First rule of defamation defense: Don’t say anything you can’t prove.
I would think this concept would be so obvious and self-explanatory that it would never arise in my practice, but it comes up over and over. Because of defendant’s failure to understand this concept, we obtained a $3.9 million defamation judgment against him.
I see it often in the case of reviews about plastic surgeons. Plastic surgeons have a tough go of it in the reputation area, given the nature of their practice. The person coming to them is unhappy with their eyes, nose, chin, neck, breasts or whatever, and they are disappointed when the cosmetic tweak fails to change their life. They feel that the surgeon must have done something wrong. It’s not surprising that we get so many calls from plastic surgeons, wanting to sue for defamation.
But we also get the calls from the patients, being sued by the plastic surgeons for defamation. They want to know if they are facing any financial exposure as a result of the review they posted. When I explain that the analysis is simple – so long as they can prove the truth of everything they said in their review of the surgeon, they will be fine – they respond that they can absolutely prove the truth of everything they wrote. But then when I read the review, I find the statement they will likely never be able to prove:
“I’m not the only patient Dr. Jones has disfigured, there are many others.”
When I question them about that statement, the conversation goes something like this:
“Do you know anyone else who has had work done by Dr. Jones?”
“Then how can you prove that there ‘many others’ he has ‘disfigured’?”
“I read his Yelp reviews.”
“Do you have personal knowledge of the results those patients received from Dr. Jones?”
“Well, no, not personal knowledge, but I read their reviews on Yelp.”
“How do you know what you read is true? How can you be sure it’s not another doctor, trying to drive business away from the competition?”
“Does that happen?”
“Yes, that happens.”
The person is thus left with a review they will likely never be able to prove was true. If they had limited themselves to their own truthful telling of their experience with Dr. Jones, they would have been able to defeat any defamation action. But like the kid on the school yard who adds “and everyone thinks you’re stupid” to an insult to give it more sting, they felt that adding a reference to other unhappy patients would make the review more damaging. They are now faced with the challenge of somehow proving the truth of their claims, or face the consequences. Unless they can round up some quantity of patients and prove, in each case, that the patient was objectively “disfigured” by Doctor Jones, that statement will be false and defamatory.
And so it was this week’s defamation action.
The defendant thought he had uncovered some juicy information about our client, and posted it online as though he had firsthand, personal knowledge. But all the statements were false, as five minutes of research would have revealed. Apparently unaware that the statement is offered as a meme, the defendant could only say that the statements must be true because he had read them on the internet. When it came time to prove the truth of the statements he had made, he could offer nothing.
Today the Orange County Superior Court awarded our client $3.9 million in damages for what the defendant had posted online.
You must be able to prove what you say. The defendant in this case was convinced he could prevail on the defamation case by simply showing the information he had found online. He failed to understand the concept of hearsay.
A quick primer on hearsay.
The rules surrounding hearsay are so complex that some attorneys and judges never understand them. My favorite war story in this regard involves a retired judge who was presiding over an arbitration on one of my cases. This judge had retired after 30 years on the bench, and for a large part of those 30 years had been the presiding judge (basically, the judge who supervises all the other judges).
My client was suing for fraud, and was in the process of testifying to the lies he had been told by the defendant. The judge interrupted him, stating that he would not allow such testimony, because it was hearsay. Arbitrations are a bit more informal than actual trials — we were all just sitting around a conference table — so I leaned over to the judge, and said quietly, “You do know that’s not hearsay, right?” (I thought perhaps he was just trying to rattle my client, hoping he would agree to settle or something.) He bellowed that of course it was hearsay, because my client was testifying to something said out of court. When I explained why it was not hearsay, there was this moment of shock in his face, and he stated that no one had ever explained that to him before, and he allowed the testimony to proceed.
In other words, this judge had presided over trials for 30 years, never understanding what constituted hearsay. I could only wonder had many plaintiffs had lost their cases in his court, because of his erroneous hearsay rulings.
At its most basic level, the hearsay rule is easily stated. “Hearsay is an out-of-court statement, offered for the truth of the matter asserted.” In the case of my client’s testimony about the lies the defendant had told him, the statements were made out of court, but they were not being offered for the truth of the matter asserted. They were being offered as LIES. How could any plaintiff prove they had been defrauded, if they could not testify to the fraudulent statements?
How the hearsay rule applies to defamation.
Returning to our hapless defendant, he posted his comments about our client based on statements he found on the internet. (Making matters worse for defendant, the statements were not actually about our client — he just had a similar name — but let’s ignore that for the moment.) He thought that when it came time for him to prove the truth of what he posted, he could just show what he had found. But let’s run that through the hearsay rule. The statements were clearly made out of court — they were statements posted on the internet. And he would be offering them for the truth of the matter asserted. Thus, they would be inadmissible hearsay.
Thus, the testimony would go something like this:
“Mr. [Defendant], on July 3, 2021 did you post this article, stating that my client was a stuck-up, half-witted, scruffy-looking nerf herder?”
“Yes I did.”
“And what evidence can you offer to prove that my client ever worked as a nerf herder?”
“Well, I read on the internet . . .”
And that would be the end of the defense. Defendant would have no evidence to support his claim.
You’ve got to know when to fold them . . .
Tragically for the defendant, he had multiple opportunities to avoid all of this, but kept rejecting them. As I have been explaining for years, most defamation disputes do not need to be resolved with damages. Most of the time the defamation victim just wants the defamatory post taken down. So it was here. Before we were ever involved, the client had advised the defendant that he would not pursue legal action if the defendant would just remove the false information. It was interfering with his business, and he just wanted it taken down as quickly as possible. As is often the case, the defendant not only refused to remove the defamatory comments, he doubled down and taunted the victim online.
When we became involved, we again made the offer, because sometimes a defendant will take the situation more seriously, knowing an attorney is involved. In fact, we were originally retained for the limited purpose of sending a cease and desist letter. I’m not a big fan of cease and desist letters. I have found that if the goal is to persuade the defendant to remove a defamatory post, serving a complaint is for more impactful. But this was a case where a letter should have worked. It was a simple matter to show defendant that the information he posted was false, so a rational person could be expected jump at the chance to avoid litigation. Not only did our letter lay out why the statements were false, it explained the horrible fate that was about to befall defendant if he did not remove the defamatory posts. He again rejected the offer, claiming he could prove everything he had posted.
As a part of the judgment we obtained, the court ordered defendant to remove the defamatory posts, and the defendant did so, lest he face contempt of court. Thus, in the end, the defendant complied with our client’s demand. But whereas he could have done so without cost before we ever became involved, now he did so pursuant to a multi-million dollar judgment, and our client now owns his business.
Know when to walk away. The defendant unquestionably acted with malice when he posted the comments, turning a blind eye to the improbability of what he was claiming, as well as my later explanation of why he was mistaken. When it was shown that the statements were untrue, it was folly to refuse to take them down.
Hearsay Extra Credit
The rules regarding hearsay can be very nuanced, but are usually founded in logic. In the hearsay primer set forth above, I stated that a defendant could not support their statements with something they read on the internet. But, again, that is where the statements are being offered for the truth of the matter asserted. That is different than testifying to something you saw on the internet, where it is not being offered for the truth of the matter asserted.
Confused? So was a certain judge in San Jose.
My client was suing for a defamatory Yelp review. When I type those words, I always feel compelled to explain. Some will respond with something like, “How can a Yelp review ever be defamatory? It’s just a matter of opinion.” If it is an opinion, then the sentiment is absolutely correct. I would never sue over an opinion and, if I did, I should deservedly lose. A Yelp review is only defamatory if it states verifiably false facts. “I hated my burrito at Chipotle,” is protected opinion, “I hated my burrito at Chipotle because they use meat they find in dumpsters” contains an assertion of fact, and will be defamatory if untrue. OK, enough disclaimers.
At trial, I showed my client the Yelp review, and asked if she had seen the Yelp review online. In every other case I have ever had, the client confirms seeing the review, and we move on. The next question would be, “Are there any false statements in the review?”
Not in this case. (Former) Judge Ariadne Symons ruled that the review had to be authenticated. She stated that in order to offer the review as evidence, I needed to have a representative from Yelp testify that the review had appeared on the Yelp website. By way of analogy, it was akin to saying that if I wanted to introduce an email my client had received in her Gmail account, I would have to subpoena a representative from Google to testify that the email did in fact exist on the Gmail server on that date. Ridiculous.
In my most patient and scholarly manner, I tried to get the judge to understand why that was not the law, but she could not see it. The matter had to be appealed. Not only was her ruling reversed on appeal, the judge was later punished, and ultimately left the bench. Not because of her ignorance regarding the rules of evidence, but because her refusal to understand was just another example of the way she had treated my client during the trial. Truly outrageous.
It’s too late to make that judge understand, since she is no longer a judge, but here is why she was wrong. When an internet site is visited by a user, what is displayed is information from another computer, linked through the Internet. Evidence Code § 1552 provides:
“(a) A printed representation of computer information or computer software is presumed to be an accurate representation of the computer information or computer software that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the computer information or computer program that it purports to represent.”
In other words, a person can testify to what they saw on the internet. My client could testify that she had seen the Yelp review. When I directed the judge to Evidence Code § 1552, she just screwed up her face, and said she could not understand how that section applied to a Yelp review. “What does that have to do with information on a computer?” she asked. She apparently believed that “the cloud” is an actual cloud, and when you go onto the internet, there are no computers on the other end.
But in her defense, she apparently is not the first judge to reach this bizarre conclusion. In Ampex Corp. v. Cargle, a corporation brought a defamation action against a former employee for his postings on the internet (on Yahoo) concerning the corporation’s management practices. Defendant brought an anti-SLAPP motion, and in support of his motion attached printouts from Ampex’s website and postings from Yahoo. The trial court ruled that the information taken from the internet was inadmissible on hearsay and authentication grounds. On appeal, the Court of Appeal minced no words about that determination:
“Ampex is adamant that this and other computer records which were attached to the declaration of defendant’s attorney are not available to him because such evidence was rendered inadmissible on hearsay and authentication grounds by the trial court in the original proceeding. The trial court’s initial rulings were patently wrong. The various computer printouts from Ampex’s Web site and the Yahoo! message board were offered to show that they existed in the public eye: They were not offered for the truth of the matter asserted and thus were not hearsay statements. (Evid.Code, § 1200.) Moreover, the records were self-authenticating as computer printouts. (Evid. Code § 1552(a).)” Ampex, 128 Cal.App.4th 1569 at 1573, fn 2.
“But what’s to keep someone from just claiming they saw something on the internet that was never there?” you ask. Thank you for participating.
Note the wording of Evidence Code § 1552. It’s only a presumption. There are lots of presumptions under the law in order to move things along. This presumption was created in order to avoid the ridiculous result the former San Jose judge tried to create — needing to bring in a Yelp representative to confirm the review had appeared on the website. But if the opposition can present evidence that puts the authentication of the item in dispute, then the burden shifts to the offering party to prove that it is what it purports to be.
Really, this is true of every single document offered at trial. Consider a garden variety breach of contract action. The plaintiff testifies, “this is the contract the parties signed,” but the defendant is free to dispute that claim, perhaps by offering a different contract and explaining that the parties had signed that contract, but later updated it.
If a plaintiff offers a copy of a Yelp review, the defendant would be free to show that what is being offered is not a true copy of the review, perhaps by offering a copy obtained from Yelp.
A defamation trap for the unwary.
And while I’m thinking of it . . .
There you are, alone, watching The Notebook, and it reminds you of the boy from high school that you thought would be your forever love. You wonder what ol’ Noah is up to, and search for him on the internet.
You don’t immediately see him, but you do see one of those sites that offers to do a detailed search for Noah for $9.95. You enter your credit card information and are rewarded with an extensive history of Noah since your high school days.
Noah has been a bad boy (but isn’t that one of the things you found so attractive?), and has an extensive criminal history. You know, come to think of it, Noah wasn’t all that great even when you knew him, especially considering how he broke up with you to date that cheerleader. A cheerleader! What a friggin’ cliché!
And then there was that time in the back of his Chevy van. Yes, you said “and that’s all right with me,” but that consent was given under the assumption that he would be your forever love. He left you for the cheerleader, so that consent is null and void. The world needs to be warned about Noah the predator.
You post your story about Noah on a website devoted to toxic males, and you include the criminal information you found. You sleep soundly that night, knowing you have saved other women from Noah.
But have you? I had some fun with the story (there’s a lyric from Chevy Van by Sammy Johns in there in case you missed it), but I have received a number of calls from defendants being sued under similar circumstances.
Those background sites are just bots. You enter the person’s information, and the bot does a search of public records in order to create the report for which you paid ten bucks. The accuracy is almost nil, and you will get back information concerning anyone named Noah, plus or minus ten years of the date of birth you entered. Indeed, those sites are hoping that you will run a background search on yourself. When you get back a report showing that you are in fact the Boston Strangler, the hope is that you will then pay more for the super duper version of the report, which reveals the sources for the information, and then even more to have the site contact the sources in order to clear your name.
As with the example involving the plastic surgeon, our hypothetical poster is left in an indefensible position, having relied on information she will never be able to prove.
Can Noah sue the background site for defamation?
Poor Noah. He has never so much as received a ticket for speeding, but this stupid site makes everyone think he is a hardened criminal. It is actually someone with a similar name, but he has to explain to prospective employers that if they run a background check, he is not the Noah with a criminal history. Despite his explanation, he is convinced that he is missing job opportunities because of what is reported on the background site.
Can he sue for defamation?
As with any defamation claim, context is everything. In the legal biz, we call it the “totality of the circumstances.” If the background site has a big banner at the top proclaiming — “This information is gleaned from multiple sites and may be entirely inaccurate, or may be based on someone with a similar name.” — then it would be hard to argue that people visiting the site assume the information is about you. (Maybe they do, but they are doing so despite the site’s disclaimers.)
So, whether you can sue a background site will depend on many factors. I can, however, tell you this. I have receive perhaps 100 calls from people wanting to sue a background site, and so far I have never taken such a case. There were just too many disclaimers on the site. One of the elements of defamation is that the reader must hold the reasonable belief that the defamatory comments concern you. With the disclaimers, and the fact that there are dozens of such sites, how will you prove that your reputation was damaged by this particular site?
However, if you have an employer willing to testify that he denied you a million dollar job because of what he read on “BackgroundsRUs.com” and he did not see any disclaimers that put him on notice that the information might not be about you, give me a call.