The Four Pillars of Defamation Law (AKA, What You Must Prove To Win A Defamation Lawsuit)
Legally, defamation is more than just “trash talk”; it’s an unprivileged and false statement of fact that causes material or reputational harm. At the bare minimum, in the United States, to a win a slander (spoken defamation) or libel (written defamation) lawsuit, a plaintiff must prove:
- That the defendant either published or publicly broadcast an unprivileged lie;
- The “untruth” was about the plaintiff;
- The statement under review caused material or reputational harm to the plaintiff; and
- That the defendant acted with either a) negligence or b) actual malice.
What Is The Best Way To Avoid Defamation?
We’re often asked: “How can I avoid being defamed?”
Unfortunately, there isn’t an answer to this question. In a way, it’s like asking: “How can I avoid rain for the rest of my life?” You’re not in control of the weather, nor are you in control of other people’s actions.
No matter how wonderful you are, there is no guarantee that someone won’t spread false rumors about you. You could be the nicest person in the world, but that doesn’t mean a competitor won’t try to gain an edge by hiring someone to libel your company or product.
What To Do If You’re The Target Of Defamatory Remarks
There isn’t much you can do to avoid being defamed, but you can take steps to mitigate the damage if attacked.
- Don’t claw back ASAP. Your temper may be rightly piqued by false public accusations, but don’t bite back. If you can stay calm in a response to an online detractor, by all means, reply calmly. But if there’s a chance your reply will read as snarky, temper-filled or otherwise off-putting, refrain from replying. Let your calmer head prevail before responding.
- Contact an attorney and explain the situation. Find out the best legal options for your situation. Depending on the jurisdiction, you’ve got between one and three years to file a claim. Let a qualified attorney hear the facts of the case; let him or her tell you if you have a viable defamation claim.
- If you decide to move forward, legally, it’s important to gather as much information as possible, as close to the event as possible. Why? As a plaintiff in a U.S. slander or libel claim, the burden of proof is on your shoulders. Don’t just bookmark the pages, as they may be taken down. Be sure to make hard copies of any web page that contains the contested material.
Kelly / Warner handles all types of defamation law cases. Click here to learn more about our defamation legal practice. To speak with an attorney about your situation, contact us.
A retired World Wrestling Entertainment (“WWE”) super star, CM Punk, is being sued by a ringside doctor named Christopher Amann. The two men became entangled in a sports defamation battle after Punk criticized Amann on a popular wrestling podcast. Who will most likely win this slander lawsuit? We’ll deconstruct the lawsuit below.
Who is CM Punk?
Phil “CM Punk” Brooks was the 6th most prolific WWE champion. His claim to fame – or shtick – was being a “straight edge wrestler.” Now, he’s a mixed martial arts athlete who recently signed with the UFC.
Since parting ways with the WWE, Punk has been an outspoken critic of the organization. Specifically, he’s lambasted the level of medical care offered.
Why is CM Punk involved in a Doctor Defamation Lawsuit?
Enter Doctor Christopher Amann. Since 2010, he’s been a ringside doctor for the WWE.
In November, CM Punk was a guest on “The Art of Wrestling” – Colt Cabana’s popular podcast. During the interview, Punk let loose about his feelings regarding the professional prowess of the WWE’s medical staff. Bloodyelbow.com paraphrases Punk’s comments in this way:
Punk claimed in the podcast that the doctor repeatedly misdiagnosed a large mass on his back, continuing to give him antibiotics to treat it instead of seeing it for what it was. When it started to grow, Punk stated that he eventually went to his wife’s doctor, who immediately diagnosed it as a staph infection and sent him to the hospital to get it cut it out. He said that he worked with the staph infection for three months and that he could have died from it. He also claimed that the doctor improperly treated him for concussions.
Dr. Amann isn’t thrilled with CM’s characterization and insists that:
“the duo’s statements were false, defamatory and put him in a false light by improperly insinuating ‘a lack of integrity … and/or inability or lack of competence to perform his professional duties as a medical doctor.’ ”
As recompense, Amann wants $1 million in punitive and actual damages.
What are the Doctor’s Chances of Winning This Sports Defamation Lawsuit?
To win defamation lawsuits in the United States, slander and libel plaintiffs must prove that:
- The defendant spoke or published a false statement of fact about the plaintiff;
- The defendant’s statement caused material or reputational harm to befall the plaintiff; and
- The defendant acted with either negligence or actual malice.
In this instance, to win, Amann must prove that Punk’s assertions were a pack of lies; that he didn’t misdiagnose Punk’s ailment nor improperly treat him for concussions. If the WWE medic can prove he correctly diagnosed Punk, Amann may win this doctor defamation case.
But Amann has to clear another defamation obstacle – intent.
In this case, a judge will most likely deem both parties “public figures” since they are – or were – staples on the WWE circuit. As such, Amann will most likely have to prove actual malice. Meaning, he must provide evidence that Punk purposefully and knowingly lied with the express purpose of causing harm for Amann.
That means that if Punk can adequately convince a judge or jury that he truly believed his statements – even if they turn out to be untrue – he probably won’t be found liable for slander.
Amann, however, must have some evidentiary bullets stowed up his sleeve. After all, he’s opting to move forward with this suit, presumably after consulting a defamation attorney, who probably explained the strict standards of U.S. defamation law.
Consult with Kelly / Warner: We Handle Doctor Defamation and Sports Defamation Cases
Our lawyers handle both sports defamation cases and doctor defamation cases. Over the years, we’ve successfully resolved situations for both slander and libel plaintiffs and defendants.
To speak with an attorney, get in touch here.
*Kelly / Warner was one of the U.S. firms that helped win the International Internet defamation case discussed in this post. A pioneer in Internet governance law, Kelly / Warner partners with overseas legal practices to resolve cross-border libel, harassment and unfair competition cases. If you’d like to speak with Kelly / Warner about a domestic or transnational Internet law issue, please contact us.*
A web developer may spend some time in jail over a $300 invoice.
“But how could that be!?,” you protest.
When someone opts to criminally harass a former client, instead of legally handling an invoice disagreement, they sometimes find themselves behind bars.
Web Developer Created Harassing Websites About Former Client
Web developers and clients often clash over expectations and invoice amounts. When serious conflicts arise, professionals typically seek the assistance of an attorney with Internet governance and arbitration experience.
But some web developers choose a more dastardly path: they create disparaging –often harassing – websites about former clients.
Paul Britton, of Origin Design, falls into the latter group. Because of a £200 (~$300) invoice dispute, Britton created several websites with the express purpose of humiliating his former client, and falsely labeled his foe a pedophile.
U.K.-based Britton thought using false credentials and U.S. companies to register and pay for the domains would sufficiently mask his identity.
But Britton didn’t do his Internet law homework.
If he had, Britton would’ve known that it’s possible to force Internet service providers and websites to fork over identifying information in criminal cases. Just because you use a fake name to register and set up a website doesn’t mean the “real you” can’t be unmasked – especially in service of a lawsuit.
How Kelly / Warner Law Helped Win This International Online Defamation Lawsuit
What The UK Team Needed to Prove
Due to the severity and nature of the accusations, the plaintiff’s legal team accused Britton of online harassment — a criminal charge in the United Kingdom. As such, the lawyers had to present evidence that satisfied “beyond reasonable doubt” standards. A simple IP address would not suffice, because, technically, IP addresses only represent computers, not people.
The U.K. legal team faced another challenge: Britton had done all his digital dirty work via U.S. companies. As an overseas practice, the prosecuting firm needed to partner with state-side practices that could obtain court orders compelling the U.S. ISP’s to hand over information in service of the lawsuit.
What Kelly Warner Did To Help Win This International Internet Law Caper
Our firm, Kelly / Warner, was one of the practices that partnered with the prosecuting U.K. legal team. Since Britton used U.S.-based ISPs to carry out his online revenge scheme, the plaintiff’s lawyers had a digital discovery challenge on their hands. In order to crack the case, they needed court orders, from U.S. judges, compelling parties – like PayPal.com and GoDaddy – to hand over user information.
We helped get those court orders.
Once in hand, the plaintiff’s U.K. lawyers were able to craft an unimpeachable case that included telephone recordings and password evidence.
Defense Argument That Didn’t Work In This International Internet Law Case
In this case, Britton’s defense attorneys used a decidedly 21st century legal argument [Paraphrasing]:
Since Britton’s disparaging sites didn’t appear in the first few pages of SERPs (search engine result pages), no harm was done, because nobody pays attention to SERP results past page three.
Some might call this the “twinkie defense” of Internet defamation law, but the argument isn’t completely baseless. At least under U.S. law, which requires nearly all* defamation plaintiffs to prove material harm. If a defendant can successfully argue that few people saw the material in question, case law precedence demands that even though a false statement of fact was made, the lack of material damage fails to meet the required preponderance of evidence for a successful libel claim.
(*Note: This statement doesn’t account for defamation per se. Defamation per se is a classification of slander or libel in which the accusation is recognized as inherently damaging. In such cases, the plaintiff doesn’t need to prove material harm, as it is inferred. Calling someone a pedophile would undoubtedly be considered defamatory per se in most jurisdictions that recognize the standard.)
Kelly / Warner: International Internet Governance Law
Due to the mounds of evidence, Britton had no choice but to plead guilty to criminal online harassment charges. No trial needed.
Kelly / Warner has considerable experience with international online defamation litigation. Frequently, we partner with overseas firms to close cross-border cases. Our attorneys and support staff know how to maneuver for a successful court order in online defamation and harassment cases.
Another Yelp defamation lawsuit hit the courts. This time, a brokerage firm wants to sue a semi-anonymous reviewer for online defamation.
The Rhodes Team (“Rhodes”), a Texas brokerage firm, filed a defamation lawsuit against a Yelp! (“Yelp”) reviewer named “Lin L.” for typing on its page:
“[B]y far the worst deceitful and money greedy sales agent you would ever deal with.”
Previously, Rhodes enjoyed mostly 5-star ratings. Lin L.’s missive was a noticeable stain on Rhodes’ otherwise glowing Yelp profile.
Yelp Lawsuit Basis: “We’ve Never Had A Customer By That Name”
But team Rhodes is suspect of Lin L’s aspersions. Because according to company executives, no Lin L. has ever used their services. As such, Rhodes suspects the disparaging comment was the handy work of a competitor – a little “hate us because they ain’t us” (TM “The Interview”) action, if you will.
So, Rhodes initiated a “John Doe” Yelp lawsuit.
Yelp Doesn’t Want To Hand Over Information In Yelp Defamation Case
But Yelp doesn’t want to hand over Lin L.’s information and filed a motion in protest. The online review company, however, may be forced to give up the goods. Last year, a court forced Yelp to hand over identifying information in another anonymous defamation case involving a carpet store. Similar to this suit, the plaintiff in the carpet case was able to prove temporal incongruity between Yelp allegations and company records.
That said, just because the plaintiff emerged victorious in the carpet case doesn’t mean this court will automatically side with the claimant. Internet defamation is still a fairly new phenomenon, and precedent-setting case law varies from state to state.
To learn more about the basics of defamation law, and what you must prove to win a slander or libel lawsuit, head here. To read more about other anonymous online defamation cases, go here. If you’re ready to speak with an Internet defamation attorney, get in touch here.
Speak With A Lawyer Who Has Successfully Litigated Yelp Lawsuits and Solved Online Review Disputes
Kelly / Warner is a top-rated law firm with a respected Internet defamation practice. Our attorneys are skilled at discovery for – and deconstructing of – online trade libel and professional defamation cases. Our experience means we’re able to resolve most situations quickly and cost effectively.
The statute of limitation for defamation isn’t long; between 1 and 3 years depending on jurisdiction. Don’t delay. Get in touch with Kelly / Warner to consult more about a potential Yelp lawsuit or pending litigation.
What differentiates trade secret protection from other intellectual property protections – like patents and copyrights? Several things, but most importantly: Federal registration isn’t required for trade secrets to be 100% enforceable.
Basic Trade Secret Definition: What You Must Prove To Win A Trade Secret Case
To win a trade secret misappropriation case, plaintiffs must satisfy the preponderance of evidence established in both case law and the Uniform Trade Secrets Act.
- Existence: In order to win a trade secret law case, plaintiffs must prove that the material under review was confidential information and that the defendant knew it was confidential information.
- Access: A plaintiff must prove that the defendant had access to the material.
- Notice: A plaintiff can’t win a case unless he or she can prove that the defendant knew the information was private and purposefully kept from public knowledge.
- Use: Claimants must prove that defendants used the trade secret under review.
Confidentiality Agreements Ensure Actionability
Mere W-2 status within an organization is not an automatic confidentiality contract. An additional agreement – that clearly outlines the parameters of a given trade secret – is needed to win in court. Without signed terms, a judge may deem that a trade secret, which was developed BY an employee, to be the property of an employee, not a company.
Kelly / Warner: Trade Secret Law Attorneys
Kelly / Warner law works with startups and businesses on various trade secret issues. We’ve successfully secured emergency injunctions, drafted air-tight confidentiality agreements to ensure trade secret validity, and represented clients – as both plaintiffs and defendants – in trade secret lawsuits.
Kelly / Warner is a boutique law firm that delivers better-than-big-firm results, for a fraction of the price. Get in touch to start exploring your legal options.
Kelly / Warner is an AV-rated practice, with a 10-out-of-10 rating on lawyer review website AVVO.com that practices trade secret law.
Did a competitor buy a domain name similar to your company name? Has a rival created an unflattering website under your name? Are you trying to wrestle control of a trademarked domain name? Kelly / Warner attorneys are well-versed in cybersquatting laws and can help resolve your situation. Contact us.
Self-Identified Playboy Loses Domain Dispute With Heff’s Bunny Empire
The World Intellectual Property Organization (WIPO) flogged the online dreams of a property peddling London bloke.
In 2013, regional generic top-level domains (gTLDs) became available. At the time, Michael Ross, a seemingly enterprising Londoner, snatched the domain PLAYBOY.LONDON.
But as you’d imagine, Playboy Enterprises International Inc. – Hugh Heffner’s adult entertainment company – was not about to let that URL slide. But when Playboy approached Ross about handing over the domain, he refused, claiming to be a “London-based playboy with every right to use the domain.”
So, Playboy Inc. – not our self-styled playboy with a lower case “p” — opted to file a review request with the World Intellectual Property Organization via the Uniform Domain Resolution Dispute process.
Unfortunately for Mr. Ross, officials sided with the magazine.
The Anticybersquatting Protection Act
In the beginning, few rules governed the Internet; it was infamously known as the “Wild West” and a few lucky folks made a fortune by purchasing, then selling, trademarked domains. But the unregulated wonderland didn’t last long.
In 1999, federal lawmakers passed the Anticybersquatting Protection Act, which states that trademark holders are the rightful owners of their corresponding domain names. For example, Nike, Inc. automatically has the rights to Nike.com, Nike.London, et cetera.
Contact A Cybersquatting Laws Attorney
To learn more about our domain dispute legal practice and read more about other domain dispute cases, head here. To learn more about our Internet law practice, go here. To set up a consultation with an attorney well-versed in cybersquatting laws, get in touch.
Retired NHL player Eric Lindros filed a sports defamation lawsuit, in Canadian court, against referee-cum-columnist Paul Stewart. Lindros isn’t impressed with a post penned by Stewart for the Huffington Post, and former power forward wants $250,000 in compensation.
Is Canadian defamation law on Lindros’ side? What about U.S. libel law? Let’s discuss.
Why Lindros Is Suing An NHL Referee For Libel
Stewart penned an online missive for the Huffington Post entitled “Hecklers, Hooligans and the Striped-Shirted Maitre D” in which he waxed poetic about life as an NHL ref, commercial break banter, and fan friendships.
Stewart also served up some behind-the-scenes gossip and dished on a few players, including the Steve Francis of professional hockey, Eric Lindros. Unabashed in his disdain for the former Flyer, Stewart says:
Stewart goes on to recount:
Lindros’ Sports Defamation Lawsuit
Lindros swears that Stewart is telling stick stories. Most notably, Lindros contends that:
- He never cursed at Stewart during their first relayed encounter; and
- The incident with the posters never happened.
So, Lindros filed a libel lawsuit. At first, he asked for a few million dollars but has since lowered that figure to $250,000.
Can Lindros Win This Case?
Will Lindros win? In Canada, he may have a shot.
Currently, Canada has the most plaintiff-friendly libel laws in the English-speaking world. In several regards, Canadian defamation law is the opposite of U.S. defamation law. Unlike American slander and libel plaintiffs, Canadian claimants don’t have to prove damages or intent. Moreover, Canadian slander and libel law operates on a “reverse onus” standard, meaning it’s the defendant’s responsibility to prove the statement was either:
- Fair Comment or Criticism;
- Honest Reportage; or
- Innocent Dissemination.
In the Lindros sports defamation case, it may come down to whether or not Turk – the equipment manager who relayed the poster-ripping message — will testify to that fact. If he does, Stewart could emerge victorious in this case; if he doesn’t, Lindros, in theory, could win this sports defamation claim.
Would Lindros Win His Defamation Lawsuit In A U.S. Court?
What about in a U.S. court? Would Lindros’ chances be as good as they are in Canadian court? In a phrase: probably not.
Unlike Canadian slander and libel claimants, the majority of U.S. defamation plaintiffs must prove falsity, damages, and some sort of negligence on the part of the defendant. Some American defamation plaintiffs don’t have to prove damages if the statements are deemed defamatory per se, meaning the communication is inherently damaging (i.e., calling someone a criminal). Though the majority of states do allow for defamatory per se claims, some don’t.
Since Stewart’s article appeared on Huffingtonpost.ca, Lindros also included Huffington Post, AOL Inc. and AOL Canada Inc. as defendants.
Further Reading And International Defamation Attorney Contact
Kelly / Warner has extensive experience with cross-border defamation lawsuits – particularly Internet defamation cases.
To speak with a sports defamation attorney, with international experience, get in touch with Kelly / Warner Law today.
California lawmakers are taking W. E. Hickson’s advice to heart: They’re “trying, trying again” to ram an online poker legalization bill through the State Assembly and Senate. This attempt marks the 6th in which Golden State politicians have tried to pass an Internet gaming law – and several proposals are floating amongst the two houses.
Why are California’s officials grappling with the issue? And why do they keep revisiting the seemingly impossible? The answers: control and taxes, respectively. Since gambling is a highly regulated industry, lawmakers can’t compromise on who should have a bite of the online gaming pie. But, many politicians want to fill depleted state coffers with gaming tax dollars. So, despite the disagreements, they keep trying to pass a bill.
States That Allow Online Poker
In 2006, the federal government banned online poker. In 2011, it lifted the ban.
Nevada, New Jersey, and Delaware already allow state-regulated online poker websites. Illinois, Iowa, Massachusetts, and Texas have all considered – or are currently considering – online gaming legalization.
Additionally, a First Nation’s tribe in California is operating a poker website exclusively for New Jersey residents.
Contact An Online Poker Lawyer
Since the federal online poker ban is a thing of the past, opportunities are opening in the online gaming space. If you’re considering an Internet poker startup and need the advice of an attorney, get in touch with Kelly / Warner Law. A pioneer in the field of Internet law, Kelly / Warner works with tech startups and entrepreneurs.
Trade Secret Example Lawsuit #1: Company v. Company
In 2014, California’s Top Agent Network Inc. (“TAN”) – a real estate “pocket listing / networking” firm – filed a lawsuit against online real estate company, Zillow.com. The accusations? Trade secret theft in service of Zillow’s highly hyped “coming soon” feature.
Investment Negotiations Lead To Alleged Trade Secret Theft
The lawsuit alleged that Zillow unlawfully accessed confidential TAN information under the guise of investment interest. According to TAN, the two parties agreed that any confidential information divulged by TAN during investment talks would only be used to consider a partnership agreement.
But after working with TAN, Zillow launched a new service suspiciously similar to the one examined during the Tan investment meetings. A huge success, Zillow’s new feature resulted in an 18% share price increase.
Since Zillow profited from the new feature, and TAN feels that new feature was made possible because of confidential information shared during investment negations, TAN sued Zillow for trade secret theft.
At the time of this writing, a decision has yet to be made in this case.
Trade Secret Example Lawsuit #1: Company v. Former Employee
In 2012, following an exodus of several key employees, game company Zynga filed a trade secret lawsuit against a departing general manager. The accusation? He allegedly stole “sensitive and commercially priceless data.” Specifically, Zynga executive believe he absconded with 760 confidential corporate documents.
Ultimately, the two parties reached a confidential settlement. And in a show of contrition, the accused general manager lamented:
“I accept responsibility for making a serious mistake by copying and taking Zynga confidential information when I resigned from Zynga. I understand the consequences of my actions and I sincerely apologize to Zynga and my former colleagues.”
Trade Secret Example Lawsuit #3: Competing Game Developers
In 2012, gaming company NC Soft filed a lawsuit against a group of former employees. Company brass suspected them of stealing confidential data related to an MMPO game called Lineage 3 to create a similar MMPOG.
An international issue, in 2009 a Korean court ruled against the cabal of employees, deciding they had unlawfully misappropriated NC Soft’s trade secret. However an appeals court, though it upheld the ruling, reversed the amount of awarded damages.
At the time of this writing, the case is working its way through the appeals process in both Korea and the United States.
Consult With A Tech Trade Secret Attorney
Kelly / Warner attorneys have considerable experience with trade secret misappropriation law. We’ve obtained emergency injunctions in the wake of a suspected theft and guided clients through the process of establishing a legally viable trade secret.
To learn more about how trade secret contracts can be used to secure valuable information, get in touch.