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Online Libel Suit Can Proceed Despite Lack of Proof of Damages

Online Libel Suit Can Proceed Despite Lack of Proof of Damages, Court Says

New Jersey Law Journal

September 27, 2010

Deviating from a trend towards requiring proof of actual harm from defamation, a state appeals court ruled Monday that mandating such damages in a suit over online accusations of child sexual abuse would create a “license to defame.”

The decision, in W.J.A. v. D.A., A-0762-09, is the second published Appellate Division opinion this year to address the issue of presumed damages over online smears.

On April 22, another appeals panel, in Too Much Media v. Hale, 413 N.J. Super. 135 (App. Div.), allowed a claim against a blogger to go forward despite the absence of pecuniary damages, though saying the plaintiff company would have to show harm to reputation.

The W.J.A. court said that until the Supreme Court decides the issue definitively, the right “to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

The ruling allows plaintiff W.J.A. to go ahead with a lawsuit against his nephew, D.A., who wrote on a website that W.J.A. molested him as a child.

W.J.A. and D.A. have been litigating for more than a decade over D.A.’s accusations. In 1998, D.A. sued W.J.A, claiming W.J.A. sexually assaulted him when he was a minor. W.J.A. counterclaimed for defamation based on statements D.A. allegedly made to the Ventnor police.

D.A.’s claim was thrown out as time-barred but W.J.A. won a $50,000 jury verdict on the defamation claim and was awarded an additional $41,323 as a frivolous litigation sanction.

After D.A. failed to get the debt discharged in bankruptcy, he went back to Superior Court to try to lift the judgment with a motion under Rule 4:50-1.

That motion was pending when W.J.A. sued D.A. over a website D.A. created that discussed the litigation and allegedly stated W.J.A. molested D.A. “many, many times” when he was a minor, and also another child.

D.A. shut down the site after W.J.A. sent him a cease-and-desist letter, but W.J.A. sued him for defamation on March 26, 2007, in Atlantic County.

On Aug. 28, 2009, Superior Court Judge Steven Perskie granted summary judgment dismissing the complaint with prejudice, ruling that D.A.’s web postings about W.J.A. were defamatory per se, but because they were akin to libel rather than slander, W.J.A. had to prove actual injury to his reputation, which he admittedly had not done.

Perskie found the postings defamatory as a matter of law and defamatory per se because they accused W.J.A. of a criminal offense and serious sexual misconduct. But he held there was no proof of damages beyond “individual subjective moral reactions which are absolutely understandable and rational and realistic” but are “by themselves insufficient as a matter of law.”

On appeal, Judge Paulette Sapp Peterson, joined by Francine Axelrad and Clarkson Fisher Jr., held defamatory Internet postings are libel, which is written and requires proof of harm, rather then slander per se, which is spoken and as to which damages are presumed.

The opinion mentioned Rocci v. Ecole Secondaire Macdonald-Cartier , 165 N.J. 149 (2000), where the Court declined to decide as a general rule whether damages should be presumed in defamation cases, and said it was leaving the question “for future resolution.”

The panel did not resolve the issue but said because D.A.’s words were undisputedly defamatory and there should be a remedy where there was a wrong, a jury should get to decide if W.J.A. was harmed.

W.J.A.’s lawyer, Egg Harbor Township solo Stanley Bergman Jr., says his client will seek damages for emotional distress as well as punitive damages because of the repeat nature of the offense.

D.A.’s lawyer, Egg Harbor Township solo Timothy Hinlicky, did not return a call.

Bruce Rosen, the lawyer for amici NBC, The New York Times, North Jersey Media Group and the New Jersey Press Association in Too Much Media , says the W.J.A. panel left the presumed damages question open and seemed to be challenging the parties to bring it up to the Supreme Court, which he says “has been moving away from the idea of presumed damages” and has hinted that they should not even exist for slander.

“Maybe this is the right time,” says Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park.

Jeffrey Pollock, of Fox Rothschild in Princeton, the lawyer for defendant blogger Shellee Hale in Too Much Media , sees the W.J.A. ruling as inconsistent with appellate precedent moving away from presumed harm and says it renders everything “potentially actionable.”

Joel Kreizman, of Evans Osborne & Kreizman in Ocean, counsel for Too Much Media, says it makes no sense to presume damages for slander but not for libel, especially on the Internet, which is capable of reaching a bigger audience.

On Sept. 10, the Court granted an appeal in Too Much Media but solely on the issue of whether the defendant is a journalist entitled to the protection of the law allowing reporters to shield their sources and to the heightened “absence of malice” standard.

Online Libel Suit Can Proceed Despite Lack of Proof of Damages, Court Says

New Jersey Law Journal

September 27, 2010

Deviating from a trend towards requiring proof of actual harm from defamation, a state appeals court ruled Monday that mandating such damages in a suit over online accusations of child sexual abuse would create a “license to defame.”

The decision, in W.J.A. v. D.A., A-0762-09, is the second published Appellate Division opinion this year to address the issue of presumed damages over online smears.

On April 22, another appeals panel, in Too Much Media v. Hale, 413 N.J. Super. 135 (App. Div.), allowed a claim against a blogger to go forward despite the absence of pecuniary damages, though saying the plaintiff company would have to show harm to reputation.

The W.J.A. court said that until the Supreme Court decides the issue definitively, the right “to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

The ruling allows plaintiff W.J.A. to go ahead with a lawsuit against his nephew, D.A., who wrote on a website that W.J.A. molested him as a child.

W.J.A. and D.A. have been litigating for more than a decade over D.A.’s accusations. In 1998, D.A. sued W.J.A, claiming W.J.A. sexually assaulted him when he was a minor. W.J.A. counterclaimed for defamation based on statements D.A. allegedly made to the Ventnor police.

D.A.’s claim was thrown out as time-barred but W.J.A. won a $50,000 jury verdict on the defamation claim and was awarded an additional $41,323 as a frivolous litigation sanction.

After D.A. failed to get the debt discharged in bankruptcy, he went back to Superior Court to try to lift the judgment with a motion under Rule 4:50-1.

That motion was pending when W.J.A. sued D.A. over a website D.A. created that discussed the litigation and allegedly stated W.J.A. molested D.A. “many, many times” when he was a minor, and also another child.

D.A. shut down the site after W.J.A. sent him a cease-and-desist letter, but W.J.A. sued him for defamation on March 26, 2007, in Atlantic County.

On Aug. 28, 2009, Superior Court Judge Steven Perskie granted summary judgment dismissing the complaint with prejudice, ruling that D.A.’s web postings about W.J.A. were defamatory per se, but because they were akin to libel rather than slander, W.J.A. had to prove actual injury to his reputation, which he admittedly had not done.

Perskie found the postings defamatory as a matter of law and defamatory per se because they accused W.J.A. of a criminal offense and serious sexual misconduct. But he held there was no proof of damages beyond “individual subjective moral reactions which are absolutely understandable and rational and realistic” but are “by themselves insufficient as a matter of law.”

On appeal, Judge Paulette Sapp Peterson, joined by Francine Axelrad and Clarkson Fisher Jr., held defamatory Internet postings are libel, which is written and requires proof of harm, rather then slander per se, which is spoken and as to which damages are presumed.

The opinion mentioned Rocci v. Ecole Secondaire Macdonald-Cartier , 165 N.J. 149 (2000), where the Court declined to decide as a general rule whether damages should be presumed in defamation cases, and said it was leaving the question “for future resolution.”

The panel did not resolve the issue but said because D.A.’s words were undisputedly defamatory and there should be a remedy where there was a wrong, a jury should get to decide if W.J.A. was harmed.

W.J.A.’s lawyer, Egg Harbor Township solo Stanley Bergman Jr., says his client will seek damages for emotional distress as well as punitive damages because of the repeat nature of the offense.

D.A.’s lawyer, Egg Harbor Township solo Timothy Hinlicky, did not return a call.

Bruce Rosen, the lawyer for amici NBC, The New York Times, North Jersey Media Group and the New Jersey Press Association in Too Much Media , says the W.J.A. panel left the presumed damages question open and seemed to be challenging the parties to bring it up to the Supreme Court, which he says “has been moving away from the idea of presumed damages” and has hinted that they should not even exist for slander.

“Maybe this is the right time,” says Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park.

Jeffrey Pollock, of Fox Rothschild in Princeton, the lawyer for defendant blogger Shellee Hale in Too Much Media , sees the W.J.A. ruling as inconsistent with appellate precedent moving away from presumed harm and says it renders everything “potentially actionable.”

Joel Kreizman, of Evans Osborne & Kreizman in Ocean, counsel for Too Much Media, says it makes no sense to presume damages for slander but not for libel, especially on the Internet, which is capable of reaching a bigger audience.

On Sept. 10, the Court granted an appeal in Too Much Media but solely on the issue of whether the defendant is a journalist entitled to the protection of the law allowing reporters to shield their sources and to the heightened “absence of malice” standard.

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