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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37664
Experience:  Run my own successful business/contract law practice.
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I recently expelled a former preschool student. Her father

Customer Question

I recently expelled a former preschool student. Her father retaliated by posting reviews that were at most defamatory and at least, painted me in a false light. I posted an auxiliary website refuting his false claims. I used his real name (as he did in his postings) and I told the truth about why I expelled his 3 year old daughter. I also included a photo of damage his child did to my school. I covered his child's image so she is not recognizable.

I'm in the State of California. Do my First Amendment Rights and States Rights protect my right to respond?
Submitted: 1 year ago.
Category: Business Law
Expert:  BizIPEsq. replied 1 year ago.

BizIPEsq. :

Hello, I will be assisting you

BizIPEsq. :

Generally one's first amendment rights are not absolute and need to be viewed in the context of defamation as an example.

Customer :

I understand those rights are not absolute. I did not defame him. I merely addressed the issues he first placed on the internet for examination. In the context of my question, is my response to this individual protected?

BizIPEsq. :

The fact that the father post defamatory statements does not mean that similar actions can be posted in response. I understand your need to defend your good name so here are a few suggestions:

BizIPEsq. :

write a demand letter to the father explaining to him that he has/is causing you damage and demand him to take down his comments

BizIPEsq. :

note that if the comments are not taken down that you reserve the right to commence legal action and collect damages on the loss of your good name

BizIPEsq. :

what site did he post his comments on?

Customer :

He is not a person to be reasoned with. I do not want to threaten litigation. I simply want to keep my website up to refute his false claims. Do I have the right to do so? If not what should my concerns be?

Customer :

The comments were posted on Yelp and seriously defamatory comments (I use special straps to restrain kids in their chairs) were on various other consumer websites.

BizIPEsq. :

truth is an absolute defense to a claim of defamation so you do have the right to refute his claims with the truth but be mindful that sometimes in a an attempt to zealously defend your good name you may cross the line and go from the dry recitation of facts to subtle accusations.

Customer :

My primary concern is: do I have the right to have the alternate website that corrects his statements and discusses certain matters in detail...especially since he is the one who placed the issues in the public forum. If no: based on what statute? If yes: based on what statute?

BizIPEsq. :

American law is not based on permissive law rather on restrictive law. As noted truth is the absolute defense to defamation. So as far as defamatory claims stick to the truth/facts. There is also the issue of right of privacy. The fact that he put himself out there and has identified himself would give you the right to refute him using his name

Customer :

My right to refute him by name is XXXXX XXXXX what statute? Also what about the use of the unidentifiable photo of his daughter?

Customer :

What statute or case law?

BizIPEsq. :

as noted there is no law that specifically allows permits you to refute. Common law does not work that way. Case law would also not be applicable necessary as case law depends on specific circumstances. There is not bright-line rule that says if someone maligns you, then you have the right to defend yourself. These are accepted common law principles just keep to the truth and be mindful of using the child's name/pictures etc.

BizIPEsq. :

If you are terribly concerned with having case/statutory permission you could always commission an attorney to contact such legal research but the cost of legal databases is prohibitive

Customer :

Mindful in what way? This is why I contacted you...for specifics.

BizIPEsq. :

be mindful as in do not release images of individuals (children or otherwise) without the necessary permissions from the individuals and the photographer

Customer :

I'm the photographer and the photo was taken in my home-based school. The child is not identifiable. Parent formerly gave verbal permission to record child. Is this a problem?

BizIPEsq. :

verbal permissions (releases) are not proveable. You should procure written releases

BizIPEsq. :

it could be as simple as an email giving you permission

Customer :

I don't think you're able to adequately answer my questions. Do you have any additional suggestions?

BizIPEsq. :

let me opt out maybe another expert will be able to help you. good luck

Customer :

My questions have not been sufficiently answered. I was given standard answers with no specificity to the query I posed. The attorney has stepped out of this chat. Please advise.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. A different professional here, perhaps I can assist you further.

To answer directly, what you are describing is likewise something that may expose you to danger of defamation. Your right to protect your reputation online and tell the truth is tempered with claims that the information you are providing is likewise defamatory. As the previous contributor pointed out, truth is the ultimate defense, but the moment you use someone's direct identity, they may have a counter claim against you, right or wrong, accusing you of some version of defamation of character, or invasion of privacy over false light.

You. however, have other more tangible defenses than just responding online. You can consider a personal defamation claim against the individual if the information about you is false. As this affects your work, damages are presumed. In addition you can consider filing suit for 'tortious interference with a business interest', or an intentional and a malicious attempt to contact third parties to affect your reputation and profit that goes beyond simple competition. That would likely be the more constructive approach since if you prevail, you could then seek damages and attorney fees.

Hope that helps.

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