Blog posts and defamation
by Fox 71 on Jul 19, 2010 9:15 PM PDT
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I just got a case to work on in which the client wrote a comment on a website about a bad experience he or she (keeping this vague on purpose) had with a particular business establishment. The client got an e-mail from the blog, which forwarded a threatening letter from an attorney, who claimed the posting had caused the business establishment to suffere all sorts of damage. The e-mail contained an ultimatum demanding that the post be removed, and then once it was removed the attorney would be willing to talk settlement.
I looked this attorney up on the internet, and sure enough there was a posting about a previous incident involving this same attorney who not only convinced a poster to remove a post, but also to make a monetary settlement.
There is a lot of law about defamation and the internet. A whole lot. I am not going to try to explain the nuances, because I am not really qualified to do so, and you guys shouldn't rely on anything I say anyway. My advice is to use caution and prudence. The first amendment protects the expression of opinion. Saying something is just your opinion should generally shield you from liability (although nothing can shield anyone from getting sued.) Calling something an opinion is not necessarily an absolute shield, either.
Anyway, Bruin brothers and sisters, I advise caution and prudence. Spend a few minutes looking at this issue on the internet.
All this was my opinion, in case anyone asks, or wants to sue me.
This is a FanPost and does not necessarily reflect the views of BruinsNation's (BN) editors. It does reflect the views of this particular fan though, which is as important as the views of BN's editors.
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The elements of common law defamation are:
A defamatory statement
Of or pertaining to a plaintiff
Published to a third party
Damages
Hey, the Bar’s in a week!
When would an expressly noted opinion not be considered a shield?
by bornagainbruin on Jul 20, 2010 7:58 AM PDT up reply actions
Good luck to you
And all the BNers taking the exam. If you are feeling guilty about how much time you are spending here just look up Bellerophons’ loooooooooong posts from the summer of 2008. ;-)
True that
I posted like a madman during my summer studying for the bar. And I even passed. First time and all too. I should be one of those Honigsberg stories.
Seriously though, I found posting to be a very helpful break, keeping me sane during that long, long, long summer.
I am certainly no expert, but my first reaction
would be to tell this establishment to back off or I will get my attorney and sue the establishment and their attorney for harassment. I have a first amendment right to free speech and thus am exercising that right with my opinion of this place of business. I guess it would just depend on how over the top this guys opinion was. To me it isn’t any different than what a critic might write.
I guess if your business sucks, it is one way of getting some revenue.
What’s it all coming to? Didn’t they make a movie about stuff like this? 1984 or something.
I am the attorney. I can tell myself whatever I want.
The thing is, I want to keep the client out of litigation, because he or she will be facing major litigation expenses. In a general sense, I am all for certain attorneys getting lots of fees, but on a per-client basis, I’m against it. Anyway, it’s best to stay away from Law Suit City when possible.
And the Anti-Slapp statute is available to fight against someone
suing for infringing against freedom of speech. This might be effective, particulary where the target of the statement is a public figure.
I just heard that this attorney who sent the nastygram to my client
specializes in this kind of case. We learned after we sent him the letter threatening a SLAPP motion that he in fact got hit for big fees in a SLAPP motion.
"You guys shouldn't rely on anything I say anyway. "...
Fox, we stopped doing that a long time ago :) Just kidding!
It’s interesting to hear about defamation case law as it pertains to the internet. If I’m understanding this right, if I post a poor review of a hotel on a travel site, the hotel could pursue a cause of action for defamation? I assume they would have to prove that my post hurt their business (damages) and my defense would be the First Amendment. Is that about right?
LongtimeBru may bee right, it could be just a way to fend off poor reviews and get some cash from people who are scared into thinking they may have to defend a suit.
I may work with the Waves, but I'm still a Bruin!
(Formerly "HoozierDaddy")
bluewave:defamation was carved out of the first amendment
so it in itself isn’t a defense. your best defense would be whether your statement about the hotel is true.
Across The Face
Ok. Thanks...
Truth as a defense, as with liable or slander. Got ya.
Interesting. I wonder what level of criticism in an online review would give rise to the level of a cause of action for defamation. For example, could just posting that there were bugs in my hotel room cause an irate hotel owner to threaten a suit? I imagine, like so much else in the law, it would come down to what a reasonable person would believe.
I may work with the Waves, but I'm still a Bruin!
(Formerly "HoozierDaddy")
Opinion is not an absolute defense to a defamation claim
I’m a reporter, not a lawyer, so please don’t rely on this as legal advice and forgive me if I’m using terms that have precise legal definitions in ways that are not 100 percent correct.
A writer cannot claim that a statement is his or her opinion to raise an absolute shield to a libel claim. The issue in this regard is whether a statement is actually a subjective opinion are an assertion of fact.
The statement, “It is my opinion that John Doe is an alcoholic who beats his wife,” for example is not a real opinion because the assertion is falsifiable.
Reporting that a police agency has arrested or is investigating John Doe on suspicion of domestic violence in the context of a fair news report or blog report is fair.
Another thing to keep in mind that it is harder for a public official to win a libel claim than someone who would not expect to be the subject of published reports. For a public figure to win a case, he or she must prove “actual malice,” which is often interpreted as a writer’s “reckless disregard for truth.”
The practical effect of this doctrine is that a reporter or blogger can make an error, but if that error is committed during a good faith effort to report the facts, the error is not actionable.
That said, the number one thing to remember is that truth is the best defense for defamation claims. Scrupulous attention to accuracy should keep you safe from ever having to defend yourself.
The Student Press Law Center has a good guide on the basics of defamation law.
<HREF=“http://www.splc.org/legalresearch.asp?id=27”>
by FreewayBruin03 on Jul 20, 2010 11:21 AM PDT reply actions
Hey, I want CLE credit for reading this thread . . .
In my opinion, the info here is better than some of the seminars I’ve paid for over the years . . .
The Mad Bruin
No problem
Send me $249.00 and I’ll send you a certificate.
Actually, though, you’re right. There’s lots better stuff here than in the discs you get when you live out of state and have to get your “participatory” credit by listening to a disc with your wife in the room getting ready to shoot you because she has to swear you did it. Four of five of the discs were listening to oral argument in the supreme court on a case you had never heard of on a point of law that you don’t care about, but you get the CLE credits so all is good.
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