Statement Assailing Lawyer’s Appearance and Competence Not Factual Enough to Sustain Defamation Claim – Ind. Appeals Court

In Sasser v. State Farm Insurance Co., the Indiana appeals court addressed the contours of defamation law in the context of two statements that variously impugned an attorney’s physical appearance and professional abilities.

The plaintiff, an in-house lawyer for the insurance giant defendant, had a years’ long personality clash with a non-attorney claims adjuster.  The plaintiff alleged the adjuster made many disrespectful comments about the plaintiff including the two statements that drove plaintiff’s defamation suit.

The challenged statements consisted of one concerning the plaintiff’s appearance; the other, her competence as a lawyer.  The Court focused mainly on the latter claims agent’s assertion that “any competent attorney could get a defense verdict” after the plaintiff advised against taking a case to trial to company brass.  The plaintiff argued that the adjuster’s statement was per se defamation since it imputed the plaintiff’s ability to perform as a lawyer.

The trial court disagreed and entered summary judgment for the defendants.  Plaintiff appealed.

Affirming, the court first set forth the general principles of Indiana defamation law.

Defamation requires proof of a factually false statement about the plaintiff, published to a third party that tends to lower one’s reputation in the community or that deters others from associating with the person.

Defamation includes written (libel) and oral (slander) statements.  Two species of defamation law include per se defamation and per quod defamation.  The former applies to statements that are naturally harmful on their face and don’t require a plaintiff to prove special damages.

The four categories of per se defamation are statements that a plaintiff (1) committed a crime, (2) has a communicable disease, (3) is incompetent in trade or profession, and (4) exhibits a lack of integrity in performing employment duties.

Defamation per quod involves a statement that isn’t obviously defamatory but requires extrinsic evidence to establish its defamatory meaning.  To succeed on a defamation per quod claim, the plaintiff must prove actual monetary harm attributable to the challenged statement.

For a statement to be actionable as defamation, it must contain objectively verifiable facts about the plaintiff.  But where the speaker is merely expressing his/her subjective view, interpretation, or theory, the statement is not actionable.  In addition, “[j]ust because words may be insulting, vulgar or abusive words does not make them defamatory.” [22]

Here, the appeals court agreed with the trial court that the two statements under attack did not directly convey a per se defamatory statement about the plaintiff.  While allowing that individual defendant’s comment concerning the plaintiff’s appearance may be offensive, it wasn’t verifiably true or false and so didn’t rise to suable slander.

And while the adjuster defendant’s “any competent attorney” statement arguably implicated per se category (3) – by attributing an inability to perform employment duties – the court found the statement too nebulous to be verified as either true or false.  The Court viewed this statement as the claims agent’s subjective opinion that a competent attorney could secure a certain result after a hypothetical trial.

Rhetorically, the Court asked how would one demonstrate the truth or falsity of such a statement?  It then cited to a late-90s Seventh Circuit decision (Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998)) where the Court opined that “to say [plaintiff] is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.”

The Sullivan case relied on by the Indiana appeals court noted that the caliber of legal representation is inherently uncertain: it noted that excellent lawyers may lose most cases because they take on only challenging ones.  Conversely, according to Sullivan, poor lawyers could win all their cases by only taking easy cases. [25].

What’s more: lawyers have strengths and weaknesses: some are good at some things, while poor at others.   There simply isn’t a way to factually test an opinion concerning a lawyer’s aptitude.  Here, since there was no way to corroborate the statement’s truth or falsity, it wasn’t factual enough to support a defamation claim.

The court also rejected plaintiff’s attempt to bootstrap the “any competent attorney’ statement into a claim that the plaintiff violated Indiana Rule of Professional Conduct 1.1 which specifically speaks to lawyer competence in representation.  The Court found that since the plaintiff didn’t allege either the individual or corporate defendant didn’t say the plaintiff acted unprofessionally or improperly with respect to a specific, discrete legal matter, the plaintiff’s reliance on Indiana’s professional conduct rules fell short.

The court also rejected plaintiff’s per quod argument: that the statement’s defamatory content was established when the  court considered extrinsic evidence.  Because the statement did not impute anything false about the plaintiff that would tend to harm the plaintiff’s reputation, the statement was not defamatory per quod.

Afterwords:

This case illustrates in sharp relief the challenges a defamation plaintiff faces in a culture that vaunts freedom of expression and gives latitude for citizens to “blow off steam” in the private, employment setting.

Sasser also demonstrates that while a statement may be mean, offensive, and vulgar, it still will not rise to the level of actionable defamation if it cannot be objectively tested as true or false.

Qualitative, subjective statements about a lawyer’s abilities do not lend themselves to objective testing.  As a result, in Indiana at least, such statements generally cannot support a defamation claim.

 

 

 

 

Attorney’s Intrusion on Seclusion and Cyberstalking Claims Against ‘Above the Law’ Blog Dismissed – IL ND

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In Huon v. Breaking Media, LLC, 2014 WL 6845866 (N.D.Ill. 2014), an Illinois attorney sued law blog Above the Law (ATL) and womens’-interest blog Jezebel.com, for reporting on the plaintiff’s arrest and subsequent trial on sexual assault and witness intimidation charges.

The plaintiff was criminally charged after he met a woman responding to a Craigslist ad where the plaintiff claimed he was a talent scout for a modeling agency.  (Now that doesn’t sound sketchy at all!!) (Cough.)

While the sex assault charge was pending, the plaintiff was separately accused of witness tampering.  The plaintiff was eventually acquitted of both charges after a three-day trial.

Plaintiff sued the two blogs after they published articles discussing the charges’ underlying allegations and the eventual trial result.

The plaintiff claimed the various blog articles and some hostile user/reader comments to the articles impugned his integrity causing him to lose clients. The plaintiff sued for various privacy tort and cyberbullying claims and the blog defendants moved to dismiss all counts. The Northern District dismissed most of the plaintiff’s claims.

Rules/Reasoning:

Intrusion on Seclusion

To state a claim for this tort, the plaintiff must allege (1) an unauthorized intrusion or prying into a plaintiff’s seclusion; (2) the intrusion is highly offensive or objectionable to a reasonable person; (3) the matters upon which the intrusion occurred were private; and (4) the intrusion caused anguish and suffering.

Prototypical examples of this tort include opening a person’s mail, searching someone’s wallet or safe and reviewing a person’s banking information. *14.

The court found that Plaintiff’s intrusion on seclusion claim based on user comments to the defendants’ article were protected by the Communications Decency Act, 47 U.S.C. 230(c)(1)(CDA), a statute that immunizes websites that simply republish information supplied by third parties.

Since the user comments – while offensive – couldn’t be attributed to the defendants under the CDA, the intrusion claim failed.  The court noted that in relation to the readers who posted comments on the blog articles, the defendants were simply “online information systems” that are not publishers under the CDA (see 47 U.S.C. 230(f).

Plaintiff’s argument that the blog defendants “incited” offensive user comments also failed. The court found that a website doesn’t incite unlawful comments simply by providing a forum for content. In addition, both defendants had detailed written policies that outlawed defamatory comments. Taken together, these facts defeated plaintiff’s “incitement” arguments. **4-5

The Court also dismissed the intrusion claim since the plaintiff at most alleged irresponsible (“shoddy”) journalism practices. He didn’t plead that either defendant pried into his personal affairs or violate any of his physical boundaries – an indispensable aspect of the intrusion tort. *14.

Intentional Infliction of Emotional Distress

This claim also failed.  An intentional infliction plaintiff must demonstrate (1) extreme and outrageous conduct that goes beyond all bounds of decency in a civilized community, (2) the defendant intended to inflict severe emotional distress on the plaintiff or know there was a high probability that the conduct would cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress.

Where intentional infliction is premised on published statements, if those statements don’t rise to the level of defamation, they necessarily can’t meet the even higher extreme and outrageous standard. *15

Here, the claims against the Jezebel blog defendants didn’t rise to the level of libel or extreme and outrageous conduct since the Jezebel posts were protected by the fair reporting privilege and because some of the content consisted of opinions, not facts.

But plaintiff did state a colorable intentional infliction claim against ATL for falsely reporting that plaintiff was charged with sexual assault twice (instead of once). 

ATL’s false statement that plaintiff had multiple sex assault arrests was defamatory per se – a false statement imputing the commission of a crime – plaintiff adequately alleged a cause of action for intentional infliction of emotional distress against ATL (as well as defamation).

Take-aways:

– Intrusion on Seclusion requires physical invasion of the plaintiff’s space or private domain;

– An online republisher isn’t responsible for provocative reader comments where it has written policies that outlaw offensive content;

Inaccurate reporting doesn’t rise to the level of intrusion on seclusion or intentional infliction of emotional distress;

 

 

 

 

7th Circuit Bounces Chicago Bull’s Legend’s Defamation Suit

Freepress_art_160_20080307145114In Pippen v. NBCUniversal Media, the 7th Circuit upheld the District Court’s dismissal of former hoops diety Scottie Pippen’s false light defamation complaint. Pippen sued NBC after several internet media outlets falsely reported that he filed for bankruptcy protection. The Northern District dismissed his claims on the basis that he failed to prove that the online media accounts were defamatory on their face and also couldn’t show actual malice by the defendant. The Seventh Circuit affirmed.

Reasoning: The two species of defamation (basically, a false statement published to a third party that is harmful) are: (1) defamation per quod – which requires a plaintiff to show that false statements caused him financial harm; and (2) defamation per se – statements so harmful on their face that damages to the plaintiff recipient are presumed (no proof of money injury is required).  Per se defamation includes false statements that plaintiff committed a criminal act, has a loathsome disease, lacks competence or integrity in his profession or false statements which impede a plaintiff in the pursuit of his trade or profession.  Bryson v. News America Publications, Inc., 174 Ill.2d 77 (1996).

Rejecting Pippen’s per se defamation claim, the Seventh Circuit held that a false media account of a personal bankruptcy was not equivalent to an outright false accusation that Pippen lacked ability in his trade or was somehow immoral.  NBCUniversal, p. 3.  Pippen’s post-NBA career includes public speaking appearances, product endorsements and working as a television basketball analyst.  A media report that he filed bankruptcy does not impugn his ability to carry out these jobs.  Id., p. 4.

The Court also found that Pippen’s defamation per quod claim failed.  While Pippen’s allegations of lost product endorsements and speaking engagement opportunities did satisfy the special damages pleading requirement for per quod defamation, his claim was defeated because he couldn’t show actual malice

Since Pippen is a public figure, he must show (i) defendant’s knowledge of falsity; or (ii) its reckless disregard for the truth of the published statement.  Id., p. 5; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).  The Court looked to U.S. Supreme Court precedent in rejecting Pippen’s argument that a failure to investigate whether he truly filed bankruptcy was enough to show a reckless disregard for the truth.  NBCUniversal, p. 6; Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).  The Court also discarded Pippen’s claim that the media outlets’ failure to retract the bankruptcy report after Pippen e-mailed them that he didn’t file bankruptcy demonstrated actual malice: a determination made at the time of publication.

Finally, the Court reaffirmed Illinois’ single publication rule, codified in 740 ILCS 165/1 (the Uniform Single Publication Act), ruling that defamation is “complete” at the time of the first publication and that subsequent repostings or publications do not trigger fresh libel (written defamation) claims.  NBCUniversal, p. 6.  Applying the single-publication rule to digital publications, the Court looked to other States’ precedents and adopted the policy argument that the rule should apply to online publishers.  Otherwise, the Court wrote, it would give rise to a never-ending multiplicity of suits against online media sources  exposing them to “potentially limitless liability.”  Id., p. 8.  On this point, the court shot down Pippen’s assertion that the single-publication rule shouldn’t apply to online media since they can easily retract erroneous information (with a click of a button). 

On the republication issue (defendant republishes a defamatory story) the Court did imply that if the defendant took an affirmative, independent action that republished a defamatory story, this could give rise to a defamation claim.  However, here, the Seventh Circuit (sitting in diversity) predicted that Illinois’ highest court wouldn’t deem the “passive maintenance of a web site” a republication for libel purposes.  Id., p. 9.

Conclusion: Apparently, one of the prices of fame (I wouldn’t know !) is that it’s hard for a public figure to state a defamation case against a printed or digital media source.  The case illustrates how high a proof burden the actual malice standard is for a celebrity/public figure plaintiff.  It surprises me that if a defamation plaintiff proves to a defendant that a defendant’s statement is false and the defendant fails to retract it (i.e. keeps it on the website), this will not show knowledge of falsity.  It seems to beg the question as to what conduct of a defendant does satisfy the knowledge of falsity or reckless disregard actual malice standard.  Lastly, the Court’s single-publication holding should be welcome news to Internet media sources since it protects them from potentially non-stop defamation claims with each day that a false story persists giving rise   to a fresh limitations period.

Link to opinion:

 http://www.isba.org/cases/7thcircuit/2013/08/21/pippenvnbcuniversalmediallc