This post is about the new Ninth Circuit Obsidian Finance Group v. Cox defamation/blogger case that people and businesses should know about as it is possible these days for almost everyone to widely broadcast statements and opinions. You can also see the text version of this discussion posted below the following video.
Generally defamation is defined as a false statement of fact not opinion that is negligently made or that the person making the statement knew was false or had or should have had serious doubts about the truth of the statement.
This is a private alleged defamation case –meaning that Cox was not a journalist or a member of the institutionalized news media or press. You might be aware that different standards of proof may apply when the traditional news media or press is alleged to have committed defamation.
Importantly, the court held that it is the public-figure status of the plaintiff and the public importance of the statement at issue – not the identity of the speaker – that provides the First Amendment free speech protections.
The rights of the institutional media are no greater and no less than those enjoyed by other individuals engaged in the same activities.
The Court found that Cox’s alleged statements were of public concern essentially because they alleged a crime or defrauding investors, and the post was not solely in the interests of the speaker or her business audience, was published to the public at large, and was not like advertising.
This is important because the jury should have been instructed that it could not find Cox liable unless it also found that Cox acted negligently.
The Court further held that the trial court should have instructed the jury that it could not award presumed damages unless it found that Cox had acted with actual malice.
Finally, using a three-part test the Court determined that viewed as a whole the statements were not actionable assertions or impressions of objective fact as compared to opinions, figurative or hyperbolic language, or sufficiently factual in nature or susceptible of being proved true or false.
Thus, the Ninth Circuit confirmed some defenses and benefits for bloggers. But of course many of these types of cases present questions of fact to be determined by the jury where the outcome can be different in each case.
Cases involving alleged defamation are on the rise. You need to be careful with what you say.
That’s it for now.
Dave Tate, Esq.
Blog posts and videos emphasizing new developments, people’s actions, the crossover in legal, risk, governance, business, accounting and other topic areas, and what it means. Please follow this blog by clicking “Follow” to the left, and you can find my LinkedIn, Twitter and other connections by clicking on the “About This Blog, Me, And My Connections” link above and to the left. Enjoy. Dave Tate, Esq. (and inactive CPA).