Metropolitan News-Enterprise


Friday, November 14, 2003


Page 1


C.A.: Defamatory Internet Postings Libel, Not Slander


By DAVID WATSON, Staff Writer


Defamatory postings on the Internet are libel, not slander, under California law and plaintiffs may collect damages for them without demonstrating specific injury, the Sixth District Court of Appeal ruled yesterday.

Justice Eugene M. Premo rejected the contention of two former employees of a Silicon Valley technological equipment manufacturer that the postings were best analogized to radio or television broadcasts, which if defamatory are classified as slander under Civil Code Sec. 46. The section does not mention television, but refers to communications which are “orally uttered, and also communications by radio or any mechanical or other means,” and has been construed to include television broadcasts.

Plaintiffs suing for slander must prove special damages, while in libel—defined by Sec. 45 as defamation by “writing, printing, picture, effigy, or other fixed representation to the eye”—damages are presumed.

Varian Associates Inc. and two of its executives sued Michelangelo Delfino and Mary Day after the two former employees posted a series of messages on an Internet bulletin board devoted to the company’s publicly traded stock. The messages maligned the company’s products and suggested that the two executives were incompetent and dishonest and that one of them, a woman, might have obtained her position by having sex with a supervisor.

After the suit was filed Delfino and Day intensified the message campaign and developed a Web site devoted to their allegations. They also vowed, Premo noted, to “continue posting until they died.”

A jury found the defendants liable for libel, invasion of privacy, breach of contract, and conspiracy, awarding $425,000 in general damages and $350,000 in punitive damages. Santa Clara Superior Court Judge Jack Komar also enjoined Delfino and Day from repeating allegations he found to be untrue and defamatory.

Premo pointed out that the issue of whether defamatory Internet postings are libel or slander was not raised at trial, but said the court was exercising its discretion to consider it.

“The issue presented here involves a question that has arisen only with the advent of Internet communications,” Premo wrote. “Application of the common law to matters involving the Internet is of considerable public interest. Moreover, the distinction between libel and slander involves a practical difference in the requirements for pleading and proof so that the question is one that is likely to recur.”

Internet postings are not communications by “mechanical or other means” within the meaning of Sec. 46, the justice explained.

“Logic tells us that ‘mechanical or other means’ cannot apply to all mechanical methods for producing a communication,” he declared. “After all, the cause of action for libel arose with the invention of mechanical means for reproducing the printed word.”

The legislative history of Sec. 46, adopted in 1945, suggests that the Legislature intended to preserve the traditional distinction between libel as written and slander as spoken defamation, Premo said.

He wrote:

“We find the plain language of the defamation statutes is dispositive. That is, defendants’ messages were publications by writing. The messages were composed and transmitted in the form of written words just like newspapers, handbills, or notes tacked to a conventional bulletin board. They are representations ‘to the eye.’ True, when sent out over the Internet the messages may be deleted or modified and to that extent they are not ‘fixed.’ But in contrast with the spoken word, they are certainly ‘fixed.’ Furthermore, the messages are just as easily preserved (as by printing them) as they are deleted or modified. In short, the only difference between the publications defendants made in this case and traditionally libelous publications is defendants’ choice to disseminate the writings electronically.”

Premo said there was ample evidence introduced at trial to support the jury’s finding that the two former employees defamed the company and the two executives. Citing a law review article about defamation in cyberspace, he rejected the argument that Internet postings are typically so lacking in credibility that no reasonable person would take them as fact.

“Even if the exchange that takes place on these message boards is typically freewheeling and irreverent, we do not agree that it is exempt from established legal and social norms. The Internet may be the ‘new marketplace of ideas,’....but it can never achieve its potential as such unless it is subject to the civilizing influence of the law like all other social discourse. Some curb on abusive speech is necessary for meaningful discussion. We would be doing a great disservice to the Internet audience if we were to conclude that all speech on Internet bulletin boards was so suspect that it could not be defamatory as a matter of law. In effect, such a conclusion could extinguish any potential the forum might have for the meaningful exchange of ideas.”

In any case, the justice reasoned, the messages posted by Delfino and Day were “especially vituperative personal attacks” which were unlike other messages on the bulletin boards on which they appeared.

“If there were other postings on the boards that were more like defendants’ postings, they were not part of the record,” Premo commented, noting that there were “numerous messages that either directly assert or imply” that the female executive “was professionally incompetent, that she engaged in sex outside of marriage, that she was a liar, that she had sabotaged her laboratory at work, and that she held her position by having sex with a supervisor.”

The justice said the jury’s verdict was not undermined by the fact that the verdict form did not require jurors to specifically identify the postings they found to be defamatory, though he said “the better practice might have been” to the contrary.

“[O]ur review of the whole record satisfies us that even if there were some messages that were protected opinion or rhetorical hyperbole, the jury did not rest its verdict upon them,” Premo said.

But the justice said the portions of Komar’s injunction barring the defendants from asserting specific facts, such as that the female executive had sex with a supervisor, “that defame any any of the ways specified” went too far and constituted an impermissible prior restraint on free speech.

The injunction was unlike one upheld by the state Supreme Court in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, Premo said, noting that the Aguilar injunction prohibited use of racial epithets in a workplace.

Aguilar lacked a majority opinion and Justice Kathryn Werdegar’s concurring opinion analogized the injunction to a time, place or manner restriction, Premo pointed out.

“None of the reasoning used to support the injunction in Aguilar applies in this case,” the justice said.

The portions of Komar’s injunction the court invalidated, Premo declared, prohibited “publications based upon their content and do not purport to limit that regulation in terms of time, place, or manner.”

He explained:

“Rather, they prohibit the written communications anytime, anywhere. Defendants are left with no alternative means of communication on those subjects.”

Justices Franklin D. Elia and William M. Wunderlich concurred.

The case is Varian Medical Systems, Inc. v. Delfino, H024214.


Copyright 2003, Metropolitan News Company