What is Defamation?  Do I have a case?         

We can answer all your questions about defamation, but sometimes if you have a general understanding of the law, you can ask better questions about the facts of your case.  Some attorneys think a defamation action is like a personal injury case, but the proof necessary for a defamation action is very different.  As a nation, we put such a value on free speech that the burden is high to prove defamation.

Defamation is the inclusive term, including both slander and libel.  In other words libel and slander are both defamation, but libel is printed and slander is spoken.  Defamation occurs when someone makes a false, unprivileged statement about someone to a third party, which attacks the person's professional character or standing, claims that an unmarried person is unchaste, claims the person has a sexually transmitted disease, or that the person has committed a crime of moral turpitude.  Stated another way, to constitute defamation the statement must falsely accuse the plaintiff of immoral, illegal or unethical conduct.  Generally, the statement must harm the reputation of the person, but in the case of per se defamation, damages will be presumed.  This last point is very important, because if a plaintiff had to prove actual damage, the burden of proof in most cases would be nearly impossible. 

Let's examine each element more closely:

1.  False Statement of Fact

Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, if a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion.  Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.

On the other hand, some believe that they can escape liability by casting a fact as an opinion.  A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion.  Adding the word "opinion" to a defamatory statement does not automatically shield the speaker from liability.  The determining factor is whether the "opinion" is about a verifiable fact.  For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, "in my opinion the food was horrible and the restaurant has rats," the statement about rats is defamation (assuming it is false) because it is a verifiable fact.  Similarly, "in my opinion, he cheats on his taxes" is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.

Context is everything in determining whether the speaker was offering the statement as a verifiable fact.  We once received a call from someone who was checking out at a local supermarket, and tried to pay with a Discover card.  The cashier said the store didn't accept that credit card, and when the customer said he had always paid with his Discover card, the cashier rudely responded, "You're crazy; I've been here ten years and we have never taken Discover cards."  The thin-skinned caller wanted to sue for defamation because she had accused him of being crazy in front of the other people in line.  Clearly the statement was not intended as a verifiable fact.  The cashier was not saying, "you are suffering from a mental illness that would be verified by an examination from an appropriate mental health professional."  She was just expressing in a colorful, albeit rude, manner that he was mistaken about the Discover cards.

In determining whether a statement is true or false, you must also examine how the statement is made.  If a newspaper reports that Joe Dokes was arrested and charged with murder, and it is later determined that Joe Dokes was innocent, that does not mean that the newspaper is now liable for defamation.  What the newspaper reported was absolutely true -- he was arrested and charged with murder.

Similarly, the statement must be viewed in context.  Upon learning that you and your spouse make it a point to go on a "date night" every week, Dr. Laura calls you "bad parents" on the radio because she feels that parents should never leave their children with a babysitter.  You could not sue for defamation, because she is entitled to believe and say that such conduct constitutes bad parenting.  In one Internet defamation case, a court held that calling someone a liar was not defamatory when the circumstances made clear that the speaker did not have sufficient facts to reach that conclusion.

2.  Unprivileged

There are many statutes that afford a "privilege" to someone to speak, and in those cases the person is shielded from defamation.  (See Civil Code section 47.)

For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window.  Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out.  You've just made a false statement to a third party, claiming that your neighbor was breaking the law.  Can you be sued for defamation?  No, because there is a statutory privilege afforded to anyone making a good-faith report to the police. 

There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action.  We often get calls from people wanting to sue a witness because "he lied on the stand" or submitted a false declaration.  But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege (although a witness who testifies falsely can be criminally prosecuted for perjury).  Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report.  They want to sue the evaluator for the "lies" contained in the report.  Such actions are barred in almost every case because of the litigation privilege.  The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong.

Indeed, a large percentage of calls to our office involve divorce and child custody disputes. Perhaps because emotions run so high in such cases, the parties want to do everything possible to win the day. I often sense that the caller wants to file a defamation action to create leverage in the divorce action, or has genuinely reached his or her limit with all the lies being told in court. I can imagine what fathers go through (I’m not being sexist, it’s just almost always the fathers that are attacked in this way) when his ex-wife begins accusing him of terrible acts in order to win a more favorable custody arrangement.

Unfortunately, a claim for defamation will generally not be an option for things said during a divorce or custody dispute. If the horrible lies being told are in the litigation context, and/or are being told to interested agencies or persons, then they are privileged. Typically the spouse will begin the slander campaign with calls to the police, then Child Protective Services, then to the school district. This is all done to give credibility to the claims that are then made in the divorce/custody action. Generally, all of this conduct is protected. Arguably, Civil Code section 47 even protects the spouse when he or she starts telling the other parents at school about the child abuser among them, since obviously they would have an interest in that information.  To prevail in a defamation action, the injured party would need to show that the lies about the abuse were published (see definition below) to someone beyond whom the spouse could reasonably believe would be interested in the information.  For example, in one case, the spouse printed flyers about her horrible husband and handed them out to all the parents as they picked up their children from school.  The court concluded that if she had limited the distribution to the parents who had children in her child's classes, she would have been protected, but she had "over-published" the information to the parents of children who would likely never come into contact the husband and therefore would not have an interest in the dispute.

This litigation privilege is very broad.  Another common circumstance arises from unemployment claims.  An employee is happily working at his place of employment until one day when the axe falls.  He is told it is nothing personal, just a cut in the staff.  But when he goes to file for unemployment, he finds that his former employer, not wanting to pay unemployment, falsely declares under penalty of perjury to the Unemployment Office that the employee was guilty of horrible transgressions ranging from stealing to drug use.  Often the employer will even deny that the employee ever worked for the company, claiming that he was retained through a temp agency, or that he was an intern and all the checks he received were merely stipends, and not wages (incredibly, we've seen employers make that claim in a few cases).  We've never been retained to do in depth research on this issue, but there are undoubtedly many laws that make this conduct by the employer illegal, but nonetheless the conduct likely would not constitute defamation since it would be privileged.    

One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were.  An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance.  Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.

In most instances, when a caller to our office erroneously believes they have been defamed, their misunderstanding arises from a failure to recognize a privilege or a series of privileges.  Here is an actual (slightly embellished) fact pattern that illustrates this point. 

Joe Beermeister likes to brew beer in his rented home (which is perfectly legal).  The home he rents is on the market, and one day while a real estate agent is showing the home to a prospective buyer, that buyer, who happens to be a drug counselor, sees Joe's beer sugar and is convinced that it is cocaine.  He tells the real estate agent, who calls the police.  The police execute a search warrant, find the "cocaine" and drag Joe away in handcuffs.  Due to budget cuts, the arresting officers are not equipped with drug testing kits, but all involved agree, especially based on the input from the drug counselor and the way it is stored, that the unidentified substance is cocaine.  Certainly the circumstances are sufficient probable cause for the arrest.  Joe's landlord sees the arrest, and while Joe is in jail evicts him from the home.  When the police question Joe's fiancé about the drugs, she is so devastated to learn that she was so wrong about Joe that she calls off the marriage and goes back to live with her ex.  Joe misses work while in jail, so he is fired, and his invitation to attend the FBI academy is revoked because he is now an arrested drug dealer.  The arrest is reported in the newspaper, and as a result Joe is removed as a Sunday School teacher at his church and shunned by his friends.  His own mother tells him not to come to the family Thanksgiving dinner if he is let out of jail.  Fortunately, the crime lab finally gets around to testing the evidence and finds that it is only sugar.  All charges against Joe are dropped.

Joe tries to rebuild his life, but his efforts to find a new job are unsuccessful because his former employer keeps telling prospective employers that he was fired after being arrested for possession of cocaine.  His life in shambles, Joe now calls our office wanting to sue for defamation, because the charges were dropped.  He assumes that because the charges were dropped, that means everyone that accused him of possessing cocaine was making a false statement about him and is therefore guilty of defamation. 

First, Joe needs to understand that a District Attorney's decision to drop criminal charges is NOT a determination that the charges were false.  Criminal charges are dropped for any number of reasons, and it means only that the charges were not pursued, not that the charged party was innocent.  In fact, even if a criminal defendant goes to trial and is found not guilty, that is not evidence that the defendant was innocent; it shows only that the prosecutor was unable to meet the burden necessary for a conviction.

But in any event, where is the defamation in this action?  Each step of the way is covered by a privilege.  No one was out to get Joe; they were all just dealing with the facts as they were presented.  The quantity of the harm suffered by Joe does not change the fact that all the communications were privileged. 

3.  Statement made ("published") to a third party

No statement, no matter how false and vile, can constitute defamation if it is made only to the person that is the basis of the statement.  Defamation arises from a loss of reputation.  How can you lose reputation if the statement is made only to you?  And if you repeat the slander or show someone the libelous statement, the speaker or publisher remains free from liability, because you are the one that "published" the statement.

4.   Immoral, illegal or unethical conduct

A statement is not defamatory just because it is false, even if it arguably casts the person in a bad light.  You apply to the local bowling league for membership, but your application is denied based on comments by someone who knows you are a great bowler, but who tells the league that you are terrible just because he has always been the best bowler in the league and doesn't want the competition.  The claim that you are a bad bowler is completely false, but nonetheless it is not defamation since being a bad bowler is neither immoral, unethical or illegal.

5.  Harm to reputation

Finally, even if all the elements for defamation are met, the facts can sometimes present a difficult case to prove.  For example, assume that while at a party, a stranger approaches your spouse and falsely tells him or her that you are having an affair.  If your spouse laughs it off, then how has there been a loss of reputation?  The statement is defamatory, because it falsely accuses you of immoral conduct, but how were you damaged?  If, on the other hand, your spouse storms from the party, drives home and puts all your belongings in the front yard, then what was your reputation to begin with?  If your spouse was willing to believe such a statement from a stranger with no further investigation or collaboration, then he or she did not hold you in very high regard in the first place.  You apparently did not lose any reputation, because it was not there to start.  This is just one example of the nuances that arise in a defamation action.

What can I do?

Most attorneys think in terms of suing, and will want to run to court.  At Morris & Stone, we carefully examine your goals to determine the best plan for your specific situation.  We are ready and able to go to court if that is the best approach, but sometimes other approaches better fit your goal.  For example, in one case our client was defamed by a newspaper.  He walked around with a cloud over his head, knowing that many people had read and believed the horrible, false accusations printed about him in the paper.  Even if the paper printed a retraction, it would be a little paragraph buried on page 12 that no one would read.  Similarly, money damages would do nothing to restore his good reputation.

The solution?  We prepared and served a complaint to apply pressure, and then negotiated a settlement that was beyond anything our client could have hoped for.  In addition to paying our client damages, the paper agreed to provide four pages for our client's use.  He was free to use one page at a time over several weeks, or use all four pages at once, to publish a retraction of the things that were said about him.  In other words, he was given a blank canvas to use however he wanted to clear his good name.

That was the perfect remedy for that client, and we will work to find the perfect solution for you.

Your reputation is priceless

Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged.  Silence is perceived as acceptance.  If you did nothing about what was being said about you, it must be true.  The goal in a defamation action can be to recover damages, but often that is not the primary goal.  The priceless value of a defamation action is to gain back your reputation.  When someone says to you, "but didn't I hear or read somewhere that you [fill in the blank]?", you can answer, "yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages."
 

What if the case cannot be handled on a contingency basis, and I can't afford an attorney?

Is there a way to stop Internet defamation when you have limited funds to hire an attorney?

Here’s a call we get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements. The victim of these accusations wants our assistance in getting the statements taken down.

We can do that, but at a cost. And while we sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.

Is there a solution for those who can’t afford representation?

The Small Claims Court Approach

In Superior Court, the judge can craft an equitable remedy along with awarding any damages. In other words, if you sue someone for Internet defamation, the judge can not only award money damages, he or she can order that the defendant remove all defamatory postings from the Internet. Small Claims Court, on the other hand, can only award money damages – the judge is not permitted to fashion any sort of equitable relief.  (There are exceptions, but they don't really apply here.)

For this reason, most attorneys never think to recommend Small Claims Court for a defamation action since the court has no power to remove the offending posts. However, for a personal grudge match on the Internet, Small Claims Court can be very effective. In California, you can recover up to $7,500 in Small Claims Court – certainly enough to sting a defendant and make him think about the “value” he is receiving in return for his false statements. And while we've never tested the point (attorneys are not allowed in Small Claims Court), an argument could be made that an Internet defamation is an ongoing harm. Thus, after successfully suing, if the remark still remains, you could theoretically bring another action (subject to the One Publication Rule).  And certainly every new defamatory post would support a new action. 

Most of the time, after you obtain a judgment, unless the defendant has a mental disorder, he or she will be very willing to remove the offending material to avoid paying the damages if that option is offered.  And therein lies the strength of suing in Small Claims Court when you can’t afford to sue in a higher court.  Even though the court can’t order the defendant to act in a certain way, the judgment you obtain will put you in a strong bargaining position.

Don’t underestimate the power of a court judgment, even one that comes from Small Claims Court. A defendant may have no ability to pay today, but a judgment is good for ten years, and can be renewed for another ten, all the while earning interest, and all the while damaging the defendant’s credit. And defamation is an intentional tort, meaning it can’t be discharged in bankruptcy.

Finally, even if you never collect a dime, a judgment from any court can go a long way to clearing your name. 

“Joe, I heard that Bill was saying you cheated him on a business deal.  Is that true?”

“Bill was saying that, and I took him to court for defamation and won.  The judge ruled that everything Bill was saying was a lie.  I didn’t want to have to sue him, but I’m not going to let someone get away with calling me a crook.”

A famous example of this approach involved Teddy Roosevelt.  During the Presidential campaign, he was accused of frequently being intoxicated.  He sued and won, and all the papers reported how he had proven that he was not a drinking man.  The amount he sued for and won?  Six cents.

If you decide your case is appropriate for an action in Small Claims Court, DON'T go to court and think you can wing it.  You're going to be going to court and seeking thousands in damages, so it is well worth taking the time to properly prepare.  An excellent guide to assist with your Small Claims Court case is Everybody's Guide to Small Claims Court in California.
 

Statutes

Civil Code Sections 45, 45a and 46 specifically define defamation as follows: 

45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, 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.

45a. A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.

46. Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage.

However, since the statutes refer to an "unprivileged" publication, it is necessary to know what is privileged.  Here is a complete list of the defamation statutes, including Civil Code section 47 which lists most of the of the privileges.

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California, and President of the California Defamation Lawyers Association.  He can be reached at (714) 954-0700, or amorris@toplawfirm.com.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.