I know the world isn’t fair, but why isn’t it ever unfair in my favor? – Bill Watterson, Author of Calvin & Hobbes
Watterson’s observation echoes many of the kinds of statements I hear weekly from potential defamation plaintiffs. After listening patiently to their side of the story, (usually several minutes), I begin describing the bad news in detail: Defamation law is decidedly in favor of defendants; especially in California. To state it more broadly, and perhaps in a more even-handed way, California is extremely protective of free speech.
Generally, in order to state a claim for defamation in California, Plaintiff must prove the following elements by a preponderance of the evidence: (1) a publication; (2) of statement of fact; (3) that is false; (4) defamatory; (5) unprivileged; and that (6) has a natural tendency to injure or causes special damages. Most of the elements seem fairly straightforward at first glance, but they are not. For example, whether a statement is a provably false one is not an easy determination to make in many situations. Many are arguably opinion, which is protected under the First Amendment. Still others are an opinion, which imply a provably false fact, which can be actionable under California law.
There are also many applicable privileges or defenses to a cause of action for defamation. For instance, statements made in an official proceeding (judicial, executive, or administrative) are absolutely protected under Civil Code 47(b). Statements that are not made in such a proceeding, but which are made to a person with a "common interest," may be protected under Civil Code 47(c). In addition, in the absence of malice, statements made by reporters are protected by a so-called reporter’s privilege.
Truth is also a complete defense to civil liability for defamation. But the defendant is not required to show that the alleged defamatory statement is true in every particular–only that the gist or sting of the statement is substantially true. Thus a defendant does not need to justify the literal truth of every word of the allegedly defamatory statement.
Another insidious defense is the statue of limitations, especially in internet defamation cases. The statute of limitations is one year for defamation, libel, and slander. But in internet defamation cases the discovery rule does not apply. This means that it doesn’t matter when you discovery the alleged injurious material. So if a statement was published on Twitter, Facebook, or a blog in 2007 and you just learned of it in 2011, too bad, so sad. You probably don’t have a case. I’ve seen a couple of opposing attorneys fall into this trap.
Then there is the specter of the anti-SLAPP motion. Where a cause of action arises from petitioning or free speech activity, the defendant may file a motion to dismiss the case entirely at an early stage, before the plaintiff has had an opportunity to conduct discovery. All the defendant needs to show is that the claim arises from petitioning activity or free speech, then the burden of proof shifts to the plaintiff to show that he can probably prevail. If the plaintiff cannot meet his burden, the case is dismissed and the defendant is entitled to his or her attorney fees. In other words, the plaintiff would be required to pay the other guy’s attorney fees and costs in defending the SLAPP action. Beyond the mechanics of the SLAPP statute, it is particularly dangerous because many lawyers do not understand it well. I do not know how many times I have heard opposing counsel tell me, "Gee, I wish I had read your blog," before filing their client’s complaint. I don’t say this to impress you, I say it to impress upon you the fact that you must work with a lawyer who knows this area inside and out. It is very easy to fall into a trap in this area of law.
After I list all of these possibilities to potential clients, understandably, they generally do not wish to proceed. The truth is, that an argument could be made that California Defamation Law is unfair, from a plaintiff’s point of view.
I think it’s only “unfair” if you treat defamation litigation like a game where plaintiffs and defendants ought to have a roughly equal chance of prevailing.
But it’s not a game — it’s a substantive area of law where it ought to be extremely difficult to prevail, given the values reflected in the First Amendment. It ought to be very hard for plaintiffs to use the court system to compel a defendant to pay money based on speech.
I’d be interested in hearing your take on how the law applies to satirical material. For instance, if a celebrity’s name was used in a tweet, and the tweet was obviously satirical in nature, what would the reprecussions be?