What is Defamation? Do I have a case? -- Morris & Stone
In other words libel and slander are both defamation, but libel is printed and slander is to a third party, which attacks the person's professional character or standing, Upon learning that you and your spouse make it a point to go on a " date for defamation will generally not be an option for things said during a divorce or. If you are going through a horrendous divorce, you may want to share this piece This is why, in the previous blog post, we looked at the problem of Character Traps; . For instance: "It's not fair that he is happy with his new girlfriend and I'm alone. character defamation, or things can get really dangerous as in domestic . Dating during a divorce can affect your assets, spousal support, and custody of your children. The team at the Joshua Wilson Law Firm can.
No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, if a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion. Even if the restaurant brought witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.
On the other hand, some believe that they can escape liability by casting a fact as an opinion. A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion. Adding the word "opinion" to a defamatory statement does not automatically shield the speaker from liability. The determining factor is whether the "opinion" is about a verifiable fact. For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, "in my opinion the food was horrible and the restaurant has rats," the statement about rats is defamation assuming it is false because it is a verifiable fact.
Similarly, "in my opinion, he cheats on his taxes" is a defamatory statement since it is the assertion of a fact, even though it is called an opinion. Context is everything in determining whether the speaker was offering the statement as a verifiable fact. We once received a call from someone who was checking out at a local supermarket, and tried to pay with a Discover card.
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The cashier said the store didn't accept that credit card, and when the customer said he had always paid with his Discover card, the cashier rudely responded, "You're crazy; I've been here ten years and we have never taken Discover cards.
Clearly the statement was not intended as a verifiable fact. The cashier was not saying, "you are suffering from a mental illness that would be verified by an examination from an appropriate mental health professional. In determining whether a statement is true or false, you must also examine how the statement is made.
If a newspaper reports that Joe Dokes was arrested and charged with murder, and it is later determined that Joe Dokes was innocent, that does not mean that the newspaper is now liable for defamation. What the newspaper reported was absolutely true -- he was arrested and charged with murder. Similarly, the statement must be viewed in context.
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Upon learning that you and your spouse make it a point to go on a "date night" every week, Dr. Laura calls you "bad parents" on the radio because she feels that parents should never leave their children with a babysitter.
You could not sue for defamation, because she is entitled to believe and say that such conduct constitutes bad parenting. In one Internet defamation case, a court held that calling someone a liar was not defamatory when the circumstances made clear that the speaker did not have sufficient facts to reach that conclusion.
Unprivileged There are many statutes that afford a "privilege" to someone to speak, and in those cases the person is shielded from defamation. See Civil Code section For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window. Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out.
You've just made a false statement to a third party, claiming that your neighbor was breaking the law. Can you be sued for defamation? No, because there is a statutory privilege afforded to anyone making a good-faith report to the police. There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action.
We often get calls from people wanting to sue a witness because "he lied on the stand" or submitted a false declaration.
But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege although a witness who testifies falsely can be criminally prosecuted for perjury. Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report.
They want to sue the evaluator for the "lies" contained in the report. Such actions are barred in almost every case because of the litigation privilege.
The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong. Indeed, a large percentage of calls to our office involve divorce and child custody disputes. Perhaps because emotions run so high in such cases, the parties want to do everything possible to win the day.Looking for deep love? Never, never date someone who is separated… Here's why…
I often sense that the caller wants to file a defamation action to create leverage in the divorce action, or has genuinely reached his or her limit with all the lies being told in court. Unfortunately, a claim for defamation will generally not be an option for things said during a divorce or custody dispute.
Typically the spouse will begin the slander campaign with calls to the police, then Child Protective Services, then to the school district. Generally, all of this conduct is protected. Arguably, Civil Code section 47 even protects the spouse when he or she starts telling the other parents at school about the child abuser among them, since obviously they would have an interest in that information.
To prevail in a defamation action, the injured party would need to show that the lies about the abuse were published see definition below to someone beyond whom the spouse could reasonably believe would be interested in the information. For example, in one case, the spouse printed flyers about her horrible husband and handed them out to all the parents as they picked up their children from school. The court concluded that if she had limited the distribution to the parents who had children in her child's classes, she would have been protected, but she had "over-published" the information to the parents of children who would likely never come into contact the husband and therefore would not have an interest in the dispute.
This litigation privilege is very broad. Another common circumstance arises from unemployment claims. An employee is happily working at his place of employment until one day when the axe falls. He is told it is nothing personal, just a cut in the staff.
But when he goes to file for unemployment, he finds that his former employer, not wanting to pay unemployment, falsely declares under penalty of perjury to the Unemployment Office that the employee was guilty of horrible transgressions ranging from stealing to drug use. Often the employer will even deny that the employee ever worked for the company, claiming that he was retained through a temp agency, or that he was an intern and all the checks he received were merely stipends, and not wages incredibly, we've seen employers make that claim in a few cases.
We've never been retained to do in depth research on this issue, but there are undoubtedly many laws that make this conduct by the employer illegal, but nonetheless the conduct likely would not constitute defamation since it would be privileged.
One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were. An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance. Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.
In most instances, when a caller to our office erroneously believes they have been defamed, their misunderstanding arises from a failure to recognize a privilege or a series of privileges. Here is an actual slightly embellished fact pattern that illustrates this point.
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Joe Beermeister likes to brew beer in his rented home which is perfectly legal. The home he rents is on the market, and one day while a real estate agent is showing the home to a prospective buyer, that buyer, who happens to be a drug counselor, sees Joe's beer sugar and is convinced that it is cocaine.
He tells the real estate agent, who calls the police. The police execute a search warrant, find the "cocaine" and drag Joe away in handcuffs. Due to budget cuts, the arresting officers are not equipped with drug testing kits, but all involved agree, especially based on the input from the drug counselor and the way it is stored, that the unidentified substance is cocaine. Certainly the circumstances are sufficient probable cause for the arrest.
Joe's landlord sees the arrest, and while Joe is in jail evicts him from the home. Joe misses work while in jail, so he is fired, and his invitation to attend the FBI academy is revoked because he is now an arrested drug dealer. The arrest is reported in the newspaper, and as a result Joe is removed as a Sunday School teacher at his church and shunned by his friends. His own mother tells him not to come to the family Thanksgiving dinner if he is let out of jail. Fortunately, the crime lab finally gets around to testing the evidence and finds that it is only sugar.
All charges against Joe are dropped.
Joe tries to rebuild his life, but his efforts to find a new job are unsuccessful because his former employer keeps telling prospective employers that he was fired after being arrested for possession of cocaine.
His life in shambles, Joe now calls our office wanting to sue for defamation, because the charges were dropped. He assumes that because the charges were dropped, that means everyone that accused him of possessing cocaine was making a false statement about him and is therefore guilty of defamation. First, Joe needs to understand that a District Attorney's decision to drop criminal charges is NOT a determination that the charges were false.
Criminal charges are dropped for any number of reasons, and it means only that the charges were not pursued, not that the charged party was innocent. In fact, even if a criminal defendant goes to trial and is found not guilty, that is not evidence that the defendant was innocent; it shows only that the prosecutor was unable to meet the burden necessary for a conviction.
But in any event, where is the defamation in this action? Each step of the way is covered by a privilege. No one was out to get Joe; they were all just dealing with the facts as they were presented. The quantity of the harm suffered by Joe does not change the fact that all the communications were privileged. Both the above cases highlight the danger of posting false or derogatory claims on social media at any time, and particularly in the heat of a conflicted family law matter.
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Thank you very much for everything. Amazing professionalism, attention to detail and compassion when working in the sensitive area of family law. I would highly recommend Ramsden Lawyers for any legal service. Received great service from Alice Drummond for family law. She was very helpful, informative and professional. Made the whole property purchase paperwork a delight Clear, clever, succinct and a delight to deal with.