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Personal injury and slander

Slander is a type of defamation that occurs when one person verbally harms another person’s character. These false accusations can damage another’s reputation.

Steve C Vondran | Aug 4, 2019

Understanding the top defenses to Defamation, Libel or Slander accusations

The internet can be a savage place. Yes, it is the home for free speech and the first amendment (in some instances), but it can also be where companies and individuals are defamed by other persons or companies on such sites such as Better Business Bureau, Yelp, Google Reviews, Ripoff Report, Twitter, Facebook and other sites that allow user REVIEWS! This video talks about the top 15 defenses (this is not an exclusive list) when you or your business is charged with Libel (written defamation) or Slander (oral defamation). Some of the top defenses are: Truth is a defense to defamation (must be a "false statement") Sincerely held opinions not framed as defamation are protected Lawyers have "litigation privilege" to defame (subject to limited exceptions) Statements made in the political or judicial process Plaintiff is not identifiable as the target of the defamatory statement (the defamation must be "of and concerning" the Plaintiff). Watch the video to see the rest. It is important to understand that one of the key challenges to bringing a defamation case is proving damages to your reputation. A Plaintiff should be prepared to make this showing. However, there are some cases where damages are presumed (the "per se" defamation cases). This can include where false statements are made about a Plaintiff concerning: Plaintiff has a loathsome disease Plaintiff committed a crime or is a criminal Plaintiff (usually a woman) is unchaste (a slut for example) False, defamatory and disparaging comments about a person in their trade, business or profession. There are also higher "hurdles" to recovery when a "public figure" or "public official" and/or a "media defendant" are at issue. This usually invokes the New York Times v. Sullivan rule which notes: "Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Paul E Tennison | Nov 13, 2018

Road Map of a Defamation Lawsuit in Tennessee

Introduction Under Tennessee Law defamation is a cause of action alleging that (1) a defendant published a statement; (2) with knowledge the statement was false or injuring to the reputation of the plaintiff; (3) and the defendant was negligent for failing to ascertain the truth of the statement or the defendant acted with reckless disregard for the truth of the statement. Brown v. Christian Bros. Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013). The plaintiff has the burden of proof as to each element. If the defendant can show that any one of these essential elements is not met then the defendant would win the lawsuit as to the defamation claim. There are two types of defamation: slander and libel. Slander is "the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood." Little Stores v. Isenberg, 172 S.W.2d 13, 16 (Tenn. App. 1943). Libel is written defamation. Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). Only people who are currently alive can bring claims for defamation. Estates cannot bring claims of defamation, because under the common law, defamation damages are to restore the reputation of the plaintiff, and once the plaintiff is deceased his or her reputation is no longer legally protectable. Publication Requirement "Publication is a term of art meaning the communication of defamatory matter to a third person." Quality Auto Parts Co. v. Bluff City Buick, 876 S.W.2d 818, 821 (Tenn.1994). Caselaw has established that all types of communication are covered; new technology for communication does not act as a shield against defamation liability. The Tennessee Supreme Court has ruled that self-publication does not satisfy the publication element of defamation, even when the publication is compelled in the employment setting. Sullivan v. Baptist Mem'l Hosp., 995 S.W.2d 569, 575 (Tenn. 1999). Knowledge Requirement If the Plaintiff is a public figure, then a higher standard of "actual malice" applies. This will be discussed further in the Affirmative Defenses section below. If the Plaintiff is not a public figure then the reckless or negligent standard applies. Lewis v. News Channel 5 Network, L.P., 238 S.W.3d 270, 298 (Tenn. Ct. App. 2007). A person is negligent who has a duty to act, breaches that duty, and this breach then causes damages. In defamation law actors are negligent if they should have verified the truth of their statement but did not. This is an objective standard. Persons are reckless if they have notice that their action is putting another at risk of injury but continue in the behavior in spite of their subjective knowledge of the risk. In defamation law actors are reckless if they have knowledge that what they are publishing may not be true but continue in their publication despite this subjective knowledge. Knowledge may be a discovery intensive and litigated issue in a defamation case. Damages In Tennessee, defamation requires actual damages to be sustained and proved. Memphis Publ'g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn.1978). "The plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not." Id. This requirement likely results in increased litigation costs for plaintiffs in defamation cases, as proving actual damages likely requires a significant amount of evidence through costly discovery and an expert witness. Defendants may engage their own expert witness who may argue the plaintiff has not actually suffered as much or any damages under his damages calculation. Then the jury may have to choose which side to believe in a battle of the experts. See Burchfield v. Renfree, 2013 WL 5676268, at *15 (Tenn. Ct. App. Oct. 18, 2013)(discussing a battle of the experts in a negligence case). Affirmative Defenses Only statements that are false are legally actionable in a defamation case. The truth is, almost universally, a defense. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 645 (Tenn. 2001). As a hypothetical example, if someone publishes on Facebook that potential Plaintiff is having an affair and potential Plaintiff sues hypothetical Defendant, hypothetical Defendant can defend the libel lawsuit by arguing that his statement is not actionable under defamation law because his statement was true; potential Plaintiff was in fact having an affair. Another example in the business context is, if hypothetical Defendant tells third parties through oral communication that hypothetical business Plaintiff has poor customer service and hypothetical business Plaintiff sues for slander, hypothetical Defendant can defend the lawsuit by arguing that this statement is not actionable under defamation law because it was true; hypothetical business does in fact have poor customer service. Statements that seem to be opinions and not facts are also difficult arguments for plaintiffs to make in defamation cases because the defendants could argue they believed the statement to be true at the time they made it, even if objectively it was not true. In the famous U.S. Supreme Court case of New York Times v. Sullivan, the Supreme Court ruled that a libel award against an editorial advertisement in the New York newspaper was not constitutionally permissible due to the failure of the Alabama law to provide safeguards for freedom of speech and of the press as required by the First and Fourteenth Amendments. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). The Supreme Court adopted the "actual malice" standard that adequately protects the First Amendment rights to criticize and critique public officials or comment on matters of public interest. "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Sullivan, 376 U.S. at 283. This tension between the First Amendment to the Federal Constitution and state libel laws can be a difficult and litigated issue if the Defendant is able to argue that the speech at issue is related to a public official, public figure, or comments on matters of public interest. See West, 53 S.W.3d at 647; Hibdon v. Grabowski, 195 S.W.3d 48, 62 (Tenn. Ct. App. 2005)(discussing litigation over whether the plaintiff was a limited purpose public figure). Since the law of libel protects and awards damages for injury to the plaintiff's reputation, plaintiffs that do not have a good reputation in the community may be found by the court to be "Libel Proof." This means that their reputation is too low for them to recover any damages for any defaming of their reputation. See Davis, 83 S.W.3d at 128. In Tennessee, the timeframe for plaintiffs to bring a claim under the statute of limitations for defamation is short. Actions for slander must be commenced within "six (6) months after the words are uttered" Tennessee Code Annotated * 28-3-103. Libel claims must "be commenced within one (1) year after the cause of action accrued". Tennessee Code A Related Claims Potential plaintiffs that may have a cause of action for defamation may also have claims for the tort of false light invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, intentional interference with business relationships and other similar claims. For more information about the law of defamation, reference the Restatement of the Law of Torts *580A and *580B(discussing the model elements of defamation of a public figure and private person with comments and examples). Conclusion Defamation is a cause of action for written or spoken words that harm or injure the reputation of the plaintiff. Defamation requires publication, knowledge, negligent or reckless disregard for the truth, and injury to the plaintiff's character and reputation including actual damages. There are many affirmative defenses defendants may assert against claims of defamation.

Michael Sean Devereux | Apr 18, 2018

Internet Defamation / Slander / Libel

In Many Cases, But Not All, The Website Is Immune From Prosecution for Defamation Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States, codified at 47 U.S.C. * 230. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity: 1) The defendant must be a "provider or user" of an "interactive computer service." 2) The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue. 3) The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue. Limitations Section 230 immunity is not unlimited. The statute specifically excepts: 1.) federal criminal liability and 2.) intellectual property claims. However, state criminal laws have been held preempted in cases such as Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262 (W.D. Wash. 2012) and Voicenet Commc'ns, Inc. v. Corbett, 2006 WL 2506318, at *4 (E.D.Pa. Aug. 30, 2006) (agreeing "[T]he plain language of the CDA provides ... immunity from inconsistent state criminal laws."). As of mid-2016, courts have issued conflicting decisions regarding the scope of the intellectual property exclusion set forth in 47 U.S.C. * 230(e)(2). For example, in Perfect 10, Inc. v. CCBill LLC, the 9th Circuit Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property claims such as copyright infringement, trademark infringement, and patents, reversing a district court ruling that the exception applies to state-law right of publicity claims. The 9th Circuit's decision in Perfect 10 conflicts with conclusions from other courts including Doe v. Friendfinder. The Friendfinder court specifically discussed and rejected the lower court's reading of "intellectual property law" in CCBill and held that the immunity does not reach state right of publicity claims. Not Necessarily Complete Immunity Section 230 has been controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. Zeran v. AOL, a 1997 4th Circuit decision, which held that Section 230 *creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.* This rule effectively protects online entities, including user-generated content websites, that qualify as a "provider or user" of an "interactive computer service."[citation needed] Secton 230 has recently been applied to dismiss a lawsuit that was filed by victims sex-trafficking against Backpage for allowing advertisements with sex-trafficking content to remain on the website. The First Circuit affirmed a lower court decision that granted Backpage*s motion to dismiss under Section 230 immunity. In August 2017, Congress proposed a bill called the Stop Enabling Sex Traffickers Act to amend Section 230. Allows Victims To Fight Online Sex Trafficking Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) is a bill introduced in the U.S. House of Representative by Ann Wagner in April 2017. Stop Enabling Sex Traffickers Act (SESTA) is a similar U.S. Senate bill introduced by Rob Portman in August 2017. The combined FOSTA-SESTA package passed the House on February 27, 2018 with a vote of 388-25[13] and the Senate on March 21, 2018 with a vote of 97-2. The bill was signed into law by President Donald Trump on April 11, 2018. The bill clarifies the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amends the Section 230 safe harbors of the Communications Decency Act (which make online services immune from civil liability for the actions of their users) to exclude enforcement of federal or state sex trafficking laws from its immunity. The intent is to provide serious, legal consequences for websites that profit from sex trafficking and give prosecutors tools they need to protect their communities and give victims a pathway to justice. The bills were criticized by pro-free speech and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 safe harbors, places unnecessary burdens on internet companies and intermediaries that handle user-generated content or communications with service providers required to proactively take action against sex trafficking activities, and requiring a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies). Online sex workers argued that the bill would harm their safety, as the platforms they utilize for offering and discussing sexual services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under the bill. Can Still Sue Individuals While websites are protected pursuant Section of 230 does not apply to the users who post defamatory statements, Internet Harassment and/or stalking.

Jessica Peck | Oct 8, 2017

Revenge Porn: A Guide to Surviving the Politics and Pitfalls of Relationships Gone Bad

What is Revenge Porn Exactly? Three years ago, Colorado lawmakers officially recognized "revenge porn" as a criminal act, allowing for the prosecution of anyone who--typically post-breakup--dares to post intimate photos or videos online of an ex-partner, doing so without the other person's consent. According to The Denver Post, there have been 192 misdemeanor cases filed over nonconsensual pornography since HB 14-1378 was signed into law. Just over a third of the cases, the Post reports, have resulted in guilty pleas or convictions. Unfortunately--conviction or not--the damage is too often impossible to repair. What is so shocking to me--as an attorney who sees many revenge porn battles play out in open courts across the state, is the incredible diversity of the people involved. The epidemic crosses every ethnic, racial, class and gender line. As an attorney who regularly represents victims of revenge porn (as well as those accused) I cannot overstate the devastating, often irreversible impact unauthorized distribution can have. I've seen a grandmother busted for sending dirty photos to her ex-spouse's boss. There was an expert engineer nailed for creating an entire porn site falsely advertising the prostitution services of his estranged wife. One woman was impersonated for sending out fake revenge porn photos to her colleagues, friends and family. Her apparent strategy: to frame her ex-husband's new wife for the disturbing transmissions. How to Reclaim Your Reputation and Stop the Madness Unfortunately, not all hope is lost. For those victimized, the key is the move quickly to put a stop to the bullying. 1. A good place to start: county court. Seek an emergency protection order preventing contact and harassment (literal or vicarious). An important note of caution: unlike cases involving a sex assault victim, a revenge porn case does not ensure or compel confidentiality as to the victim's identity. This can be a real deterrent to seeking justice since reputation damage is already at the core of the victim's concerns. 2. Call your local police. Show them the evidence and direct them to state law on the matter. 3. Hire an attorney adept at drafting demand/cease & desist letters to offenders, and if need be, heading to court. 4. Chart your costs and damages. Have you lost your job due to revenge porn? Has it destroyed your family? Hurt your reputation? There are ways to seek reimbursement for monetary and emotional harm. The revenge porn statute has automatic penalties of up to $10,000. 5. Contact Google, social media sites and anywhere else your information may be making its way. There isn't a perfect solution yet, but companies are finally starting to take online defamation seriously. An experienced attorney and/or a reputation management firm can also get some attention. 6. While it's easy to blame the victims (many of whom willingly participate in the initial photography), too many never knew the photos or video were ever taken. Certainly, very few would expect third party distribution. 7. Regardless, it's important to be proactive in any relationship, critical to set boundaries and create rules when it comes to the bedroom. If you both want to make a movie, for instance, make it together and then immediately delete it together. A Special Note on Teen Cell Phone Use A special note when it comes to teen cell phone use: when teens take intimate self-portraits on their phones, any distribution of such photos to anyone else (regardless of age), subjects the teen sender to the prospect of child pornography charges and/or school expulsion. Should any such photos find their way onto a parent's server, the parent may also suddenly be in hot water. Second chances simply do not exist for many teens caught on the wrong side of sexual exploration and expression.

Sanford Horowitz | Oct 15, 2016

The Whirlwind of Cyber Bullying

How Cyber Bullying Affects our Youth Where students were once able to escape bullies in their home, bullying has become a non-stop problem. One peer can make a comment and it will escalate into a whirlwind of hurtful comments that is seen instantaneously. Along with the 24/7 presence, comments have become increasingly hurtful due to the anonymity of the Internet. But what happens when adolescents cannot escape the continuous harassment? Kids that are bullied are likely to "experience anxiety, depression, loneliness, unhappiness, and poor sleep," explains Jennifer N. Caulde, DO, an AOA board-certified family physician in Philadelphia. Children are also more likely to experience decreased academic achievement and school participation. In the tragic case of 15-year-old Phoebe Price, she committed suicide after constant online harassment from classmates - alerting shocked parents across the nation to the insidious dangers of being victimized by cyber bullying. The online harassment Price received on various social media accounts had gone farther than the taunting on the playground. The bullying had entered her home and she could not escape the "mean girls" at her school and, sadly, it resulted in her taking her own life. Cyber bullying is inescapable. At anytime, anywhere, someone can be harassed over the Internet. It goes unnoticed from the authorities, unless it is specifically sought after, making it harder to prevent the bullying from continuing. Furthermore, what few teenagers realize is how permanent the Internet is. Once a picture or comment is posted, it remains on the Internet forever and for anyone to see. College freshman, Tyler Clementi, learned the hard way how permanent a video could be when his roommate set up a video camera and caught Clementi in an intimate act and showed his peers on the Internet. The harassment Clementi received went so far that he also took his own life to avoid the continuous ridicule and embarrassment. In the neighboring county of Los Angeles, officials have seen an increase in suicide of 100% from 2014 to 2015. Deanne Tilton Durfee, an executive director for the Inter-Agency Could on Child Abuse and Neglect, or ICAN, stated that the youngest youth to kill themselves was an 11-year-old who hanged himself after he had reportedly been bullied. Durfee added that while fewer children are dying in gang violence in Los Angeles, bullying and cyber bullying are on the rise, leading to an extremely concerning suicide rate. The rates are so concerning, that insurance companies like Chubb are beginning to offer option cyber bullying coverage for its homeowner insurance clients. The Consequences of Cyber Bullying Sound Serious, Yet is it a Crime? The answer is yes. Whilst the negative consequences of cyber bullying cannot be reversed, the legal system has several ways to punish perpetrators. Cyber bullying can be criminally prosecuted under Penal Code ? 653.2, which states that a person can be charged for harassing another through means of electronic communication that causes a person to fear their safety. Did you know that impersonating another on the internet without their consent is also a crime? Under Penal Code ? 528.5 - Internet Impersonation - it is a crime to knowingly and without consent credibly impersonate another person through or on an Internet Web site or by other electronic means with the intent to harm, intimidate, threaten or defraud another person. Where cyberbullying rises to the level of threats of death and great bodily injury and causes someone to fear for their personal safety, it can be charged as felony violations of Penal Code ? 646.9(a) - Stalking and Penal Code ? 422 - Criminal Threats. What Can the Community Do to Prevent Acts of Cyber Bullying? Many have questioned whether a police officer assigned to school may or may not search a student's cell phone whole on school grounds. Legally, the answer is yes. In New Jersey v. TLO (1985) 469 U.S. 325, the Supreme Court ruled that a school official (teacher, administrator, principal, vice-principal, etc.), with reasonable cause, can seize and search phones. While it is important that school officials aid in the prevention of cyber bullying, what is more important is what parents can do. It is imperative that parents spread awareness of online safety and the issues of sexting. It is important to speak with your children about the damage the Internet can cause and teach them how to use the Internet properly. Communication is the key to prevention; don't wait for the perfect time to break the ice, be proactive and talk to your kids about cyber bullying. Here are a few tips to help get parents started: Place your computer in a common area of the house Educate yourself about computers, "smart-phones," and the Internet Spend time with your children online Educate yourself and your children about the dangers of the Internet Do not allow your child to go into private chat rooms, especially when you are not present Utilize your Internet Service Provider's parental controls and commercial blocking and filtering software tools Review the use histories or logs of your computer to see where your children have been Develop a "contract" with your children about their Internet usage to established reasonable rules and limits; for examples of contracts, feel free to contact Horowitz for Law Parents also need to be aware of the possibility that their child is being cyber-bullied. Different signs include: Spending more or less time online Avoiding school or activities Frequently switching screens when someone walks into the room Appears depressed

Aaron Gartlan | Sep 9, 2016

Goliath Exposed!

Our Book Was Written For You: Goliath can cast an intimidating shadow to say the least. As personal injury and accident lawyers at the Hogg & Gartlan Law Firm in Dothan, Alabama, we understand the pressures families face when considering legal help. In our book that was written for you to empower you, entitled David vs. Goliath: The Slingshot, Shepherd's Bag, Five Smooth Stones and Invisible Armor You Need for Justice, we explore the weapons, tactics and secrets big corporations use against innocent personal injury and accident victims. The Clock Is Ticking: No one goes out on the road expecting to be in a car crash. But once an automobile accident happens, a subtle "ticking clock" starts to count down. Witness statements, evidence, and pictures of the vehicle wreck scene can get lost or destroyed, or even fade or disappear. You may understand this now, in the abstract. However, in the chaos of the immediate aftermath of a motor vehicle accident, you will likely be distracted by 101 things, not to mention the excruciating pain and suffering of the injury, your understandable anger at the driver, and your shock. Goliath Protects His Bottom Line: Insurance corporations know that personal injury and accident victims that retain legal representation resolve their personal injury and wrongful death claims for vastly higher amounts than do victims who fail to retain counsel. The same corporations are armed their own legal counsel and team of experts on staff to protect their bottom line. We Know Goliath's Tricks: Although every personal injury and accident is unique and scary in its own way, there are "rules of thumb" that apply to almost every accident that involves damages and personal injuries. In our book David vs. Goliath, we have outlined four major methods Goliaths use - oftentimes in meetings or over the phone - to either delay personal injury and accident victims from seeking counsel or ruling it out altogether. Knowing this information in advance leads you to being better prepared for some of the large rocks Goliath throws your way to discourage you. Disclaimer: No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

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