Defining Defamation in California

"Defining Defamation in California

California defines defamation, slander, and libel as communicating false information that is meant to cause harm to a person or business and expose them to ridicule, hatred, or contempt. The plaintiff must prove the defendant at the very least acted with negligence when repeating to a third party the defamatory statement(s) in question.

Privileged vs. Unprivileged Statements or Publications

Under California law, privileged publications include general reporting for news stories or investigations, any material that is subject to judicial review, or any reports related to a person acting in their official capacity as a government official. Unprivileged publications are those which falsely claim the plaintiff is guilty of a crime when no crime has been committed, claiming a person is unchaste or impotent, asserting falsely that a person has a horrible, contagious disease, and such statements have caused the plaintiff actual harm to the reputation or business. These unprivileged statements can be construed as Defamation Per Se.

Private versus Public Figure

The distinction between a private and public figure is key under California state law. It goes without saying that California teems with public figures.

Private figures, according to California state law, need only to prove negligence on the part of the defendant when the defendant repeated false claims to a third party about the plaintiff. Public figures, on the other hand must prove that actual malice existed when the defendant published, spoke, or broadcast the defamatory material against them.

Since there are so many public figures in California, namely celebrities in the entertainment industry, it’s much harder for celebrities to prove actual malice existed on the part of tabloid publishers that publish supposed “intimate details “ about a celebrity regardless of whether or not the “intimate details” are true. Again, the public figure or celebrity would have to prove the existence of actual malice on the part of the defendant.

The media is also barred from making a private figure into a public figure simply by running a story about that person.

Defenses for Defamation

Like other states, California recognizes that truth is a valid defense against defamation of character complaints. Defendants can also defend themselves under the qualified privilege. This privilege is mostly used by the news media when they report on matters of fact regarding a person considered to be a public figure.

Opportunity to Retract

When a plaintiff in a defamation case issues a demand for retraction by the defendant, the defendant has 20 days to comply with the retraction notice. If the defendant chooses to comply and retract the defamatory statement as requested, this mitigates the amount of damages the plaintiff would be able to recover should the case still go on to trial. If the defendant refuses to comply with retraction notice by letting the requisite 20 days lapse, then the case can go to trial and the plaintiff has the opportunity to collect unmitigated damages.

Damages Plaintiffs Can Recover

California allows plaintiffs in defamation cases to recover the following types of damages:

actual damages
compensatory damages
punitive damages
emotional distress damages

Private figures are able to recover any of the types of damages listed. Public figures, however must prove actual malice before recovering punitive and emotional distress damages."

Source
http://kellywarnerlaw.com/california-defamation-laws/

U.S. Code Research, Law Research

http://uscode.house.gov/search/criteria.shtml

Jamaica Observer "Proposed defamation legislation a blessing and a challenge" Clare Forrester reports on the Crystal Cox Defamation Case and crucial issue of the importance of the distinction of who is a "journalist", as a matter of law.

"Some in the media fraternity argue that making a distinction between who is and is not a journalist would perhaps help to provide clearer directions when addressing alleged infringements committed by posting damaging information on the Internet.

Source of Quote
//www.jamaicaobserver.com/columns/Proposed-defamation-legislation-a-blessing-and-a-challenge_13949599#ixzz2Q4P5h3XJ

"These concerns exploded in a widely publicised case in the US against a self-styled "investigative blogger" named Crystal Cox.

This defendant functions as a type of 'whistle-blower' using a preponderance of blogs where she frequently writes about allegations of wrongdoing, usually by those in the finance sector.

She was sued by one of the targets of her posts, an investment firm called Obsidian Finance Group and its founder Kevin Padrick who alleged she defamed them.

In resisting a court demand to disclose the source of her information, she argued that she and the source(s) should be covered by laws designed to protect journalists.

The judge ruled otherwise, on the grounds that she was not affiliated with a traditional media entity and so not entitled to such protection.

She was then slapped with a US $2.5-million judgment, the amount which the plaintiff argued that he lost in earnings as a result of the damage caused to his reputation.

The intensity of the criticisms against the judge's 'bloggers versus journalists' comments led him to release a follow-up opinion explaining that his statement should not be interpreted to mean that all bloggers do not qualify to be called journalists, but that Cox certainly could not be so regarded. Moreover, blogging and bloggers were not, up to that point in time, covered under the journalism shield legislation in that state."


Source and Full Article
http://www.jamaicaobserver.com/columns/Proposed-defamation-legislation-a-blessing-and-a-challenge_13949599#ixzz2Q5BuS71X



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Also for more on the Crystal Cox Case, Check Out
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The Crystal Cox Case is on Appeal in the Ninth Circuit. Crystal Cox's attorney is UCLA Law Professor Eugene Volokh. Below is links to the opening brief and secondary brief in the Crystal Cox appeal

http://www.docstoc.com/docs/132977266/Eugene-Volokh-Crystal-L-Cox-Appeal-Obsidian-Vs-Cox-Appeal-Opening-Brief

http://www.docstoc.com/docs/144314839/Obsidian-Finance-Group-LLC-V-Crystal-Cox-Eugene-Volokh-Reply--Response-Brief

Here are some briefs in the appeal that were support briefs, Amicus Briefs that really clarify the issue that matters most to all.

http://www.docstoc.com/docs/133576894/ScotusBlogcom-Amicus-Brief-Regarding-Obsidian-Vs-Cox-Appeal

http://www.docstoc.com/docs/133593941/Obsidian-V-Cox-Appeal-the-Reporters-Committee-for-Freedom-of-the-Press

Here is an EFF Support Brief

http://www.dmlp.org/sites/citmedialaw.org/files/2012-01-11-EFF%20Amicus%20in%20Support%20of%20Cox%20Motion%20for%20New%20Trial.pdf