Archive for the 'Defamation' Category

10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

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Minnesota Court of Appeals protects a blogger’s right to tell the truth

August 20, 2012

This morning, the Minnesota Court of Appeals released a decision that wisely protects bloggers’ rights to tell the truth, particularly on matters of public concern.

The case, Moore v. Hoff, involved a long-simmering Minneapolis dispute between John Hoff, who writes a blog titled “The Adventures of Johnny Northside,” and Jerry L. Moore, who worked in the University of Minnesota’s Urban Research and Outreach-Engagement Center.

Hoff made a blog post that Moore claimed were defamatory, and in turn Moore claimed that his termination from the university was linked to the allegedly false post.  Moore sued Hoff for defamation but also for interfering with his business relations.  A jury found that the posts were not false but nevertheless found interference with business relations.

But the Minnesota Court of Appeals reversed the jury verdict, ruling that a claim based on interference with business relations must involve a falsity, not a truth.  The court further explained that the communication involved matters of public concern in North Minneapolis.

Minnesota online communicators should be heartened by this holding, which affirms bloggers’ places in the media marketplace.

Recent Minnesota Supreme Court decisions are unfriendly to free speech

August 20, 2012

Summer has delivered two sizzling First Amendment decisions from the Minnesota Supreme Court, neither of which is good for online communicators.

The most recent decision came earlier this month.  State v. Crawley involved a Minnesota statute that makes it a crime to knowingly file a false police report.  In a 4-3 decision, the court held that even though the statute criminalizes expression based on its content–something the First Amendment abhors–the law was OK because it could be read to criminalize only defamatory speech, which is not protected by the First Amendment. 

In other words, the Minnesota Supreme Court wrote language into a statute that doesn’t exist.  In a dissent, Justice Stras called the court to the carpet and said the justices should not get in the business of writing statutes.  It is hard to disagree.

The other decision, Tatro v. University of Minnesota, which was released in June, received more mainstream media play than Crawley.  In fact, I talked about it when I was interviewed on Channel 9 last week.

In that case, the court ruled unanimously that the university could discipline a student in its morturary sciences program for making Facebook posts that most people would find to be, quite frankly, tasteless.  The court acknowledged that the university was abridging freedom of speech but justified the ruling because the university had a policy prohibiting certain online communication.

From a free-speech perspective, Tatro is much less problematic than the recent Crawley case.  At least the university had a policy.  As for Crawley, all communicators, online and otherwise, should be concerned that the state’s highest court would rewrite a speech-restrictive statute as they did.

I would not be at all surprised to see the case end up in the United States Supreme Court, as a Minnesota case did 20 years ago.  That case was R.A.V. v. City of St. Paul, where the nation’s high court disagreed with the Minnesota Supreme Court over a St. Paul ordinance that criminalized the messages that cross burnings are intended to convey.  Interestingly, the Minnesota Supreme Court based its Crawley decison on R.A.V.

Interesting stuff.  Stay tuned.

$1 million defamation verdict against KSTP called state’s largest ever

November 8, 2011

The Star Tribune reported today that a a Dakota County jury has returned a $1 million defamation verdict against KSTP-TV for stories it aired about a holistic healer.  The newspaper reports that the jury found the broadcaster had acted with “actual malice.”  Actual malice is generally synonymous with recklessly disregarding the truth.

It is believed to be the largest defamation verdict in Minnesota.  The largest of which I had been aware was a $676,000 verdict against the Duluth News-Tribune, which was upheld on appeal in 1994.

Iowa Democrats liable for defamation

November 4, 2011

The Omaha World-Herald reports that an Iowa jury has found the state’s Democratic Party liable for defamation for sending a pamphlet containing an erroneous report that a Republican challenger had bailed out a convicted sex offender.  The jury awarded $50,000 in damages.

The defamation plaintiff’s lawyer said his client had been charged but never convicted of a sexual-related offense.

The state’s Democratic Party told the newspaper:  “The Iowa Democratic Party relied on research, which was obtained and vetted by an independent firm. Unfortunately, the firm provided inaccurate information concerning the type of criminal conviction. We are currently seeking compensation from this research firm to cover the costs of this case.”

An Encouraging SLAPP

February 19, 2009

On Tuesday, the Minnesota Court of Appeals released a decision affirming that when someone speaks with an intention to change the way government operates, the law will try to protect the speech even if it borders on being defamatory.

The case arose in Marshall County in southwestern Minnesota where a resident whose land was “taken” by a governmental “Watershed District” sued but then settled the lawsuit.  The settlement required the landowner and the District to “endeavor to establish a positive and collaborative relationship” with each other.  A year later, the District sued the landowner alleging that he had breached the agreement by interfering with funding, making statements with intent to harm the project, and filing requests for public documents.

The landowner sought to have the lawsuit dismissed and wisely cited Minnesota’s “anti-SLAPP” statute, a little-known and little-used provision that requires courts to dismiss lawsuits involving “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action.  SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Anti-SLAPP statutes generally work to ensure that ideas freely flow when the ideas involve government.  California has led the way in fighting against lawsuits of this type, and in 1994 Minnesota’s anti-SLAPP statute took effect.

But barely anyone knows the law is on the books.

In Marshall County, the trial court let the lawsuit go forward, but on Tuesday the Minnesota Court of Appeals held that the trial court had to dismiss the case unless the District could demonstrate by “clear and convincing evidence” that the anti-SLAPP provision did not apply.

It remains to be seen whether the governmental entity can and will be able to do that.  In the meantime, though, the Court of Appeals has provided an important reminder that when one speaks out against government, the law should — and will — offer protection.

Look For The Union Label

December 21, 2008

Are you a union member thinking about suing your boss for writing up a false report about you?  Good luck.  Write your congressman.

 

This month, the Minnesota Court of Appeals just made it extremely more difficult for employees who are covered by collective bargaining agreements to sue over job-performance reviews, even if the review contains something false.

 

The case arose at Bethesda Hospital in St. Paul, where a registered nurse got a written warning based on a patient’s complaint that the nurse had failed to administer a prescription drug to a patient.  But it turns out that she had given the drug.  Also,aA month earlier, the nurse had received a verbal warning after a patient accused her of being “short, abrupt, nasty and sharp.”  According to the nurse, that patient was well-known for making false complaints, and she filed a union grievance.

 

She also went to court, alleging that the Director of Nursing had defamed her.  A trial court threw out the case, and earlier this month the appeals court agreed that the dismissal was proper.  The reason?  Because a federal law, the Labor Management Relations Act, “preempts” state defamation law when—get ready—the “defamation claim is substantially dependent on the interpretation of a provision of the CBA.”  If it’s not “substantially dependent,” then you can sue under state defamation law, saith the appeals court.

 

Hmm.  This is a toughie.  The Labor Management Relations Act dates to the mid-1940s, and it generally aims to govern relations between union and management nationwide.  Makes sense.  But the federalization of our law is running rampant, something that our nation’s founders would find disturbing.  I am quite confident in saying that early American leaders never dreamed that that an employee could not go to local court to use her boss for defamation.

 

But times change, and so does the law, and so does the nation.

Don’t Bank On Defamation Law To Help

November 9, 2008

This week the Eighth Circuit Court of Appeals released a decision demonstrating how tough it can be to invoke defamation law when the person alleging defamation was the one who asked for the allegedly false information in the first place.

The federal case from Minnesota involved a loan dispute between a small business and one of Minnesota’s largest banks.  Court cases were pending in both Hennepin and Ramsey County courts, one involving an alleged $35,000 loan default and the other involved alleged bank overdraft charges.  The business defended against and settled the first lawsuit involving the loan.  But the business did not defend against the second suit involving the overdraft charges, which prompted the bank to seek a default judgment and to begin garnishing the business’ other bank accounts.

Then, in reponse to the business owner’s request, the bank sent a fax suggesting that the $35,000 loan was unpaid.  The business owner filed a defamation case containing a variety of allegations, including that the fax contained false information that was communicated to potential investors and caused the business to lose $4.2 million in profits

The Eighth Circuit rejected the defamation claims one by one.  Most importantly, the court concluded that the fax was “absolutely privileged”–in other words, it could not provide a basis for a defamation claim even if the information was false–because the business owner had consented to it being sent.

Strib In The Middle

November 1, 2008

The proverbial fan blades have been encrusted with a nasty substance in the U.S. Senate race between Norm Coleman, Al Franken, and don’t forget Dean Barkley.  And the state’s largest newspaper is in the middle of it.

First, the latest.  The Star Tribune is reporting this morning that there are now two lawsuits alleging that a close friend of Coleman’s has “used a marine company in Texas” to pay money to the senator through a Minneapolis insurance company where Coleman’s wife works.  There also are signs that Franken, or at least his party, are using the revelations for political gain.  Says a note on the Strib web site:

The Democratic Senate Campaign Committee is running TV ads featuring a Star Tribune reporter questioning Sen. Norm Coleman about a lawsuit noted in this report. The video in the ad was filmed without the knowledge or consent of the Star Tribune.

Says Coleman, in a statement: “Each and every allegation in this lawsuit relating to me and my wife is false and defamatory.”  A spokeswoman further stats that the Strib “is actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Speaking of false and defamatory, Coleman also has filed a complaint with the Minnesota Office of Administrative Hearings alleging that Franken is to be blamed for ads claiming that Coleman is the fourth most corrupt senator in the country and gets too good of a deal on a Capitol Hill apartment.  I cannot find the petition online, but it must have been filed pursuant to Chapter 211B of Minnesota Stautes.  Take a read.

OK, some quick analysis from this journalist turned lawyer, with more to come later as developments warrant.  🙂  First, Coleman has an uphill battle if he wants to sue over a lawsuit.  Generally, a litigant can say whatever he wants in a lawsuit.  It is, in legalese, subject to an absolute privilege.  But of course, there are limits to everything, and someday a court might confront this precise issue.

Second, it’s ironic that the Star Tribune is concerned about video of its reporters taken without its “knowledge and consent.”  Newspapers take pictures of persons without their knowledge and consent all the time.  As long as the photos or video are taken on public property and are not used in a way that invades the subject’s privacy, it’s all fair game.

Third, Coleman’s claims.  I could start a blog just to discuss Chapter 211B of Minnesota Statutes and similar federal requirements.  Anyone who values free speech should scrutinize these laws.   And if you do, an intriguing revelation emerges. Chapter 211B makes it a crime –a gross misdemeanor — to actively “participate” in disseminating false campaign information.  Coleman’s spokeswoman says the Strib is “actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Umm.  Stay tuned.

Defamation Is Tough (For) Business

October 12, 2008

A defamation decision from the Minnesota Court of Appeals of a few weeks ago should give online communicators pause.  The decision did not involve web sites, blogs, or other internet-based ways of communicating, but it did involve something that is so easy to do online: rant about a business.

Judging from the name of the case, Diversified Water Diversion, Inc. v. Standard Water Control Systems, Inc., you would be correct to guess that the matter involved Minnesota construction contractors — specifically, contractors that do drain-tile work at homes.  In the court’s words, there was “a great deal of ill will” between the companies, so bad that in 2002 Standard sued Diversified over its business practices.  The parties settled the suit and, as is customary, agreed that neither company would “disparage” the other.

In 2005 and 2006, when some homeowners received bids from both companies, Standard’s president warned the homeowners that Diversified did “terrible work,” would not honor warranties, and was “sleazy.”  Diversified sued Standard for defamation, even though the homeowners had hired Diversified anyway.  The claim was for “defamation per se,” which in Minnesota permits certain persons — chiefly businesspeople people and persons wrongfully accused of crimes — to win defamation suits even when they have failed to prove that they actually have been harmed.

Defamation per se is controversial, and rightly so.  The theory is that some defamation is so bad that the person who was defamed should not have to be burdened with proving that there was damage to reputation.  Falsely accusing someone of being a pedophile is one instance in which Minnesota courts have awarded defamation per se damages.  That makes sense.

But does it make sense to permit a business to recover these sorts of damages?  In Diversified v. Standard, both the Hennepin County trial court and the Minnesota Court of Appeals said yes, to the tune of $30,000.  The appeals court’s written ruling provides only a peek of what went on, but I am troubled that there is no explanation of how Diversified proved that the comments were false — something that is required even for “defamation per se.”  No one deserves to be accused of being “sleazy,” and I am not suggesting that anyone in this case was.  But still, Minnesota’s defamation law cannot be allowed to get so out of control that plaintiffs have to prove neither falsity nor damages.  Maybe falsity was proven in this case, but the appeals court’s unfortunate omission of that issue might mean trouble down the road.

Including for online communicators.  For now, be very, very careful about whining about businesses.  Because in Minnesota, you’re on notice that even true whining might mean trouble.