Articles Posted in Defamation and Slander

photo - SLAPP suit (by David Shankbone)A SLAPP suit is a legal action to censor, intimidate and silence critics or opponents by forcing them to endure the cost of a legal defense until they abandon their criticism or opposition. SLAPP stands for “strategic lawsuit against public participation.” It was originally intended to protect consumer groups and citizens who spoke out against a company’s plans from being sued by that company on frivolous grounds in order to stop the criticism so the plans could proceed.

The goal of the typical SLAPP plaintiff is not necessarily to win the lawsuit, it’s to grind down critics under the financial, time and energy burdens that come with defending a lawsuit. These SLAPP suits, and anti-SLAPP motions, are not limited to businesses trying to squash public opposition to something. Businesses can be on both ends of these legal fights and something of public interest need not be involved. A court filing by one company against another could be the subject of a SLAPP suit.

California Law Tries to Balance Rights to Files Suits and Free Speech

The heart of California’s anti-SLAPP legislation is set forth in subpart (e) of Code of Civil Procedure section 425.16, which provides:

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law;

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photo-2A few months ago, the Practicing Law Institute, a well-known publisher of legal practice guides, asked me to comment on its new book, Social Medial and the Law.  I agreed to do so because I was curious as to what was in the book and wanted to find out whether this book could be an aid to my practice as a business litigation attorney and to my clients.

After a few weeks of reading the book, I find that it is a valuable resource for me as a business litigator.

My office is in Orange County, California, and I have served the business communities here for more than a decade.  My clientele comprises small to medium sized businesses, with most them doing business internationally.  Like most attorneys, I have been seeing a gigantic shift of focus to social media in business, as they have become an integral part of my clients’ business.

I often receive calls from clients inquiring about how to deal with untrue comments from disgruntled customers that have been posted on the Internet, how to create an office policy regarding social media (both the company’s and employees’), how to deal with trademark or other intellectual property infringements, and how to defend clients from a claim arising out of social media.

I find this book valuable because the author covers the topics thoroughly and with a focus on the importance of each area.  Unlike other practice guides that try to impress the reader with the details of information, this book focuses on only the essentials, so that once I have enough information that deals Continue reading

photo(6)The federal court in Manhattan has refused to dismiss a proposed class-action against a dentist’s confidentiality agreement barring patients from posting negative reviews online.  In this case, the patient, Robert Lee, filed a class action lawsuit against his dentist, Stacy Makhnevick, contending that the “Mutual Agreement to Maintain Privacy” (the Agreement) that Makhnevick asked all her patients to sign prior to receiving her service was unconscionable and misused copyright law.  Furthermore, Lee contended that his public comments on the online review rating Makhnevick’s invoice made fair use of copyright law.  Concurring, the court was clearly not impressed by the dentist’s creative use of copyright law.

Apparently, as the trend of patients making online reviews of medical services has expanded, many medical practitioners have sought novel ways to shield themselves from negative reviews.  In this case, Makhnevick required all her patients to sign the “Mutual Agreement to Maintain Privacy,” in which patients waive their right to comment publicly on the dental services received and assigned all copyrights on online comments to her.  Any violation of the Agreement by patients incurred a $100 dollar-a-day liability to Makhnevick.  The idea of assigning the copyright to the dentist was that Makhnevick could just remove the negative comments herself if she did not like them.

In this case, Lee posted negative comments about Makhnevick’s service on Yelp after receiving dental treatment from her.  After Makhnevick found out about Lee’s comments, she demanded that Yelp remove the comments based on the assignment of the copyright signed over to her by Lee.  Yelp refused to comply.  It seems that Yelp was also unimpressed by the Agreement.  Afterwards, Makhnevick became very angry and attempted to intimidate Lee with the threat of lawsuits if he did not comply with her demand to remove the negative comments.  Makhnevick’s effort backfired.  Lee filed a pre-emptive class action against Makhnevick instead.

Subsequently, in court, the attorney for Makhnevick and her dental office argued that the case should be dismissed since there was no controversy.  However, the court found against Makhnevick on the basis that she had created the controversy herself prior to the lawsuit and was now arguing that there was no controversy because she wanted the class action lawsuit dismissed.

The court pointed out to Makhnevick that there was controversy, because Makhnevick had attempted to enforce the “Mutual Agreement to Maintain Privacy,” warned Lee that he would be liable for $100 a day if he did not remove the negative comments from Yelp as per the Agreement, sent Lee a draft of the Complaint and threatened to file if Lee did not remove the negative comments, and sent Lee invoices for the services stating that if he did not pay, the invoices would be sent to a collection agency.

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2013_04_02__5059The courts and the judicial process are meant for people to seek justice and to have their disputes resolved. Unfortunately, not all lawsuits have merit, and some have been treated as a playground for the rich and powerful, who are often knowledgeable about the legal system and have the means to pursue lawsuits.

As a recent example, Orange County Judge Ronald L. Bauer dismissed a defamation lawsuit filed by Shaheen Sadeghi, a visionary retail developer, against Delilah Snell, the owner of a Santa Ana business. Judge Bauer stated that, in his opinion, the brief statement made by Snell about Sadeghi in the article in question is “matter of opinion and thus beyond the scope of provable defamation.” Furthermore, Judge Bauer concluded that Sadeghi’s legal action was an improper use of the judicial process to silence his critiques.

Sadeghi’s lawsuit reminds me of Donald Trump’s $5 million lawsuit against Bill Maher, filed after Maher asked Trump to prove that his father was not an orangutan. I am not sure what Donald Trump’s motivation was for filing such a lawsuit. But I do know that Trump has the money—perhaps a lot more than Maher—and Maher is a critique of Trump. However, unlike Sadeghi, Trump had more legal acumen. Perhaps Trump realized that he had no case and voluntarily dropped it, instead of risking the Judge dismissing the case—a good move for Trump to spare himself major embarrassment.