Innocence taking refuge in the arms of Justice, (oil on canvas) Elisabeth Louise Vigee-Le Brun (1779)
The Miami Herald reported a developer has filed a $25 million defamation lawsuit against a Miami real estate blogger. The developer claims the blog post, which has been removed (along with the blogger, who was fired) contained false statements about the developer harmful to his reputation, including that the developer went “bankrupt” in the 1980s. The developer says he never went bankrupt. The blogger claims his writing is only his opinion and constitutionally protected free speech.
Since I have not read the post or the complaint, I have no opinion on the likely outcome. But the case provides an opportunity to throw a little legal light on the subject of the First Amendment (my favorite of the top ten Bill of Rights), defamation and blogging. Perhaps it may help some blogger down the road.
First, the right to free speech, although rightfully given enormous elbow room, is not an absolute right; nor is all speech entitled to the same degree of constitutional protection. There are exceptions, where speech can be restricted and prosecuted, including speech creating a “clear and present danger” (yelling “fire” in a crowded real estate conference room); involving national security (leaking the date and location of the Normandy invasion in a phone call to Adolph); “false” commercial speech (the dog store advertising a mutt as a pure breed); or defamation, false statements of fact which harm the reputation of another person (or product, in the form of product disparagement). Since the case involves defamation, let’s take a closer look at what must be proved.
Defamation (libel if written, slander if spoken (remember s for spoken)), is a legal determination which requires proof, by a preponderance of credible evidence (not beyond a reasonable doubt, which is the criminal law standard of proof), of all of these elements:
- a false statement of fact
- published to a third party
- understood as referring to the plaintiff (must be a living person, not a group)
- made by the defendant
- which harms the reputation of the plaintiff
- if the plaintiff is a public figure, the added element of “actual malice” is required. Actual malice means knowledge of falsity or a reckless disregard for the truth.
In the case at hand, the elements central to winning the case are 1. the false statement of fact and 5. proof of damages to the developer’s reputation. Element 6, actual malice, would make the case harder to win. But that would require the developer to be classified as a “public figure” (more on this later). Malice is why newspapers and tabloids rarely lose libel cases against public figures, such as celebrities. Let’s take a closer look at these elements of proof.
1. False statement of fact.
Truth is a complete defense to a defamation suit. If what the blogger wrote was true, he wins the case. [There are also some privileges (eg. witness testimony) which let’s falsity off the hook, but no privilege appears to apply here.]
However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. — Supreme Court Justice Powell in Gertz v. Welch (1974)
Opinions are not actionable as defamation. Opinions are not fact. All true champions of free speech recognize that opinions are essential to a free society’s debate of issues and should not be censored, but debated openly (unless you run a blog camp in Arizona). So, if the blogger wrote “in my opinion”, or the court construed the statements as “opinion”, he would be on strong legal ground. But where opinion is mixed with fact, you have to be sure those statements are made in good faith, i.e. with a reasonable basis to believe they are true. The standard of reasonableness is likely lower for a blogger (who could read one report and rely on it as true) than a newspaper, where journalistic standards might require checking multiple sources.
The meaning of bankrupt may be unclear.
I see an issue concerning the definition of the word “bankrupt”. The word implies an inability to manage one’s business affairs– not a good label to pin on a developer, especially during hard economic times. But what does “bankrupt” mean as a statement of fact. There is, of course, the legal notion of filing for bankruptcy for relief from one’s creditors, which the developer claims never happened. But perhaps bankrupt also means insolvent, regardless if one filed for legal relief. [If the blogger used the term “went” bankrupt, it only adds to the difficulty, since it could be argued “went” meant “filed”. (Damn, we lawyers can hair split)] .
Even the Florida Supreme Court Committee on Standard Jury Instructions (Civil) had trouble with the word “bankrupt”. Webster offers a definition as one who becomes insolvent (liabilities in excess of assets or the inability to pay debts as they become due). This is not an easy call. In any case, if it comes down to it, the blogger might have to prove bankruptcy in the non-filing context.
5. Harms the reputation
A problem with this element is proving actual damages. If even one buyer withdrew from a purchase after reading the blog post and will state under oath that was the reason, you’ve proven actual damages. Merely claiming “we haven’t sold a unit since that blog post” is speculation, a result that can be attributed to the stock market nose dive, the sub prime debacle, or anything else (I’d blame it on the awful humidity down there). If buyers backed out but did not believe the story, that is not proof that the statements caused the harm to the developer.
Defamation per se.
Like the 7 dirty words, certain false statements are considered defamatory as a matter of law in most states, including Florida — meaning you do not have to prove actual damages. The statements are presumed to be harmful to one’s reputation. These are:
- statements affecting the plaintiff in his profession, trade, business or office (eg took a bribe)
- statements that an unmarried person is unchaste
- statements that a person is infected with a sexually transmitted disease;
- statements that the person has committed a crime of moral turpitude (eg rape)
While being a bankrupt may fit the defamation per se standard as damaging to one’s business reputation, I would not start counting my millions. Courts have awarded $1 as damages absent real “dollars and cents” proof the plaintiff lost business. In addition, if the statement was that the developer was bankrupt in the 1980s, it may not meet the standard, absent proof the blogger wrote the developer is now bankrupt or about to file bankruptcy.
6. Actual malice toward a public figure.
The seminal defamation case concerning a publisher’s liability for false statements about public v. private figures is Gertz v. Welch, decided by the US Supreme Court is 1974 (the vote was close– 5 to 4). The Court held that public figures, like public officials, are required to prove malice in a defamation suit. A private person was not required to prove it against a publisher (in that case a newspaper), even if the false statements involve an issue of public concern.
What makes for a public figure? The Gertz Court said a public figure “invites attention and comment”. Has the developer invited enough local press to be considered a public figure? The Sun Post named the developer one of the Power Developers of South Florida. Whether there is enough evidence to elevate him to public figure status is up to a court to decide. It may be that he is a “limited public figure”, only so far as Miami real estate is concerned. In any case, the question is likely to be argued by the defense. The burden of proof is on the blogger.
The Blogging Lesson to be Learned
Bloggers should be careful to couch all writing as opinion, double check sources and watch it when it comes to private figures. A general disclaimer on all posts may not be a bad idea. Or you can play it safe and just call someone a “dumb ass“.
Related Posts:
Playboy Playmate Sues Blogger for Libel
Author’s Disclaimer: I am an attorney licensed in New York, not Florida. This is not to be taken as a legal opinion on the case (unless someone sends me a check).
Technorati Tags: Blogging, defamation, first amendment, libel, slander, bloggers, Miami, developer
Besides being careful with the actual content we write about is there anything else that we should be doing as bloggers to protect ourselves? What are your thoughts on disclaimers? Should they be on every blogger’s site? Also, is there a standard out there?
Thanks for your time,
Adam G
Yes, start with a bold disclaimer on each blog post that the blog post is the solely the work of the author and constitutes only his/her opinion and not the work or opinion of the broker. Consult a lawyer in your jurisdiction to make sure the wording fits the requirements of your state. Also put the disclaimer on the RSS feed and elsewhere prominently on the blog.
Second, check with your E&O insurance carrier to see if you are covered for your writings, whether on a blog or in articles. If you are not covered, see about getting coverage. The insurance company will then provide legal counsel should you be sued.
Great question Adam.
Hey Joe
Thanks for all this good legal. Obviously, things are getting messy here. Good advice.
My pleasure Kevin. Watch your back out there.
Great post! As a real estate broker, this sheds much needed light on the whole situation with real estate bloggers. Tomorrow morning, I’m gonna fire them all. I’m kidding! But, I will be sure that they at least have disclaimer on their site stating that their opinion has nothing to do with my brokerage. Has this real estate agent done so? I haven’t investigated this enough. If not, he may want to include a disclaimer before writing future posts.
Jon
Jon,
Also check with your insurance carrier to see if you and your agents are covered. You know how it is these days– even with a disclaimer, someone will try to come after you to get you to spend money on legal defense fees. Even if you win, it’ll cost you big money. So, get the insurance to save the legal fees if you ever get sued.
Joe: You still haven’t answered my email saying “yes” or “no” to whether or not you think I am in my right mind to file a lawsuit over the situation I mentioned in the email!
I contacted the school’s legal service tonight and sent letter of complaints but I still need an honest outside opinion about if I am still sane or not!
Rudy,
This whole fiasco has been a difficult situation. I have learned a lot though within the last 24 hours. Did you know that a Media Bloggers Association (MBA) is in existence? I didn’t know that but I learned about it because somebody read about my story and wanted to put me in touch with the right people. I’m so glad that they did. I learned a lot from the founder of the MBA. He is very knowledgeable when it comes to lawsuits filed against bloggers. He is definitely somebody that you want to know if you are actively blogging. In fact, from my understanding, the MBA now issues an insurance policy for bloggers to protect themselves against lawsuits. I have no connection with the MBA. I just wanted to let other bloggers know that there is an organization in existence that stands behind bloggers.
Thanks Joe… in 2006 I used a long hairy made up disclaimer on my first blog. I looked at disclaimers on MLS, website and cobbled it together… the main point was the posts were my opinions not the opinions of Real Living HER. People made fun of it.
You wrote “understood as referring to the plaintiff (must be a living person, not a group)”
Question… It has to be a person? So if Lucas would have made his comments about a company filing bankruptcy in the 80’s we would not be having this lesson? “I’ve heard that Blah Blah Blah Development of Miami Fl. filed bankruptcy in the 1980’s.” Or am I taking person too literally?
This is great! Would a blanket statement in the sidebar stating something like ‘opinions of this local real estate blogger’ be enough? Or does it have to be on every post. Excellent discussion.
“Went bankrupt” is going to mean filing for bankruptcy to a jury. Defamation is serious business. Some bloggers (though maybe not the blogger in question) behave as if blogging is akin to passing notes in school. They blog on the fly, and more than being inaccurate, I find many, many posts to be unprofessional and wholly inappropriate. This suit is a good wakeup call to bloggers. If they state a fact, it best be a fact. I would also look for the insurance world to develop riders to policies for blogging. Blogging is becoming so big that the insurance companies are sure to have to offer specialized insurance for it, but that may not develop until someone gets a big judgment.
Hi Lucas
This is Joe. I wrote the post, being a lawyer and all.
I feel for you and think you have viable defenses. The public figure argument is a good one IMO. Unfortunately, the cost of legal representation is high– but maybe you’ll get a lawyer to do it pro bono (free). The case should settle— after all, who wants to open their financials during discovery (you get to ask for them you know on the issue of bankrupt)? And it’s bad press during bad times. NO WAY this case goes to trial. A motion to dismiss should do it if your lawyer can’t reason with theirs — once the emotions settle down.
Good to hear there is blogger insurance out there. But you should still check with your (or the broker’s) carrier to see if your E&O insurance has you covered NOW.
Good luck. Call me if you any questions or if I can help in any way– pro bono for a brother blogger. 917-714-2720
Stephanie
I would add it to every post, also in About me, sidebar, footer and do not forget to check if it’s in the RSS feed. Consult a lawyer in your town to word the disclaimer properly– each state is different in how they treat disclaimers– some may even require a bold and larger typeface, ie a “conspicuous” disclaimer. Also check if you are covered under your insurance, which is properly more important because the cost of defending yourself (even if you are right & win in the end) can bankrupt you (no pun intended).
I agree Refinance Denver. And there are some other considerations for Realtor bloggers:
Realtor Boards
Consider also that Realtors (the NAR kind) are not supposed to bad mouth other realtors, i.e. make reckless misleading statements, this includes blogging, about other Realtors or their business practices –eg they insult or show a profound contempt for ordinary consumers or imply that home sellers are idiots or even worse, that they stole from another’s work –IMO, these could be construed as violating the NAR Code of Ethics. Also, wrongfully accusing someone of stealing in connection with their business practices may land you a lawsuit for defamation. Be careful — besides, bad-mouthing a fellow Realtor is something only a dumb ass would do. (Article 15, 15-2)
Blogs as Advertising?
Also, in Virgina I believe, Realtor bloggers have to post their contact info on each blog post since blogging is considered advertising– am I right Jim Duncan?
We ran an informal poll and more than half of the response thought blogging was advertising. I don’t agree that a blog is advertising unless you directly market on it, as some people advocate. To put blogs in that category, in legal terms means it is “commercial speech” which can be highly regulated. So resist this at every turn if you blog.
Disclaimer: Any reference to any blogger, living and stoopid (as in extremely foolhardy), is merely coincidental.
This is so interesting and a great reference tool for us when doing our disclaimers.
Parked.
Santiago
Where have u been, man!
ROTFLMAO.
Did you see he was or looked like one? Because I’m sure “penis” who sue you for that.
Correct. Sort of.
It’s still somewhat fluid and largely undefined. Generally at this moment, my understanding is that real estate blogging in Virginia is considered to be advertising and is subject to the standard Virginia real estate advertising laws and regulations. Even so, it’s not yet rigidly enforced.
He ain’t pretty.
Why would he go on the news and let his pic be published.
Someone, somewhere called him a cryptkeeper ( DISCLAIMER: it wasn’t me)
Derek. Let me look at the email again. As with any legal case, you have to consider the state you are in and how the courts see the issue there. You can win a case in NY that you’d lose in another state. Your best bet is to get a consultation with a local lawyer– usually free or a nominal fee — to get a sense of whether it is worth filing a lawsuit. Many times a strong letter from an attorney can make things right. Use a gun before a bazooka.
Wow, great advice, and no I didn’t know there was a MBA, so if I join I can put MBA behind my signature. Cool!
Joe, this is one of the best posts you have done to date and very helpful as a reminder to all of us out here in the blogisphere trying to do the right thing. Please keep us apprised on what happens with this case. I wish the poor soul much luck in trying to fight against Daddy Warbucks, because it’s the biggest pocket that generally wins in the courts today, even if they are in the wrong. I learned about that many years ago watching a friend lose her life’s work from someone with a huge fortune and no ethics, and it was really depressing to witness. That took place in California, so who knows how things are in Florida.
Thank you Lenore. I hope that reasonable minds resolve the issue. The legal system is a costly place to spend your time.
I just published the latest update to my blog. I’d love to hear your feedback. I welcome all negative and positive feedback. BLOG ON!!!
Joe,
When you get a chance, can you follow up on that MBA Blogger’s insurance and tell us if you think it is worthwhile having, especially for a Corporate Blog?
Joe - Thank you for your awesome post and your previous tips. Definitely good timing
Besides having my name, Realtor status and brokerage firm affiliation clearly visible on every page on my blog on the side column and above the fold, what do you think about having a link to a disclaimer page as a permanent fixture on every page along with a link to it at the bottom of every post?
As for the laws in VA, they’re still up in the air as Jim wrote. I can tell you though, that there’s been a lot of talk about this subject due to recent events. As with anything new, there are a lot of growing pains.
Joe,
I want insurance too! I’ve got some slanderin’ buildin’ up.
Lucas: I’ll take a look. Thanks for the update.
Ardell: I will check out MBA and E&O insurance choices.
Danilo, I think that is a good idea but check with an attorney in the state on the best wording and placement of the disclaimer. Some states require a conspicuous one(typeface, bold, prominent location) .
Kevin, try a Selltoon. Parody is protected speech.
IMPORTANT: No disclaimer will protect you if you make a false statement of fact. So if you say: “IMO Mr. X is a convicted sex offender” and this is untrue, you have just libeled Mr. X. Mixing opinion and fact can still be defamation. Be careful.
You are on much safer ground if you criticize a public official or figure, & relate it to a topic of public concern (like pissing away our tax money on a stupid monorail to the mall). And don’t name names if you’re talking about a private person. You are always free to bash the government. It is impossible to defame the government.
Also, try using humor — satire and parody are First Amendment darlings. But watch out for trademark infringement.
http://tinyurl.com/36hvg4
As with everything written here or elsewhere, do not rely on any of it to protect what you plan to do, especially when it comes to a private person. If in doubt, consult an attorney in your state who has experience with media representation. Or call the ACLU.
Finally, remember that “dumb ass” can cover a lot of ground in a critique.
Hey Joe can I be sued for saying “Wells Fargo is chasing Chase out of New York”? If so delete this comment
Sellsius,
I have a daily real estate talk show in Bakersfield, Ca. You can listen online at www.JonVaughn.com, Mon-Fri 8am PST.
I’ve created a parody of some local shenanigans going on, and thought you’d enjoy this.
http://people.bakersfield.com/home/Blog/bakonative/13368
There is a flash player on the first post. I didn’t know how to add that player in this.
Jon Vaughn
Thank Jon. I’ll take a look. Sounds like fun.
I too am a fan of parody.
http://blog.sellsiusrealestate.com/selltunes/
You are safe Mitchell.
It is virtually impossible to defame a national corporation.