MORRIS & STONE, LLP DEFAMATION ATTORNEYS (714) 954-0700
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.
Similarly, and this is a tough concept, to some extent the speaker gets to define his own words. In the earlier example, I explained that it would be defamatory to state that someone cheats on his taxes, even if stated as an opinion. But what if someone said that anyone making over a million dollars per year should pay 50% of the money to the government, and then called Warren Buffet a tax cheat for failing to pay that amount? In that context, the statement would not be defamatory because the speaker defined the term. 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. She gets to define the term.
Some words are too ambiguous to define, and also will not support a claim of defamation. Someone creates a website called "Skanks" and lists you as a skank. You would probably not win on a defamation case, because that word cannot be afforded a precise interpretation that would permit the trier of fact to decide whether you are or are not a skank.
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. 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.
One very important point to understand is that truth is a defense to defamation, and since it is a defense, the defendant has the burden of proving the statement is true. In other words, the plaintiff only needs to testify that the statement is false, and the defendant must then prove that it is true. We recently won a $1.6 million judgment for our client, resulting from an email the defendant had sent to our client's customers. In the email, the defendant claimed that our client had "cheated most of his customers." If the law required the plaintiff to prove the falsity of the statement, that would have been nearly impossible. What could we have done; called every customer our client had ever had in order to prove they had not been cheated? For this reason, the law puts the burden on the defendant to prove the truth of the statement. Defendant claimed his statement was true, but he could not identify a single customer who had been cheated (because there weren't any).
This is the toughest concept for some to grasp. Look at the definition of defamation again. It is 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."
If a statement must be "unprivileged" to be defamatory, then by definition any "privileged" statement cannot be defamatory. So what is a "privileged" statement? The most common privileges are set forth in Civil Code Section 47, which provides in part that any statement made in a (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . . ."
A. Statements Made in Conjunction with Litigation are Privileged
The most common example of a privilege arises from statements made in conjunction with litigation. Every week, we get calls from potential clients wanting to sue for something said in court or in a court document. You cannot sue for something said in relation to litigation, no matter how false or vile. Here are some common situations:
-- CUSTODY DISPUTES
There an absolute litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action. We 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.
Hoping to gain leverage in a divorce action, one of the spouses will falsely claim that the other spouse abused the children. 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. The accused parent is properly outraged, and wants to bring an action for defamation, but the litigation privilege prevents that. 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 spouse is lying.
-- UNEMPLOYMENT CLAIMS
This is another big one. An employee is doing a fine job at work, but is terminated and told simply that his position has been eliminated. He files for unemployment, and it is denied based on the employer's completely false representation that the employee embezzled from the company or some such nonsense. The employee appeals, and his boss takes the stand and tells lie after lie about the employee. Surely something can be done, right?
Something can be done, but it's not a defamation action. 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. However, the law provides that it is a crime to lie at an unemployment hearing. If the evidence is so strong and undeniable that your boss lied, turn it over to the state and he can be criminally charged.
B. Reports to the Police are Privileged
Say you are looking out your window one day, and you see someone break a window in the house across the street and climb inside. Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point. The suspected burglar has no identification, and the police don't believe his story that he was told by the owner that he could stay there, so he spends the next two days in jail until the owner of the house is finally located and confirms his story. You are responsible for this poor, innocent guy spending two horrific days in jail. You falsely accused him of breaking the law. Can you be sued for defamation? No, because there is a statutory privilege afforded to anyone making a report to the police.
In Hagberg v. California Federal Bank FSB, the California Supreme Court closed the door on any defamation claims against someone who makes a false police report. The Hagberg decision contains a very good discussion of privileges under Civil Code section 47. As you will see if you read that decision, the California Supreme Court held that any report to the police, regardless of how false or malicious, is ABSOLUTELY privileged.
This reality can be very frustrating, but it is absolutely essential. Imagine what would happen if there was no such privilege, and anyone calling the police could be sued for defamation. Every criminal case would spin off civil cases. Criminals would sue the witnesses and victims as a means to intimidate them into silence. Indeed, if defamation actions were permitted, criminals would HAVE to sue, lest the failure to do so be taken as an admission of guilt.
We receive calls every week from people who suffered terrible consequences as a result of a false police report. Often it is in the context of a custody battle, where one spouse files a false police report hoping to gain an advantage in the family court. Or a terminated employee will call, stating they were dragged away in handcuffs after another worker, in order to advance in the workplace, falsely claimed the caller assaulted him or stole money from the company. They argue that there must be an exception to the privilege, because they have ABSOLUTE proof that the person who made the police report knew the charges were false. But do you see why that can't be the standard? If a criminal could sue for defamation claiming he has evidence that the person who reported the crime was lying, then we are right back to every criminal suing every victim and witness, making that claim.
But victims of false police reports are not without remedies. If the victim really does have proof that the witness lied, then presumably he will defeat the criminal charge. The police can then charge the person with filing a false police report. Also, while any defamation claim is barred, the Supremes left the door open a tiny crack for a civil action under a malicious prosecution action. But don't get too excited, because the elements of malicious prosecution make such cases rare and difficult to win. To prevail on a malicious prosecution claim, a plaintiff must prove: (1) termination of the criminal proceeding in his favor, (2) want of probable cause for instituting the criminal proceedings, and (3) malice on the part of the defendants. (Jaffe v. Stone, 18 Cal.2d 146, 149.) The first element is the killer. Essentially, you must be prosecuted and found not guilty before you can pursue a claim for malicious prosecution. “‘A termination is favorable when it reflects 'the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant.’ [Citation.] ‘It is not enough ... merely to show that the proceeding was dismissed.'" [Citation.] The termination must demonstrate the innocence of the accused.'' (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 881.) Dickens v. Provident Life and Acc. Ins. Co. (2004) 117 Cal.App.4th 705 provides a good discussion of the malicious prosecution for false police reports (and the risks of an anti-SLAPP motion).
So, to summarize, if someone falsely claims you pulled a gun on them, just to have you dragged away by the police because they want your parking spot, you can't sue them for defamation, and you won't be able to sue them for malicious prosecution if the District Attorney decides not to prosecute, because that is not a "favorable determination" as defined by law.
C. Statements Made by Your Employer to a Prospective Employer are 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. This myth came to be because many companies have that policy, but it is not the law. 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.
But there is one very arcane exception to this privilege, probably known by only three attorneys in California, so read this next section carefully and you'll be more knowledgeable than most attorneys.
Let's say you work at an office, and a laptop computer goes missing. An underling in the office who wants your job sees this as her opportunity, and says she saw you in the general area of the laptop just before it disappeared. With no real facts to support the claim, the company calls you in and fires you for stealing the laptop.
Any defamation yet? No. It's not illegal to be in the area of a laptop, and the company only told you that you stole the laptop, so no defamation yet. (You might also be surprised to learn that you also would not have a wrongful termination action, since a company does not need a reason to fire you, so whether or not you stole the laptop is irrelevant.)
Having been fired, you seek unemployment, but your former employer prevents you from getting unemployment by reporting to the EDD that you were fired for stealing a laptop.
Any defamation yet? No. If you were reading carefully above, you know that even though your employer lied to the EDD, that falls under the litigation privilege.
Unemployed and without unemployment benefits, you go searching for a job. You find a great opening, send your resume, and you are called in for an interview. During the interview, the prospective employer of course asks why you left your previous job. To answer truthfully, you must say, "they fired me for stealing a laptop." You then go on to explain that the company lied, and that you never stole the laptop, but the interviewer decides you are just not worth the risk when there are so many other people available, and you don't get the job.
Any defamation yet? Surprisingly, yes, even though you told the defamation about yourself. This is called "compelled self-publication defamation", which almost always arises in the employment context. If you ever find yourself in a situation where you are being held back from future employment due to a bogus prior termination, we have been extremely successful in getting employers to correct the reason for your termination, or even to change your termination to a resignation. Give us a call to help you with that scenario.
D. Privileged Speech does not Become Actionable Just Because it Causes a Great Deal of Harm
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. When we explain the concept of privileged speech, they will sometimes argue the point based on the quantum of harm they have suffered. It doesn't work that way. If the speech did not fall under a privilege and you were defamed, then the amount of harm you suffered is very relevant to the issue of damages. But if the speech was privileged, then the fact that you lost your job and your spouse doesn't make a difference because the speech was not defamatory.
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.
For libel, the false statement must expose the 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." Slander requires that the statement: 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.
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, 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 prefect 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."
Of course, it should go without saying that none of this can be taken as legal advice, nor should you base any decision on anything I have said. Every fact pattern is different.
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.
Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Tustin, Orange County, California, and President and founder of the California Defamation Lawyers Association, and author of California SLAPP Law and Your Own Law Firm. He can be reached at (714) 954-0700, or Morris@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.
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