Wednesday, November 07, 2012

Defamation, the Public Forum and "Public Interest"

As Wikipedia notes, in law defamation (or libel) “is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual” or a business “a negative or inferior image.” As Wikipedia also notes, defamation law in the United States “is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries”, due to the influence of the 1st Amendment.

This post examines a recent decision from the California Court of Appeals that involved a civil suit for defamation.  Chaker v. Mateo, 209 Cal.App.4th 1138, 147 Cal.Rptr.3d 496 (California Court of Appeals 2012).  This, according to the court, is how the case began:

[Darren D. Chaker] had a brief romantic relationship with Nicole Mateo (Nicole), who resides in Texas. During the relationship, Nicole became pregnant and delivered Chaker's child. . . . [F]ollowing the birth of the child, Chaker and Nicole engaged in a contentious paternity and child support dispute in the Texas courts. . . .

In 2010 a series of derogatory statements about Chaker, and his forensics business, appeared on an Internet Web site where members of the public may comment on the reliability and honesty of various providers of goods and services and on another social networking Web site which provided an open forum for members of the public to comment on a variety of subjects.

The following are statements which refer to Chaker and appeared on one of the sites: `You should be scared. This guy is a criminal and a deadbeat dad. . . . I am the child's grandma so I know. If you should eve [sic] come across this person, be very careful. He may be taking steroids so who knows what could happen.’ `I would be very careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn't let him into my house if I wanted to keep my possessions or my sanity.’

Chaker attributes both of these statements, as well as others which accuse him of fraud, deceit and picking up street walkers and homeless drug addicts, to [Nicole] and Wendy Mateo (Wendy), Nicole's mother and the grandmother of his child. The Internet Web sites contained other derogatory statements apparently posted by other[s], including Nicole.

Chaker v. Mateo, supra (emphasis in the original).

Chaker filed a complaint against Wendy and Nicole that alleged a single cause of action for defamation based on the statements noted above.  Chaker v. Mateo, supra.  As Wikipedia explains, in U.S. civil practice a person initiates a lawsuit by filing a complaint, i.e., a document that sets out the legal claims the person is asserting and the facts that support those claims.  The person who has been sued – the defendant – must then file an answer, i.e., a pleading in which he/she/it responds to the plaintiff’s claims.

Wendy moved to strike Chaker’s complaint under California’s Anti–SLAPP Law. Chaker v. Mateo, supra.  As Wikipedia explains, a “strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” 

As Wikipedia notes, California Code of Civil Procedure § 425.16, which is California’s anti-SLAPP statute lets defendants like Wendy file a motion to strike the complaint in a defamation suit.  And as Wikipedia explains, to defeat such a motion, the defendant must show that the suit is

based on claims related to constitutionally protected activities, typically 1st Amendment rights such as free speech, and typically seeks to show that the claim lacks any basis of genuine substance, legal underpinnings, probative evidence, or prospect of success. If this is demonstrated the burden shifts to the plaintiff, to affirmatively present evidence demonstrating a reasonable probability of succeeding in their case by showing an actual wrong would exist as recognized by law, if the facts claimed were borne out.
In the Chaker v. Mateo case, the trial judge granted Wendy’s motion and struck Chaker’s complaint, which ended the lawsuit.  Chaker v. Mateo, supra.  He appealed, arguing, first, that “because Wendy allegedly posted her statements on Internet Web sites and they were about matters which concerned his dispute with her daughter, they were not statements which implicated her right of free speech.”  Chaker v. Mateo, supra. 

The Court of Appeals began its analysis of this argument by noting that in Wilbanks v. Wolk, 121 Cal. App.4th 883, 17 Cal. Rptr. 497 (California Court of Appeals 2004), the court held that statements that were posted on a web site and criticized an insurance broker’s “business practices” were “made in a public forum and were of public interest.”  Chaker v. Mateo, supra. In reaching this conclusion, the Wilbanks court explained that

whether a statement is ‘made in a place open to the public or in a public forum’ depends on whether the means of communicating the statement permits open debate. We agree that Wolk's Web site -- and most newspapers -- are not public forums in and of themselves. 

It does not follow, however, that statements made on a Web site or in a newspaper are not made in a public forum. Where the newspaper is but one source of information on an issue, and other sources are easily accessible to interested persons, the newspaper is but one source of information in a larger public forum.

In a sense, the Web . . . can be analogized to a public bulletin board. A public bulletin board does not lose its character as a public forum simply because each statement posted there expresses only the views of the person writing that statement. It is public because it posts statements that can be read by anyone who is interested, and because others who choose to do so, can post a message through the same medium that interested persons can read.

Here, while Wolk controls her Web site, she does not control the Web. Others can create their own Web sites or publish letters or articles through the same medium, making their information and beliefs accessible to anyone interested in the topics discussed in Wolk's site.

Wilbanks v. Wolk, supra.

The Chaker Court of Appeals explained that, given the Wilbanks court’s reasoning and that of other California courts, it found that Wendy’s statements were made in

a public forum. Like the court in Wilbanks, we view the Internet as an electronic bulletin board open to literally billions of people all over the world. . . . The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.

We also have little difficulty finding the statements were of public interest. The statements posted to the `Ripoff Report’ Web site about Chaker's character and business practices plainly fall within in the rubric of consumer information about Chaker's `Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.

The remaining statements were posted to the `topix’ Web site, which identified itself as a social networking site (`Join the Topix Community’) and permitted users to create their own profile and post information on its forum. These statements also fall within the broad parameters of public interest within the meaning of section 425.16. 

Of particular significance is the fact that it appears from the record Chaker became the subject of statements on the `topix’ Web site only after he posted a profile on the Web site and it generated responses from other members of the community, including apparently statements from Wendy.

Having elected to join the topix Web site, Chaker clearly must have recognized that other participants in the Web site would have a legitimate interest in knowing about his character before engaging him on the Web site. Thus, here Chaker himself made his character a matter of public interest as the term has been interpreted.

Chaker v. Mateo, supra. 

The Court of Appeals therefore held that because “the record shows the statements which give rise to Chaker's defamation claim were made in a public forum with respect to a matter of public interest within the meaning of § 425.16(e)(3), Chaker bore the burden of showing a probability of prevailing on his defamation claim.”  Chaker v. Mateo, supra. 

It noted that, in deciding this issue, a court considers the pleadings in the case (the plaintiff’s complaint and the defendant’s answer) and any affidavits submitted by any of the parties to the suit.  Chaker v. Mateo, supra. The court must view these documents in a way favorable to the plaintiff. Chaker v. Mateo, supra. To survive a motion to strike the plaintiff “needs to show only a case of `minimal merit.’”  Chaker v. Mateo, supra (quoting Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal.App.4th 450, 137 Cal.Rptr.3d 455 (California Court of Appeals 2012)). 

The court noted that the issue it had to decide was whether Mateo’s statements were “statements of provable fact or mere opinion”.  Chaker v. Mateo, supra. It explained that

the statements about Chaker were made in the context of the paternity and child support litigation going on between Chaker and Wendy's daughter and all were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable opinion.

Chaker v. Mateo, supra. 

The Court of Appeals found that

[i]n this context it is difficult to conclude Mateo's alleged embellishments, to the effect Chaker picks up street walkers and homeless drug addicts and is a dead beat dad, would be interpreted by the average Internet reader as anything more than the insulting name calling -- in the vein of `she hires worthless relatives,’ `he roughed up patients’ or `he's a crook’ -- which one would expect from someone who had an unpleasant personal or business experience with Chaker and was angry with him rather than as any provable statement of fact.

In this regard, we note the insults are generalized in that they lack any specificity as to the time or place of Chaker's supposed behavior; the absence of such specificity is a yet a further signal to the reader there is no factual basis for the accusations. Thus, we are unable to distinguish these insults from the nonactionable ones posted in [other cases] and like the courts in those cases, we conclude these statements are nonactionable opinions.

The only statement which might arguably fall outside the scope of nonactionable opinion or epithet is the statement Mateo is a criminal. However, that statement is true. As the trial court noted, the fact Chaker's conviction was later expunged did not prevent others from making true statements about his criminal history.

Chaker v. Mateo, supra. 

The court therefore held that

[i]n sum, Chaker did not meet the minimal burden required to show he was likely to prevail on his defamation claim, as required by the second step of analysis under the Anti–Slapp Law. Accordingly, we must affirm the order striking his complaint.

Chaker v. Mateo, supra. 

So, presumably, unless Chaker is able to convince the California Supreme Court to reverse the rulings of both these courts and/or files another suit that is based on more facts/different allegations, his defamation claim is presumably dead.  

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