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libel/defamation of character

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I have been wrongly accused of mail fraud publicly (on Ebay under my feedback forum)I was wondering if I can now sue this person for libel. She is now admitting to me that she was mistaken but her comments have already been posted, and Ebay states they cannot remove them without a court order. What are my legal rights? She lives in Washington state, and I live in Massachusetts.



<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by momof2boys:
I have been wrongly accused of mail fraud publicly (on Ebay under my feedback forum)I was wondering if I can now sue this person for libel. She is now admitting to me that she was mistaken but her comments have already been posted, and Ebay states they cannot remove them without a court order. What are my legal rights? She lives in Washington state, and I live in Massachusetts.<HR></BLOCKQUOTE>

My response:

You'll have to file in Washington State.

The following may or may not be the law in your state, so you should check with a lawyer for specifics. The law of defamation of character (libel and slander) in California is, in part, as follows:

Defamation consists of false and unprivileged written, oral or recorded publications which expose the defamed person to hatred, contempt, ridicule or obloquy or cause the person to be shunned or avoided or injured in his or her occupation . . . tend[ing] to injure the person in his or her business or profession, or otherwise cause actual damage.

It is axiomatic that for defamatory matter to be actionable, it must be communicated, or "published," intentionally or negligently, to "one other than the person defamed." (Prosser & Keeton on Torts (5th ed. 1984) § 113, pp. 797-798.)

Employee sued Former Employer for defamation based on statements in an employment evaluation. Nonsuit was properly granted after an opening statement that failed to establish there were any false statements of fact (as opposed to opinion). [Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 971, 18 Cal.Rptr.2d 83, 90]

Claims based on economic losses: To date, the workers' comp exclusive remedy bar has been confined to employee claims predicated on physical or disabling emotional injury, not other types of injury that may be involved. Thus, case law permits an action at law for lost wages, retirement benefits, injury to reputation and other purely "economic losses." [Pichon v. Pacific Gas & Elec. Co. (1989) 212 Cal.App.3d 488, 498-501, 260 Cal.Rptr. 677, 684-686--discharged employee can pursue contract or tort remedies for economic losses; Davaris v. Cubaleski (1993) 12 Cal.App.4th 1583, 16 Cal.Rptr.2d 330--employee can pursue civil suit for injury to reputation resulting from defamation; Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 748-752, 57 Cal.Rptr.2d 821, 826-828--employee's economic damages caused by employer's negligent spoliation of evidence remediable in civil suit; compare Muller v. Automobile Club of So. Calif. (1998) 61 Cal.App.4th 431, 447-450, 71 Cal.Rptr.2d 573, 583-585--employee could not avoid workers' comp exclusivity rule by framing emotional distress claim as breach of contract]

Defamation actions: In a defamation case, character evidence is an essential element where plaintiff claims that defendant's defamatory statements harmed his or her reputation for good character. [See Government of the Virgin Islands v. Grant (3rd Cir. 1985) 775 F.2d 508, 511, fn. 4; Meiners v. Moriarity (7th Cir. 1977) 563 F.2d 343, 351--defendant's prior bad reputation relevant to mitigation of damages in defamation case]

Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 60 Cal.Rptr.2d 263; 929 P.2d 582
In defendants' view, rather than prepare a recommendation letter stating all "material" facts, positive and negative, an employer would be better advised to decline to write a reference letter or, at most, merely to confirm the former employee's position, salary, and dates of employment. According to defendants, apart from the former employer's difficulty in deciding how much "negative" information to divulge, an employer who disclosed more than minimal employment data would risk a defamation, breach of privacy, or wrongful interference suit from a rejected job seeker. (See, e.g., Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965 [18 Cal.Rptr.2d 83] [libel action may be based on false accusations in employee evaluation form of criminal conduct, dishonesty, incompetence, or reprehensible personal characteristics or behavior]; Marshall v. Brown (1983) 141 Cal.App.3d 408, 412 [190 Cal.Rptr. 392] [wrongful interference liability based on negative comments in former employer's evaluation letter]; see also Nelson v. Upsala College (3d Cir. 1995) 51 F.3d 383, 387-388, and cases cited; Smolla, Law of Defamation (1995 ed.) § 15.01[2][a], p. 15-3, and cases cited ["Traditionally, defamation suits brought against former employers by disgruntled employees arise in the context of unfavorable reference letters or other communications to third parties concerning the employee's job performance [page 1080]...."]; Lab. Code, §§ 1050 [misdemeanor to misrepresent facts regarding former employee to prevent employee's further employment], 1054 [treble damages for misrepresenting employment facts].)
Defendants contend that the threat of potential tort liability will inhibit employers from freely providing reference information, restricting the flow of information prospective employers need and impeding job applicants in finding new employment. One writer recently explained that "[m]any employers have adopted policies, sometimes referred to as 'no comment' policies, under which they refuse to provide job references for former or departing employees .... [T]hese policies work to the detriment of both prospective employers and prospective employees." (Saxton, Flaws in the Laws Governing Employment References: Problems of "Overdeterence" and a Proposal for Reform (1995) 13 Yale L. & Pol'y Rev. 45; see also id. at pp. 46-52 [citing evidence of increasing use of "no comment" letters, and deploring resultant restriction on flow of information]; Note, Negligent Referral: A Potential Theory for Employer Liability (1991) 64 So.Cal.L.Rev. 1645 [observing that "[m]ore and more employers ... are refusing to provide employee references"]; Note, Employer Defamation: Reasons and Remedies for Declining References and Chilled Communications in the Workplace (1989) 40 Hastings L.J. 687, 688-690; Note, Defamation in the Workplace: The Impact of Increasing Employer Liability (1989) 72 Marq. L.Rev. 264, 265 & fn. 9, 275-276, 300-301.)
In response, plaintiff asserts it is unlikely that employers will decline to write reference letters for fear of tort liability, at least in situations involving no foreseeable risks of physical injury to someone. Plaintiff observes that an employer would be protected from a defamation suit by the statutory qualified privilege for nonmalicious communications regarding a job applicant's qualifications. (See Civ. Code, § 47, subd. (c).) This provision was amended in 1994 to provide that the qualified privilege available for communications to and by "interested" persons "applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, the prospective employer." (Civ. Code, § 47, subd. (c).) As plaintiff suggests, the existence of this privilege may encourage more open disclosure of relevant information regarding former employees. (See also Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at pp. 964-965 [acknowledging public policy disfavoring libel suits based on comments in employee evaluation forms].)
We note that, although defendants have not argued the point, an amicus curiae has contended that the privilege under Civil Code section 47, subdivision (c), extends beyond defamation actions by former employees and [page 1081]would provide a defense to plaintiff's misrepresentation action. As we have previously acknowledged, a similar qualified privilege for communications made in judicial proceedings (Civ. Code, § 47, subd. (b)(2)) applies to "virtually all torts except malicious prosecution. [Citations.]" (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].) Legislative m

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