Liable for libel? Lawsuits aren't always the answer

Eater LA stirred up the food blog and Twitter waves last week after its editor posted a seemingly defamatory letter from a “tipster” regarding downtown wine bar The Must. The letter, which accused The Must of serving cheap quality food and other sanitation violations, was disputed by the owners, who called the allegations “lies” and threatened “legal action” against Eater LA. Commenters, also infuriated, egged them on.

In the haste to cry “get a lawyer!”, a lot of people don’t realize the uphill battle it takes to win a libel lawsuit. Shortly after the controversy broke, Ben Sheffner of Copyrights & Campaigns wrote two articles on the issue. In it, he explains why Eater LA is summarily protected from libel in this instance: Section 230 of the Communications Decency Act provides immunity to “information content providers” who republish content written by others. Sheffner essentially says that The Must’s best bet is to go after the tipster, which would be a feat in and of itself, seeing as the California Reporters’ Shield Law protects journalists from having to give up their sources in a civil case. Well then, what’s a restaurant to do?

Working in PR, these issues inevitably come up — no matter how amazing your clients are, some scorned sourpuss will use the anonymity of the internet to wreak havoc on the client’s reputation. Litigious as our society is, the question is always there. Can we take legal action? I’m certainly no lawyer (which is why I highly recommend you read Sheffner’s blog), but I do know my basic media law:

Libel lawsuits are extraordinarily hard to win — and positive PR may be a more effective strategy than expensive legal vengeance.

An important thing to stress is that libel lawsuits puts a heavy burden of proof on the plaintiff. The basic elements of libel are such: (1) Publication (2) of a defamatory statement (3) of and concerning the plaintiff (4) that was false and the (5) publisher was at fault. To break it down:

(1) Publication: one other person other than the plaintiff must hear the statement
(2) Identification: plaintiff must prove that the statement is of and concerning him/her
(3) Defamation: the statement must cause damage to reputation of the plaintiff, in some instances the plaintiff must prove actual out-of-pocket losses resulting from the statement
(4) Falsity: the statement must be false (and the “substantial truth” defense means that if the gist of the message is true, then it is not libelous)
(5) Fault: defendant knew wrongdoing, which can be on the level of actual malice or negligence (the distinction between the two defines whether the plaintiff wins and what damages are awarded)

In The Must’s case, while they may have a case against the tipster (if they could figure out who he/she is), they would have to go through a lot of trouble and legal fees to prove that A) the statements made against them were false, and B) that there was significant damage to their reputation. There have been other instances of businesses suing Yelp for libel (to no avail, of course — remember Sec. 230?). The danger in that is that the public is quick to vilify you, especially when they have Yelp as a platform.

Instead of speed-dialing an attorney, the restaurant’s best response is generally to take a positive PR stance: refute the allegations publicly — preferably with proof, without finger-pointing and with a good sense of humor. The Must took this route and offered up a response that was printed verbatim on Eater LA, along with an apology from the website. As a result, they came out ahead with their reputation and dignity in tact. Not only was the public on their side from the beginning, but the whole debacle garnered them press from all over the blogosphere, from LA Observed to LA Weekly to the LA Times. It turned out to be a smart move. You just can’t buy that kind of publicity!