Tag Archive for 'defamation'Page 2 of 4

Donald Trump Loses Defamation Lawsuit, Alleged He Wasn’t Billionaire

Shockingly, Donald Trump is involved in a silly lawsuit. Crazy, right? He seemed like such a level-headed and down-to-earth guy. I guess you can’t judge someone based solely on their public persona.

Kidding aside, Donald Trump has lost a lawsuit in which he sued the author of a book which had the sheer audacity to claim that The Donald isn’t actually a billionaire, and is worth $250 million, at most.

In general, to successfully sue for defamation, you must prove several different things. First, you have to prove that the allegedly defamatory statement was actually about you, or that a reasonable listener would come to the conclusion that it was about you. Then, you must prove that the statement was actually defamatory, meaning that, if someone hears and believes the statement, it will significantly harm your reputation.

In this case, Donald Trump had no problem proving that a statement was made, that other people read it, or that it was about him. The main issue he had was proving that, by claiming his net worth to be less than one billion dollars, the author of the book damaged his reputation.

It’s pretty tough to argue that your reputation has been damaged by someone claiming that you’re worth less than a billion dollars. Of course, Mr. Trump’s best argument would probably be to claim that the accusation that he is worth less money than he holds himself out to be is tantamount to calling him a liar.

Calling someone a liar, without any reason to believe that they are, is probably grounds for a defamation suit.

However, there’s another issue with Donald Trump that makes it very difficult for him to file a defamation suit: he is a public figure.

In general, it’s nearly impossible for a public figure to successfully sue for defamation, unless they show that the speaker acted with “actual malice,” meaning they knew that their statements were false, or they recklessly disregarded the truth. And they must prove this allegation by “clear and convincing evidence,” which is a higher standard of proof than is usually used in civil cases.

This is by design: generally, we want it to be very difficult for public figures to sue for defamation, because the First Amendment right to free speech is generally considered more important than the reputation of a single famous person. After all, the right to free speech is generally considered most important when it concerns speech about public figures, or matters of public concern.

These are the things from which society benefits most when free debate and discussion of matters that concern the public are able to occur without any interference. However, that doesn’t mean that public figures have no recourse. As mentioned, if they can prove that the speaker was deliberately lying, they have a case for defamation. When they can’t prove this, it’s assumed that most public figures have enough access to the media that they can get their side of any story out there at least as well as the average person who’s going to be discussing them.

Because the average person isn’t presumed to have these resources, it is usually much easier for them to sue for defamation.

This balancing act is very important. We want people, even celebrities, to be able to protect their reputations from malicious smear campaigns. At the same time, it’s extremely important that we don’t let a situation arise where the extent of one’s right to free speech is dependant on how good a lawyer they can afford.

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Advertising Ex-Girlfriend’s Abortion Goes Beyond Free Speech

As you probably know, the United States has some of the strongest legal protections for free speech in the world. It’s very, very difficult for the government, at any level (federal, state, or local), to stop someone from speaking their mind, regardless of the ideas being expressed, and the way in which they choose to express them.

There are limits to the right to free speech, and almost all of them come up when a person engages in conduct that violates the rights of others, such as fraud, defamation, or invasion of privacy.

Such was the case recently, when a man, spurned by his ex-girlfriend, posted a billboard above a highway, claiming that she had an abortion. It showed the man in a photo, holding the outline of a baby, with text that said “this would have been a picture of my 2-month old baby if the mother had not decided to kill our child.” That’s pretty inflammatory stuff, especially when the woman involved in the relationship sees the billboard.

Although the woman’s name was not used, people who knew both her and the man who put up the billboard were obviously able to figure out who it was talking about. She sued, seeking a protective order requiring that the billboard be taken down. This lawsuit immediately ignited a moderate amount of controversy, sparking debate between a variety of factions concerned with issues such as free speech, privacy, abortion rights, and fathers’ rights.

For her part, the mother claims that she did not even have an abortion, but actually had a miscarriage.

The truth of either of those claims is largely irrelevant. What matters is the woman’s right to privacy, and her right to be free from harassment.

American courts have held for quite some time that there is a constitutional right to privacy, which applies mostly against the government. However, under the common law, there is generally a right of privacy against private (non-governmental) parties, as well. This generally means that you can sue when someone invades your privacy and discloses private facts about you to the public in a manner that a reasonable person would find objectionable. There are also longstanding laws against defamation, and the Supreme Court has long held that, for the most part, the First Amendment’s right to free speech does not significantly limit a person’s right to sue for defamation or invasion of privacy.

However, the man who put up the billboard argued that the constitution protected him. Indeed, there are some cases where the right to sue for defamation is limited by the constitution’s guarantee of free speech. For example, when defamatory statement discusses a public figure, or a matter of public concern, the First Amendment kicks in, and it becomes much more difficult for the person(s) mentioned in the statement to sue for defamation, even if the statement is defamatory and untrue.

Based on this, he argued that he was simply stating his opinion on abortion, which is a matter of public concern. Nonetheless, the judge found that his right to express these views (to the extent that that was the actual purpose of the billboard, which seems doubtful) does not, in this case, outweigh his ex-girlfriend’s right to privacy, and to be free from harassment.

I think that this was the right call. While I almost always come down on the side of free speech, I also recognize that there is a right to privacy, especially when it comes to reproductive issues. If the guy who put up the billboard was being truthful when he said he simply wanted to express his opinions on abortion, he could have done so in any number of other ways, which did not need to expose his ex-girlfriend to humiliation and harassment. And, if the billboard was intended to be specifically about his ex, then whether or not that particular person had an abortion is nobody’s business, and therefore not a matter of public concern. This means that her right to privacy strongly outweighs the man’s right to free speech.

Whether or not she actually had an abortion is mostly irrelevant, but if she didn’t have an abortion, and actually had a miscarriage, I can only imagine how hurtful that billboard must have been to her.

There will always be cases where people who believe themselves to have been wronged will attempt to publicly humiliate the person they perceive as the wrongdoer. After all, public humiliation is a pretty potent form of revenge. However, the whole reason we have a legal system is to ensure that people who believe they’ve been wronged don’t resort to the type of “self-help” that this guy decided was necessary. If he believed he had been wronged, there are many, many ways he could have better handled the situation.

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Kim Kardashian Threatens Defamation Lawsuit Over Affair Accusation

All I have been hearing about on the radio is Kim Kardashian’s “alleged affair” with NFL player Bret Lockett.  The news may soon leave the airwaves and come into the courtroom.

Kim Kardaashian has threatened to sue Lockett and In Touch Magazine for defamation, invasion of privacy and other causes of action.  In fact, Kardashian’s lawyer has already written a demand letter to In Touch Magazine, informing them of Ms. Kardashian’s intent to sue.

Now affairs are not uncommon in the life of the famous.  Many people think that Kim probably has cheated and is hoping the threat of a lawsuit will help save her image and engagement.  The fact that Lockett is claiming to produce physical evidence of their affair is not helping the matter.  All this buzz brings about the question of whether or not Kim will be able to prove herself a victim if the matter goes to court?

With defamation, a person basically needs to show some form of defamatory communication, harm to one’s reputation, and that the person intended to defame another, or did so with complete reckless disregard for the truth.  In other words, Kim is going to have to show that Lockett’s claim has harmed her reputation and that Lockett either purposely defamed her, or was reckless to the point that he should have known spreading false information regarding their “affair” would hurt Kim’s reputation.

Proving harm to her reputation by the “alleged affair” rumor will not be difficult because such a rumor is harmful to anyone’s reputation.  What Kim’s attorney will have trouble with is proving that Lockett purposefully defamed her, or did so with a reckless disregard to the truth.  Sure, they can claim that he is doing this purposefully for publicity or money, but how do you show this with proof in court?  They cannot go into Lockett’s head and steal his thoughts to present to the jury.  Kim’s attorney would have to produce proof of contracts with news channels or media agency showing a different and/or improvement in Lockett’s publicity after the rumor.  Also, Kim’s attorney would need to look for proof of monetary gain on Lockett’s part as a result of the rumor.  If the proof is there, it may not be too difficult to find; however, I am sure Lockett’s attorney will not make it easy either.

Additionally, with an invasion of privacy claim, a person needs to show some form of invasion to one’s privacy that a reasonable person would find offensive.  In this case, Kim is going to have to show that she was portrayed in a false or highly offensive manner by In Touch Magazine.  In my opinion, this should not be too difficult.  Claiming someone had an affair at the eve of the person’s engagement is definitely offensive to the person, as well as the person’s fiancé.  Kim’s attorney will have no problem in showing the offensiveness of In Touch Magazine’s article.

With both of these causes of action, if Kim is being truthful in never having had an affair with Lockett, winning on both these causes of action will still be difficult.  Lockett is claiming he has texts and voicemails as evidence of their relationship.  With technology, it is not hard to fabricate a text or voicemail.  However, proving that the texts or voicemails are fabricated is challenging.  For Kim to prove the falsity of Levitt’s physical evidence in order to prove her truth will be a challenging task.

This whole situation seems like it can turn into a huge legal mess.  Some may think that the smart thing for her to do is initiate a settlement.  With a settlement, both parties can move on with their lives.  However, if Kim does decide to bring Levitt into court, settling the lawsuit with money goes against the whole “I am truthful and am going to unveil your lie” principal.  Settling may give the impression that Lockett was right and Kim is trying to “hush things up” so she can move on with her wedding.  This move, in turn, will also be harmful to her reputation and image.

In the end, lawsuits take time and money.  Is Kim going to want to waste time and money over a lawsuit when she has a new season of her show on E! to handle, alongside planning a wedding?  Will she want rumors about her love life and alleged personal texts and voicemails exploited?    Even if she was faithful and wants to prove Levitt’s statements false, it will take a lot of time and money with no guarantee that justice will be hers in a court of law.  How this situation moves forward will be interesting to see.  One thing that certainly be said is that Kim’s reputation has already suffered harm, and no matter what path she chooses, she will have to endure a great deal of humiliation and harm to her reputation before she receives any sort of justice.

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Loose Talk Online has Real-Life Consequences

I’ve said it before, and I’ll say it again: sometimes, words have legal consequences. You can commit serious legal wrongs (fraud, defamation, solicitation, conspiracy, etc.) using words alone. Furthermore, speaking without thinking can hurt your legal position in other ways, inadvertently defeating an essential element of a claim or defense in a civil case.

I should also note, again, that these legal consequences apply whether you say something in the real world, or on the Internet. And since anything you say on the Internet generally has the potential to reach far more people than something said in the physical world, you should generally be more guarded about what you say online. But, for whatever reason, most people seem to do the opposite – typing out the first thing that pops into their heads, for the world to see.

Today brings yet another case (also seen here) of somebody saying something online, and negatively affecting their legal situation. Though this one is a bit more amusing than most. This case involved a divorcee who was awarded $850 per month in spousal support, partly because she claimed she was unable to work, due to a back injury.

However, the court found out that she was very fond of belly dancing, which, from my limited experience, looks like it would be pretty physically taxing – not exactly something for people who can’t work (even as a legal secretary, which is what our friend did before all this) due to a back injury.

So, how did the court find out that she had recently taken up belly dancing? Why, her blog, of course!

She made posts about how she “swirled around,” “danced herself silly,” and the like. And, of course, either her ex-husband, his lawyer, or the judge found these posts (she must not have made much of an effort to remain anonymous online), and asked her to reconcile this with her claim that she suffered so much back pain that she couldn’t work as a legal secretary.

Rather than fessing up, she claimed that her activities were prescribed by her doctor, as a form of physical therapy. Her doctor was called in, and he testified that he had no idea she was belly dancing on the side. Good work!

In addition to denying her petition for an order of spousal support, the judge ordered her to pay her husband over $5,000 in attorney’s fees. Ouch. This is one of the more boneheaded examples of loose online talk getting people into some sort of legal trouble (or defeating a legal claim that they might have had).

However, it’s gotten to the point that people are so reliable in revealing personal information online, that many older “high-tech” investigative tactics are becoming obsolete.

For example, it’s still pretty common for insurance companies to hire private investigators to keep an eye on plaintiffs in personal injury lawsuits against the insurance company’s policyholders. Just a few years ago, the most high-tech investigative technique they had at their disposal was surreptitious videotaping. They’d set up a hidden camera outside the plaintiff’s house, and look at what type of physical activities they’re engaged in. If they see the person working out, moving heavy objects, climbing on a ladder, playing sports in the front yard, etc., they can be pretty sure that his or her injuries are not as severe as they’re claiming.

Nowadays, however, they sometimes don’t even have to bother: the people they’re investigating will voluntarily post incriminating statements, photos, and videos on Facebook.

What is it about the Internet that it creates this massive blind spot in our discretion in sharing our personal information? I really don’t know. Perhaps it’s the illusion of anonymity. Perhaps it’s the fact that everyone else is cavalier with their personal information online.

In any case, we’ve known for years that this type of carelessness can get us into trouble. Yet, it seems that most people have to learn the hard way just how much damage it can do in real life.

One would think that, the more time we spend online, the more we’d start treating it as we treat real life – you know, thinking about what we say, and what information we share. But it seems that just the opposite has happened: we’ve completely lost any expectation of privacy. Or, if we expect to remain private online, we do next to nothing to protect that privacy, and are for some reason surprised when people find out things about us that we might not want them to know.

I have no idea how to change this. And I think it’s a pretty serious concern. With the Internet, our whole attitude towards privacy is changing, and the long-term effects this could have on society are impossible to predict.

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Prozac Ad Model Sues Because She Doesn’t Have Depression, Irony Ensues

Right next to celebrated artist, Armored Core pilot, and professional Guitar Hero player, one of the many failed careers lining the interior of my failed/never-attempted/impossible dream closet is modeling.  So what if I’m not over six-feet tall? Tom Cruise is barely 5′ 7” and he did fine, right?

Fortunately though, unlike the parents of the professional Guitar Hero player, mine were well aware that there was a good chance that the bottoms of my many ill-conceived dreams were likely to fall out and discouraged me accordingly with a combination of verbal and occasional physical abuse.  It worked out alright though; now I’m in the legal profession and I don’t have to worry about modeling related nonsense, like being hit on by creepy old people or waking up one morning to find that I’ve suddenly been pegged the world over as a sufferer of depression.

Just joking, by the way.  I never wanted to be a model… *sniff…  Any who, like with most awkward moments in my life, I simply barrel through one by drawing attention to another.  In this case, it’s the very real story of a Manhattan model by the name of Gwendolyn Bucci who recently found herself in that very situation.

Bucci’s image was used on advertising material distributed by the pharmaceutical company Eli Lilly & Company in order to market Prozac, the company’s anti-depression medication.  Bucci alleges she was unaware of her image being used for the advertising and states that she never authorized Eli Lilly to use it in their Prozac campaign.  You can probably guess what happened next.  Bucci orders Eli Lilly to remove her image, but, of course, the company refuses to do so.  And now she’s locked in a legal battle with them where she is suing Eli Lilly for $450,000 in damages.

The problem is that Bucci, in my opinion, has no chance of ever winning a dime of that $450k.

Though I haven’t had the chance to get a hold of her complaint, it seems pretty certain based on the facts that at least two of Bucci’s possible claims are for infringement to her right of publicity and defamation.

The right of publicity is a law that basically protects your image, likeness, voice, name or performance style from being used without your permission to sell or endorse a product.  To establish a claim under this law, one generally must prove three basic elements: (1) the image used is of you, (2) your image was used for commercial purposes to endorse or sell a product, and (3) the public must be able to identify your image.  Seems pretty straight-forward, right?

Bucci can easily prove the first two elements as the image is of her and that it also appears in a commercial advertisement for Prozac where viewers would likely infer that she used the drug and that it cured her depression (in essence, an endorsement).  However, the problem is the last element.  As painful as it is for any model/actress to hear this, it’s very unlikely that any court or jury would find that Bucci has any mass public recognition.  I mean, I had to Google her name and look through her IMDb profile to figure who she was, and even then I’m still not a hundred percent sure the profile I found is actually of her.

For most people suing under this law, this last element is where their case generally falls apart.  Because unlike when Tom Cruise and Nicole Kidman sued Sephora for using their images without permission to sell Sephora products, Bucci’s suit lacks the same teeth because most of the public have no idea who Bucci is and probably couldn’t pick her out of a police line-up.

Bucci’s other potential claim, defamation, is on equally shaky ground.  Defamation can be either slander, which is spoken statement, or libel, which is what it’s called if it’s done in print.  Of the two, libel is applicable in Bucci’s case since she alleges her image was used in a Prozac print ad.  In case you haven’t seen “The People vs. Larry Flynt,” defamation laws protect a person from having false and malicious statements or portrayals made about them to the public which injure that person’s reputation.

The elements to establish a defamation claim are very similar to the right of publicity.  Essentially, one must show that a false statement or portrayal of a person was communicated to a nonessential third party and that it was harmful to that person’s reputation.  Once again, this seems like a very simple analysis in Bucci’s favor, but like all things in law, problems are often more complicated than they initially seem.

Here, though Bucci once again has no problem showing the ad falsely portrays her as a depression sufferer and Prozac user, she’ll likely have issues showing that it actually harmed her reputation.  This is because once again the public has no idea who she is.  Though the law only requires that it be communicated to a nonessential third party, there likely isn’t any harm because anyone who knows her would probably also be aware that she’s a model and thus often has her image used to endorse all sorts of things.  Therefore, once again Bucci doesn’t have a leg to stand on.

However, on top of all this, Eli Lilly probably has a wonderful defense against Bucci’s lawsuit because more likely than not the company probably purchased the photos of Bucci from a modeling or advertising firm that owned and was authorized to sell her image for marketing purposes.

Though you still got to hurt somewhat for Bucci, even though she probably can’t prove harm on a legal level, no doubt it’s got to suck being the butt of your friends and family’s Prozac jokes.

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