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 the subject 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 defamation law attorneys, and, therefore, 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. Though your temper may be rightly piqued by false public accusations, it isn’t wise to 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 unique 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. You can also learn the basics of defamation law here.
- 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.
*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 has 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 believes 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 has 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 does not 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.
Do doctors sue each other for defamation? You bet your stethoscope they do. And the root incident is recurrently a malpractice lawsuit. So, let’s take a look at a recent doctor-on-doctor defamation case, and then review a few slander and libel law basics that often apply in medical defamation claims.
Two Doctors + Two Opinions = One Professional Blowup
The roots of this case stretch back five years. At the time, Dr. David Gillis was an emergency room doctor at Indian River Medical Center (IRMC), and Dr. Pranay Ramdev was a vascular surgeon at Lawnwood Medical Center (LMC). Being in relatively close proximity, the two hospitals regularly engaged in patient exchanges.
The Incident That Resulted In A Malpractice Suit
In 2011, Catherine Bollman arrived at Indian River Medical Center’s emergency room; Dr. Gillis was on call. She needed an immediate leg surgery; if not, death was probable.
Doctors determined that patient Bollman would best be served at Lawnwood, so Gillis called the facility and asked Dr. Pranay Ramdev – a vascular surgeon – to perform the surgery. According to reports, Gillis rang Lawnwood twice for confirmation.
But instead of performing the leg surgery, Ramdev left; Other Lawnwood doctors amputated Bollman’s leg; she died several days later from complications. Her husband filed a wrongful death/malpractice lawsuit against Drs. Gillis and Ramdev.
Eventually, Dr. Gillis was dismissed from the malpractice lawsuit. Ramdev wasn’t. In vain, he argued that he wasn’t the vascular surgeon on call that night, and, for this reason, not obligated to stay. In the end, Dr. Ramdev settled out of court and allegedly vowed to ruin Gillis, purportedly proclaiming:
“I will make it my life’s mission to prevent Dr. Gillis from ever working at this hospital again, as well as at Sebastian River Medical Center and Lawnwood Medical Center.”
In the wake of the incident, Ramdev supposedly characterized Gillis as “an unethical and incompetent physician” that deserved to lose his job.
Fast forward a few months.
Another patient with vascular complications arrived at IRMC and had to be transported to Lawnwood. Again, Gillis and Ramdev were the two doctors on each end. When Dr. Gillis called over to confirm, Dr. Ramdev refused to speak directly to his colleague, instead enlisting an intermediary to relay messages. This time, however, Ramdev didn’t leave; he stayed and operated.
But, according to the nurse on duty that day, Ramdev allegedly “badgered the patient’s husband and inquired … how [Gillis] had examined the patient.” In addition, and again according to the claim, Ramdev asked a nurse to add a negative comment about Gillis to the patient file. The nurse didn’t comply, though, because she didn’t witness Gillis’ patient exam.
How The Defamation Suit Came About
Around the time of these incidents, the Indian River Medical Center was in the midst of an administrative transition. Reassignments and replacements were rampant. Some of the staff formally asked to stay at the hospital, and Gillis was one of those people. But alas, hospital administrators opted not to renew his contract.
So, Gillis applied at Ramdev’s hospital, Lawnwood, and was offered a position.
After settling in at Lawnwood, Gillis learned that Ramdev had allegedly launched an “anti-Gillis” campaign at the facility.
Fed up with Ramdev’s supposed reputation ruining rampage, Gillis decided to file a professional defamation lawsuit. Curiously though, at the time of this writing, Gillis appears to be employed at Lawnwood. Nevertheless, he’s moving forward with his doctor slander lawsuit.
Does Dr. Gillis have a chance at winning this doctor v. doctor defamation claim? Let’s review.
To Win A Professional Defamation Lawsuit, Doctors Must Prove…
To win defamation lawsuits, plaintiffs must convince jurists that the statements under review are:
- About them;
- Verifiable false statements of fact; and
- Materially injurious to the plaintiffs’ reputations or businesses;
In addition, defamation plaintiffs must prove that the defendants:
- Published or broadcast the statements; and
- Acted either negligently or with actual malice, in distributing the material;
In this case, Dr. Gillis must prove that:
- Dr. Ramdev made false statements of fact about Dr. Gillis;
- Ramdev’s statement resulted in material harm for Gillis; and
- Dr. Ramdev acted negligently in relaying the information.
Privilege and Negligence
The facts in Gillis v. Ramdev are straightforward. So, the lawyers probably won’t waste time arguing obscure legal concepts. But they will undoubtedly debate “privilege” and “negligence” during the course of this action.
Privilege, legally speaking, is a protective relationship, under the cover of which parties can share information and rumor without fear of liability. For example, doctors and patients enjoy doctor-patient privileges; attorneys and their clients are protected via attorney-client privilege; husbands and wives cannot be forced to testify against each other.
In the overwhelming majority of doctor-on-doctor defamation lawsuits, privilege plays a part. Statements uttered or written in peer reviews are often privileged; they’re also commonly the root of medical defamation claims.
In Gillis v. Ramdev, defense lawyers will undoubtedly argue that privilege existed between Ramdev and the recording nurse. But will it work? Maybe. On one hand, doctors and nurses do enjoy some professional privileges. On the other hand, since the nurse refused to comply with the doctor’s wishes, the privilege defense may not work.
Proving negligence is, perhaps, the highest hurdle for defamation plaintiffs. To win slander and libel lawsuits, plaintiffs must prove that the defendants acted in spite of contradictory evidence or proper due diligence.
In Gillis v. Ramdev, however, negligence may be easy to prove. Remember, Ramdev knew the judge dismissed Gillis from the malpractice lawsuit, which effectively absolves Gillis of any professional wrongdoing in that instance. But, Ramdev allegedly continued to besmirch Gillis in a professional capacity, calling him “’an unethical and incompetent physician,’” who had ‘lied’ in the Bollman lawsuit.”
Speak With A Doctor Defamation Attorney
Kelly / Warner works with medical professionals facing reputation challenges – both online and off. Call or message today to learn more about your doctor defamation legal options.
In This Blog Post:
- Review of a trade libel example lawsuit: Parigi v. Puma;
- Explanation of why many unfair competition lawsuits involve trade secret and trade libel claims;
- Contact information for an unfair competition lawyer.
Defamation lawsuits aren’t exclusively matters of personal scorn and trash-talk. More often than not, libel and slander suits are nuanced, business law battles.
A recent legal tussle between Puma SE (“Puma”) and the Parigi Group Ltd. (“Parigi”) illustrates how defamation and trade secret torts can be leveraged in unfair competition lawsuits.
Background: Longstanding Licensing Agreement
The backbone of this trade libel example lawsuit is a longstanding licensing agreement.
For over ten years, Puma and Parigi enjoyed an amicable business relationship. A mutually beneficial agreement, Puma licensed its marks to Parigi, who then manufactured child-sized versions of Puma’s tracksuits and sportswear.
The Breakup: Longstanding Licensing Deal Broken Without Much Notice
The proverbial $#!+ hit the legal fan when Puma allegedly started *cheating* with United Legwear and Apparel Co. (“United”) behind Parigi’s back. According to Parigi, not only did Puma initiate clandestine talks with United, but executives from the fashion conglomerate supposedly bad-mouthed Parigi to several influential department stores. According to reports:
“’Puma intentionally and fraudulently made repeated misrepresentations to Parigi that Puma intended to renew the parties’ more than 10-year-long license agreement.’ It also alleges that Puma disclosed trade secrets and proprietary business information to United Legwear & Apparel Co. and tried to discredit Parigi among retailers such as Bloomingdale’s and Macy’s.”
Puma spokespeople swear that company representatives did nothing untoward, and the company is looking “forward to presenting [their] case.”
Trade Libel Example Case: Licensing Partner Problems
Full disclosure, we’ve not yet read the entire Parigi v. Puma filing. But judging from available reports, the crux of the lawsuit appears to be binary, in that the suit addresses both trade libel and trade secret issues.
Generally speaking, trade libel is the unfair disparagement of a product, service or business. (Read more about trade libel here.) Conversely, trade secrets are confidential, quasi-intellectual property holdings. (Read more about trade secrets here.)
In this case, Parigi is arguing:
Trade Secret Claim: Puma violated a trade secret agreement with Parigi by sharing information with United, before formally inking the deal.
Trade Libel / Defamation Claim: Puma executives purposefully and negligently spoke disparagingly of Parigi to executives at several department stores.
In Parigi v. Puma, the former insists the latter wasn’t forthcoming about its intentions to terminate a contract. Puma’s alleged reticence to renew the contract, however, isn’t the legal issue anchoring this case; it’s simply the branch on which the actual unfair competition claims — trade libel and trade secret misappropriation — were hung.
Puma and Parigi are two big business players in the fashion world. So, expect this lawsuit to be well-fought and long-lasting. In the words of Parigi spokesperson:
“We will see some very ugly things. Puma’s a major name in the industry, and my client’s a major name in the industry, and they’re going to war.”
Questions For A Business Defamation Lawyer?
Kelly / Warner handles all manners of business law issues, including trade libel and business defamation. If you need an attorney to review documents, we can. Need startup legal counsel? We’ve got the answers. Are you interested in pursuing a lawsuit? We go the extra mile — which is why we win.
More trade libel example lawsuits? Head over here.
We came across this old, unpublished blog post. The doctor defamation case discussed within is old, but the information regarding professional defamation is solid. If you’re a medical professional looking to pursue a slander or libel lawsuit, get in touch here.
After bribing a senator, a California hospital executive filed a defamation lawsuit against detractors. Does he have a chance at winning a slander suit, despite his already spoiled reputation?
Can a “discredited” hospital executive save his reputation via a defamation lawsuit? Dr. Michael Drobot hopes so, but slander and libel laws may prevent it. Below, we’ll review the case and examine some legal concepts germane to professional doctor defamation lawsuits.
Defamation Case Study: Guilty Doctor v. Opposition Attorneys
Ousted CEO of the now defunct Pacific Hospital of Long Beach (“PHLB”) Dr. Michael Drobot filed a defamation claim against a group of lawyers who’d successfully pinned him for fraud. No stranger to controversy, Drobot recently pleaded guilty to bribing state Sen. Ron Calderon and maintaining a “kickback” scheme during his tenure as PHLB’s top executive.
But this defamation lawsuit is not about the bribes or kickbacks, it’s about surgery screws used at PHLB. Apparently, during the course of Drobot’s fraud case, opposing lawyers said he authorized the use of “counterfeit” medical equipment, thus jeopardizing the well-being of hundreds of patients.
Since opposing lawyers first lobbed the “counterfeit screw” accusations, malpractice lawsuits have piled on Drobot’s doorstep.
How is Drobot battling back? By filing a defamation lawsuit.
Legal Considerations: Harm & Substantive Truth
This case raises a pair of pertinent questions regarding slander and libel law:
- What must a plaintiff prove to win a defamation lawsuit?
- If someone’s reputation is already in shambles, can he or she still win a defamation of character lawsuit?
Dr. Drobot’s Main Argument In His Doctor Defamation Lawsuit
Dr. Drobot’s main argument is straightforward: Counterfeit screws were never used at the Pacific Hospital of Long Beach.
His lawsuit claim is precise on the issue, reading:
“[Drobot] never purchased or used any ‘counterfeit’ screws or related parts for use in (Pacific Hospital) spinal surgeries.”
When asked about the lawsuit by a reporter, Drobot elaborated:
“Not only do they portray me as someone I am not, but they needlessly create incredible anxiety for hundreds of former patients at Pacific Hospital,” he said. “We did not compromise patient care at (Pacific Hospital).”
OK, so, for argument’s sake, let’s take Dr. Drobot at his word and, for the purposes of this analysis, assume that he’s telling the whole truth and nothing but the truth.
But is the truth enough to win this defamation lawsuit? Well, maybe not. Let’s break it down.
The four pillars of United States defamation law are:
- Publication (Broadcast);
- Harm; and
In other words, doctors can’t win slander or libel lawsuits if they can’t prove that the defendants:
- Aren’t lying;
- Didn’t publicly distribute the materials in question;
- Didn’t cause material or reputational harm (via the statements); and
- Didn’t realize that what they were saying was inaccurate.
In the case of Dr. Drobot, proving harm and negligence may be difficult because:
- His professional reputation has already been soiled; and
- The lawyers may have sufficient evidence to prove that they thought their statements were accurate. That’s the interesting crux of U.S. defamation law: if a defendant believes his or her statements – and can provide enough evidence of proper due diligence – even if the statement is wrong, the defendant can win.
Harm and previously Spoiled Reputations
Sometimes plaintiffs lose defamation lawsuits because their reputations are already tarnished coming into the lawsuit. For example, will you harm the reputation of a convicted murder by inaccurately reporting that he also robbed a store?
In this instance, Dr. Drobot has already admitted to bribery. His reputation has already been soiled. So, he may have a difficult time proving harm. However, since the statements under review have nothing to do with his efficacy as a medical professional, a judge may decide that his spoiled reputation as a government bribe-giver has nothing to do with the accusation of using “counterfeit” materials.
Dr. Drobot may also have to argue, nuance-by-nuance, the issue of negligence. Remember, the defendants are a group of attorneys, which means they probably have considerable evidence to support their assertions. Now, could the attorneys’ information be wrong? Absolutely. But remember, negligence isn’t necessarily about inaccuracies as it is intent and belief.
Defamation & Substantive Truth: Little Mistakes Don’t Qualify
It’s rare to win a defamation lawsuit over a small error.
Dr. Doe operates on seven people who die; a reporter says Dr. Doe had eight people pass away on his operating table. In this instance, Dr. Doe wouldn’t win a defamation lawsuit against the reporter because the minor error of eight instead of seven does not change the overall impression of the reporter’s statement. In essence, it’s not a “game changer.” The reporter’s piece was “substantially true,” thus inoculating the author from a defamation lawsuit loss.
However, Dr. Drobot’s case is not as straightforward. If Dr. D’s doctor defamation legal team tries to structure its entire argument on the contextual validity of “counterfeit,” the defense lawyers can use a “substantial truth” argument if – and this is a big IF – there’s proof that the screws were, at worst sub-par, at best, improperly (but benignly) represented to patients.
Speak With Lawyer Well-Versed In Doctor Defamation Cases
Kelly / Warner has successfully assisted professionals overcome various reputation challenges. Call or message today to start solving.
- Summary of a major difference between United States and Canadian online defamation law;
- Summary of Section 230 of the Communications Decency Act, which confers immunity for third-party defamation to website operators; and
- Contact information for lawyer who’s successfully dealt with cross-border Internet defamation issues.
Canadian and U.S. Defamation Law: Polar Opposites?
People credit the U.S. for having the most defendant-friendly slander and libel laws in the English-speaking world, whereas Canada’s defamation laws are sometimes described as the most plaintiff-friendly.
But other differences distinguish the neighboring nations’ take on slander and libel – especially when it comes to Internet defamation.
Online Defamation Lawsuit Case Study: Suck Site Target v. Hosting Company
Canadian Andy Lehrer filed a small claims motion in Ontario against hosting company EasyDNS. Why? An adversary of Andy’s had created a disparaging website about Andy. EasyDNS happened to host the website. Even though EasyDNS had nothing to do with the creation of the “suck site,” and asked the company to take it down.
EasyDNS didn’t comply.
Instead, EasyDNS explained to Lehrer that, in this instance, without a court order, they wouldn’t take it down. After all, it’s not a hosting company’s responsibility to determine what is and isn’t libel.
So, what did Lehrer do in response to EasyDNS’ refusal? He added more “counts” to his nebulous defamation lawsuit. That’s right. Because EasyDNS posted a blog entry about the lawsuit, Lehrer is arguing that doing so is not only illegal, but punitively egregious. (For this tactic to work, there would have to be publicly withheld facts that make a huge difference in the case.)
Section 230 of the CDA: The Big Difference Between United States and Canadian Defamation Law
In the U.S., this online defamation lawsuit wouldn’t make it past round one. Why? Section 230 of the CDA.
Legalese and limited exceptions aside, Section 230 of the CDA states that website operators cannot be held responsible for libelous third-party content. To wit, Section 230 is why Facebook and GoDaddy aren’t successfully sued for every act of online defamation committed by users, on their respective platforms.
Difference Between United States and Canadian Law Means EasyDNS Will Go To Court;Wouldn’t Happen In The U.S.
Since a Canadian court is handling this case, EasyDNS must expend time and resources explaining the obvious to a judge: EasyDNS is not the content author or editor and shouldn’t be held responsible for defamation.
To be clear: It’ll be shocking if a Canadian court sides with Andy and saddles EasyDNS with damages for not taking down the anti-Lehrer website. Canada and U.S. law books may not be doppelgangers, but it’s not North Korea above the 41st parallel. Canadians care about free speech as much as Americans.
What is different, though, is that EasyDNS has to expend significant resources to quash a clearly frivolous case. In the United States, this online defamation lawsuit wouldn’t have passed the proverbial bouncer.
Consult An Internet Defamation Lawyer
Kelly / Warner is a law firm that handles international and online defamation issues. We have assisted many a Canadian—and hosting company — with their cross-border slander and libel challenges. If you’ve got a defamation question or issue, get in touch today.
In This Article You’ll Find:
Casino mogul Steve Wynn lost round one of his professional defamation lawsuit against financier James “Jim” Chanos. Wynn has till January 15, 2015 to appeal – and according to all reports, he plans to do just that.
The Wynn v. Chanos slander lawsuit is a good one to review because it touches on the important crux of American defamation case law – the all-mighty First Amendment.
Why Did Wynn Sue Chanos For Professional Defamation?
At A Lecture: “The SEC investigated Wynn.”
A lecture circuit veteran, earlier in the year, Chanos gave a talk at the University of California at Berkley. During the event, Chanos mentioned a since abandoned federal investigation of Wynn’s operation for violations of the Foreign Corrupt Practices Act. Ultimately, the investigation went nowhere, as officials didn’t find “reliable evidence of FCPA violations.”
At the Berkley lecture, Chanos did note that the SEC’s investigation didn’t illuminate any evidence against Wynn Resorts Ltd and related parties.
Wynn Filed Lawsuit
Regardless, Wynn wasn’t pleased with Chanos’ lecture – and opinions therein; so, in September 2014, the casino king filed a professional defamation lawsuit against the money man.
But it doesn’t look like Wynn will win this slander case.
Judge Sides With Chanos Because Wynn Made Too Big Of A Leap
District Judge William Orrick explained his ruling in favor of Chanos thusly:
“It takes a significant inferential leap to conclude that Chanos’s general uncertainty about the questionable business methods in Macau equates to an assertion that Wynn violated the FCPA.”
Did Judge Orrick slyly and subtly insinuate: “doth protest too much, maybe, Mr. Wynn?”
No False Statement of Fact
The most important thing to remember about professional defamation law in the US: In order to win, your claim must be centered on a false statement of fact, not an opinion nor speculation. If it were against the law to speculate about businesses, politics or people, the news and entertainment industries would be forced closed by way of excessive litigation.
Defamation law in the U.S. is defendant-friendly: In 98% of cases, to win, a plaintiff must prove the defendant made an unprivileged, false statement of fact. Negative opinions or critiques do not a valid defamation case make.
What must a plaintiff prove to win a defamation of character lawsuit in the United States?
Generally speaking, in every U.S. jurisdiction, in order to win a defamation of character lawsuit – whether personal or professional – the plaintiff must prove, at the very least, that the defendant:
- Published, broadcast or otherwise distributed the false statement of fact;
- Was talking about the plaintiff;
- Through the statement, caused material harm to the plaintiff;
- Acted with reckless disregard for the truth or actual malice.
Don’t be discouraged by America’s defendant-friendly defamation laws. Every year, many businesses and professionals win slander and libel lawsuits. Yes, free speech trumps an awful lot, but it doesn’t give anybody the right to spread lies about a person, place, organization or business.
If you’re the target of a highly inflammatory review, a ruined online reputation, or if you’re simply interested in getting content removed from the Internet, get in touch with Kelly / Warner Law.
Speak With An Attorney About Your Professional Defamation Situation
Our legal practice maintains a perfect rating on review website AVVO.com, in addition to a preeminent standing on venerated lawyer review service, Martindale-Hubbell. Since Kelly / Warner’s inception, our lawyers have focused on Internet libel issues. We know the niche well and have guided –step-by-step – hundreds of individuals and businesses to successful resolutions of their professional defamation hiccups.
Dust off your deerstalker and limber that legal mind — for a fascinating libel lawsuit is afoot! Video streaming company, FilmOn, is suing high-level Web analytics/Online Marketing firm, DoubleVerify, for what can only be described as “classification marketing defamation.”
FilmOn v. DoubleVerify presents a different type of libel – one singular to online marketing analysis. Plus, the case teases a new set of legal questions regarding the intersection of new-model media distribution, digital globalization and reputational torts.
The Two Sides of This Marketing Defamation Lawsuit: Filman & DoubleVerify
The Plaintiff: Filman
A decidedly 21st century venture, FilmOn deals in all things streaming. The company offers a plethora of packages ranging from global video-on-demand services to custom branded media players. According to Business Insider, “FilmOn provides hundreds of live TV channels and on-demand programming to the web, both for free and with some content behind a subscription.”
Judging from the website, it appears FilmOn doesn’t necessarily develop content, but instead provides private-label streaming — and more. For example, a convention may use FilmOn for customized video services; or, a business may order a bespoke media player. Individual TV-streaming packages are also available. In essence, FilmOn isn’t necessarily a content creator, but instead a platform provider.
The Defendant: DoubleVerify
A high-level Web analytics firm, DoubleVerify promises clients “appropriate environments for [their] brands with real-time blocking controls.” In other words, they help you make sure your online advertisements appear in “apt” online neighborhoods.
For example, if a company is selling a family-friendly product, it probably doesn’t want to advertise on an “adult entertainment” website. DoubleVerify helps with that.
The Main Issue: Undesirable Classification
The issue anchoring FilmOn v. DoubleVerify is straightforward:
DoublVerify labeled FilmOn a “copyright violator” and “adult content distributor” in its advertising classification database.
As a result, many DoubleVerify brands opted not to have their ads appear on FilmOn’s website – which decimated the streaming company’s bottom line. After all, like many online-based businesses, Internet advertising dollars are a significant revenue stream for FilmOn.
We Are Not What You Say We Are
When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the analytics advertising firm, explained how their services worked, and cogently argued that, legally speaking, FilmOn is not a copyright violator, nor adult entertainment purveyor.
But their pleas failed; in the eyes of DoubleVerify, FilmOn remained an intellectual property infringing p-rn runner.
Unwilling to let the classification stand, the streaming media company filed a business lawsuit against the online marketing outfit.
What Makes The FilmOn v. DoubleVerify Business Defamation Lawsuit Interesting?
FilmOn v. DoubleVerify is worth mentioning because it speaks to the current state of the marketplace – the marketing-dependent state.
Think about it for a second: a giant chunk of the digital economy is fueled by marketing. If I were feeling cynical and extra get-off-my-lawn-y (which I’m not), I might remonstrate: “People used to make things that were then marketed, now we just market marketing!” Which is fine. The trend will continue the more digital we become. But the shift does present a new set of legal questions and implications.
The Shift To Big-Data Marketing: The Legal Implications
Will this tectonic shift to big-data marketing impact business law? Marketing defamation law?
Reputation classifications will become more popular, and lawsuits like FilmOn v. DoubleVerify will become the norm. Moving forward, businesses must be diligent about monitoring online reputations — not just online, but in brand databases.
Marketing, Subjectivity and Defamation Law
As the marketing industry metastasizes, questions regarding subjectivity, as it relates to defamation law, will come to the fore. Cloud- and platform-oriented services, as opposed to content-oriented services, will present new legal quandaries in the coming years. Will Section 230 of the Communications Decency Act suffice?
Soon, courts will need to establish case law addressing “classification marketing defamation” as a separate phenomenon.
We like to talk about gripe site cases — and there’s a new one to dissect.
A dissatisfied business partner, in search of recompense, accuses a mogul’s son – by way of a few DIY websites – of cavorting with a convicted killer!? Nope, it’s not a Dick Wolf special – it’s a real case involving venerated financier, Charles Schwab, Charles’ son Michael and a former dictator’s criminally notorious son, Tommy Suharto.
- Former Business Partner of Nicholas Behunin
- Son of Charles R. Schwab
Charles R. Schwab
- Renowned Finance Mogul
- Father of Michael Schwab
- Third Party
- Alleged Real Estate Swindler
- Convicted Criminal Who Spent 4 Years In Prison
- Former Business Partner of Michael Schwab
- Alleged “Anti-Schwab Website” Mastermind
Steiner & Libo
- Counsel for Nicholas Behunin
- Alleged “Anti-Schwab Website” Enabler
The Story: What Led To The Schwab Defamation Lawsuit
Our tale of online defamation woe tracks back to 2002. That year, an Indonesian court sentenced Tommy Suharto, the notorious son of Indonesian’s now-deceased second president, Suharto, to 15 years in prison. What crime? The younger Suharto hired henchmen to take out a Supreme Court judge, in broad daylight.
Suspiciously, Tommy was out of prison within four years.
Act 1: The Real Estate Deal between Schwab Son Michael & Nicholas Behunin
Sometime in 2009, son of legendary investor Charles Schwab, Michael Schwab, and businessman Nicholas Behunin shook hands on a Balinese real estate deal. The plan? Eco-friendly luxury resorts in Indonesia.
Unfortunately, the strategy went south, and the relationship ended acrimoniously.
Act 2: The Alleged Shakedown
Behunin felt Schwab and co. cheated, and he didn’t walk away quietly. Behunin demanded $25 million dollars for his troubles; Schwab refused. So, Behunin sued for the $25 million.
And it’s around this time when a handful of gripe site websites launched. Accusatory and satirical, several anti-Schwab blogs found their way online. They featured quips like “How to profit from a brutal dictator” and “Launder Money Overseas.” The so-called “suck sites” targeted Michael and Charles Schwab’s alleged relationship with Tommy Suharto – the Uday Hussein of Indonesian.
Act 3: The “Gripe Site” Defamation Lawsuit
As you may have already guessed, the Schwabs insist they’ve “never met” or engaged in any business dealings with any of the Suharto men. They also think Behunin is behind the accusatory websites. So, the First Family of investments filed a defamation of character lawsuit that is sure to go down in the annals of gripe site cases.
The lawsuit reads in part:
“The only reason to create these fraudulent websites was to besmirch the good name and reputation of Charles R. Schwab and his son Michael. Not one claim on the landing page of the site is true or correct and the guilty parties were aware of that prior to making the defamatory statements,”
“In sum, (Leonard) Steiner (Steiner & Libo and Nicholas Behunin) used the Websites as a tool for the extortion of Schwab. The Website’s clear objective was, and is, to publicly embarrass and shame Schwab and then to leverage that public embarrassment into litigation advantage in Behunin’s lawsuit against Schwab.”
“The Defendants agreed to a scheme that included providing false and defamatory information to third parties who would post articles or blogs on the internet repeating the false and defamatory statements provided to them by Defendants…creating the impression that the false statements on the websites had been independently corroborated by the third-party posters,” according the lawsuit by Michael Schwab filed by his attorney David H. Schwartz.
The Masts of Defamation: What Plaintiffs Must Prove To Win Gripe Site Cases
Defamation is more than just a negative comment or a lie. To win slander and libel lawsuits, plaintiffs must satisfy the four masts of defamation: Publication, Falsity, Harm and Negligence.
Publication: Just as it sounds. The statements under review must have been published for public consumption – either in print or digitally – or spoken in a public forum.
Falsity: As the old saying goes, it isn’t defamation if it’s true.
Harm: The statements under review must have caused financial or materially reputational harm for the plaintiff. Hurt feelings don’t cut it.
Negligence: The great equalizer in defamation suits – intent and negligence. Believe it or not, if a defendant broadcasts a bold-faced lie about you, but genuinely believed in the validity of the information and can prove proper due diligence, then 8 times out of 10 a judge won’t hold the defendant liable. In cases where the plaintiff is a public figure, they have to meet the even higher standard of “actual malice” – a legal term meaning that a person knowingly prevaricates. (To learn more about actual malice, go here.)
Truth! The Pin on Which All Defamation Lawsuits Turn
If the Lance Armstrong scandal taught us one thing, it’s that all that glitters isn’t honestly gold. And I use Armstrong as an example because he won several defamation lawsuits against detractors who reported the truth.
It’s not pretty, but here’s the truth: In slander and libel lawsuits, the winner is the party with the most convincing evidence. If defendants can prove their accusations are fair, they’ll walk away unscathed.
We’ve bookmarked this Schwab gripe site case – because it could get very interesting.
Gripe Site Case UPDATE: Behunin’s pushing back with an anti-SLAPP motion. http://www.marketwatch.com/story/nicholas-behunin-files-anti-slapp-motion-against-charles-schwab-2014-12-17
If you’d like to read more about gripe site cases, head on over here. If you’d like to speak with an online defamation lawyer about a gripe site and “suck site” legal issue of your own, get in touch here.