showing that the plaintiff’s suit arose out of:

  • Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  • 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 proceeding authorized by law;
  • 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; or
  • Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connect with a public issue or an issue of public interest.

 

Cal. Civ. Proc. Code § 425.16 (e)(1-4); Wilcox, 27 Cal. App. 4th at 819-823.

 

Defendants who post malicious material online typically rely upon the third category mentioned above because a publicly accessible website is considered a public forum by law. See Barrett v. Rosenthal, 146 Cal. P.3d 510, 514 & n.4 (2006). Therefore, most litigation concerns what constitutes an “issue of public interest.Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006).

 

Cases & Issues of Public Interest

Issues of public interest may include, but are not limited to, statements about:

 

*Chaker v. Mateo Continued

 

In Chaker, the defendant’s statements on social networking and business review sites that the plaintiff was a “criminal” who took steroids and picked-up prostitutes and homeless drug addicts constituted statements that concern a matter of public interest because the defendant operated a counter-forensics business, and the average internet reader would understand the majority of the statements as nothing more than “insulting name calling” that “one would expect from someone who had an unpleasant personal or business experience with [the plaintiff[ and was angry with [the plaintiff].” Chaker v. Mateo, 209 Cal. App. 4th 1138, 1147 (2012).

 

Cases & Issues Not of Public Concern

Some statements that do not constitute “issues of public interest” may include, but are not limited to, statements about:

 

Second, after the defendant shows that they acted “in furtherance of [the defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue” (as described above); Cal. Civ. Proc. Code § 425.16, then “the burden shifts to the plaintiff to demonstrate a probability of prevailing on the [defamation] lawsuit or on [any particular] cause of action [therein].” Tamkin, 193 Cal. App. 4th at 142.

 

To meet this burden, the plaintiff must argue facts that “if credit, would be sufficient to sustain a judgment in [the plaintiff’s] favor.” Tcimpidis v. Tcimpidis, No. B229764, 2011 WL 5579188, at *1 (Cal. Ct. App. Nov. 17, 2011).

Now, let’s take a look at seven (7) example cases which demonstrate a plaintiff’s probability to succeed/not succeed on its merits.

  • Market-reasonable fair price: A plaintiff eye-doctor demonstrated a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff presented evidence that the doctor charged the plaintiff a market-reasonable fair price, despite the defendant’s defamatory claims to the contrary. Pham v. Lee, No. H039184, 2014 WL 6992251, at *6-7 (Cal. Ct. App. Dec. 11, 2014).
  • Scheme to put someone in jail: A plaintiff demonstrated a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff presented evidence that showed the defendant created a website and published text that claimed the plaintiff “masterminded a scheme to put [someone] in jail so that [a vulnerable older woman] would be left without a caregiver and would be forcibly removed from her own home.” Tcimpidis v. Tcimpidis, No. B229764, 2011 WL 5579188, at *1 (Cal. Ct. App. Nov. 17, 2011).
  • Horrific fraud: A plaintiff attorney demonstrated a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff presented evidence that showed the defendant posted statements that the plaintiff committed a “horrific fraud…that irreparably damaged every aspect of [the defendant’s] life” on Complaintsboard.com. Gwire v. Blumberg, No. A134931, 2013 WL 5493399, at *1 (Cal. Ct. App. Oct. 3, 2013), reh’g denied (Oct. 22, 2013).
  • Yahoo! message boards: Under California law, a public figure plaintiff demonstrated a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff presented evidence that showed (1) the defendant posted remarks on Yahoo! message boards that several people died directly from the plaintiff’s product during a study, and (2) the defendant knew his post was false because the defendant ran the study in question that concluded the deaths occurred for alternative reasons. Corcept Therapeutics, Inc. v. Rothschild, 339 F. App’x 789, 791 (9th Cir. 2009).
  • Improper sworn depositions: A plaintiff website owner failed to demonstrate a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff solely relied on an improperly sworn deposition to substantiate the plaintiff’s claims. Backlund v. Stone, No. B235173, 2012 WL 3800883, at *1 (Cal. Ct. App. Sept. 4, 2012).
  • Stalking & secret videotaping: A plaintiff defeated a defendant’s anti-SLAPP motion to strike for Facebook comments that accused the plaintiff of stalking and secretly videotaping the defendant’s daughter through the plaintiff’s window after the plaintiff presented evidence that (1) the plaintiff absentmindedly moved a video camera in front of the plaintiff’s window while rearranging a room in the plaintiff’s house and that (2) the plaintiff’s window did not face the defendant daughter’s window. Walsh, No. A136016, 2014 WL 618995, at *5.
  • Bankruptcy & stock decline: A plaintiff corporation demonstrated a probability that the plaintiff’s defamation action would succeed on the merits after the plaintiff showed evidence that the defendant’s internet post that falsely claimed the plaintiff corporation was going bankrupt caused actual damages in the form of a stock price decline. Ampex Corp. v. Bettini, No. A097630, 2003 WL 1558183 (Cal. Ct. App. Mar. 26, 2003).

 

California has codified several Anti-SLAPP exceptions in their books.

 

Anti-SLAPP Statutory Exceptions

Cal. Civ. Proc. Code § 425.17 broadly defines exceptions to the Anti-SLAPP statute, which has ultimately resulted in courts having systemically misused, misinterpreted, or otherwise ignored for many years.

Because of this, the California Supreme Court restated Cal. Civ. Proc. Code § 425.17 in Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010) as exempting “a cause of action arising from commercial speech when:

 

  • The cause of action is against a person primarily engaged in the business of selling or leasing goods or services;
  • The cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services;
  • The statement was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transaction in, the person’s goods or services or in the course of delivering the person’s goods or services; &
  • The intended audience of the statement or conduct meets the definition set forth in section 425.17(c)(2).”

 

Id. However, the  court upheld limiting provisions in 425.17(d). Id. Meaning, these above exemptions do not apply to:

 

  • “Any person engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication to the public,”
  • “Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation,” or
  • Any nonprofit organization that receives more than 50 percent of its annual revenues from federal, state, or local government grants, awards, programs, or reimbursements for services rendered.

 

Cal. Code Civ. Proc. § 425.17(d).

 

There are two other Anti-SLAPP exceptions…

 

What is a SLAPPback Statute?

A defendant who prevails on a special motion to strike under the Anti-SLAPP statute may then sue the plaintiff for malicious prosecution under Cal. Code Civ. Proc. § 425.18(b)(1).

Under such statute, a defendant may seek punitive (punishment) damages and emotional distress damages against the plaintiff if the defendant can prove that the plaintiff knowingly or purposefully brought the original suit for a reason other than to seek redress for harm caused by the alleged defamation. (i.e. harassment, to burden with defense costs, silencing opposition, etc.).  Cal. Code Civ. Proc. § 425.18(h); Soukup v. Law Office of Herbert Hafif, 39 Cal. 4th 260, 289 (2006).

Keep in mind however, that the plaintiff may counter-sue the defendant with a SLAPPback suit in response to the defendant’s SLAPPback suit if the defendant files his SLAPPback suit for a reason other than to seek redress for harm caused by the plaintiff when the plaintiff originally sued the defendant for defamation. (i.e. to seek damages against a plaintiff who legitimately believed he had a substantial defamation claim against the defendant). Id.

 

Frequently Asked Questions

Q. Does California have any legal protections for anonymous speech?

A. In California, to discover the identity of an anonymous defendant, a plaintiff who seeks to uncover the defendant’s identity must: (1) identify the anonymous party specifically enough so that the court can determine that the defendant is a real person or entity that could be sued in the court therein; (2) identify all steps previously taken to find the defendant; (3) inform the court of the reasons for its discovery request and identify the parties upon which it requests the discovery to be served, Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), and (4) satisfy the following two-prong test:

 

Let’s take a look at an example.

A plaintiff satisfied the first prong of the two part test, but failed the second prong, to uncover an anonymous internet poster’s identity when the court (1) found statements defamatory per se that the defendant corporation “encourages domestic violence and misogyny” and the CEO “engages with prostitutes,” but (2) denied the plaintiff’s request to reveal the poster’s identity because doing so would have a “chilling effect” on future critic’ right to speak-out-against/provide-information about the public company’s business practices and – as the court reasons – readers could have understood the comments as insincere in context.

For these reasons, a California court found the harm from the “chilling effect” to be greater than the justice to be done by revealing a poster’s identity. Music Grp., No. 14-MC-80328-LB at *5.

 

Q. In California, what effect has the Internet had on the right to free speech?

A. In general, no California court has officially recognized arguments that internet speech should be entitled to higher protections than any other type of speech.

However, in the specific context of the “opinion” defense, California courts may favor finding for the defendant. Rocker Management LLC v. John Does, No. 03-MC-33, 2003 WL 22149380, at *3 (N.D. Cal. May 29, 2003).

 

Q. Can I retract, correct, or clarify allegedly defamatory statements prior to litigation in California

A. California Civil Code §48(a) governs California’s retraction and correction statute. Per §48(a), a plaintiff must serve the publisher a written notice to remove defamatory statements within 28 days after the publisher first publishes the statement. And, the demand must specify the defamatory material with particularity. Finally, oral demands will be considered insufficient. Gomes v. Fried, 136 Cal. App. 3d 924, 938 (1982).

However, California courts have found the above statute inapplicable when a third-party publishes slander and a plaintiff sues the original speaker. Mercado v. Hoefler, 190 Cal. App. 2d 12, 18 (1961).

Additionally, when the defamatory statements are attributed to a private citizen who is not engaged in the business of news dissemination or broadcast enterprise, this statute will be considered inapplicable. Field Research Corp. v. Superior Court of City & Cnty. of San Francisco, 71 Cal. 2d 110, 115 (1969); Denney v. Lawrence, 22 Cal. App. 4th 927, 939 (1994).

 

Q. Has California codified criminal defamation laws in their books?

A. No. California is not one of the 25 U.S. states or territories with general criminal slander or libel statutes in their books and has repealed all criminal libel and slander statutes or had them ruled unconstitutional by the California Supreme Court or Ninth Circuit Court of Appeals.

 

Q. What’s the legal doctrine of Prior Restraint? Does California Recognize the doctrine of Prior Restraint?

A. Prior restraint is the legal doctrine governing the restriction of certain speech and statements prior to their actual publication.

No. California does not recognize the legal doctrine of prior restraint and California courts will NOT issue an order to restrain the future publication of anticipated defamatory material. Keep in mind the following quote, “equity will not restrain defamation.” Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church, 39 Cal. 2d 121, 145 (1952).

However, at least one court believes prior restraint could occur in “exceptional” cases under California law. Allen v. Ghoulish Gallery, No. 06-0371, 2007 U.S. Dist. LEXIS 37514, at *8 (S.D. Cal. May 23, 2007).

For example, in Allen v. Ghoulish Gallery, a competitor’s conduct in contacting an artist’s customers to tell them the artist was a thief and a liar and contacting professionals in the industry to disparage the artist’s name and reputation did not rise to the level of an “exceptional case” that warranted imposing a prior restraint on the competitor’s speech.

 

Other Forms of Restraint

 

Q. What are Food Libel Laws? Does California have Food/Veggie Libel Laws?

A. Also known as food disparagement laws, food libel laws are statutes which establish a cause of action for producers and manufacturers of food who have had false and inaccurate information disseminated about their perishable goods – implying they aren’t fit for consumption.

California is not one of the thirteen U.S. states who have veggie libel laws codified in their books. You can check out the thirteen states who do have them in their books here.

 

Q. What is Defamation Insurance? Do I need it? Which parties and professions are at high-risk of defamation lawsuits?

A. Defamation insurance is an insurance policy which typically comes in the form of an extension of a general insurance policy, and covers libel, slander, and other tort and civil claims. Defamation insurance is typically provided for under “excess liability” coverage, a policy which provides extra coverage beyond the original policy’s scope.

Journalists, news media, independent contractors, and anyone reporting on hot-topic or highly contentious matters are the parties and professions at highest risk of a defamation lawsuit. However, unless you’re engaged in one of these professions, you likely don’t need to purchase defamation insurance.

To read up further on defamation insurance, the high-risk professions who need it, and the standards each defamation insurance policy should account for, check out our comprehensive blog post titled, “What is Defamation Insurance and Do I Need It?

 

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Work with the Defamation Removal Lawyers of Minc Law Today!

If you’re a California resident, or any other U.S. state, the defamation removal lawyers of Minc Law want to help you remove any defamatory material about you or your business from the Internet. At Minc Law, we boast a nearly 100% defamation removal rate, and know how to swiftly and securely secure permanent takedowns – and all for a flat, reasonable fee.

We’ve litigated in over 19 states and three countries, securing hundreds of defamation removals, and we frequently work with website administrators, content managers, and third-party arbitration firms to find the quickest route of removal.

 

Here’s what you can expect when working with defamation attorney Aaron Minc and his highly experienced team of defamation removal lawyers:

 

  • Minc Law Will Treat You With Respect & Courtesy: At Minc Law, we understand how stressful online defamation can be, as it’s highly invasive and incredibly overwhelming. That’s why we’re here to work with you. After all, your goals are our goals.
  • Minc Law Gets Results: We know who to work with and how to contact them, and it shows. We’ve secured hundreds of removals, and have held countless parties accountable for their defamatory and libelous actions. Websites and businesses respond to Minc Law.

 

Reach out today to schedule an initial, free no-obligation consultation by calling us at (216) 373-7706, or schedule a meeting online.

 

At Minc Law, We Want to Fight For Your Reputation