Defamation: Selected Defenses
Date of Publication
The tort of defamation requires that there be a “publication.” See Schneider v. United Airlines, Inc., 208 Cal. App. 3d 71, 76 (1989) (statute runs from date of “publication”). At common law, a statement is “published” each time the statement is distributed or uttered. Restatement (Second) of Torts § 577a (1977). In the context of media publications, this rule has been abrogated by the Uniform Single Publication Act (USPA), adopted in most states, which provides that all issues of a mass media communication merge into one communication; as a result, the statute begins to run at the earliest distribution of any copy of that issue. See Strick v. Superior Court, 143 Cal. App. 3d 916, 922 (1983). Hebrew Academy of San Francisco v. Goldman, 42 Cal.4th 883, 893 173 P.3d 1004 (Cal. 2007) (SPR applies "applies without limitation to all publications," even those not generally distributed to the public, while the discovery rule does not apply even when a publication is given only limited distribution.)
Single Publication Rule Applied to Online Publications
- Simon v. Arizona Board of Regents, No. C-332140, Minute Entry (Ariz. Sup. Ct. Oct. 25, 1999). The state court held that for purposes of determining when the statute of limitations began to run, the date of publication of an article was October 9, 1997, when it was first posted on the newspaper’s website, not October 10, 1997, the date of the print edition.
- Firth v. State of New York, 706 N.Y.S.2d 835 (N.Y. Ct. Cl. 2000), aff’d, 731 N.Y.S.2d 244 (N.Y. App. Div. 2001). The court rejected plaintiff’s argument that the ongoing availability of an Internet publication constituted a continuing wrong that extended the one-year statute of limitations for defamation actions.
- Van Buskirk v. New York Times Co., 2000 WL 1206732, 28 Media L. Rep. 2525 (S.D.N.Y. 2000), aff'd 325 F.3d 87 (2d Cir. 2003). The court applied the single publication rule to a letter published on the Internet.
- Mitan v. Davis, 243 F. Supp. 2d 719, 721 (W.D. Ky. 2003).
- The Traditional Cat Ass’n v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353 (2004) (single publication rule applies to statements on websites); accord. Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal.App. 2 Dist. 2008) (unpublished).
- Churchill v State of New Jersey, Commission of Investigation, 378 N.J. Super. 471, 876 A. 2d 311 (NJ Super. Ct. App. Div. 2005) (“[W]e adopt what we consider the majority position and apply the single publication rule to Internet publications.”)
- Sundance Image Technology Inc., et al. v Cone Editions Press Ltd., et al., 2007 WL 935703, 35 Media L. Rep. 2451 (S.D. Ca. March 7, 2007) ("Plaintiffs’ first argument–that the SPR does not apply to statements made on the Internet–is foreclosed by Traditional Cat Ass’n, 118 Cal.App.4th 392"). Also, posting links on a website to allegedly defamatory statements, or sending such links in an email, does not constitute a republication of the defamation.
Many jurisdictions have a retraction statute that may provide protection from defamation liability. For example, California Civil Code Section 48a provides that a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, can recover nothing more than special damages (i.e., damages for economic loss). By excluding recovery of presumed and punitive damages, the statute drastically limits a defamation claim because most plaintiffs cannot prove they suffered significant special damages. The demand for retraction must be made within 20 days of publication, and any retraction must be made within 21 days of the demand. The retraction must be “substantially as conspicuous” as the original defamation, i.e., placed with equal prominence to the offending statement. Unfortunately, in California the protection is limited to newspapers and radio or television broadcasts and thus its application to online activities may be limited. But see O'Grady v. Superior Court, 139 Cal.App.4th 1423 (2006) (broadly reading newspaper and magazine in context of reporter's privielge). Other jurisdictions, however, may have broader statutes.
- It’s In The Cards, Inc. v. Fuschetto, 535 N.W.2d 11 (Wis. App. 1995). Under Wisconsin’s retraction statute, a party claiming defamation by a newspaper, magazine or periodical must make a pre-litigation demand for correction. Here, the court held that a computer bulletin board was not a periodical and therefore the retraction statute did not apply.
- Mathis v. Cannon, 276 Ga. 16 (Ga. 2002). Applying Georgia’s retraction statute, the court found that plaintiff’s failure to request a retraction in a libel action involving defamatory postings on an Internet bulletin board resulted in a denial of punitive damages for plaintiff.
The constitutional requirement that a plaintiff prove fault in order to successfully pursue a defamation claim gives rise to a “defense” that may defeat claims arising out of electronic bulletin board or chat room statements. A plaintiff who is a “public figure” must prove a higher standard of fault, known as “actual malice,” in order to prevail. See Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967). This standard requires the plaintiff to prove, with clear and convincing evidence, that a defendant published the disputed statement with knowledge of falsity or in reckless disregard of whether it was false or not. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 773 (1986). As a practical matter, most cases governed by the actual malice standard are resolved in favor of the defendant.
Limited Purpose Public Figure
When a claim arises out of a bulletin board or chat room discussion, it may be possible to characterize the plaintiff as a limited purpose public figure subject to the actual malice standard. A limited purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to make his or her own view known. See Barry v. Time Inc., 584 F. Supp. 1110, 1113-22 (N.D. Cal. 1984); Reader’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 254 (1984), cert. denied, 478 U.S. 1009 (1986); Copp v. Paxton 45 Cal.App.4th 829, 845-846 (1996). A plaintiff who has been participating in a bulletin board discussion arguably meets this standard, since he or she (a) voluntarily entered the bulletin board’s debate on the topic at issue, and (b) has access to the same audience to provide a rebuttal simply by posting a response. There also can be involuntary limited purpose public figures. Dameron v. Washington Magazine, Inc., 779 F.2d 736, 737 (D.C. Cir. 1985), cert. denied, 476 U.S. 1141 (1986) (air traffic controller on duty at time of fatal crash became an involuntary, limited-purpose public figure due to his role in a major public occurrence). But see Wells v. Liddy, 186 F.3d 505 (4th Cir. 1999) (disapproving of the Dameron definition of an involuntary limited purpose public figure and setting a higher standard to ensure that involuntary limited public figures are “exceedingly rare”).
- Gertz v. Robert Welch, Inc.,418 U.S. 323, 345 (1974), the U.S. Supreme Court defined “public figures” as those who have:
assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classified as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
- Alioto v. Cowles Comm. Inc., 519 F2d 777 (9th Cir, 1975) (Mayor was a public official)
- Cepeda v. Cowles Magazines, 393 F.2d 417 (9th Cir. 1968) (Pro basketball player was a public figure)
- Newton v. Nat'l Broadcasting Co., 930 F.2d 662 (9th Cir. 1990) (Wayne Newton was a public figure)
Communications Among Interested Parties Privilege
Another possible defense to claims arising out of bulletin boards is the qualified privilege for communications among “interested parties.” A typical common law privilege, it provides that a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation as long as the statement is made in good faith. See Cal. Civ. Code § 47(c) (codifying the privilege). While the California Supreme Court has rejected application of the privilege to mass media communications, see also Brown v. Kelly Broadcasting, 48 Cal. 3d 711 (1989), it does apply to communications distributed among a narrow group who share a common interest. See Emde v. San Joaquin County Cent. Labor Council, 23 Cal. 2d 146 (1943) (privilege encompasses labor union newsletter); see also Lundquist v. Reusser, 7 Cal. 4th 1193 (1994) (privilege encompasses statements made at a seminar about a special breed of horses). Since bulletin boards are, almost by definition, topic specific and directed to a relatively narrow group interested in that topic, the privilege would seem to apply.
In some states, there are legal privileges protecting fair comments about public proceedings. For example, in California you have a right to make "a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued." Calif. Civil Code Section 47(d) This provision has been applied to posting on an online message board, Colt v. Freedom Communications, Inc., 109 Cal.App.4th 1551 (2003).
- A report is "fair and true" if it captures the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but should not deviate so far as to produce a different effect on the reader. Crane v. Arizona Republic, 972 F.2d 1511, 1519 (9th Cir.1992). This “fair and true reporting” privilege has been broadly interpreted by the courts to provide absolute immunity for any liability related to said publications. See McClatchy Newspapers Inc. v. Superior Court, 189 Cal.App.3d 961, 975 (1987).
Many states have laws that provide special motions to strike “Strategic Lawsuits Against Public Participation" or "SLAPP" suits.  For example, Section 425.16 of the California Code of Civil Procedure prohibits these lawsuits by providing that:
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Cal. Code Civ. Pro § 425.16(b)(1). The purpose of the anti-SLAPP statute is “to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003). These are lawsuits that "masquerade as ordinary lawsuits" but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so. Wilcox v. Superior Court, 27 Cal.App. 4th 809, 816 (1994), overruled on other grounds by Equilon Enter. v. Consumer Cause, Inc., 29 Cal.4th 53, 52 P.3d 685 (2002) (citations omitted). "The hallmark of a SLAPP suit is that it lacks merit, and is brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to the point that the citizen party's case will be weakened or abandoned, and of deterring future litigation." United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-71 (9th Cir.1999) (citing Wilcox v. Superior Court, 33 Cal.Rptr.2d 446, 449-50 (Cal.Ct.App.1994)).
In order to strike a claim under Section 425.16, the court must conduct a two-step inquiry. First, it must determine whether the claim arises from protected activities or acts in furtherance of the movant’s right of petition or free speech. Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1129 (N.D. Cal. 1999). A defendant filing an anti-SLAPP motion to strike "must make an initial prima facie showing that the plaintiff's suit arises from an act in furtherance of defendant's right of petition or free speech." Braun v. Chronicle Publ'g Co., 61 Cal.Rptr.2d 58, 61 (Cal.Ct.App. 1997). The defendant need not show that plaintiff's suit was brought with the intention to chill defendant's speech; the plaintiff's "intentions are ultimately beside the point." Equilon Enters., LLC v. Consumer Cause, Inc., 124 Cal.Rptr.2d 507, 519 (Cal. 2002). Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir.2003).. To do this, the plaintiff must demonstrate that "the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Wilcox v. Superior Court, 27 Cal.App.4th 809, 823, 33 Cal.Rptr.2d 446 (1994) (emphasis added) (overruled on other grounds).
SLAPP on the Internet
California Courts have recognized that the Internet is a public forum for purposes of Section 425.16, California's anti-SLAPP law. See New.net, Inc. v. Lavasoft, 356 F.Supp.2d 1090 (C.D. Cal. 2004) ("Considering that the internet provides 'the most participatory form of mass speech yet developed,' Reno, 929 F.Supp. at 883, it is not surprising that courts have uniformly held or, deeming the proposition obvious, simply assumed that internet venues to which members of the public have relatively easy access constitute a "public forum" or a place "open to the public" within the meaning of section 425.16." (citations omitted)); see also Du Charme v. Int’l Brotherhood of Electrical Workers, Local 45, 110 Cal. App. 4th 107 (2003).
"Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication such as electronic communication media like the internet." ComputerXpress, Inc., 93 Cal.App.4th 993, 1006, 113 Cal.Rptr.2d 625 (Cal.App. 2001) (citing Hatch v. Superior Court, 80 Cal.App.4th 170, 79 Cal.App.4th 663, 94 Cal.Rptr.2d 453 (2000)) (noting, although not in the context of section 425.16, that internet communications have been described as "classical forum communications"). See also Global Telemedia Intern., Inc. v. Doe 1, 132 F.Supp.2d 1261, 1264 (C.D.Cal. 2001) (website is a public forum); Nicosia v. DeRooy, 72 F.Supp.2d 1093 (N.D.Cal. 1999).
"Courts have held that Internet postings about corporate activity constitute an issue of public importance upon considering the following pertinent factors: (1) whether the company is publicly traded; (2) the number of investors; and (3) whether the company has promoted itself by means of numerous press releases." Ampex Corp. v. Cargle, 128 Cal.App.4th 1569, 27 Cal.Rptr.3d 863 (Cal.App. 2005) (citing Global Telemedia Intern., Inc. v. Doe 1, 132 F.Supp.2d at 1265 and ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th at 1007- 1008).
In GTX Global Corp. v. Left, 2007 WL 1300065 (Cal. Ct. App. May 4, 2007), defendant blogger was sued by a company for posting allegedly defamatory statements on his site <Stocklemon.com> about the company, GTX. The court affirmed that the internet was a public forum for purposes of the anti-SLAPP statute, citing Ampex Corp. v. Cargle, 128 Cal.App.4th 1569; ComputerXpress, 93 Cal.App.4th 993; and Barrett v. Rosenthal, 40 Cal.4th 33. The court also stated that, "Because the critical question under the anti-SLAPP statute is whether the means of communicating the challenged statement permits open debate, the fact that a newspaper or website might be limited to a single source of information does not necessarily mean that its statements were not made in a public forum." Moreover, defendant's "statements on Stocklemon.com amounted to the same type consumer interest information found to be protected in Wilbanks [Wilbanks v. Wolk, (2004) 121 Cal.App.4th 883]. [Defendant] suggested reasons why consumers should be wary of investing in GTX. As such, the statements were directly connected to an issue of public concern." Id. at *7. The court granted the defendant's anti-SLAPP motion, affirmed dismissal of the case, and awarded attorney fees.