Libel and other law questions

[4a6c1]

So I have received a cease and desist letter from a former daycare that I have used in the past. They threatened to file suit against me for libel for a negative online review. I've edited the review to contain only my DFS case details but the cease and desist letter also demands an apology which is an obscene request considering what they did to my daughter.

I have an outstanding case for abuse and neglect against them with the Department of Family Services.

What else can I do?

[Inspire]

So I have received a cease and desist letter from a former daycare that I have used in the past. They threatened to file suit against me for libel for a negative online review. I've edited the review to contain only my DFS case details but the cease and desist letter also demands an apology which is an obscene request considering what they did to my daughter.

I have an outstanding case for abuse and neglect against them with the Department of Family Services.

What else can I do?


Have you tried the BBB?

[BriarFox]

In order to prove libel, they have to prove malicious intent and deviation from the truth. It sounds like you have justifiable reasons and evidence.

Yay journalism classes?

Maybe a real lawyer will chime in, though.

[Rinualdo]

Post a link or recopy what you posted.

As a general rule, don't post anything about a company you can't 100% back up as factual.

[TheEschaton]

Nah, Briar pretty much has it pegged.

[diethx]

Jeez, what did they do to your kid?

[Bobmuhthol]

As a general rule, don't post anything about a company you can't 100% back up as factual.

That's a very conservative rule. Libel against a company is extremely difficult to prove when it's not blatant. As BriarFox pointed out, the burden rests on the company to prove that the claims are intentionally and maliciously false.

[Rinualdo]

That's a very conservative rule. Libel against a company is extremely difficult to prove when it's not blatant. As BriarFox pointed out, the burden rests on the company to prove that the claims are intentionally and maliciously false.

I worded that poorly. I should have said, stick to facts and stay away from insults and you should be ok.

[4a6c1]

At first there were some insults. That was posted for about a month and I edited today to exclude everything except my case details. Now it should read all facts.

Stef I went to pick her up (early) one day and a larger child (5 or 6) was basically pummeling on her. She was curled up crying on the floor. It was the managers child I later found out. She also had no water for that entire day. The poor thing told me in her broken little toddler english. I found her cup in another classroom with a different childs name on it in marker. The days leading up to that she had weird bruising under her arms. I thought it was a rash until I saw that. So I reported them...

I have pictures. We went to the doctor when I thought it was a rash. Should i get a statement? Press charges? Is it too late? Stupid me, I really just tried to forget about it after all this. I should have called the cops to begin with.

lol Inspire you fucking whore.

[Delias]

I worded that poorly. I should have said, stick to facts and stay away from insults and you should be ok.

"It says here your client said they were, and I quote- 'motherfucking cocksuckers'."

"Well, can you prove that they aren't?"

[Delias]

At first there were some insults. That was posted for about a month and I edited today to exclude everything except my case details. Now it should read all facts.

Stef I went to pick her up (early) one day and a larger child (5 or 6) was basically pummeling on her. She was curled up crying on the floor. It was the managers child I later found out. She also had no water for that entire day. The poor thing told me in her broken little toddler english. I found her cup in another classroom with a different childs name on it in marker. The days leading up to that she had weird bruising under her arms. I thought it was a rash until I saw that. So I reported them...

I have pictures. We went to the doctor when I thought it was a rash. Should i get a statement? Press charges? Is it too late? Stupid me, I really just tried to forget about it after all this. I should have called the cops to begin with.

lol Inspire you fucking whore.


I would not have been able to solve this via the legal system... unless you count me doing some time as part of the legal system.

[diethx]

Stef I went to pick her up (early) one day and a larger child (5 or 6) was basically pummeling on her. She was curled up crying on the floor. It was the managers child I later found out. She also had no water for that entire day. The poor thing told me in her broken little toddler english. I found her cup in another classroom with a different childs name on it in marker. The days leading up to that she had weird bruising under her arms. I thought it was a rash until I saw that. So I reported them...

I have pictures. We went to the doctor when I thought it was a rash. Should i get a statement? Press charges? Is it too late? Stupid me, I really just tried to forget about it after all this. I should have called the cops to begin with.


Fucking shit. Talk to the cops, see what you can do. I'm surprised DFS didn't tell you to call the cops.

[Kuyuk]

DFS doesnt care until a foster kid gets abused and it makes headlines.

[Keller]

Now it should read all facts.

Truth is an absolutely defense to libel.

You're solid.

[AnticorRifling]

He just called you fat.

[Keller]

Stef I went to pick her up (early) one day and a larger child (5 or 6) was basically pummeling on her. She was curled up crying on the floor. It was the managers child I later found out. She also had no water for that entire day. The poor thing told me in her broken little toddler english. I found her cup in another classroom with a different childs name on it in marker. The days leading up to that she had weird bruising under her arms. I thought it was a rash until I saw that. So I reported them...

I have pictures. We went to the doctor when I thought it was a rash. Should i get a statement? Press charges? Is it too late? Stupid me, I really just tried to forget about it after all this. I should have called the cops to begin with.

lol Inspire you fucking whore.

If that's all true, and you do have pictures, I think you can either explain in a plainly written letter that truth is an absolute defense to defamation (i.e., libel), or you can do nothing. I'd go with the former just to avoid any sort of litigation. Again, only do this if what you said is true. If it's not, just take down the post and avoid the issue.

As for the apology, if it was me, and knowing how vindictive I am, I'd write something like: "After receiving a letter from [Daycare's] attorneys asking me to cease and desist from publishing false statements, I've redacted this review all statements that could possibly be false. The remaining statements are factual and will be proven as such in a court of law (if it should come to that). Additionally, I've been asked in that same letter to apologize. Accordingly, [Daycare], I'm sorry for [calling your manager the one lazy spic in Texas, etc. . . . ]."

And BF was almost right. No need to prove malicious intent in the case of a daycare. The daycare would need to prove the statement was false and that the statement caused harm.

[Inspire]

At first there were some insults. That was posted for about a month and I edited today to exclude everything except my case details. Now it should read all facts.

Stef I went to pick her up (early) one day and a larger child (5 or 6) was basically pummeling on her. She was curled up crying on the floor. It was the managers child I later found out. She also had no water for that entire day. The poor thing told me in her broken little toddler english. I found her cup in another classroom with a different childs name on it in marker. The days leading up to that she had weird bruising under her arms. I thought it was a rash until I saw that. So I reported them...

I have pictures. We went to the doctor when I thought it was a rash. Should i get a statement? Press charges? Is it too late? Stupid me, I really just tried to forget about it after all this. I should have called the cops to begin with.

lol Inspire you fucking whore.

What a shitty daycare. Hope your kid is ok.

[waywardgs]

http://ballsofwax.files.wordpress.com/2010/08/molotov_cocktail200.jpg

After hours, naturally.

[Warriorbird]

If that's all true, and you do have pictures, I think you can either explain in a plainly written letter that truth is an absolute defense to defamation (i.e., libel), or you can do nothing. I'd go with the former just to avoid any sort of litigation. Again, only do this if what you said is true. If it's not, just take down the post and avoid the issue.

As for the apology, if it was me, and knowing how vindictive I am, I'd write something like: "After receiving a letter from [Daycare's] attorneys asking me to cease and desist from publishing false statements, I've redacted this review all statements that could possibly be false. The remaining statements are factual and will be proven as such in a court of law (if it should come to that). Additionally, I've been asked in that same letter to apologize. Accordingly, [Daycare], I'm sorry for [calling your manager the one lazy spic in Texas, etc. . . . ]."

And BF was almost right. No need to prove malicious intent in the case of a daycare. The daycare would need to prove the statement was false and that the statement caused harm.

This. It's worse that they'd have their attorneys contact you. It makes me wonder if they didn't hire one of those silly reputation defender companies due to more complaints than just yours. As a customer of something so vital you need to think of the broad context.

[Parkbandit]

Have you tried the BBB?

LOL

[Khariz]

I know this thread has replies, but I'll give my attorney 2 cents here:

Tell them to fuck off. Don't worry about libel. If what you posted is true and your intent was to warn people not to use the place because of your experience, then they can't win a libel suit.

If they file one, hire an attorney and get it dismissed at the outset, with prejudice.

[Cephalopod]

Sounds like time to move out of Texas, amirite?

[Parkbandit]

I know this thread has replies, but I'll give my attorney 2 cents here:

Tell them to fuck off. Don't worry about libel. If what you posted is true and your intent was to warn people not to use the place because of your experience, then they can't win a libel suit.

If they file one, hire an attorney and get it dismissed at the outset, with prejudice.

The Daycare center obviously believes that what she posted was not true... and therefore issued a D&A.

[Khariz]

The Daycare center obviously believes that what she posted was not true... and therefore issued a D&A.

I understand, but who cares. He knows whether it's true or not. The business is gonna do what it's gonna do to try to protect its reputation. Doesn't mean it's a valid suit or one where the business is entitled to relief.

[Keller]

The Daycare center obviously believes that what she posted was not true... and therefore issued a D&A.

The daycare "obviously" wants this negative review pulled.

Whether they believe it's true is not at all obvious.

[Khariz]

The daycare "obviously" wants this negative review pulled.

Whether they believe it's true is not at all obvious.

That, and it doesn't matter if they believe it is true. It matters if it is true.

[Parkbandit]

I understand, but who cares. He knows whether it's true or not. The business is gonna do what it's gonna do to try to protect its reputation. Doesn't mean it's a valid suit or one where the business is entitled to relief.

I don't disagree.. but the advice of "tell them to fuck off" wouldn't be good advice if in fact, the review was laced with lies and fabrications.

[Keller]

That, and it doesn't matter if they believe it is true. It matters if it is true.

More precisely, it matters if they can prove it is not true.

[Keller]

I don't disagree.. but the advice of "tell them to fuck off" wouldn't be good advice if in fact, the review was laced with lies and fabrications.

Did you even read his post?

[Khariz]

More precisely, it matters if they can prove it is not true.

Touche. Very true. Proving things aren't something...eww.

[Khariz]

I don't disagree.. but the advice of "tell them to fuck off" wouldn't be good advice if in fact, the review was laced with lies and fabrications.

In case you are serious, I meant that figuratively. Surely he/she wouldn't ACTUALLY tell them to fuck off, right?

If he/she would...yeah, don't do that. By "tell them to fuck off", I actually mean "ignore them".

Edit: Fixed sex pronouns.

[Keller]

(Rojo is a girl, I think; I can't be sure until she posts proof in the boob thread.)

[AnticorRifling]

She did, it was on page like 412-418 in that thread if I remember right.

[Warriorbird]

She did, it was on page like 412-418 in that thread if I remember right.

Shh.

[crb]

More precisely, it matters if they can prove it is not true.
You're a lawyer and I'm not, but let me chime in and say proving in a civil case is a different beast than proving in a criminal case. So he should keep that in mind.

to OP:

Having been threatened with libel dozens of times (generally as service provider/publisher when some third party uses my service to defame another third party), I've made a bit of a study of the law, and of course have talked with more than one lawyer over it.

Truth is an a defense, and you can win a lawsuit, but you still lose unless you find a free attorney.

Generally to get anything other than an injunction, actual economic damages, the daycare would have to prove exact how much business they lost because of your review. This is complex, and would necessitate them putting all their financial documents into the court record as evidence, allowing you and your lawyer access to them. Most places do not want to do that, even if they're capable.

So if they sued you, they could get an injunction forcing you to remove the review and keep your mouth shut. They would be out attorney's fees, as would you. Can they afford a lawsuit on those grounds? Can you?

If you think they can and would push it out of spite, maybe it makes financial sense to apologize. Unless you have enough money to spend thousands of dollars of a principle.

If not, just ignore it. Telling them to fuckoff could only tick them off and make them consider it. If you ignore it they might think you didn't get their notice. They'll send more, billing their lawyer, wasting their money. Ignore them all.

Meanwhile libel has a statute of limitations, usually 1 or 2 years, depending on the state. So, eventually, you'll have that in your favor as well. Keep their letters though, it proves they are aware of the review, which negates pretty much the only way they could hope to get around the statute of limitations if they brought suit in the future.

On the otherhand, if I walked into a daycare and say my kid being beaten up as a result of neglect. I would call the police. Not some state regulatory agency, the guys who arrest people. It seems to me that is some sort of felony. That would give you a police report backing you up. You could then take them to civil court, and get their insurance company to pay out some pain and suffering.

It might not be too late to call the cops. Doing so, of course, would not be "ignoring" the letter. But I don't think being investigate for child endangerment or something like that would inspire the daycare owner to push the issue further.

[Suppa Hobbit Mage]

Respond with a civil suit for millions of dead presidents.

[Khariz]

You're a lawyer and I'm not, but let me chime in and say proving in a civil case is a different beast than proving in a criminal case. So he should keep that in mind.

to OP:

Having been threatened with libel dozens of times (generally as service provider/publisher when some third party uses my service to defame another third party), I've made a bit of a study of the law, and of course have talked with more than one lawyer over it.

Truth is an a defense, and you can win a lawsuit, but you still lose unless you find a free attorney.

Generally to get anything other than an injunction, actual economic damages, the daycare would have to prove exact how much business they lost because of your review. This is complex, and would necessitate them putting all their financial documents into the court record as evidence, allowing you and your lawyer access to them. Most places do not want to do that, even if they're capable.

So if they sued you, they could get an injunction forcing you to remove the review and keep your mouth shut. They would be out attorney's fees, as would you. Can they afford a lawsuit on those grounds? Can you?

If you think they can and would push it out of spite, maybe it makes financial sense to apologize. Unless you have enough money to spend thousands of dollars of a principle.

If not, just ignore it. Telling them to fuckoff could only tick them off and make them consider it. If you ignore it they might think you didn't get their notice. They'll send more, billing their lawyer, wasting their money. Ignore them all.

Meanwhile libel has a statute of limitations, usually 1 or 2 years, depending on the state. So, eventually, you'll have that in your favor as well. Keep their letters though, it proves they are aware of the review, which negates pretty much the only way they could hope to get around the statute of limitations if they brought suit in the future.

On the otherhand, if I walked into a daycare and say my kid being beaten up as a result of neglect. I would call the police. Not some state regulatory agency, the guys who arrest people. It seems to me that is some sort of felony. That would give you a police report backing you up. You could then take them to civil court, and get their insurance company to pay out some pain and suffering.

It might not be too late to call the cops. Doing so, of course, would not be "ignoring" the letter. But I don't think being investigate for child endangerment or something like that would inspire the daycare owner to push the issue further.

This is all good information.

Another note: *IF* they ever bother to sue you, you have some juicy counterclaims, in the flavor of civil suits mentioned above, that a you could use as a carrot to any lawyer you need to represent you in the libel suit.

If you came into my office, your libel case may just be a money throwaway for you, and a small fee for me. If you came in and also had legit civil counterclaims against the company, which you wanted to use because their dumb asses just sued you for libel. Cha-ching. Let's have fun with this one.

[Tsa`ah]

You're a lawyer and I'm not, but let me chime in and say proving in a civil case is a different beast than proving in a criminal case. So he should keep that in mind.


Which would be fine if she had actually been charged with criminal defamation ... meaning the criminal justice system were involved. But she received a letter from a lawyer representing a daycare, which means civil.

[4a6c1]

"After receiving a letter from [Daycare's] attorneys asking me to cease and desist from publishing false statements, I've redacted this review all statements that could possibly be false. The remaining statements are factual and will be proven as such in a court of law (if it should come to that). Additionally, I've been asked in that same letter to apologize. Accordingly, [Daycare], I'm sorry for [calling your manager the one lazy spic in Texas, etc. . . . ]."

I basically did this, without being vindictive. But I'm also gathering all the paperwork I need to file charges against them and I'm going to go talk to the police like I should have in the first place.

[AnticorRifling]

You're arguing the same point here Tsa'ah. crb is saying this is a civil matter and not a criminal one. Unless I are am to for read badly, which is possible.

[Khariz]

You're arguing the same point here Tsa'ah. crb is saying this is a civil matter and not a criminal one. Unless I are am to for read badly, which is possible.

I didn't understand that either, unless Keller is a criminal lawyer and crb was just trying to say "remember this shit is different" or something.

[AnticorRifling]

...I'm going to go talk to the police like I should have in the first place.

Herp derp. Way to let logic take the back seat to emotions woman :)


Good luck and remember when in doubt claim one of them touched your penis with their penis.

[4a6c1]

I still cant believe they had the nerve, you know?

And I'm guessing they have had bigger problems than me because the lawyer that sent this looks to be part of a larger contract service. Like a steady fee corporate retainer.

[Tgo01]

I don't want it to seem as though I'm not taking your side in this Rojo but what exactly did you have posted originally that could have possibly been false? And now you kind of just admitted you posted false information :/

[4a6c1]

She did, it was on page like 412-418 in that thread if I remember right.

and WTF

[AnticorRifling]

I didn't understand that either, unless Keller is a criminal lawyer and crb was just trying to say "remember this shit is different" or something.

Who knows, I just work here.


Also the Keller and Keller commercials make me laugh everytime I see them because I think of Keller...and Keller.

[Khariz]

I don't want it to seem as though I'm not taking your side in this Rojo but what exactly did you have posted originally that could have possibly been false? And now you kind of just admitted you posted false information :/

Huh? no she didn't. She admitted to posting insulting information. That's not the same thing.

You can say "Those fuckers let my kid get its ass kicked" or "the child care center allowered my child to be injured". They are both truthful.

[AnticorRifling]

and WTF

Trying to see how many people I can get to go back to that thread and scoure it saying it's gotta be here!

[4a6c1]

I don't want it to seem as though I'm not taking your side in this Rojo but what exactly did you have posted originally that could have possibly been false? And now you kind of just admitted you posted false information :/

Insults. Word for word "The people that run this place are trash." and "The manager lets her children do whatever wherever."

Basically opinions...

[Tsa`ah]

You're arguing the same point here Tsa'ah. crb is saying this is a civil matter and not a criminal one. Unless I are am to for read badly, which is possible.

When someone tells me to keep in mind that criminal and civil cases are different and I'm talking about a civil case ... I'm going to ask why I should keep the criminal case in mind.

I think everyone discussing the topic up to that point understood that this was a civil matter ... criminality is irrelevant.

[AnticorRifling]

So change them to say "I feel..." or "It's my opinion that", and then leave them posted.

[4a6c1]

Nope.

[Tsa`ah]

Have you looked into the firm/lawyer that sent you the c&d notice?

I ask this because once in a while my business will be hit with random and anonymous feedback on various merchant pages ... and I'll get an e-mail a few days later from an internet reputation management/defense firm whoring their services.

Strangely enough ... sometimes the IP stamped on the review matches the e-mail.

[Aylien]

I wouldn't say "I removed the things that weren't true", I would say "I removed the more emotionally-based statements".

[crb]

Which would be fine if she had actually been charged with criminal defamation ... meaning the criminal justice system were involved. But she received a letter from a lawyer representing a daycare, which means civil.
Which is my point. The daycare has a lower burden of proof than what someone who isn't a lawyer would be familiar with from TV and movies and whatnot. So if you're of the mind set that they would have to prove beyond a resonable doubt with a unanimous jury verdict... think again. Assuming you had a jury trial for your civil case the daycare would only need to convince half the jury with a "preponderance of evidence" that your review contained defamatory falsehoods.

It might not be something to bet the house on.

[Khariz]

Which is my point. The daycare has a lower burden of proof than what someone who isn't a lawyer would be familiar with from TV and movies and whatnot. So if you're of the mind set that they would have to prove beyond a resonable doubt with a unanimous jury verdict... think again. Assuming you had a jury trial for your civil case the daycare would only need to convince half the jury with a "preponderance of evidence" that your review contained defamatory falsehoods.

It might not be something to bet the house on.

yeah, but Libel and Slander are pretty unique animals in the civil law world. The preponderance standard is cool and all, but when it it your burden to prove that something someone else said WASN'T true, and that they had a malicious intent behind what they said...in the face of them saying "That's the way I saw it going down, that was my opinion of what occurred"...its still a pretty damn high burden.

Proving a preponderance that someone DID do something, like cut down your tree with a chainsaw is one thing. This...is another. Proving something happened is relatively easy, if it did. Proving something didn't happen...hard. Back to criminal law, think of a rape accusation. Circumstantial evidence of rape tends to convict, even on the higher reasonable doubt standard. A rapist has a hard time proving they didn't rape if any sex at all actually occurred. He can't prove lack of intent to rape. yes, I know that defendants are theoretically innocent until proven guilty, but having sat in the courthouse for years straight, I give a big ole LOL to that.

It's hard for someone to prove malicious intent on the same note, if there's even a grain of truth to what is being said. Like I said way way above...if she just wanted to make sure people didn't have the same thing happen to their child...that's a warning, a cautioning statement, not a lie designed particularly to hurt their business. The preponderance looks pretty high here.

[crb]

So change them to say "I feel..." or "It's my opinion that", and then leave them posted.
This is good advice.

I believe the standard in libel cases for opinions or insults is that a reasonable person would have to believe that what you said was a literal claim of truth.

For instance if you said "So and so is staffed by a bunch of monkeys." This is obviously not true, but would a reasonable person believe it to be true? If a reasonable person would not believe your statement, then it cannot have hurt reputation, so it cannot be libel. This was key in that case against Hustler Magazine by one of those preachers, I can't remember which one.

And of course, an opinion can never be false. On the advice of a lawyer I've taken to always prefacing negative comments with "In my opinion." Or prefacing a whole review with a "This is merely my opinion."

Consumer reviews are also a very specific protected type of speech and the burden of proof is going to be a little higher than libel in a nonconsumer review format. So, you should be pretty safe, as long as you do not outright lie.

[crb]

I wouldn't say "I removed the things that weren't true", I would say "I removed the more emotionally-based statements".
Good advice too, otherwise it is an admission of guilt. When I've removed shit in the past to avoid litigation I just say that is the reason.

"I've removed X because of a threat of litigation. This act should not be construed as an admission of guilt, nor of a change of views, but only done as a result of wanting to avoid the expense of a lawsuit."

I've then, sometimes, unremoved it after the statute of limitations has passed.

[Keller]

I wouldn't say "I removed the things that weren't true", I would say "I removed the more emotionally-based statements".

That's why I said she should write, "could possibly be false."

Come on, Aylien!

[g++]

Interesting response to a similiar letter.

http://www.citizen.org/documents/directbuyresponse.pdf

[Khariz]

Speaking of that. Gimme the state you live in, Rojo, and I'll do the legal research on the libel standard in your state/federal district. I bet it is much the same as in that letter.

[Gelston]

Interesting response to a similiar letter.

http://www.citizen.org/documents/directbuyresponse.pdf

Damn, that shit was AWESOME. Just goes to show most of the time they don't expect you to actually take the letter to someone knowledgeable of the law.

[TheEschaton]

She lives in Texas, according to Facebook. ;)

[Cephalopod]

Speaking of that. Gimme the state you live in, Rojo, and I'll do the legal research on the libel standard in your state/federal district. I bet it is much the same as in that letter.


She lives in Texas, according to Facebook. ;)


Sounds like time to move out of Texas, amirite?

x2

[Khariz]

Here's some information from Texas:


A statement is defamatory if it “tends to... injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation....” Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2005); Wheeler v. New Times, Inc., 49 S.W.3d 471, 474 (Tex. App.-Dallas 2001, no pet.). To maintain a defamation action, a plaintiff must prove that the defendant (1) published a statement of fact; (2) that was defamatory concerning the plaintiff; (3) while acting with actual malice regarding the truth of the statement if the plaintiff was a public official or public figure, or while acting with negligence regarding the truth of the statement if the plaintiff was a private individual. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). To be actionable, a statement must assert an objectively verifiable fact. Milkovich v. Lorain Journal Co., 497 U.S.1, 19 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2002). Whether a publication is an actionable statement of fact or a constitutionally protected opinion is a question of law. Bentley, 94 S.W.3d at 580. If we determine that the statements are not capable of a defamatory meaning, we need not consider whether the complained-of statements are false or not substantially true. Huckabee, 19 S.W.3d at 429; Wheeler, 49 S.W.3d at 474.


Additionally, defamatory statements are either defamatory per se or defamatory per quod. Sw. Bell Yellow Pages, Inc. v. Thomas, No. 05-04-01722-CV, 2006 WL 217665, at *2 (Tex. App.-Dallas Jan. 30, 2006, no pet.) (mem. op.). A written defamatory statement is libel per se if the words in and of themselves are so obviously hurtful to the person aggrieved by them that they require no proof of injury. Id. These include statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity, or (2) are falsehoods that injure one in his office, business, profession, or occupation. Id. If the court must resort to innuendo or extrinsic evidence to determine that the statement was defamatory, then it is libel per quod and requires proof of injury and damages. See id.; Bingham v. Sw. Bell Yellow Pages, Inc., No. 2-06-229-CV, 2008 WL 163551, at *3-5 (Tex. App.-Fort Worth Jan. 17, 2008, no pet.) (mem. op.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.-Waco 2005, no pet.).

We construe an allegedly defamatory publication as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000); Wheeler, 49 S.W.3d at 474. A “person of ordinary intelligence” is one who “exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004).


When a plaintiff alleges that the gist of a publication defamed him, we construe the allegedly defamatory publication as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Wheeler, 49 S.W.3d at 474. Texas law recognizes that a publication may be entirely true in its details yet still “convey a substantially false and defamatory impression by omitting material facts or suggestively juxtaposing true facts.” Turner, 38 S.W.3d at 115; Wheeler, 49 S.W.3d at 476. When a publication “gets the details right but fails to put them in the proper context and therefore gets the story's 'gist' wrong, ” Texas law permits liability for defamation. Turner, 38 S.W.3d at 115. Conversely, Texas law precludes liability for a publication that gets the story's “gist” correct, but errs in the details. Id.; Wheeler, 49 S.W.3d at 47

More to come. Going to focus my research on libeling businesses now, if possible.

[Khariz]

More texas stuff:


An oral statement is defamatory per se only if it falls within one of the following categories: (1) imputation of a crime; (2) imputation of a loathsome disease; (3) injury to a person’s office, business, profession, or calling; or (4) imputation of sexual misconduct. Gray v. HEB Food Store No. 4, 841 S.W.2d 327, 329 (Tex. App.—Corpus Christi 1997, writ denied). If the jury finds that the defendant made the allegedly defamatory statement about the plaintiff, and the statement is defamatory per se, then the factfinder may presume that the statement injured the plaintiff’s reputation. Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002). When the presumption applies, the plaintiff is entitled to recover general damages, such as for loss of reputation and mental anguish. Id. At a minimum, the plaintiff in such a case is entitled to nominal damages. Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied) (citing Bentley, 94 S.W.3d at 604). If the statement is only defamatory per quod, then the plaintiff must prove the existence and amount of damages. Id. at 580.


Whether a given statement is reasonably capable of a defamatory meaning is a question to be decided by the trial court as matter of law. See Musser, 723 S.W.2d at 654-55. The trial court should construe the alleged defamatory communication as a whole in light of the surrounding circumstances based upon how a reasonable person of ordinary intelligence would perceive it, considering the surrounding circumstances and the context of the statement. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex. 2003), cert. denied, 545 U.S. 1105, 125 S.Ct. 2557, 162 L.Ed.2d 276 (2005); Turner, 38 S.W.3d at 114. This is an objective test, not a subjective one. New Times, Inc., 146 S.W.3d at 157. Thus, the parties' opinion of the statements, Musser v. Smith, 690 S.W.2d 56, 58 (Tex.App.--Houston [14th Dist.] 1985), aff'd, 723 S.W.2d 653 (Tex. 1987), or the defendant's intent in making the statements have no bearing on whether they are defamatory.


A suit for libel or slander must be brought within one year of the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. 16.002(a) (Vernon 2002). A claim for a violation of the FDCPA must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. 1692k(d) (West, Westlaw 2010). A plaintiff must bring a claim for intentional infliction of emotional distress within two years of the accrual of the cause of action. Tex. Civ. Prac. & Rem. Code Ann. 16.003 (Vernon Supp. 2010); Patrick v. McGowan, 104 S.W.3d 219 (Tex. App.—Texarkana 2003, no pet.).

[Liagala]

Trying to see how many people I can get to go back to that thread and scoure it saying it's gotta be here!
Actually, Rojo did post boobs* at some point. I have no idea which page, but she did post.








*They weren't Rojo's, and they damn sure weren't anything I ever want to see again, but they were boobs.

[Khariz]

here's a real good statement by Texas:


To maintain a cause of action for defamation, a plaintiff must establish that the defendant (1) published a statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Henriquez v. Cemex Management, Inc., 177 S.W.3d 241, 251 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex. App.--Fort Worth 2006, pet. denied). "The truth of the statement in the publication on which an action for libel is based is a defense to the action." Tex. Civ. Prac. & Rem. Code Ann. 73.005 (Vernon 2005). A defendant may also defeat a libel claim by establishing the substantial truth of the statement. Grotti, 188 S.W.3d at 774 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)). To determine if a publication is substantially true, "we consider whether the alleged defamatory statement was more damaging to the plaintiff's reputation, in the mind of the average person, than a truthful statement would have been," and "[w]e look at the 'gist' of the publication "to determine whether it is substantially true." Id. (citations omitted). The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied); Howell v. Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied).

[4a6c1]

Holy crap that's alot of mumbo jumbo.

Thanks Khariz.

[Warriorbird]

Holy crap that's alot of mumbo jumbo.

When you see "substantial truth" you get the name of the test. Then you look for the elements of it. You also get its the defendant defeating it.

[Khariz]

Maybe to you, haha. The last post I made tells you straight up that even if what you posted isn't 100% true, it being substantially true is enough.

[4a6c1]

I see. Hmmm.

[Gelston]

I'm sure they bank on people not knowing how to read the code and then make money of the business paying them to send cease and desist letters, regardless if there is an actual case. Most people shit a brick and comply when stuff like that occurs to them.

[EasternBrand]

What I took from this whole thread is that a Texas plaintiff does not need to prove damages, if the writer has charged him with a "rascality."

Nachos, YOU ARE A RAPSCALLION.


. . .



In my opinion.

[Warriorbird]

I see. Hmmm.

1 reason to be a paladin Thaluhar!

[Khariz]

1 reason to be a paladin Thaluhar!

ROFL, rep for that.

[msconstrew]

Maybe I will be the lone dissenting voice in this thread but... I actually represented a client in almost this exact situation (except the former daycare client made verbal statements instead of written statements on the internet). There is no doubt in my mind that the lawsuit was frivolous trash and that the daycare was barking up the wrong tree.

Despite that, the daycare managed to cause the client to incur over $40k in fees because of dispositive motion practice and depositions. Eventually we tried the case and won, BUT that doesn't mean it wasn't incredibly wasteful of both time and money to do so. So all you lawyers and non-lawyers who are sitting here discussing legal standards are ignoring the reality of the cost of litigation.

That being said, I wouldn't remove the review and I would probably just let sleeping dogs lie. But if I got another C&D letter, maybe I would consider removing the review. Of course, if you actually got sued, it might be covered under your homeowners/renters policy, in which case go to town!

Finally, I think you've gotten some good advice here, but I will just point out that it is difficult to prove a negative, and that there are different burdens of proof in civil cases and preponderance of the evidence is only one of them. In my state, at least, I believe the burden id higher.

[g++]

While litigation can obviously be expensive its also true (assuming Rojo's version is correct) that the cease and desist letter is an attempt to silence a warning about a place thats abusing children. I think its a pretty good example of when fighting might be worth it.

[msconstrew]

While litigation can obviously be expensive its also true (assuming Rojo's version is correct) that the cease and desist letter is an attempt to silence a warning about a place thats abusing children. I think its a pretty good example of when fighting might be worth it.

Well, fine, if Rojo's got money to burn, then she can fight the principle of the thing. I'm trying to give a practical response that takes into account the realities of the situation, which are that litigation is expensive, the outcome is always uncertain, and some fights are just not worth fighting. And yes, preventing child abuse is a worthy cause, which is why there's always the police.

[Warriorbird]

Well, fine, if Rojo's got money to burn, then she can fight the principle of the thing. I'm trying to give a practical response that takes into account the realities of the situation, which are that litigation is expensive, the outcome is always uncertain, and some fights are just not worth fighting. And yes, preventing child abuse is a worthy cause, which is why there's always the police.

Totally valid. She may also be going up against online reputation defense with no real intention of taking that route. I think your wait and see advice probably = spot on.

[waywardgs]

Well, fine, if Rojo's got money to burn, then she can fight the principle of the thing. I'm trying to give a practical response that takes into account the realities of the situation, which are that litigation is expensive, the outcome is always uncertain, and some fights are just not worth fighting. And yes, preventing child abuse is a worthy cause, which is why there's always the police.

Countersuit. My child was abused, etc. Pay my legal fees + restitution.

[Tsa`ah]

Wasn't part of Texas' tort reform a "loser pays" type law? I'd assume this works both ways.

Seriously ... hire Johnny Cochran's ghost when they try to take you to court for libel.

[msconstrew]

Countersuit. My child was abused, etc. Pay my legal fees + restitution.

The so-called American Rule is that you pay your own attorneys fees unless it's a special situation mandated by statute. Not an option.

[Khariz]

The so-called American Rule is that you pay your own attorneys fees unless it's a special situation mandated by statute. Not an option.

There are other punitive reasons for an award of attorneys fees available. If you file a frivolous yet theoretically meritorious case against me and I have to hire and attorney to defend myself up to the point of the dismissal of your ridiculous claim, it's possible that I could convince the court to award attorneys fees.

For example, I'm an attorney in Alabama:


Section 12-19-272

Court to award fees and costs against attorney or party who brought action without substantial justification; voluntary dismissal.

(a) Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part;

(b) When a court determines reasonable attorneys' fees or costs should be assessed it shall assess the payment thereof against the offending attorneys or parties, or both, and in its discretion may allocate among them, as it determines most just, and may assess the full amount or any portion thereof to any offending attorney or party;

(c) The court shall assess attorneys' fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action or any part thereof, or asserted any claim or defense therein, that is without substantial justification, or that the action or any part thereof, or any claim or defense therein, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including but not limited to abuses of discovery procedures available under the Alabama Rules of Civil Procedure;

(d) No attorneys' fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within 90 days after filing, or during any reasonable extension granted by the court, for good cause shown, on motion filed prior to the expiration of said 90 day period;

(e) No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorneys' fees unless the court finds that the party clearly knew or reasonably should have known that his action, claim or defense or any part thereof was without substantial justification.

I would be surprised if Texas didn't have something similar.

Edit: Yes I realize this is a statute, and thus perhaps exactly what you were talking about, msconstrew. But it seems that you could make a case for the idea that filing a libel suit when the caselaw of your state says you shouldn't win on the merits could arguably lack substantial merit enough that you could at least ask for attorney's fees with a straight face. Not saying you'd get them...

[msconstrew]

Edit: Yes I realize this is a statute, and thus perhaps exactly what you were talking about, msconstrew. But it seems that you could make a case for the idea that filing a libel suit when the caselaw of your state says you shouldn't win on the merits could arguably lack substantial merit enough that you could at least ask for attorney's fees with a straight face. Not saying you'd get them...

That is, indeed, exactly what I was talking about. And I, too, am a lawyer and can point to fee-shifting statutes in Wisconsin. The fact that they exist doesn't invalidate the point that, in general, fees and costs are not available and they are certainly not a reason to assume you will prevail in your attempt to collect fees or costs.

[4a6c1]

Wasn't part of Texas' tort reform a "loser pays" type law? I'd assume this works both ways.

Seriously ... hire Johnny Cochran's ghost when they try to take you to court for libel.

Yes that was recently in the news but I don't know all the details.

Still waiting. Nothing new in the mail. I am reading every post and appreciate all the input veeeery much.

[Back]

Yes that was recently in the news but I don't know all the details.

Still waiting. Nothing new in the mail. I am reading every post and appreciate all the input veeeery much.

Sorry I have not read the whole thread but have you posted your review that is in contention?

[4a6c1]

Nope it was deleted before i even posted this thread and replaced with the words "I have an ongoing case against this facility for neglect and abuse." Which I eventually edited again to contain some suggested legalize from Keller and then edited one last time to include more legalize from another lawyerly type not of PC affiliation.