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Barrister Bits - September 2014 Defamation Law - Part 3


Barrister Bits - September 2014
Defamation Law - Part 3

by Debra A. Newby

Dear Readers: In lieu of my monthly Q & A format, this column is Part Three of a three part series on Defamation Law. This column is a community service intended to discuss general legal principles and does not create an attorney-client relationship. 

During the last two columns, we looked at public policy surrounding defamation law and then we highlighted the elements and common defenses. We now know that whether the defamation is written (libel) or spoken (slander), the person who was injured must prove:  1) a publication; 2) of a statement of fact; 3) that is false; 4) defamatory; 5) unprivileged; and 6) that has a tendency to injure or cause damages.  

Today, I thought it would be fun to summarize a few cases so our readers can get a sense of what the courts deem defamatory, and equally important, what activity does not quite reach the bar. Below is a quick snapshot of some recent, and not so recent, defamation cases:

Cases where Defamation was found:

1) A lawyer/business owner of a computer programming company sued a former client because the customer called the lawyer a “crook” and a “thief”.  The customer also accused the company of being a “scam” corporation. The court ruled that calling someone a “thief” is defamatory per se. See, Albertini v. Schaefer (1979)

2) A photojournalist was falsely identified in a tabloid article as Robert F. Kennedy’s assassin. He sued and the jury awarded almost $1.2 million in damages. See, Khawar v. Globe International, Inc. (1998).   

Cases where Defamation not found:

1)  A website company posted a list entitled “Top Ten Dumb Asses” and then listed Plaintiff #1 and Plaintiff #2 as the top two. Both plaintiffs were candidates for local office. It was also hinted that one of the candidates was a “deadbeat” who owed his ex-wife “thousands”. Although the court agreed that the Plaintiffs were justifiably insulted by these epithets, the court ruled that plaintiffs failed to prove that the statements were substantially false. See, Vogel v. Felice (2005).

2) A dental patient posted a Yelp review about her dentist, and noted “Don’t go here.  Most painful dentist ever”. The dentist sued her former patient.  The court upheld the patient’s right to free speech and did not accept the dentist’s claims of defamation. See, Rahbar v. Batoon (2013). 

3) English soccer star David Beckham sued a magazine, In Touch, for suggesting that he had an affair with a former prostitute. The court ruled that the magazine did not act with malice. Beckham lost that round. 

Typically, the plaintiff (i.e. the person who is suing and claiming injury from the defamatory remark) has a difficult time prevailing on a defamation claim. As estimated by the California Supreme Court in the landmark decision Brown v. Kelly Broadcasting Co. (1989), only about 1% of all libel cases ever make it to trial, while nearly 70% of libel awards granted by juries are overturned on appeal.   

Cases Yet to Be Decided:

ABC News broadcast a special on the meat industry, and broadcaster Diane Sawyer allegedly called the product “pink slime”, a term dubbed by a USDA microbiologist because the product was allegedly made with low-grade meat, including scraps and waste. The South Dakota based meat producer, Beef Products, Inc. is seeking $ 1.2 billion in damages, and claims that the ABC Smear Campaign resulted in the closure of three plants and layoffs of 700 workers. The case may not go to trial until February 2017.  

In summary, as I was reviewing these cases, I couldn’t help but to think of an old childhood jingle…you remember it…”Sticks and Stones will break my bones, but names will never hurt me”. It seems to me that most of the defamation cases are centered around name-calling and unpleasant characterizations of one’s character. Name-calling does hurt.  Casting one in a negative light is harmful. As Joseph Hall noted, “A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was”.  

Let us not throw stones that cause irreparable cracks.


Debra A. Newby is a resident of Monte Rio and has practiced law for 32 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (, phone (707-526-7200), or fax (526-7202).