Legal Question in Civil Rights Law in California

a person posted some untrure and hurtful things on a public web site about my daughter isn't that defamation or slander

Asked on 9/02/13, 11:11 am

2 Answers from Attorneys

Phillip D. Wheeler, Esq. Phillip D. Wheeler, Attorney At Law
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Greetings! Glad to assist.

Slander is a false and unprivileged publication, orally uttered and communicated by radio or any other means, which charges or imputes that a person has committed a crime, has an infectious or loathsome disease, or is impotent or unchaste, or which tends to directly injure a person’s business or professional reputation, or which causes, by natural consequence, actual damage. CAL. CIV. CODE §46.

Here, you can replace the "radio or any other means" into the category of the Internet.

ELEMENTS FOR LAWSUIT:

*** False Statement

A publication must contain a false statement of fact to give rise to liability for defamation. CAL. CIV. CODE §46; Savage v. Pacific Gas & Electric, 21 Cal. App. 4th 434, 445, 26 Cal. Rptr. 305, 313 (1993); Kaufman v. Fidelity Fed. Sav. & Loan Ass’n, 140 Cal. App. 3d 913, 919, 189 Cal. Rptr. 818 (1983).

*** Unprivileged

Although privilege is generally considered an affirmative defense, if the complaint or the statement at issue reveals an absolute privilege, or a conditional privilege without pleading facts that overcome the conditional privilege, the complaint fails to state a claim for libel. Whelan v. Wolford, 164 Cal. App. 2d 689, 693, 698, 331 P.2d 86 (1958); see also Harnish v. Smith, 138 Cal. App. 2d 307, 311, 291 P.2d 532 (1956).

*** Oral Publication

The slanderous statement must be orally uttered and communicated by radio or any other means. CAL. CIV. CODE §46. “Publication is the dissemination of the defamatory statement to someone other than the subject matter of the defamation.” Cunningham v. Simpson, 1 Cal. 3d 301, 306, 81 Cal. Rptr. 855, 857 (1969).

*** Of or Concerning Plaintiff

The complaint is sufficient if it pleads that the words were spoken of and concerning the plaintiff without pleading the underlying facts. CAL. CIV. PROC. CODE §460; MacLeod v. Tribune Publ’g Co., 52 Cal. 2d 536, 551, 343 P.2d 36 (1959); but see Noral v. Hearst Publ’g, Inc., 40 Cal. App. 2d 348, 353, 104 P.2d 860 (1940) (if the statement contains no specific reference by name or clear implication to plaintiff, the complaint cannot state a claim for defamation even if it pleads that the words were of and concerning the plaintiff).

*** Slanderous Statement

Under Civil Code §46, a statement is slanderous if it falsely:

• Charges any person with a crime, or with having been indicted, convicted, or punished for a crime;

• Imputes to a person the present existence of an infectious, contagious, or loathsome disease;

• Tends directly to injure a person in respect to his or her office, profession, trade or business, either by imputing general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the office, profession, trade or business that has a natural tendency to lessen its profits;

• Imputes to him or her impotence or a want of chastity; or

• Which, by natural consequence, causes actual damage.

Cal. Civ. Code §46.

*** Fault or Malice

If the plaintiff is a public figure or public official, the plaintiff must prove that the defendant acted with actual malice. New York Times v. Sullivan, 376 U.S. 727, 731 (1964). If the plaintiff is a private figure and the slanderous statement related to a private matter, the plaintiff need only prove that the defendant was negligent. See Brown v. Kelly Broad., 48 Cal. 3d 711, 747, 257 Cal. Rptr. 708 (1989); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 349 (1974) (plaintiff must show some fault by defendant).

*** Causation and Damage

If a statement is not defamatory on its face, the plaintiff must plead and prove special damages. Correia v. Santos, 191 Cal. App. 2d 844, 851, 13 Cal. Rptr. 132, 135 (1961). Special damages include damages suffered with respect to plaintiff’s property, business, trade, profession, or occupation, including money expended as a result of the alleged libel. CAL. CIV. CODE §48a(4)(b).

*** Correction Demand and Refusal

If the slander was by radio broadcast, the plaintiff may recover only special damages unless a correction was properly demanded and refused. CAL. CIV. CODE §48a(1).

IN MY OPINION, YOU HAVE A SLANDER SITUATION HERE IF THE ABOVE ELEMENTS ARE MET.

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9/02/13, 11:19 am
Phillip D. Wheeler, Esq. Phillip D. Wheeler, Attorney At Law
0 users found helpful
0 attorneys agreed

Greetings! Glad to assist.

Slander is a false and unprivileged publication, orally uttered and communicated by radio or any other means, which charges or imputes that a person has committed a crime, has an infectious or loathsome disease, or is impotent or unchaste, or which tends to directly injure a person’s business or professional reputation, or which causes, by natural consequence, actual damage. CAL. CIV. CODE §46.

Here, you can replace the "radio or any other means" into the category of the Internet.

THIS COULD BE CONSIDERED LIBEL INSTEAD OF SLANDER BECAUSE IT IS WRITTEN. SLANDER REFERS TO COMMUNICATION TO A THIRD PARTY VIA SPEECH AND LIBEL IS THE "WRITTEN" EQUIVALENT TO SLANDER IN REGARDS OF DEFAMATION.

ELEMENTS FOR LAWSUIT:

*** False Statement

A publication must contain a false statement of fact to give rise to liability for defamation. CAL. CIV. CODE §46; Savage v. Pacific Gas & Electric, 21 Cal. App. 4th 434, 445, 26 Cal. Rptr. 305, 313 (1993); Kaufman v. Fidelity Fed. Sav. & Loan Ass’n, 140 Cal. App. 3d 913, 919, 189 Cal. Rptr. 818 (1983).

*** Unprivileged

Although privilege is generally considered an affirmative defense, if the complaint or the statement at issue reveals an absolute privilege, or a conditional privilege without pleading facts that overcome the conditional privilege, the complaint fails to state a claim for libel. Whelan v. Wolford, 164 Cal. App. 2d 689, 693, 698, 331 P.2d 86 (1958); see also Harnish v. Smith, 138 Cal. App. 2d 307, 311, 291 P.2d 532 (1956).

*** Oral Publication

The slanderous statement must be orally uttered and communicated by radio or any other means. CAL. CIV. CODE §46. “Publication is the dissemination of the defamatory statement to someone other than the subject matter of the defamation.” Cunningham v. Simpson, 1 Cal. 3d 301, 306, 81 Cal. Rptr. 855, 857 (1969).

*** Of or Concerning Plaintiff

The complaint is sufficient if it pleads that the words were spoken of and concerning the plaintiff without pleading the underlying facts. CAL. CIV. PROC. CODE §460; MacLeod v. Tribune Publ’g Co., 52 Cal. 2d 536, 551, 343 P.2d 36 (1959); but see Noral v. Hearst Publ’g, Inc., 40 Cal. App. 2d 348, 353, 104 P.2d 860 (1940) (if the statement contains no specific reference by name or clear implication to plaintiff, the complaint cannot state a claim for defamation even if it pleads that the words were of and concerning the plaintiff).

*** Slanderous Statement

Under Civil Code §46, a statement is slanderous if it falsely:

• Charges any person with a crime, or with having been indicted, convicted, or punished for a crime;

• Imputes to a person the present existence of an infectious, contagious, or loathsome disease;

• Tends directly to injure a person in respect to his or her office, profession, trade or business, either by imputing general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the office, profession, trade or business that has a natural tendency to lessen its profits;

• Imputes to him or her impotence or a want of chastity; or

• Which, by natural consequence, causes actual damage.

Cal. Civ. Code §46.

*** Fault or Malice

If the plaintiff is a public figure or public official, the plaintiff must prove that the defendant acted with actual malice. New York Times v. Sullivan, 376 U.S. 727, 731 (1964). If the plaintiff is a private figure and the slanderous statement related to a private matter, the plaintiff need only prove that the defendant was negligent. See Brown v. Kelly Broad., 48 Cal. 3d 711, 747, 257 Cal. Rptr. 708 (1989); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 349 (1974) (plaintiff must show some fault by defendant).

*** Causation and Damage

If a statement is not defamatory on its face, the plaintiff must plead and prove special damages. Correia v. Santos, 191 Cal. App. 2d 844, 851, 13 Cal. Rptr. 132, 135 (1961). Special damages include damages suffered with respect to plaintiff’s property, business, trade, profession, or occupation, including money expended as a result of the alleged libel. CAL. CIV. CODE §48a(4)(b).

*** Correction Demand and Refusal

If the slander was by radio broadcast, the plaintiff may recover only special damages unless a correction was properly demanded and refused. CAL. CIV. CODE §48a(1).

IN MY OPINION, YOU HAVE A SLANDER SITUATION HERE IF THE ABOVE ELEMENTS ARE MET.

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9/02/13, 11:42 am

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