Harris Beach attorneys Pamela Goldsmith and Laura Smalley successfully obtained judgment as a matter of law in New York Supreme Court, Queens County, on a claim for defamation on behalf of clients Timber’s Legacy and its president.

The Court found defendants’ statements about Timber’s Legacy, a non-profit cat rescue organization, and its president, its President, were defamatory per se because the statements were false; and made with malice and imputed misconduct, neglect and unfitness to plaintiffs’ business.  The decision is unusual because it is very difficult to obtain summary judgment finding a defendant liable for defamation per se because of the high burden of proof attached to the claim.

Defamation Can Impact Business Reputation

For both profit and non-profit businesses, reputation is everything. That reputation can be threatened by disgruntled employees, customers or the public in general. In this case, plaintiff was the founder and President of plaintiff Timber’s Legacy, a 501(c)(3) not-for-profit organization based in Queens, New York. Timber’s Legacy was formed for the purpose of rescuing abandoned, abused, homeless and neglected cats; and finding them safe and permanent homes.

After a dispute regarding the fostering of a cat, defendants posted numerous flyers at locations in Queens stating that Timber’s Legacy and its president had abandoned the cat and prevented it from being adopted. Defendants made numerous similar statements—that Timber’s Legacy had dumped, abandoned and neglected the cat—to the community, sponsors, other non-profits and public agencies. The statements were made through public comments on Facebook, private Facebook messaging, email; and verbally.

Defendants made a systematic attempt to tarnish the reputation of Timber’s Legacy and its president.

Recognizing and Resolving Defamation Before Litigation

Both for-profit and non-profit businesses should monitor their brand, including setting up Google alerts, surveying reviews on sites such as Yelp, and monitoring comments to the business’s social media accounts, including Facebook pages, and responses to content distributed on Twitter.

If the comments are significant enough to merit a response, businesses can engage positively with the public via social media or resolve complaints by responding directly to address the concerns.  Internet Service Providers or host websites may voluntary remove defamatory postings upon request.  A public relations firm or a law firm such as Harris Beach can help with drafting responses or by releasing new, favorable content about the business. Search optimization techniques can also be employed to try to push the defamatory postings off the first page of search results.

If these techniques do not work or the content is sufficiently damaging, a lawsuit can provide relief against defamatory conduct. In this case, after finding the defamatory statements, plaintiffs tried to resolve the issues informally, but were unable to get the defendants to stop or retract defamatory statements.

Defendants Were Found Liable for Defamation

“Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name.” Hogan v. Herald Co., 84 A.D.2d 470, 474 (4th Dept.), aff’d on op. below, 58 N.Y.2d 630 (1982).  Under New York law, the elements of a cause of action for defamation are:

1. a defamatory statement of fact;
2. that is false;
3. published to a third party concerning the plaintiff;
4. made with the applicable level of fault on the part of the speaker;
5. either causing special harm or constituting defamation per se; and
6. not protected by privilege.

The plaintiff has the burden of establishing those elements to recover. The level of fault that must be shown can range from negligence, for statements about private individuals about matters of private concern, to constitutional malice for statements about matters of public concern. The proof provided by Timber’s Legacy was sufficiently strong to establish liability despite their burden of proof.

Defendants made statements in flyers, text messages, and Facebook comments that the plaintiffs had abandoned and neglected a cat in their care.  The facts demonstrated that defendants’ statements were entirely false and made maliciously with the purpose of harming plaintiffs’ business. In granting plaintiffs judgment as a matter of law, and holding defendants liable for their malicious conduct, the Court held defendants’ written and oral statements that “plaintiffs, a nonprofit cat rescue organization and its founder and principal ‘abandoned’ one of the cats in their care . . . were false, blatant lies made with malice.”  The Court rejected defendants’ argument they were merely expressing their opinion—given their context, the statements “could reasonably be believed to be conveying facts about the plaintiffs.”  Finally, defendants’ written and oral statements were defamatory per se, and harm was therefore presumed, because the statements “accused the plaintiffs of, and imputed to their business, that is, a nonprofit cat rescue organization, misconduct, neglect and unfitness.”

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.