I am often asked: what if the person who defamed me did not mention my name? How do I show the defamatory comments were about me? The short answer: by description and circumstance.
My office handled a recent federal case in California. The defendant moved to assert[1] the statements he published on the Internet did not name the person who sued him for defamation and were not about the plaintiff. The defendant further argued his posting did not otherwise identify the plaintiff. He also claimed a reader of the post would not know who it regarded, i.e., that it was not, as required, “of and concerning” the plaintiff. These positions would preclude the plaintiff’s lawsuit.
But the defendant applied the wrong standard. To state a claim for defamation, the defamed person need not be mentioned by name if it can be inferred from the evidence the offending statement applies to the plaintiff.[2] It is sufficient if the publication points to the plaintiff by sufficient description or circumstance identifying him.[3]
In 2008, citing the Supreme Court of Virginia, California’s Ninth Circuit Court of Appeals reaffirmed circumstantial evidence may prove defamatory material was published to a third party who reasonably understood it to refer to the plaintiffs.
Here are examples. If the post states the alleged defamer and the plaintiff were romantically involved, can the plaintiff’s friends attest to that relationship? If the defendant’s comments refer to the plaintiff’s age, do they correspond to his or her true age? Do the disparaging words indicate activities the plaintiff and defendant shared? E.g., does the post concede the two parties frequented a particular restaurant or gym? Through the knowledge of the plaintiff’s — or the alleged defamer’s – friends, co-workers, families, can one learn whether the plaintiff and defendant traveled together? Did they go on a ski trip or visit the Grand Canyon? Or, did they work for the same company? Additionally, can some clues be ferreted out using social media information?
A plaintiff must address a related question. Was she or he alerted to the defamatory Internet posting by an acquaintance, co-worker, or colleague who saw it online and recognized it was about the plaintiff? The law requires that at least one third person actually understood the ambiguous statement referred to the plaintiff.[4]
With such kinds of potentially widespread knowledge about circumstances the parties shared, and/or the plaintiff’s identifying characteristics, one may appropriately contend it is reasonably likely the mere posting of that information would cause any reader familiar with the defendant’s
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[1] Special Motion to Strike
[2] Church of Scientology of California v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984)
[3] Ibid.
[4] SDV/ACCI, Inc. v. AT & T Corp., 522 F.3d 955, 960 (9th Cir. 2008) (emphasis in original)