Page 2 - Litigation

S2 | MONDAY, DECEMBER 14, 2015 | Litigation
| NYLJ.COM

that the challenged statement is “actionable.”

Amongst several other factors, an actionable
statement is one of fact or “mixed opinion” as
opposed to “pure opinion.”1 Unfortunately for
corporate and business plaintiffs, when dis-
tinguishing between actionable expressions
of fact or mixed opinion and non-actionable
statements of pure opinion in the context
of Internet defamation claims, two of New
York’s appellate courts have adopted the

perhaps antiquated notion that “readers
give less credence to allegedly defamatory
Internet communications than they would to
statements made in other milieus.”2 Notably,
this standard with which Internet defama-
tion plaintiffs must contend emanates from a
2002 law review note.3 Based on this standard,
when faced with the dificult task of “distin-

guishing between assertions of fact and non-
actionable expressions of opinion,”4 courts
appear slightly more apt to ind potentially
defamatory Internet postings to be “pure
opinion” given the “broader framework in
which they appear.”5
But providing a glimmer of hope to poten-
tial Internet defamation plaintiffs are three
recently decided lower court cases that seem,

either expressly or implicitly, to follow dicta of
the First Department observing that, regard-
less of whether readers afford less credence
to Internet postings, such an “observation
is in no way intended to immunize emails K
the focus and purpose of which are to dis- OC
seminate injurious falsehoods about their IST
subjects.”6
Glimmer Hope
Decisions Give of
Fact, Mixed Opinion, or Pure Opinion

The elements of a claim for defamation in
Internet Defamation New York have generally been stated as “a
To Plaintiffs
false statement, published without privilege
or authorization to a third party, constitut-
ing fault as judged by, at a minimum, a neg-
ligence standard, and, it must either cause

special harm or constitute defamation per
se.”7 Unlike expressions of opinion which ness owners that permeate consumer review Internet postings they perceive as defama-
are non-actionable, only factual statements BY JOSHUA J. GRAUER, websites, blogs, and chat forums across the tory. Yet, seeking redress in connection with
“capable of being proven false” will form the JORDAN BROOKS
Internet. And given that each year more and defamatory Internet speech—whether in the
basis of a defamation suit.8
AND TROY D. LIPP
more consumers regularly rely on customer form of an order directing its retraction or
Accordingly, New York courts consider the review websites such as Yelp, Angie’s List, an award of damages or both—often neces-
following factors in attempting to distinguish
‘D
and even Facebook in deciding whether to sitates judicial intervention and a substantial ECEIVER, CUNNING, CONNIVING,
hire a particular business or individual, many inancial investment.
SCHEMER, SWINDLER,” “Con art-
professionals and business owners are—and Of course, to obtain judicial relief from an ists, scammers, storm chasers, rip

JOSHUA J. GRAUER is partner and chair of the litiga- off employees, will take all your money too.” should be—committed to both maintaining allegedly defamatory statement made on the
tion department at Cuddy & Feder. JORDAN BROOKS The foregoing illustrates the derogatory a positive presence on the Internet and pro- Internet (as with any other allegedly defama-
and TROY D. LIPP are associates in the department.
comments regarding professionals and busi-
tecting their goodwill and reputation against
tory statement), the plaintiff must establish

Inside
Litigation

S4
Strategic Use of ‘Early’ S6 Surveying the Application S8 Returning to the Majority Rule: S
S
In Limine Motions
Of ‘Daimler’ in the Circuits Liability Insurance Rights
Can Follow the Liability
Kris Fischer, Editor-In-Chief
BY MICHAEL T. MERVIS
BY STEPHEN BALDINI,
AND EDWARD J. CANTERR
ANTHONY PIERCE
BY WILLIAM G. PASSANNANTE,
Angela Turturro, Sections Editor
AND STANLEY WOODWARD
CORT T. MALONE Rafal Pytel, Design
AND BRUCE STRONG
S

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