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Digital Defamation lawyer explains how to fight back against libel and slander online!

Nov 18th, 2016 | By | Category: Internet Law

Internet Reputation and Online Defamation Lawyer (California and Arizona)

Introduction – Digital Defamation is a companies worst nightmare!

IF YOU WERE LOOKING FOR OUR DEFAMATION CHECKLIST CLICK HERE

False and negative online reviews can severely injure and cripple your business.  You can lose customers (both potential customers and those who refuse to do business with you once they saw or heard about the defamatory publication).  These can amount to very real and serious damages to the brand and the business, and for public companies, the price and value of the shares of stock.  When the bad news hits, you need a cyber libel law firm that can help you put the genie back in the bottle, clean up your reputation and seek monetary damages against the perpetrators.  We can help by applying our experience and knowledge working with technology law issues and our deep background in litigation, arbitration and mediation.

What is defamation?

There are two types of defamation.  Libel and Slander.  Libel is “written defamation” while “slander” is oral defamation (spoken).  Defamation can be furthered classified as “Per Quod” (circumstances make statement libel) or “Per se” (which basically involves false statements of fact dealing with either criminal allegations, false statements about immoral acts, statements regarding inability to perform his/her profession, statements regarding having a loathsome disease (like syphilis or herpes) or dishonesty in business.

Here are the jury instructions from California where you have a defamatory statement made about a private individual, in a matter that is NOT of “public concern.”  You always need to ask yourself is this a “private figure” or “public figure” and is this a normal defendant or a “media defendant” and is this a matter of “public concern” or “private concern.”  You also need to ask is the defamation “per quod” or “per se.”   The answer to these questions will dictate which California jury instruction you will use.  Remember, typically the plaintiff will have the BURDEN OF PROOF as to each element.

1703. Defamation “per quod”—Essential Factual Elements (Private Figure—Matter of Public Concern)

[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [insert all claimed per quod defamatory statements]. To establish this claim, [name of plaintiff] must prove all of the following:

Liability

1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff];

2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff];

3. That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]];

4. That the statement(s) [was/were] false;

5. That [name of defendant] failed to use reasonable care to determine the truth or falsity of the statement(s) (ex. a “negligence” standard)

6. That [name of plaintiff] suffered harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and

7. That the statements [was/were] a substantial factor in causing [name of plaintiff]’s harm.

Where you have a Private Plaintiff and a matter of “Public concern” the elements are different.  Here is another jury code where this situation applies

1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public Concern)

[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [insert all claimed per quod defamatory statements]. To establish this claim, [name of plaintiff] must prove all of the following:

Liability

1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff];

2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff];

3. That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]];

4. That the statement(s) [was/were] false;

5. That [name of defendant] failed to use reasonable care to determine the truth or falsity of the statement(s);

6. That [name of plaintiff] suffered harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and

7. That the statements [was/were] a substantial factor in causing [name of plaintiff]’s harm.

As you can see, where the defamation involves a matter of public concern, the Plaintiff must affirmatively PROVE the statement(s) were false.  Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 747, 771 P.2d 406 (1989) is a case on point:

“Even as to private-figure plaintiffs, there are now significant constitutional restrictions on the right to recover damages. A private-figure plaintiff must prove at least negligence to recover any damages and, when the speech involves a matter of public concern, he must also prove New York Times malice, supra, 376 U.S. 254, to recover presumed or punitive damages. SeeDun & Bradstreet, Inc. v. Greenmoss Builders, supra, 472 U.S. at p. 756. This malice must be established by “clear and convincing proof.”For the New York Times standard to be met, “the publisher must come close to willfully blinding itself to the falsity of its utterance.” See Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. 767, 783 [89 L.Ed.2d 783, 797] and Curtis Publishing Co. v. Butts, supra, 388 U.S. 130.) (32) When the speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation.”

Moreover, other California Courts have noted that while a normal defamation case with a non-public figure Defendant has only a negligence type of standard, recovering damages is tougher (held to a higher standard) where an issue of “public concern” is involved. Here is what one court noted:
The First Amendment to the federal Constitution, as authoritatively construed by the United States Supreme Court, does not require a private figure plaintiff to prove actual malice to recover damages for actual injury caused by publication of a defamatory falsehood. Rather, in this situation, the individual states may define the appropriate standard of liability for defamation, provided they do not impose liability without fault. See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 761 [105 S.Ct. 2939, 2946, 86 L.Ed.2d 593] [private figure plaintiff need not prove actual malice to recover presumed or punitive damages if the defamatory publication was not on a matter of public concern].) In California, this court has adopted a negligence standard for private figure plaintiffs seeking compensatory damages in defamation actions. (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 742.).  There is a different rule, however, for recovery of either punitive damages or damages for presumed injury. The United States Supreme Court has held that to recover such damages, even a private figure plaintiff must prove actual malice if the defamatory statement involves matters of public concern.  We agree with Globe that the Kennedy assassination is a matter of public concern.  See Khawar v. Globe Int’l, Inc., 19 Cal. 4th 254, 273–74, 965 P.2d 696 (1998), as modified (Dec. 22, 1998).

What is libel?

Again, as noted above “libel” is defamation that is in writing (ex. on something written on a website)

What is slander?

Slander is “spoken” defamation (ex. speaking to a large crowd and defaming your business practices)

Common websites you or your business may be defamed on

  1. Ripoff report
  2. Yelp
  3. Google reviews
  4. Avvo for lawyers
  5. Facebook
  6. LinkedIn
  7. Twitter
  8. Slideshare
  9. Better Business Bureau
  10. Competitor press releases (false, misleading statements that injure your company)
  11. Broadcasters and podcasters who defame your
  12. Youtube videos that contain false statements of material fact
  13. Online bulletin boards
  14. Forums
  15. Chat rooms
  16. Google
  17. Bing
  18. MSN

Attorney Steve Explains the First Amendment (and how defamation is an exception to the free speech laws)

1st amendment attorney

VIDEO:  Click on the picture above to watch Attorney Steve explain First Amendment free speech overview.  Make sure to SUBSCRIBE to our popular legal channel by clicking on the Red “V” for Victory!  As we like to say, “be smarter than your friends.”  We are fast approaching 2,500 subscribers!  Thank you for your support!

What is Trade Libel?

ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1010–11, 113 Cal. Rptr. 2d 625, 641 (2001) is a case that laid out the cause of action for trade libel.  The California court noted:

“Trade libel is the publication of matter disparaging the quality of another’s property, which the publisher should recognize is likely to cause pecuniary loss to the owner. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 572, 264 Cal.Rptr. 883.) The tort encompasses “all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so.  To constitute trade libel, a statement must be false. (Leonardini v. Shell Oil Co., supra, 216 Cal.App.3d 547, 572, 264 Cal.Rptr. 883.) Since mere opinions cannot by definition be false statements of fact, opinions will not support a cause of action for trade libel. (Hofmann Co. v. E.I. Du Pont De Nemours & Co. (1988) 202 Cal.App.3d 390, 397, 248 Cal.Rptr. 384.)  In most cases, whether a statement is fact or opinion is a question of law. (Hofmann Co. v. E.I. Du Pont de Nemours & Co., supra, 202 Cal.App.3d 390, 397, 248 Cal.Rptr. 384.) To decide whether a statement is fact or opinion, a court must put itself in the place of an average reader and determine the natural and probable effect of the statement, considering both the language and the context. However, where a statement is ambiguous or susceptible of an innocent meaning, it is incumbent upon the plaintiff to plead the facts showing its defamatory meaning”. See also Nichols v. Great American Ins. Companies (1985) 169 Cal.App.3d 766, 774, 215 Cal.Rptr. 416.

Are there special rules if you are trying to sue a “Media Defendant” for libel or slander?

Yes, as noted above, special proof requirements will exist for the Plaintiff who is either a “public figure” or where the issue is one of “public concern.”  The key case on point is New York Times v. Sullivan and the “actual malice” standard which is designed to protect “free speech” and to prevent an individual or business from being able to “chill” free speech (first amendment).  In this landmark United States Supreme Court case the court held:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state courts, is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a candidate for re-election and a member of the commission charged with the management and control of the state school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff’s objection, instructed the jury that ‘where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article.”  See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–81, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964).
For an example, Melania Trump may be deemed a “public figure” as her husband Donald Trump is the president elect.  Click here to listen to our VIDEO regarding the Melania Trump $150,000,000 defamation lawsuit against Daily Mail.

What about the California Anti-SLAPP laws?

The California anti-SLAPP laws are also designed to protect free speech rights.  If, for example, a Plaintiff files a defamation lawsuit to try to “chill” legitimate free speech, and a Defendant files an “Anti-SLAPP” (strategic lawsuit against public participation) motion that seeks to dismiss the case, the Court MIGHT find that the lawsuit was brought for an improper purpose and to chill free speech. If this happens, the case might be dismissed and attorney fees may be awarded.  So, a Plaintiff always needs to be careful before filing a defamation case if the issue involves a matter of legitimate public interest to a widespread number of people.  Note however that where you have one competitor making false statements against another competitor, or where a “right of publicity” misappropriation claim may be at issue, the Courts may apply the “commercial speech” exception to the California anti-SLAPP laws.

commercial speech antislapp california lawyer

VIDEO:  Click on the picture above to watch Attorney Steve explain the CCP 423.17 antislapp commercial speech exemption.  Make sure to SUBSCRIBE to our popular legal channel by clicking on the Red “V” for Victory!  As we like to say, “be smarter than your friends.”  We are fast approaching 2,500 subscribers!  Thank you for your support!

What types of “harm” or “damages” are recognized under the law?

One of the California jury instructions explains the types of damages you may be able to recover if you prove defamation:

CACI 1703 – Actual Damages

If [name of plaintiff] has proved all of the above, then [he/she] is entitled to recover if [he/she] proves that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following actual damages:

a. Harm to [name of plaintiff]’s property, business, trade, profession, or occupation;

b. Expenses [name of plaintiff] had to pay as a result of the defamatory statements;

c. Harm to [name of plaintiff]’s reputation; or

d. Shame, mortification, or hurt feelings

Punitive Damages

[Name of plaintiff] may also recover damages to punish [name of defendant] if [he/she] proves by clear and convincing evidence that [name of defendant] either knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s), and that [he/she] acted with malice, oppression, or fraud.  [For specific provisions, see CACI Nos. 3940—3949.]

What are the main DEFENSES to defamation?

Click here to go to our Affirmative Defenses Master List

1.  Truth

2. Consent

3.  Litigation privilege (click here for Can a Lawyer Defame you?)

4.  Protected opinion

5.  Other privilege(s)

6.  Fair comment

California jury instructions for “Truth” as a defense to defamation

1720. Affirmative Defense—Truth

[Name of defendant] is not responsible for [name of plaintiff]’s harm, if any, if [he/she] proves that [his/her] statement(s) about [name of plaintiff] [was/were] true. [Name of defendant] does not have to prove that the statement(s) [was/were] true in every detail, so long as the statement(s) [was/were] substantially true.

“Truth, of course, is an absolute defense to any libel action. (Gill v. Hughes, supra, 227 Cal.App.3d 1299, 1309.) In order to establish the defense, the defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the “gist or sting” of the remark.”  See Campanelli v. Regents of Univ. of California, 44 Cal. App. 4th 572, 581–82, 51 Cal. Rptr. 2d 891 (1996).

California Civil Code Section 47 Privileges

California civil code section 47 states:

A privileged publication or broadcast is one made:

(a) In the proper discharge of an official duty.

(b) In any (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

This is where you might find a “lawyers litigation” privilege to defame.  Click below to watch the video on this topic.

cal defamation defense

What happens if there is a “retraction” of the defamatory statements or conduct?

The concept of retraction was discussed in Anschutz Entm’t Grp., Inc. v. Snepp, 171 Cal. App. 4th 598, 642–43, 90 Cal. Rptr. 3d 133, 164–65 (2009), in this case the California court noted:

“To begin with, Civil Code section 48a, subdivision (1) requires the plaintiff to serve the retraction demand. At the very least, that would suggest the plaintiff should be named in the demand. Contrary to plaintiffs’ contention, the language in Civil Code section 48a, subdivision (1) requires the plaintiff to serve the retraction demand; not the plaintiffs’ wholly owned subsidiary or a company known in the local community to own the party named in the retraction demand. Also, naming the potential plaintiff who is damaged furthers the judicially recognized legislative purpose of allowing the journalist to determine what needs correction. See Kapellas v. Kofman, supra, 1 Cal.3d at pp. 30–31, 81 Cal.Rptr. 360, 459 P.2d 912; Gomes v. Fried, supra, 136 Cal.App.3d at p. 937, 186 Cal.Rptr. 605.)
If a potential plaintiff is not named in a retraction demand, the media defendant will be hard pressed to intelligently determine the necessity of or scope of any potential correction. Moreover, the purpose of Civil Code section 48a, subdivision (1) is to restrict a defamation plaintiff’s right to recover general damages. (Werner v. Southern California Associated Newspapers, supra, 35 Cal.2d at pp. 124–126, 216 P.2d 825; Fellows v. National Enquirer, Inc., supra, 42 Cal.3d at p. 241, 228 Cal.Rptr. 215, 721 P.2d 97.) Requiring the plaintiff to be identified in the retraction demand furthers that purpose. Our conclusion is consistent with areas of California law relating to pre-litigation demands: government claims (Gov.Code, § 910 [“A claim shall be presented … and shall show all of the following: (a) The name and post address of the claimant”]; Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 796, 6 Cal.Rptr.3d 650); demand under Consumer Legal Remedies Act (Civ.Code, § 1782, subd. (a) [“Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following and demand by depositor for return of deposit (Civ.Code, § 1823; Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 777, 90 Cal.Rptr.2d 386 “A depositor must demand the return of a deposit before he or she can prevail on an action to recover the deposit.” Thus, in order for a valid Civil Code section 48a, subdivision (1) retraction demand to preserve the right to pursue general damages, the plaintiff must be actually named or so described so that a media defendant fairly knows who is objecting to the challenged publication. Merely stating a wholly owned subsidiary is seeking a retraction does not preserve the rights of a parent corporation to pursue general damages.”
California Civil Code Section 48a states:
1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

What should you do when you see a false and defamatory allegation about your company online?

Here is a video we shot that discusses what to do when you feel like striking back against a person trying to destroy your company.  There are other ways to deal with an online lunatic aside from filing a lawsuit.  Listen to this podcast to hear about some potential response techniques.  LISTEN TO THESE GREAT TIPS BEFORE YOU DO ANYTHING ELSE!

Popular legal podcast

Can you sue the ISP or website host for defamation if they will not take it down?

Generally the answer will be NO.  Section 230 of Communications Decency Act protects internet service providers from being named in lawsuits when another party is alleged to have posted defamatory content online.  As noted in Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122–23 (9th Cir. 2003):

“The dispositive question in this appeal is whether Carafano’s claims are barred by 47 U.S.C. § 230(c)(1), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Through this provision, Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party. As a result, Internet publishers are treated differently from corresponding publishers in print, television and radio. See Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th Cir.2003).  Congress enacted this provision as part of the Communications Decency Act of 1996 for two basic policy reasons:
(1) to promote the free exchange of information and ideas over the Internet and
(2) to encourage voluntary monitoring for offensive or obscene material.
Congress incorporated these ideas into the text of § 230 itself, expressly noting that “interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation,” and that “increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” 47 U.S.C. § 230(a)(4), (5). Congress declared it the “policy of the United States” to “promote the continued development of the Internet and other interactive computer services,” “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services,” and to “remove disincentives for the development and utilization of blocking and filtering technologies.” 47 U.S.C. § 230(b)(1), (2), (4).
In light of these concerns, reviewing courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of “interactive computer service” and a relatively restrictive definition of “information content provider.” Under the statutory scheme, an “interactive computer service” qualifies for immunity so long as it does not also function as an “information content provider” for the portion of the statement or publication at issue.

Are opinions protected?

People, including business owners (corporations) are entitled to free speech.  Part of free speech is the right to make statements about honestly held opinions.  A defamation lawsuit is always subject to attack on the grounds that it was protected opinion.  For example, in Thomas v. Los Angeles Times Commc’ns, LLC, 189 F. Supp. 2d 1005, 1015 (C.D. Cal.), aff’d, 45 F. App’x 801 (9th Cir. 2002) the Court discussed:

More significantly, the Court also finds that even if Defendants did intend to assert the allegedly defamatory implications, the article itself is constitutionally protected because it merely states “opinion[s] on matters of public concern that do not constitute or imply a provable factual assertion.” See Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). The Court applies a three-step analysis to determine whether the article implies a provable factual assertion:

First, we look at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next we turn to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the statement itself is sufficiently factual to be susceptible of being proved true or false.
Throughout this analysis, the Court finds the Ninth Circuit’s decision in Partington to be particularly helpful. There, the court cautioned that “the First Amendment guarantees authors ‘the interpretive license that is necessary when relying upon ambiguous sources.’ ” Partington, 56 F.3d at 1154 (quoting Masson v. New Yorker Magazine, 501 U.S. 496, 519, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). In Partington, as well as this case, [the author] can only be said to have expressed his own opinion after having outlined all of the facts that serve as the basis for his conclusion “because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation.”  Id. at 1156 (quoting Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C.Cir.1994)).

What is Defamation per se?

There are certain kinds of defamation that are SO BAD they are considered to be “defamation per se.”  This legal concept was discussed on a case from San Diego:

California Civil Code § 44 defines “defamation” as either libel or slander. California Civil Code § 46 provides:
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.
If a statement falls within § 46(1)-(4), it is considered defamatory per se.  See See Crowe v. Cty. of San Diego, 303 F. Supp. 2d 1050, 1103–04 (S.D. Cal. 2004).
NITH CIRCUIT CASELAW:
“Defamation per se occurs when a statement, is defamatory on its face, that is untrue.  A defamation per se claim is actionable without proof of special damages. Defamation can take the form of slander or libel. The definition of libel on its face is: “[a] libel [writing] 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.” Cal. Civ.Code § 45a.  A statement is libelous per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement’s defamatory nature. “Material libelous per se is a false and unprivileged publication by writing 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.” Washburn v. Wright, 261 Cal.App.2d 789, 797, 68 Cal.Rptr. 224 (Cal.Ct.App.1968). “An allegation the plaintiff is guilty of a crime is libelous on its face.” Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, 117 Cal.App.4th 1138, 1145 fn. 7, 12 Cal.Rptr.3d 493 (Cal.Ct.App.2004); Barnes-Hind, Inc. v. Sup.Ct., 181 Cal.App.3d 377, 385, 226 Cal.Rptr. 354 (1986) (“Perhaps the clearest example of libel per se is an accusation of crime.”) Statements which falsely impute the commission of a crime are libelous on their face. See Snider v. Nat’l Audubon Soc’y, Inc., No. CV-F-91-665 REC, 1992 U.S. Dist. Lexis 10017, at *15, 1992 WL 182186 (E.D.Cal. April 14, 1992) (denying motion to dismiss where “the clear implication from the article is that plaintiff is being investigated by the I.R.S.”).  See Yow v. Nat’l Enquirer, Inc., 550 F. Supp. 2d 1179, 1183 (E.D. Cal. 2008).

What is the single-publication rule?

This defamation legal concept was discussed in Oja v. U.S. Army Corps of Engineers, 440 F.3d 1122, 1130–31 (9th Cir. 2006) which noted:

“Courts that have considered the issue of when Internet-based information is properly considered “published” have done so largely in the context of state defamation suits. These courts have generally concluded that the posting of information on the web should be treated in the same manner as the publication of traditional media (i.e., books, newspapers, magazines, and radio and television broadcasts), that is, that traditional media’s “single publication rule” should apply to postings on the Internet.  Under the single publication rule, “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.” Restatement (Second) of Torts § 577A(3) (1977). Under this rule, the aggregate communication can give rise to only one cause of action in the jurisdiction where the dissemination occurred, and result in only one statute of limitations period that runs from the point at which the original dissemination occurred. Zuck v. Interstate Publ’g Corp., 317 F.2d 727, 729–30 (2d Cir.1963).  Courts that have extended the single publication rule to Internet publishing have done so on the premise that published web content is functionally identical to published traditional print media and, accordingly, Internet publication should be considered “published” in the same manner as is a print edition. While that premise is not entirely accurate, we agree that the analogy between Internet and print publication is sufficiently apt to be serviceable. Internet publication is a form of “aggregate communication” in that it is intended for a broad, public audience, similar to print media. In both print and Internet publishing, information is generally considered “published” when it is made available to the public. Once information has been published on a website or print media, there is no further act required by the publisher to make the information available to the public.

Being defamed by the “informant” in a software audit case

Our law firm handles a large number of software audit cases from big software giants such as Autodesk, Microsoft, Adobe, Siemens, and cases involving the SIIA and the business software alliance.  In some of these cases, the software publishers learn about the “piracy” of using unlicensed and infringing software through the use of an “informant.”  These informants are sometimes motivated by financial rewards that entice them to whistleblow.  However, in their thirst for free money, sometimes an information (possibly disgruntled and recently terminated from their employment), make make false statements of fact to the BSA or software company telling them there is unlicensed software when there is really not, or over-exxagerating the extent of the unlicensed copies of Microsoft Office, Windows, Autocad, Revit, Adobe acrobat, etc.  In these cases, potential claims of defamation and corporate sabotage need to be closely examined.  In these cases, the false statements about the business (which apparently are put in writing) might form the basis for a defamation claim to stop the informant from repeating false statements and trying to capitalize off it financially.  We can help y0u examine your potential rights and defenses if you feel an informant needs to be sued.  Here is our Software Audit legal resource page.

Contact an internet defamation law firm

We can help both individuals and small to large businesses who have been tarnished or lied about online.  We can help you protect your brand, and fight back to protect your good name and reputation.  We can explore both technological, negotiation, and legal solutions to try to get your problem resolved.  When the online defamation hits (or offline defamation) call to discuss your case with a first amendment, free speech, anti-SLAPP defamation attorney BEFORE you take any actions that you may regret, and which may put you in a worse position than when you started.  Having legal counsel at your side can be the difference between success and failure.  We offer an initial no-cost consultation.  Call (877) 276-5084.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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