BBB won't remove libelous complaint

[You Are Guilty]

While the end result may be the same, privilege ≠ immunity.

 

[tranquility]

A citation like this, as in the other thread, doesn't really address the issue, does it. (The term "immunity" is found nowhere in the case.)

Does a person who gives false and defamatory information to the BBB get a qualified privilege to do so? (aka qualified immunity) The reason for the importance is because if there is an immunity, malice becomes necessary to find liability.

The case addressed the specific anti-SLAAP statute and how the BBB's speech applies to it. (Finding the speech of public concern.)

How does that relate here?

Info edit:
http://law.justia.com/cases/california/cal3d/48/711.html
is a case showing how a possible immunity (common interest) can apply to the BBB and not the person doing the reporting to them. It has to do with a reporting standard.

 

[nick71]

Quincy, thanks for your detailed and informative post. Thankfully, I don't have to consider any further action as the BBB removed the complaint in its entirety. Their representative said they almost never delete complaints but are making an exception in our case.

After providing service to tens of thousands of customers without a single complaint, this one was a shock to me and very upsetting. So I'm happy the issue was resolved to our satisfaction. After deleting the complaint though, the BBB also erased our A+ rating. (We are not BBB-accredited). Currently our profile says "No Rating". But if this is the price we have to pay to get rid of those outrageously false allegations, then I'm all for it.

Anyway, thanks again for your help.

Nick

 

[quincy]

I am glad to hear that the BBB addressed your requests and the matter can end for you there, nick. Having a "no rating" seems preferable to having the defamatory complaint displayed.

You Are Guilty and tranquility, I knew that being in a hurry this morning meant I should not post anything at all, because I figured there would be a challenge to what I wrote - but, hey, I did it anyway.

The legal definition of "privilege" is a special legal right, exemption or immunity granted to a person or a class of persons. An "absolute privilege" is an immunity from suit, no matter what. A "qualified privilege" is an immunity from suit when the privilege is exercised properly (ie, without malice) in the performance of a legal or moral duty.

It is a qualified privilege that attaches to reports made by individuals to the police and to CPS. It is a qualified privilege that attaches in some states to intracorporate communications. It is also a qualified privilege that attaches to comments made on matters of public interest and concern, provided the comments are fair and made with an honest purpose.

From Hoeppner v Dunkirk Printing Co, 1930: "Everyone has a right to comment on matters of public interest and concern, provided they do so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Thus it has been held that books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all legitimate subjects of newspapers' criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be."

It is this "opinion" or fair comment qualified privilege that the Better Business Bureau of Southland used in the case cited in my earlier post, and it was used in the other suits filed against this same BBB (see National Consumer Council v BBB of Southland, Joe Goldmine v BBB of Southland, A Silver Spoon v BBB of Southland, First National Credit v BBB of Southland....). This privilege can be defeated with a showing of actual malice.

The Better Business Bureau of Southland also used California's anti-SLAPP statute 425.16(b)(1) in their motions to dismiss: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the U.S. Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."

In other words, the Better Business Bureaus, in California and elsewhere, have had a whole arsenal of defenses to claims filed against them: qualified privilege, publication without malice, truth, CDA's §230, anti-SLAPP statutes. That is why I said in an earlier post that it is not easy to sue the BBB and win.

 

[tranquility]

The police and CPS are official agencies. The BBB is not. If we were to look more modernly, as in the case I cited, we find (47(3) is now 47(c)):

(1a) The sole issue in this case is whether Civil Code section 47, subdivision 3, affords a broad privilege, sometimes referred to as a "public-interest privilege," to the news communications industry (news media) to make false statements regarding a private individual.1
Section 47(3) provides a privilege to communications made without malice on occasions in which the speaker and the recipient of the communication share a common interest. Defendants (a television station and its reporter) and several amici curiae argue that when the news media publish and broadcast matters of public interest they have a common interest with their audiences and that the publications and broadcasts should be privileged under section 47(3). Under that privilege, the plaintiff in a defamation action would be required to prove malice by the news media defendant to recover compensatory damages.
As we will explain, there is no such privilege for the news media under section 47(3). We hold that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under section 47(3) regardless of whether the communication pertains to a matter of public interest. Thus, a private-person plaintiff is not required by section 47(3) to prove malice to recover compensatory damages.

The BBB may have USED the claim in the other case, but the court HELD specifically to the anti-SLAAP statute.

 

[quincy]

California Civil Code §47(e)(2), perhaps?

Qualified privileges are not only outlined in the California Code but also arise from public policy, where it is established by weighing the benefits and importance of a communication against the harmful effects of the communication on an individual or an entity. Hence you have qualified privilege attaching to employer/employee communications and employer references, reports made by individuals to CPS and the police, news reports, consumer advisories.

The Southland BBB was able to successfully use the anti-SLAPP statute to remove itself from the case I cited and from the other suits filed against it. But the "opinion" qualified privilege (fair comment and criticism) was used by the BBB as a defense against the defamation claim arising from its rating system. This privilege protects communications made about matters of public concern and interest, if communicated in good faith.

In nick's described situation, it would not be the BBB against which he could have brought a defamation suit, however. nick was not concerned about a false rating but rather about the false complaint. Any defamation action would be against the customer who made the false and reputationally injurious claims against his company. And the standard of fault in a defamation action against the customer would be negligence, not actual malice.

nick could potentially have had an action against the BBB for tortious interference, however, if the BBB had not removed the customer's complaint from its location online. Once the BBB was informed by both the customer and nick that the complaint was false, its continued display could infer actual malice on the part of the BBB.

At any rate, the BBB removed the customer's complaint and now all is right with the world.