Internet defamation, right of publicity, publication of private facts and unfair competition law.  We can help protect your company and brand from maniacs on the internet!

Introduction

As a business professional you work like the Dickens to build your brand.  In a digital age, all it takes is ONE KNUCKLEHEAD to make your life miserable and tarnish your brand.  Your brand is EVERYTHING.  So what do you do when customer or even competitors are out to get you, and engaging in false and deceptive acts designed to BRING YOU DOWN?

When it comes to protecting your reputation, we have legal services designed to help.  This blog talks about some of the problems, and legal solutions.  Some of it involves cutting edge internet law.  For commission-based clients (ex. real estate brokers that we serve across California and Arizona who rely on repeat and referral clients) it comes down to managing your reputation and defending your turf and future commissions.  Gossip and defamation can cripple your company, especially when its done online, but setting the record straight and bringing or defending claims of defamation, both libel and slander, can be the difference between success and failure in the digital world.

For real estate brokers visit our COMMISSION COLLEGE YOUTUBE PAGE for general videos discussing defending your commissions.

Bonus materials: Click on the photo above to watch the VIDEO that discuss this blog topic.  Make sure you subscribe by Clicking on the RED “V” in the upper right hand corner of the video.

What is defamation?

One of the main things we see in our legal practice is internet defamation.  We have talked about this in many other blogs and podcasts.  Competitors like to bash other competitors and try to cut into their market share.  It's what I like to call “King of the Hill” people are always gunning at the guy or girl on top.  Trying to disparage you to clients so they can try to capture your leads, and steal your business.  If they tarnish your brand in the process, they don't care, “it's just business” they say to themselves.  But there are lines to be drawn, and there is a difference between fair competition and UNFAIR COMPETITION.  The former being legal, and the latter potential triggering a civil lawsuit.  A big problem area is internet defamation.

DEFAMATION can be broken down into LIBEL (which is written defamation) or SLANDER (which is oral defamation).  Either one of these is actionable.  They two main points that are key to keep in mind, is that as a Plaintiff, you must be able to show:

(1) A false statement of fact (not opinion);

(2) Publication to a third party who understands the statement is “of and concerning” the Plaintiff;

(3) Damages (unless it is libel or slander per se).

These are the main elements, and depending upon whether or not you have a “media defendant” there can be additional requirements such as the “actual malice” standard.  Click here for an important blog that gives you a CHECKLIST OF ELEMENTS A PLAINTIFF MUST SHOW TO WIN THEIR DEFAMATION CASE IN CALIFORNIA.

Defamation can seriously damage your reputation because PEOPLE TALK and most people don't bother to try to verify what they hear, they simply believe it.  For example, a real estate broker who gets a reputation as a scam artist, will not likely get much future business and the likelihood of future real estate commissions will be diminished.  When clients or competitors are making false statements of fact on social media sites such as facebook, youtube, twitter, linked in groups, yelp, blog posts, podcasts, and even regular offline newspapers.

California Case law

“Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. ( California Civ.Code, §44) In general, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel. ( Cal. Civ.Code, § 45; Rest.2d Torts, § 568, subd. (1).  A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander. ( California Civ.Code, § 46; Rest.2d Torts, § 568, subd. (2).)” See  Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242, 7 Cal.Rptr.3d 576, 80 P.3d 676, italics omitted.).  See  Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133, 145, 122 Cal. Rptr. 3d 264, 273 (2011)

If you feel you are being defamed, fill out the contact form below for a free case review.  It is important to understand the difference between a defamation case and risking a SLAPP lawsuit.

How to remove a bad review from Google

PODCAST:  If a person defames your business on social media such as BBB review, Avvo, or Yelp or a Google review can you stop them by filing a lawsuit?  Attorney Steve explains in this podcast.

What is false light?

False light is a “cousin” tort similar to defamation yet may involve semi-truthful defamation. However, as some California Courts have noted:

“The relationship between false light invasion of privacy and defamation has been the subject of much debate, disagreement and confusion. This disagreement has centered primarily on the extent to which the false light tort is intended to protect interests different from those interests protected by defamation actions. In Kapellas and Briscoe this court viewed false light and defamation as in essence equivalent. This view is consistent with Dean Prosser's assertion that “[t]he interest protected [by the false light action] is clearly that of reputation, with the same overtones of mental distress as in defamation.” (Prosser, supra, 48 Cal.L.Rev. 400.) This was also the position taken by the United States Supreme Court in its most recent discussion of the false light tort. ( Zacchini v. Scripps-Howard Broadcasting Co. (1976) 433 U.S. 562, 573, 97 S.Ct. 2849, 2856, 53 L.Ed.2d 965.) Some commentators have gone so far as to argue that false light invasion of privacy does not protect any interest independent of defamation that is worthy of protection.  See  Fellows v. Nat'l Enquirer, Inc., 42 Cal. 3d 234, 248, 721 P.2d 97, 106 (1986). What are the elements of a false light case in California?   In Selleck v. Globe Int'l, Inc., 166 Cal. App. 3d 1123, 1133-34, 212 Cal. Rptr. 838, 845 (Ct. App. 1985) the California court of appeal held:

“An action for invasion of privacy by placing the plaintiff in a false light in the public eye (see Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 416, 198 Cal.Rptr. 342) is in substance equivalent to a libel claim. A plaintiff alleging false light, therefore, must satisfy the requirement of malice (Time, Inc. v. Hill (1967) 385 U.S. 374, 386–388, 87 S.Ct. 534, 541–542, 17 L.Ed.2d 456, 466–467; (1974) 419 U.S. 245, 249–251, 95 S.Ct. 465, 468–469, 42 L.Ed.2d 419, 425–426) and the requirements of California Civil Code section 48a.“

Here are the California Jury instructions for false light defamation.

What is publication of private facts?

This is an interesting tort that can arise in the business or real estate brokerage context.  As one Court put it: “The claim that a publication has given unwanted publicity to allegedly private aspects of a person's life is one of the more commonly litigated and well-defined areas of privacy law . In Diaz, supra, 139 Cal.App.3d at page 126, 188 Cal.Rptr. 762, the appellate court accurately discerned the following elements of the public disclosure tort: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern.” See Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 808–809, 163 Cal.Rptr. 628, 608 P.2d 716; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228–231, 253 P.2d 441; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 744–748, 20 Cal.Rptr. 405.) That formulation does not differ significantly from the Restatement's, which provides that “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” (Rest.2d Torts, § 652D.).  See  Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 214, 955 P.2d 469, 478 (1998). Here are the California Jury instructions for public disclosure of private facts.

What is intrusion on seclusion and solitude?

This is a “privacy tort” and can arise in cases of business owners, CEO's, CIO's, CFO's, real estate brokers, lawyers, etc.  This tort which can seriously damage and injure the reputation of the company itself was discussed in Sanders v. Am. Broad. Companies, Inc., 20 Cal. 4th 907, 915-16, 978 P.2d 67, 72 (1999):

“This case squarely raises the question of an expectation of limited privacy. On further consideration, we adhere to the view suggested in Shulman: privacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Although the intrusion tort is often defined in terms of “seclusion” (see, e.g., Rest.2d Torts, § 652B [Intrusion upon Seclusion]; Shulman, supra, 18 Cal.4th at p. 232, 74 Cal.Rptr.2d 843, 955 P.2d 469 [“intrusion on seclusion”] ), the seclusion referred to need not be absolute. “Like ‘privacy,' the concept of ‘seclusion' is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.” (1 McCarthy, The Rights of Publicity and Privacy (1998) § 5.10[A][2], p. 5–120.1.).”

Here are the elements of a cause of action for intrusion on seclusion in California (intrusion into private affairs CA jury instructions).  This is another privacy tort that can serious harm your personal or corporate reputation and could require you to file a civil lawsuit (either state or federal court) to stop the abuse.

What is a violation of a California right of publicity?

From time to time we see competitors doing WIERD THINGS like violating a real estate broker or corporate officers RIGHT OF PUBLICITY.  The right of publicity is basically a persons right to control the use of their name, image, and likeness.  In some cases this even includes a nickname.  This can arise where a competitor tries to damage your reputation by using a copyright photo (possible constituting willful copyright infringement), or your name in comparative advertising.

Here is one California case that discussed this interesting legal issue:

“The common law right of publicity derives from the fourth category of invasion of privacy identified by Dean Prosser, described as “appropriation” of a plaintiff's name or likeness for the defendant's advantage. ( Comedy III, supra, 25 Cal.4th at p. 391 & fn. 2, 106 Cal.Rptr.2d 126, 21 P.3d 797, citing Prosser, Privacy (1960) 48 Cal. L.Rev. 383, 389.) Historically, courts were reluctant to permit celebrities to rely on this privacy right, since their fame seemed inconsistent with the injury to solitude or personal feelings implicitly required. (Rest.3d Unfair Competition, § 46, p. 529, Appropriation of the Commercial Value of a Person's Identity: The Right of Publicity, p. 529.) In Haelan Laboratories v. Topps Chewing Gum (2d Cir.1953) 202 F.2d 866, 868, certiorari denied (1953) 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343, a court, for the first time, recognized a distinction between the personal right to be left alone and the economic right to exploit one's own fame. California recognizes the right to profit from the commercial value of one's identity as an aspect of the right of publicity.  See  Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409, 114 Cal. Rptr. 2d 307, 313 (2001)

For more information see California Right of Publicity jury instructions.  Here are the CA jury instruction indicating what types of damages you can recover in a Cali ROP case.

Attorney fees and punitive damages can possibly be recovered in a right of publicity case in CA.  Please fill out the contact form below for a free case evaluation.

Will a cease and desist letter stop my competitors from engaging in unfair business practices?

Sometimes a cease and desist letter will help stop the damage to your reputation.  We can draft a letter to assist you under our ZipCounsel legal service.  In other cases, you may have to file a civil lawsuit against the person or company that is persistent in attacking your brand.

Contact a California tort lawyer for defamation, disparagement, reputation and brand protection legal issues and response.

When your company is under attack, call one of our California and Arizona tort attorneys. We have offices in San Francisco (Silicon Valley, Oakland, San Jose), Beverly Hills (Los Angeles), Newport Beach (Orange County), San Diego (La Jolla, Carlsbad, Oceanside), and Phoenix Arizona (servicing Maricopa County, Scottsdale, Tempe, Mesa, and other areas).  We can be reached by phone at (877) 276-5084 or fill out the contact form below for a free case evaluation.