I've lurked and posted on and off to this newsgroup for a while now, and I think I've learned a lot about the people and personalities that dominate this board. But because I was a newby, I didn't know about the SLAPPs that Sistah Ilena had. I've seen the spin on both sides from the recent court ruling, and I've heard that more than a couple of other people are confused.
I've gotten an explanation from someone with more legal know-how than I have, and here it is. I didn't write it, my friend did.
To Alo:
My conclusion? Rosenthal loses, big time. No new territory is covered by the affirmation of the lower court's opinions regarding Grell and Barrett. Barrett was wrong in suing over Rosenthal's insults (though his feelings are understandable), and Grell was wrong in entering the suit as a plaintiff, suing Rosenthal, and encouraging Barrett to sue.
However, the court was clearly distressed by the lower court's actions considering Polevoy, and was adamant in its opinion thereof: "[N]o reason appears why Rosenthal cannot be subjected to such liability, the trial court erred in finding that appellant Polevoy's defamation claim was barred by the statute." Opinion at 36-37 Rosenthal's actions "reflected actual malice." Opinion at 40
"The record does not show, and Rosenthal has never claimed, that Bolen created or developed this information and furnished it to her under circumstances in which a reasonable person in her position would conclude that it was provided for publication on the Internet or other 'interactive computer service.'" Opinion at 4, Footnote 4
Translation: Only an unreasonable person would have transmitted the information for public consumption, ie, that Rosenthal abused her position or acted unreasonably.
The decision simply reaffirms that insulting someone may not be defamation. That's nothing new. On the other hand, it also reaffirms that making an accusation that someone is engaged in criminal activity (ie, "stalking"), rises far above a simple insult. That could be either libel or slander, depending upon the manner in which it is conveyed, and whether or not injury can be proved. So calling Barrett a "quack" isn't necessarily defamatory, but stating that Polevoy IS a stalker could be.
"The charge of commission of some kind of crime is obviously libel per se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing, generally, 50 Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose Printing & Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221 Cal.App.2d 801.) (Opinion at 43)
This is why the court affirmed the case as it applied to Barrett but reversed and remanded (sent it back to the lower court) for Polevoy. The Appellate court clearly believes that there are merits to Polevoy's claims.
More to the point: "We find that the immunity available… does not bar the imposition of liability in this case, that malice and reckless disregard for the truth can be inferred from the circumstances, which include the failure to conduct a reasonable investigation regarding the truth of the accusation of criminal conduct and reliance on obviously biased sources, and that Polevoy was not required to plead special damages, as the republished statement was libelous per se." Opinion, 10-11
That's pretty self-explanatory.
I found this interesting: "We agree with appellants that the statute cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character." Opinion at 13
This is to prevent a "clever libeler" from using a Third Party to convey his or her defamatory statements - something that had struck me as an idea when I started reading this opinion. In other words, Person A wants to spread some bit of salacious defamation in public, but doesn't want to be held liable for it. Therefore, Person A conveys it to Person B, who then spreads it far and wide. Person A didn't spread it, and therefore wouldn't be liable. But Person B is only repeating what Person A said, and therefore shouldn't be liable. Uh uh, says the court. No way - in this case, given the biased nature of Bolen, Rosenthal, were she reasonable and given her position, was probably in a position to determine the defamatory character of the information: "Given the close relationship Rosenthal had with Bolen, the longstanding hostility between Bolen and Polevoy, and the very substance of Bolen's accusations against Polevoy, Rosenthal must have been on notice of Bolen's enmity." Opinion at 39
Later on the in opinion, as to the issue of Rosenthal's SLAPP motion, the court makes it clear that Rosenthal never based her SLAPP claim on the issue of the defamatory statements, but on the issue of malice and damages: "[H]er special motion to strike under the anti-SLAPP statute was not based on the truth of the statements that Polevoy engaged in criminal conduct nor did it deny she knew or had reason to know of the defamatory character of these statements. The motion was based solely on the grounds of the federal immunity, appellants inability to show actual malice, and their failure to plead special damages. Furthermore, Rosenthal has never asserted that, due to the technology or for any other reason, she could not easily withdraw and/or correct the allegedly defamatory materials she posted." Opinion at 36
As to the issue of malice, the court said: "We do not believe these three findings (the findings of the trial court) support the conclusion that appellants failed to produce sufficient evidence of malice. On the contrary, we conclude that respondent Rosenthal's complete reliance upon sources known to be biased against appellant Polevoy provided her "obvious reasons to doubt the veracity of the informant or the accuracy of his reports." (McCoy v. Hearst Corp., supra, 42 Cal.3d at p. 860.)" Opinion at 38-39
"Rosenthal's failure to consult a reliable source to verify a facially questionable accusation of criminal conduct supports appellants' claims that she entertained serious doubts as to the truth or falsity of the communication, and that her complete reliance on sources she knew to be biased, and therefore unreliable, reflected actual malice… Complete reliance on sources known to be biased-which, as we have said, is more than the mere failure to investigate-reflects on Rosenthal's subjective attitude and strongly suggests she entertained serious doubts regarding the truth of Bolen's accusations, certainly after she received notice of their false and defamatory character." Opinion at 40
"Here the defendant not only failed to consult any reliable source as to the accuracy of criminal charges after being repeatedly notified they were false and defamatory, and instead consulted sources she knew to be biased against the accused, but she subsequently reposted the allegedly defamatory accusations 32 times." Opinion at 41
Then the opinion goes on to say that the trial court's decision on damages was based in part on their conclusion that Polevoy couldn't prove malice. But because Polevoy can probably prove malice, then there is no need to prove special damages: "as we have explained, Polevoy may be able to show malice; and a public figure plaintiff who can do so need not plead special damage if, as is also the case here, the alleged defamation consists of libel (or slander) per se." Opinion at 42
" 'Special damage' means that the loss sustained by the plaintiff must be a particular loss, of a material nature, supported by specific evidence. Thus, 'special damage' is to be contrasted with the 'general damage' that was traditionally presumed from the publication of a libel or any of the imputations that come within the rules of slander per se." (2 Harper et al., The Law of Torts, supra, § 5.14, at p. 114.)" Opinion at 41, Footnote 18
As to the issue of Grell, the court found him culpable because not only did he erringly advocate for Barrett's suit against Rosenthal, but that he also entered the case as a plaintiff and named Rosenthal as a defendant in his own personal suit.
In the end, the court believes in the distinct possibility that Rosenthal was acting out of malice and that Polevoy could prevail on his claims of defamation. Rosenthal cannot hide behind the claim that she was simply repeating the claims of Bolen, and that she did not engage in reasonable behavior for a person in her position. * * * * * *
That's the opinion of my friend, for what its worth.
So now the Appellate court is ordering the Polevoy suit to be re-heard by the trial court, if I'm understanding correctly. If Ilena posted with the usual signature line referencing the Humantics Foundation does that mean that the foundation is enjoined in the suit as well? I didn't follow the first round of this court case.
When I was on a Board of Directors I was told that we were all personally liable for any legal action that might be brought because of the actions of any other board member. Does that mean the Humantics Foundation's Board of Directors would be personally liable too? For legal fees and a judgment? Does the Humantics Foundation carry insurance?
Will Ilena be required to appear in court? What city and state?
More to be revealed?
======================
"AloysiousX" <aloysio...@aol.com> wrote in message
> I've lurked and posted on and off to this newsgroup for a while now, and I > think I've learned a lot about the people and personalities that dominate this > board. But because I was a newby, I didn't know about the SLAPPs that Sistah > Ilena had. I've seen the spin on both sides from the recent court ruling, and > I've heard that more than a couple of other people are confused.
> I've gotten an explanation from someone with more legal know-how than I have, > and here it is. I didn't write it, my friend did.
> To Alo:
> My conclusion? Rosenthal loses, big time. No new territory is covered by the > affirmation of the lower court's opinions regarding Grell and Barrett. Barrett > was wrong in suing over Rosenthal's insults (though his feelings are > understandable), and Grell was wrong in entering the suit as a plaintiff, suing > Rosenthal, and encouraging Barrett to sue.
> However, the court was clearly distressed by the lower court's actions > considering Polevoy, and was adamant in its opinion thereof: "[N]o reason > appears why Rosenthal cannot be subjected to such liability, the trial court > erred in finding that appellant Polevoy's defamation claim was barred by the > statute." Opinion at 36-37 Rosenthal's actions "reflected actual malice." > Opinion at 40
> "The record does not show, and Rosenthal has never claimed, that Bolen created > or developed this information and furnished it to her under circumstances in > which a reasonable person in her position would conclude that it was provided > for publication on the Internet or other 'interactive computer service.'" > Opinion at 4, Footnote 4
> Translation: Only an unreasonable person would have transmitted the > information for public consumption, ie, that Rosenthal abused her position or > acted unreasonably.
> The decision simply reaffirms that insulting someone may not be defamation. > That's nothing new. On the other hand, it also reaffirms that making an > accusation that someone is engaged in criminal activity (ie, "stalking"), rises > far above a simple insult. That could be either libel or slander, depending > upon the manner in which it is conveyed, and whether or not injury can be > proved. So calling Barrett a "quack" isn't necessarily defamatory, but stating > that Polevoy IS a stalker could be.
> "The charge of commission of some kind of crime is obviously libel per > se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing, generally, > 50 > Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose Printing & > Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221 Cal.App.2d > 801.) (Opinion at 43)
> This is why the court affirmed the case as it applied to Barrett but reversed > and remanded (sent it back to the lower court) for Polevoy. The Appellate > court clearly believes that there are merits to Polevoy's claims.
> More to the point: > "We find that the immunity available. does not bar the imposition > of liability in this case, that malice and reckless disregard for the truth can > be inferred from the circumstances, which include the failure to conduct a > reasonable investigation regarding the truth of the accusation of criminal > conduct and reliance on obviously biased sources, and that Polevoy was not > required to plead special damages, as the republished statement was libelous > per se." Opinion, 10-11
> That's pretty self-explanatory.
> I found this interesting: "We agree with appellants that the statute cannot be > deemed to abrogate the common law principle that one who republishes defamatory > matter originated by a third person is subject to liability if he or she knows > or has reason to know of its defamatory character." Opinion at 13
> This is to prevent a "clever libeler" from using a Third Party to convey his or > her defamatory statements - something that had struck me as an idea when I > started reading this opinion. In other words, Person A wants to spread some > bit of salacious defamation in public, but doesn't want to be held liable for > it. Therefore, Person A conveys it to Person B, who then spreads it far and > wide. Person A didn't spread it, and therefore wouldn't be liable. But Person > B is only repeating what Person A said, and therefore shouldn't be liable. Uh > uh, says the court. No way - in this case, given the biased nature of Bolen, > Rosenthal, were she reasonable and given her position, was probably in a > position to determine the defamatory character of the information: "Given the > close relationship Rosenthal had with Bolen, the longstanding hostility between > Bolen and Polevoy, and the very substance of Bolen's accusations against > Polevoy, Rosenthal must have been on notice of Bolen's enmity." Opinion at 39
> Later on the in opinion, as to the issue of Rosenthal's SLAPP motion, the court > makes it clear that Rosenthal never based her SLAPP claim on the issue of the > defamatory statements, but on the issue of malice and damages: "[H]er special > motion to strike under the anti-SLAPP statute was not based on the truth of the > statements that Polevoy engaged in criminal conduct nor did it deny she knew or > had reason to know of the defamatory character of these statements. The motion > was based solely on the grounds of the federal immunity, appellants inability > to show actual malice, and their failure to plead special damages. Furthermore, > Rosenthal has never asserted that, due to the technology or for any other > reason, she could not easily withdraw and/or correct the allegedly defamatory > materials she posted." Opinion at 36
> As to the issue of malice, the court said: "We do not believe these three > findings (the findings of the trial court) support the conclusion that > appellants failed to produce sufficient evidence of malice. On the contrary, we > conclude that respondent Rosenthal's complete reliance upon sources known to be > biased against appellant Polevoy provided her "obvious reasons to doubt the > veracity of the informant or the accuracy of his reports." (McCoy v. Hearst > Corp., supra, 42 Cal.3d at p. 860.)" Opinion at 38-39
> "Rosenthal's failure to consult a reliable source to verify a facially > questionable accusation of criminal conduct supports appellants' claims that > she entertained serious doubts as to the truth or falsity of the communication, > and that her complete reliance on sources she knew to be biased, and therefore > unreliable, reflected actual malice. Complete reliance on sources known to be > biased-which, as we have said, is more than the mere failure to > investigate-reflects on Rosenthal's subjective attitude and strongly suggests > she entertained serious doubts regarding the truth of Bolen's accusations, > certainly after she received notice of their false and defamatory character." > Opinion at 40
> "Here the defendant not only failed to consult any reliable source as to the > accuracy of criminal charges after being repeatedly notified they were false > and defamatory, and instead consulted sources she knew to be biased against the > accused, but she subsequently reposted the allegedly defamatory accusations 32 > times." Opinion at 41
> Then the opinion goes on to say that the trial court's decision on damages was > based in part on their conclusion that Polevoy couldn't prove malice. But > because Polevoy can probably prove malice, then there is no need to prove > special damages: "as we have explained, Polevoy may be able to show malice; > and a public figure plaintiff who can do so need not plead special damage if, > as is also the case here, the alleged defamation consists of libel (or slander) > per se." Opinion at 42
> " 'Special damage' means that the loss sustained by the plaintiff must be a > particular loss, of a material nature, supported by specific evidence. Thus, > 'special > damage' is to be contrasted with the 'general damage' that was traditionally > presumed from the publication of a libel or any of the imputations that come > within the rules of slander per se." (2 Harper et al., The Law of Torts, supra, > § 5.14, at p. 114.)" Opinion at 41, Footnote 18
> As to the issue of Grell, the court found him culpable because not only did he > erringly advocate for Barrett's suit against Rosenthal, but that he also > entered the case as a plaintiff and named Rosenthal as a defendant in his own > personal suit.
> In the end, the court believes in the distinct possibility that Rosenthal was > acting out of malice and that Polevoy could prevail on his claims of > defamation. Rosenthal cannot hide behind the claim that she was simply > repeating the claims of Bolen, and that she did not engage in reasonable > behavior for a person in her position. > * * * * * *
> That's the opinion of my friend, for what its worth.
You don't know what you are talking about. All this means is that a jury will ultimately decide the case as to Polevoy. The court did not say or conclude that Ilena libeled him or any one for that matter. Just because the issue goes to a jury doesn't mean she libeled any one. Or do you also believe a jury is not necessary because they may disagree with your pre-judgment of Ilena?
"AloysiousX" <aloysio...@aol.com> wrote in message
> I've lurked and posted on and off to this newsgroup for a while now, and I > think I've learned a lot about the people and personalities that dominate this > board. But because I was a newby, I didn't know about the SLAPPs that Sistah > Ilena had. I've seen the spin on both sides from the recent court ruling, and > I've heard that more than a couple of other people are confused.
> I've gotten an explanation from someone with more legal know-how than I have, > and here it is. I didn't write it, my friend did.
> To Alo:
> My conclusion? Rosenthal loses, big time. No new territory is covered by the > affirmation of the lower court's opinions regarding Grell and Barrett. Barrett > was wrong in suing over Rosenthal's insults (though his feelings are > understandable), and Grell was wrong in entering the suit as a plaintiff, suing > Rosenthal, and encouraging Barrett to sue.
> However, the court was clearly distressed by the lower court's actions > considering Polevoy, and was adamant in its opinion thereof: "[N]o reason > appears why Rosenthal cannot be subjected to such liability, the trial court > erred in finding that appellant Polevoy's defamation claim was barred by the > statute." Opinion at 36-37 Rosenthal's actions "reflected actual malice." > Opinion at 40
> "The record does not show, and Rosenthal has never claimed, that Bolen created > or developed this information and furnished it to her under circumstances in > which a reasonable person in her position would conclude that it was provided > for publication on the Internet or other 'interactive computer service.'" > Opinion at 4, Footnote 4
> Translation: Only an unreasonable person would have transmitted the > information for public consumption, ie, that Rosenthal abused her position or > acted unreasonably.
> The decision simply reaffirms that insulting someone may not be defamation. > That's nothing new. On the other hand, it also reaffirms that making an > accusation that someone is engaged in criminal activity (ie, "stalking"), rises > far above a simple insult. That could be either libel or slander, depending > upon the manner in which it is conveyed, and whether or not injury can be > proved. So calling Barrett a "quack" isn't necessarily defamatory, but stating > that Polevoy IS a stalker could be.
> "The charge of commission of some kind of crime is obviously libel per > se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing, generally, > 50 > Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose Printing & > Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221 Cal.App.2d > 801.) (Opinion at 43)
> This is why the court affirmed the case as it applied to Barrett but reversed > and remanded (sent it back to the lower court) for Polevoy. The Appellate > court clearly believes that there are merits to Polevoy's claims.
> More to the point: > "We find that the immunity available. does not bar the imposition > of liability in this case, that malice and reckless disregard for the truth can > be inferred from the circumstances, which include the failure to conduct a > reasonable investigation regarding the truth of the accusation of criminal > conduct and reliance on obviously biased sources, and that Polevoy was not > required to plead special damages, as the republished statement was libelous > per se." Opinion, 10-11
> That's pretty self-explanatory.
> I found this interesting: "We agree with appellants that the statute cannot be > deemed to abrogate the common law principle that one who republishes defamatory > matter originated by a third person is subject to liability if he or she knows > or has reason to know of its defamatory character." Opinion at 13
> This is to prevent a "clever libeler" from using a Third Party to convey his or > her defamatory statements - something that had struck me as an idea when I > started reading this opinion. In other words, Person A wants to spread some > bit of salacious defamation in public, but doesn't want to be held liable for > it. Therefore, Person A conveys it to Person B, who then spreads it far and > wide. Person A didn't spread it, and therefore wouldn't be liable. But Person > B is only repeating what Person A said, and therefore shouldn't be liable. Uh > uh, says the court. No way - in this case, given the biased nature of Bolen, > Rosenthal, were she reasonable and given her position, was probably in a > position to determine the defamatory character of the information: "Given the > close relationship Rosenthal had with Bolen, the longstanding hostility between > Bolen and Polevoy, and the very substance of Bolen's accusations against > Polevoy, Rosenthal must have been on notice of Bolen's enmity." Opinion at 39
> Later on the in opinion, as to the issue of Rosenthal's SLAPP motion, the court > makes it clear that Rosenthal never based her SLAPP claim on the issue of the > defamatory statements, but on the issue of malice and damages: "[H]er special > motion to strike under the anti-SLAPP statute was not based on the truth of the > statements that Polevoy engaged in criminal conduct nor did it deny she knew or > had reason to know of the defamatory character of these statements. The motion > was based solely on the grounds of the federal immunity, appellants inability > to show actual malice, and their failure to plead special damages. Furthermore, > Rosenthal has never asserted that, due to the technology or for any other > reason, she could not easily withdraw and/or correct the allegedly defamatory > materials she posted." Opinion at 36
> As to the issue of malice, the court said: "We do not believe these three > findings (the findings of the trial court) support the conclusion that > appellants failed to produce sufficient evidence of malice. On the contrary, we > conclude that respondent Rosenthal's complete reliance upon sources known to be > biased against appellant Polevoy provided her "obvious reasons to doubt the > veracity of the informant or the accuracy of his reports." (McCoy v. Hearst > Corp., supra, 42 Cal.3d at p. 860.)" Opinion at 38-39
> "Rosenthal's failure to consult a reliable source to verify a facially > questionable accusation of criminal conduct supports appellants' claims that > she entertained serious doubts as to the truth or falsity of the communication, > and that her complete reliance on sources she knew to be biased, and therefore > unreliable, reflected actual malice. Complete reliance on sources known to be > biased-which, as we have said, is more than the mere failure to > investigate-reflects on Rosenthal's subjective attitude and strongly suggests > she entertained serious doubts regarding the truth of Bolen's accusations, > certainly after she received notice of their false and defamatory character." > Opinion at 40
> "Here the defendant not only failed to consult any reliable source as to the > accuracy of criminal charges after being repeatedly notified they were false > and defamatory, and instead consulted sources she knew to be biased against the > accused, but she subsequently reposted the allegedly defamatory accusations 32 > times." Opinion at 41
> Then the opinion goes on to say that the trial court's decision on damages was > based in part on their conclusion that Polevoy couldn't prove malice. But > because Polevoy can probably prove malice, then there is no need to prove > special damages: "as we have explained, Polevoy may be able to show malice; > and a public figure plaintiff who can do so need not plead special damage if, > as is also the case here, the alleged defamation consists of libel (or slander) > per se." Opinion at 42
> " 'Special damage' means that the loss sustained by the plaintiff must be a > particular loss, of a material nature, supported by specific evidence. Thus, > 'special > damage' is to be contrasted with the 'general damage' that was traditionally > presumed from the publication of a libel or any of the imputations that come > within the rules of slander per se." (2 Harper et al., The Law of Torts, supra, > § 5.14, at p. 114.)" Opinion at 41, Footnote 18
> As to the issue of Grell, the court found him culpable because not only did he > erringly advocate for Barrett's suit against Rosenthal, but that he also > entered the case as a plaintiff and named Rosenthal as a defendant in his own > personal suit.
> In the end, the court believes in the distinct possibility that Rosenthal was > acting out of malice and that Polevoy could prevail on his claims of > defamation. Rosenthal cannot hide behind the claim that she was simply > repeating the claims of Bolen, and that she did not engage in reasonable > behavior for a person in her position. > * * * * * *
> That's the opinion of my friend, for what its worth.
> I've lurked and posted on and off to this newsgroup for a while now, and I > think I've learned a lot about the people and personalities that dominate this > board. But because I was a newby, I didn't know about the SLAPPs that Sistah > Ilena had. I've seen the spin on both sides from the recent court ruling, and > I've heard that more than a couple of other people are confused.
> I've gotten an explanation from someone with more legal know-how than I have, > and here it is. I didn't write it, my friend did.
> To Alo:
> My conclusion? Rosenthal loses, big time. No new territory is covered by the > affirmation of the lower court's opinions regarding Grell and Barrett. Barrett > was wrong in suing over Rosenthal's insults (though his feelings are > understandable), and Grell was wrong in entering the suit as a plaintiff, suing > Rosenthal, and encouraging Barrett to sue.
> However, the court was clearly distressed by the lower court's actions > considering Polevoy, and was adamant in its opinion thereof: "[N]o reason > appears why Rosenthal cannot be subjected to such liability, the trial court > erred in finding that appellant Polevoy's defamation claim was barred by the > statute." Opinion at 36-37 Rosenthal's actions "reflected actual malice." > Opinion at 40
> "The record does not show, and Rosenthal has never claimed, that Bolen created > or developed this information and furnished it to her under circumstances in > which a reasonable person in her position would conclude that it was provided > for publication on the Internet or other 'interactive computer service.'" > Opinion at 4, Footnote 4
> Translation: Only an unreasonable person would have transmitted the > information for public consumption, ie, that Rosenthal abused her position or > acted unreasonably.
> The decision simply reaffirms that insulting someone may not be defamation. > That's nothing new. On the other hand, it also reaffirms that making an > accusation that someone is engaged in criminal activity (ie, "stalking"), rises > far above a simple insult. That could be either libel or slander, depending > upon the manner in which it is conveyed, and whether or not injury can be > proved. So calling Barrett a "quack" isn't necessarily defamatory, but stating > that Polevoy IS a stalker could be.
> "The charge of commission of some kind of crime is obviously libel per > se." (5 Witkin, Summary of Cal. Law, supra, Torts, § 482, citing, generally, > 50 > Am.Jur.2d, Libel and Slander § 27 et seq.; Edwards v. San Jose Printing & > Publishing Soc. (1893) 99 Cal. 431; Boyich v. Howell (1963) 221 Cal.App.2d > 801.) (Opinion at 43)
> This is why the court affirmed the case as it applied to Barrett but reversed > and remanded (sent it back to the lower court) for Polevoy. The Appellate > court clearly believes that there are merits to Polevoy's claims.
> More to the point: > "We find that the immunity available… does not bar the imposition > of liability in this case, that malice and reckless disregard for the truth can > be inferred from the circumstances, which include the failure to conduct a > reasonable investigation regarding the truth of the accusation of criminal > conduct and reliance on obviously biased sources, and that Polevoy was not > required to plead special damages, as the republished statement was libelous > per se." Opinion, 10-11
> That's pretty self-explanatory.
> I found this interesting: "We agree with appellants that the statute cannot be > deemed to abrogate the common law principle that one who republishes defamatory > matter originated by a third person is subject to liability if he or she knows > or has reason to know of its defamatory character." Opinion at 13
> This is to prevent a "clever libeler" from using a Third Party to convey his or > her defamatory statements - something that had struck me as an idea when I > started reading this opinion. In other words, Person A wants to spread some > bit of salacious defamation in public, but doesn't want to be held liable for > it. Therefore, Person A conveys it to Person B, who then spreads it far and > wide. Person A didn't spread it, and therefore wouldn't be liable. But Person > B is only repeating what Person A said, and therefore shouldn't be liable. Uh > uh, says the court. No way - in this case, given the biased nature of Bolen, > Rosenthal, were she reasonable and given her position, was probably in a > position to determine the defamatory character of the information: "Given the > close relationship Rosenthal had with Bolen, the longstanding hostility between > Bolen and Polevoy, and the very substance of Bolen's accusations against > Polevoy, Rosenthal must have been on notice of Bolen's enmity." Opinion at 39
> Later on the in opinion, as to the issue of Rosenthal's SLAPP motion, the court > makes it clear that Rosenthal never based her SLAPP claim on the issue of the > defamatory statements, but on the issue of malice and damages: "[H]er special > motion to strike under the anti-SLAPP statute was not based on the truth of the > statements that Polevoy engaged in criminal conduct nor did it deny she knew or > had reason to know of the defamatory character of these statements. The motion > was based solely on the grounds of the federal immunity, appellants inability > to show actual malice, and their failure to plead special damages. Furthermore, > Rosenthal has never asserted that, due to the technology or for any other > reason, she could not easily withdraw and/or correct the allegedly defamatory > materials she posted." Opinion at 36
> As to the issue of malice, the court said: "We do not believe these three > findings (the findings of the trial court) support the conclusion that > appellants failed to produce sufficient evidence of malice. On the contrary, we > conclude that respondent Rosenthal's complete reliance upon sources known to be > biased against appellant Polevoy provided her "obvious reasons to doubt the > veracity of the informant or the accuracy of his reports." (McCoy v. Hearst > Corp., supra, 42 Cal.3d at p. 860.)" Opinion at 38-39
> "Rosenthal's failure to consult a reliable source to verify a facially > questionable accusation of criminal conduct supports appellants' claims that > she entertained serious doubts as to the truth or falsity of the communication, > and that her complete reliance on sources she knew to be biased, and therefore > unreliable, reflected actual malice… Complete reliance on sources known to be > biased-which, as we have said, is more than the mere failure to > investigate-reflects on Rosenthal's subjective attitude and strongly suggests > she entertained serious doubts regarding the truth of Bolen's accusations, > certainly after she received notice of their false and defamatory character." > Opinion at 40
> "Here the defendant not only failed to consult any reliable source as to the > accuracy of criminal charges after being repeatedly notified they were false > and defamatory, and instead consulted sources she knew to be biased against the > accused, but she subsequently reposted the allegedly defamatory accusations 32 > times." Opinion at 41
> Then the opinion goes on to say that the trial court's decision on damages was > based in part on their conclusion that Polevoy couldn't prove malice. But > because Polevoy can probably prove malice, then there is no need to prove > special damages: "as we have explained, Polevoy may be able to show malice; > and a public figure plaintiff who can do so need not plead special damage if, > as is also the case here, the alleged defamation consists of libel (or slander) > per se." Opinion at 42
> " 'Special damage' means that the loss sustained by the plaintiff must be a > particular loss, of a material nature, supported by specific evidence. Thus, > 'special > damage' is to be contrasted with the 'general damage' that was traditionally > presumed from the publication of a libel or any of the imputations that come > within the rules of slander per se." (2 Harper et al., The Law of Torts, supra, > § 5.14, at p. 114.)" Opinion at 41, Footnote 18
> As to the issue of Grell, the court found him culpable because not only did he > erringly advocate for Barrett's suit against Rosenthal, but that he also > entered the case as a plaintiff and named Rosenthal as a defendant in his own > personal suit.
> In the end, the court believes in the distinct possibility that Rosenthal was > acting out of malice and that Polevoy could prevail on his claims of > defamation. Rosenthal cannot hide behind the claim that she was simply > repeating the claims of Bolen, and that she did not engage in reasonable > behavior for a person in her position. > * * * * * *
> That's the opinion of my friend, for what its worth.
> As salaam aleikum.
WOW!!!! Please thank your friend for all of us. I think that gives a much better understanding of the case and information and verification for our beliefs. Hugs, Joyce
Hey Odor-Room, there you go again. I guess you too have no need for a jury to decide the facts. After all, when it comes to knowing the truth, you don't need a jury, do you? You don't need to see and hear all the evidence, do you? Gee, I am glad everyone is not so blissfully ignorant and prejudiced like know-it-alls like you.
>Hey Odor-Room, there you go again. I guess you too have no need for a jury >to decide the facts. After all, when it comes to knowing the truth, you >don't need a jury, do you? You don't need to see and hear all the evidence, >do you? Gee, I am glad everyone is not so blissfully ignorant and >prejudiced like know-it-alls like you.
It appears that you are somewhat dense when ot comes to Ilena. She has pretty much put anything I would need, or I would dare say anyone who can read, to show what and whom Ilena is. You may call me ignorant, but it is you who ignores the facts, not I. You may have a different opinion, that is your right and I have defended this and the other rights of people, and will continue to do so. I don't pretend to know who will prevail in this case, but from my foreknowledge, rather than through prejudice, I feel that this is a prima facie case.
"OOREROOM" <oorer...@aol.com> wrote in message news:20031024023519.28274.00000041@mb-m27.aol.com... > >Hey Odor-Room, there you go again. I guess you too have no need for a jury > >to decide the facts. After all, when it comes to knowing the truth, you > >don't need a jury, do you? You don't need to see and hear all the evidence, > >do you? Gee, I am glad everyone is not so blissfully ignorant and > >prejudiced like know-it-alls like you.
> It appears that you are somewhat dense when > ot comes to Ilena. She has pretty much put > anything I would need, or I would dare say > anyone who can read, to show what and > whom Ilena is. You may call me ignorant, > but it is you who ignores the facts, not I. > You may have a different opinion, that is your > right and I have defended this and the other > rights of people, and will continue to do so. > I don't pretend to know who will prevail in this > case, but from my foreknowledge, rather than > through prejudice, I feel that this is a prima facie > case.
>Subject: Re: The Rosenthal Case: A Translation >From: "Jessi" jessire...@hotmail.com >Date: 10/24/2003 12:08 AM Eastern Daylight Time >Message-id: <bna8oe$s1...@news.astound.net>
>You don't know what you are talking about. All this means is that a jury >will ultimately decide the case as to Polevoy. The court did not say or >conclude that Ilena libeled him or any one for that matter. Just because >the issue goes to a jury doesn't mean she libeled any one. Or do you also >believe a jury is not necessary because they may disagree with your >pre-judgment of Ilena?
Actually, it's you who doesn't know what you are talking about. First of all, on remand this case may not go to before a jury - it depends on what the parties want.
Then, my friend repeated what the court specifically said regarding its interpretation of the fact surrounding the case--that the Appellate court itself concluded "that malice and reckless disregard for the truth can be inferred from the circumstances, which include the failure to conduct a reasonable investigation regarding the truth of the accusation of criminal conduct and reliance on obviously biased sources."
Because of this, the Appellate court reversed and remanded the decision of the lower court.
That's what Appellate courts do. They either say that the lower court was right, and affirm, or they say the lower court was wrong, in which case they reverse and remand.
Of course, in this particular instance, they said both. But from what I have now read, there was nothing new in saying that the lower court was right in denying the claims of Barrett and Grell.
I don't have a stake in this either way, mind you. I came to this board to get information. I got some. And I got a lot more than that. I think it's important to evaluate the things that people say and what they do, and as things have gotten out of control, I've done that evaluation.
I have come to the conclusion that some people are more truthful than others when it comes to what they say on this board. Certainly, it is reflected in their actions.
>Subject: Re: The Rosenthal Case: A Translation >From: "Jessi" jessire...@hotmail.com >Date: 10/24/2003 3:43 AM Eastern Daylight Time >Message-id: <bnalcg$o...@news.astound.net> >Q.E.D.
Let me ask you, Sistah Jessi - what do you think of the statement of the Appellate Court that Sistah Ilena shouldn't have relied on the information by Bolen and McPhee? And what do you think of the fact that she called Polevoy a "stalker", which is a legal term carrying no small amount of weight, and that rather than remove the misstatement when it was pointed out to her that it wasn't true, she instead reposted it almost 3 dozen more times?
As I say in my other message, I don't have a stake in this. But it upsets me that someone would make charges like this against someone else, have an opportunity to retract, and then instead of retracting, goes nuclear and reposts the untruth.
I would hope that it would upset you, too. Please don't get me wrong, I'm not talking about basic flame-war insults like calling someone a "quack" or even a "shill". But let's say for the sake of argument that someone said online in a message that you had burglarized your neighbor's home, that you were a felon convicted of larceny.
>Subject: Re: The Rosenthal Case: A Translation >From: "Coleah" col...@pacifier.com >Date: 10/23/2003 10:49 PM Eastern Daylight Time >Message-id: <3p6dnVgN8oPNDgWiRVn...@comcast.com>
>So now the Appellate court is ordering the Polevoy suit to be re-heard by >the trial court, if I'm understanding correctly. If Ilena posted with the >usual signature line referencing the Humantics Foundation does that mean >that the foundation is enjoined in the suit as well? I didn't follow the >first round of this court case.
I thnk that Humantics is only enjoined if it is named as a party. I suppose it is possible that if damages are ultimately found for Polevoy it could be liable for payment.
There is something that I would like to add. was in the inusrance industry for 17 years with around 20 something hours of continuing education each year.
There is a policy called "directors and officers" coverage. This can be verified by anyone that wants to call their State Insurance Board.
The reason this was taken out was because if a member of the board or officer was sued or sued and lost. They also would be held responsible unless it was a personal lawsuit. If it was one that sued with the foundations name being in the law suit they were all responsible.
I believe that Ilena filed suit thru the foundation. Used the foundation as a reason for the lawsuit. I thought this was a bad move to begin with because the money would actually have to go into the foundation as I understand this, you might ask your friend this.
If that is the case Pat "mplnt" would be able to go to the directors and officers. And being he has not been paid he could have the courts make Ilena supply all of that information. Again. You can double check this. But I think you will find me to be right. My opinion of course.
> I believe that Ilena filed suit thru the foundation. Used the foundation as a > reason for the lawsuit.
If all of Ilena's posts are her 'work' (as she puts it) as support leader and director of the foundation, then one would assume she is representing the foundation when she speaks or writes, wouldn't one?
Every time Ilena posts one of her lying Notes with a url that leads people to even more of her lying notes, I feel Compelled to post this: Ilena, Truth In Advertising How about being a little more truthful by stating that you are advertising when you post urls that lead people to your fleecing barn? Maybe something like:
>Subject: Re: The Rosenthal Case: A Translation >From: il...@san.rr.com (Ilena) >Date: 10/24/2003 11:23 AM Eastern Daylight Time >Message-id: <19faaec.0310240723.67b6f...@posting.google.com>
>aloysio...@aol.com (Mark S Probert, Barrett 'Publicist') comments snippered:
Sistah Ilena, I'm a little hurt that you aren't more imaginative and can't entertain the possibility that a male name posting from an AOL account might not be Mark Probert. How do you know that I'm not Susan Schaezler, for instance? Because I'm using a male name?
But serious, I am a male. I am not Susan Schaezler. I'm not Mark Probert neither, as I told you back in July.
In fact, I've remained quiet even though I've continued to lurk on alt.support.breast-implant because of your over the top reaction to my polite posts in April. I was polite and sincere then, and continue to be polite and sincere.
Why? Because, as I said then, I'm interested in being enlightened, and the only way to be enlightened is through learning. This is something I know from my personal life.
I am not Mark Probert. I don't even know Mark Probert and don't think I've ever talked to him. I didn't respond to his message from July, though I probably could have.
I am actually closer to the Humantics Foundation home, which is why I asked you about it a long long time ago.
What do you want to know about me? How can I assure to you that I am not Mark Probert?
All I know is, other people have said that one runs a risk in criticizing you, Sistah Ilena. I'd like to think that isn't true.
