Monthly Archives: March 2013

2013 Dot Com Disclosures: Explained By Lawyer

2013 Dot Com Disclosures
The new Dot Com Disclosure rules are here! The FTC has a new set of online marketing standards.

Below is an in-depth review of the March 2013 Dot Com Disclosures update. Fair Warning: It is the opposite of short. We’ve done our best to use descriptive headlines to break the monotony and hopefully allow for easier navigation. If you need to speak with an attorney who deals with FTC and online advertising issues, get in touch. Kelly Warner is here to help any and all online marketers.

The Federal Trade Commission updated the Dot Com Disclosures. In April 2012, the nation’s consumer protection agency held workshops to discuss mobile devices and sales disclosures. Now, they’ve released a new set of guidelines. It’s supposed to act as a set of rules for how mobile and social media ads should be structured, but the 53-page Dot Com Disclosure update is actually a lengthy treatise filled with non-committal suggestions.

Regardless of the wishy-washy language, the Dot Com Disclosures are the closest thing we have to an online marketing law. Following the standards within could save you a costly legal battle with the FTC. Below is a rundown of the updated Dot Dom Disclosures. If you dabble in social media endorsements, geo-location or mobile advertising, the new FTC stance and recommendations will likely affect your current digital marketing campaign.

Part Rehash of the Original Dot Com Disclosures

The majority of the newest Dot Com Disclosures is a regurgitation of the previous document. It warns against the evils of “deceptive marketing,” and explains that good marketing is marketing which is truthful, substantiated and fair. The drafters of the document also spend time explaining why both consumers and sellers have a right to an honest marketplace.

While the latest version of the online marketing guide excessively explains the importance of proximity, repetition and prominence when it comes to advertisement disclosures, it does little in terms of presenting definitive answers as  to the exact parameters of what will and will not be tolerated by the commission. Despite an abundance of words, few definitive rules are laid out.

And believe it or not, the FTC is not shy about admitting their non-committal nature. In the new version of the Dot Com Disclosures, it clearly states that the document “is intended only to provide guidance.”

“The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations,” reads the online marketing guidelines, “the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.”

Justification Against & Repeated Warnings About “Unfair & Deceptive Marketing Practices”

The charge of the Federal Trade Commission is protecting consumers from “unfair and deceptive marketing practices.” As such, they dedicate several paragraphs in the Dot Com Disclosures discussing why fraudulent online ads hurt buyers and sellers. “[Sellers]…expect and deserve the opportunity to compete in a marketplace free of deception and unfair practices” and consumers deserve to “understand what they are paying for” and that “deception can damper consumer confidence” explains the FTC.

In addition to rehashing the perils of questionable marketing tactics, the new Dot Com Disclosures also make clear that the guidelines apply to ads of all types – audio, video, digital, small, large, mobile, Internet. They didn’t bother naming all the possibilities, instead opting for the all-encompassing “not limited to any particular medium used to disseminate claims or advertising.”

General Look & Feel

The new Dot Com Disclosures address how online and mobile ads must be marked, so as to be easily distinguishable as promotional material. Similar to the older version, the new Dot Com Disclosures make clear that the “overall net impression of [an] ad” is more important than then individual aspects. The updated version also warns marketers not to “let other parts of the ad get in the way” of an advertising disclosure. Commissioners specifically mention buy now buttons and flashy shopping carts as potential distraction culprits. The Dot Com Disclosures stress that any disclosures need to be made before the “the decision to buy” is made. Disclosures should also be “displayed early in the decision-making process.”  Therefore, the guidelines seem to suggest that disclosures and other advertorial assets (i.e., a shopping cart or glossy graphic) should be of equal prominence.

The primary point the FTC hammers home: Disclosures should be obvious and unavoidable.

Proximity, Pop-Ups and White Spaces

Proximity is a big deal in the Dot Com Disclosures. The document mentions proximity more than a cookbook mentions eggs. The proximity gist is this: make darn sure any disclosures are near the ad it modifies. The guidelines urge that, when possible, the ads themselves should include relevant limitations within the ad, rather than a separate disclosure.


In this iteration of the Dot Com Disclosures, pop-up disclosures are called out by name. Specifically, the commission warns not to use “blockable pop-up disclosures.” So, if you’ve been using standard pop-ups to satisfy disclosure requirements, it may be time to change your methods.

White Space

The issue of “blank white space” is also specifically addressed in the latest version of the Dot Com Disclosures. The new guidelines make note of the deceptive nature of blank white spaces on lengthy sites; the rules urge marketers to repeat claims multiple times on a long website (see below for specifics about scrolling); the new online marketing document also directs advertisers to be mindful of the “multiple routes through a website” and urges marketers to make sure that disclosures are easily seen – no matter where or how a user happens upon an ad.

Teaser Ads

What should you do if you dabble in teaser ads? The FTC has this to offer:

“[In instances of teaser ads] when the advertised product is only sold through advertisers’ own website and the consumer must click through in order to take any action…a space-constrained ad can direct consumers to a website for more information[where the disclosure must be conspicuous].”

The FTC Thinks Hyperlinks Are Very Important

Hyperlinks to detailed disclosures are a popular method. As such, this version of the Dot Com Disclosures painstakingly addresses a myriad of issues related to hyperlinking. The FTC’s message concerning hyperlinks is this: make sure any disclosure links are noticeable, uniform and take users directly to the information they need to make an informed decision. According to the new Dot Com Disclosures, hyperlinks should be recognizable as links and not hidden by other elements on the page or device.

Anchor Text

The appropriate anchor text is also discussed in detail in the new online marketing guidelines. In short, advertisers are advised not to use generic, non-descript words for disclosure hyperlinks. The document specifically says that “hyperlinking a single word or phrase in the text of an ad is not likely to be effective.” It goes on to explain: “hyperlinks that simply say ‘disclaimer,’ ‘more information,’ ‘details,’ ‘terms and conditions’ or ‘fine print’ do not convey the importance, nature and relevance of the information…” In a rare moment of clarity, the Dot Com Disclosures suggest the following as the ideal hyperlink verbiage:

“Service plan required. Get service plan.” The Dot Com Disclosures clearly state that “necessary disclosures should not be relegated to “terms of use” and similar contractual agreements. On other words: don’t try to bury stuff in a tiny TOS link at the bottom of your website and call it a day.

Scrolling Seems To Be Of the Utmost Concern

During the Dot Com Disclosure workshops, participants must have spent a considerable amount of time debating the finer points of scrolling, because the latest version of the online marketing guidelines are filled with scrolling tips and standards.

Below is a list of how the FTC feels about scrolling when it comes to online and mobile advertisements:

  1. Whenever possible, avoid ads that require scrolling in any direction.
  2. Make every attempt to ensure “that scrolling is not necessary in order to find a disclosure.”
  3. “When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.”
  4. The presence of “scroll bars along the edges of a screen are not sufficiently effective visual cue.”

To drive home their anti-scrolling preference, the Dot Com Disclosures also warn advertisers to “keep in mind that having to scroll increases the risk that consumers will miss a disclosure.”

The FTC Essentially says that It’s Your Responsibility to Keep up with the Latest User Behavior Statistics

In addition to making sure that all advertisements and promotional material is clear and conspicuous, the new Dot Com Disclosures also suggest that digital marketers must stay current when it comes to the latest and greatest user behavior studies. Items commissioners recommend advertisers keep abreast of include:

  1. Empirical research about where consumers do and do not look on a screen;
  2. Standard size and color studies regarding readability;
  3. Studies regarding reading habits of users;

Throughout the new online marketing guide, users’ tendency to scan pages instead of reading them is mentioned several times. The point the FTC is making by reiterating our shared tendency to not “read an entire website or online screen” is that advertising disclosures should be so clear that an illiterate individual would be able to tell what it is.

Screen Size & Device Specifications

When word first surfaced that the Federal Trade Commission was considering an update to the Dot Com Disclosures, their focus seemed to be mobile device marketing and social media ads. While the agency did not address all the questions originally asked during the Dot Com Disclosure 2012 workshops, the new version of the guidelines does address issues pertaining to smaller screen sizes and the proliferation of available devices.

General statements regarding screen sizes and device diversification in the 2013 update of the Dot Com Disclosures:

  1. Document states that guidelines are “device neutral” – meaning all the guidelines contained within apply to all electronic communication devices.
  2. “If a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.”
  3. Optimizing web pages for mobile devices “is important.”

You’re Responsible for Affiliate Sales People

Not only does the FTC want you to take extra steps to ensure your ads are sized properly for all delivery devices, but they also want you to educate affiliates promoting your product or service. The new Dot Com Disclosures state:

“Advertisers should employ best practices to make it less likely that disclosures will be deleted from space-constrained ads when they are republished by others.”

In other words, monitor everyone hawking your product via electronic means – you could be held responsible for their ineptitude. (Note: This should be taken seriously. After all, these days, the FTC is even going after people’s parents to recover funds.)

What To Do In Cases Where The Disclosure Is Long, But The Screen Size Is Small?

A frequently asked question regarding online advertising disclosures deals with screen size: What do you do if your disclosure is long, but the screen size is small – like on mobile phones?

The new Dot Com Disclosures addresses this question directly – but doesn’t answer it clearly:

 “…if a product’s basic cost…is advertised on one page, but there are significant additional fees the consumer would not expect to incur in order to purchase the product or use it on an ongoing basis, the existence and nature of the those additional fees should be disclosed on the same page and immediately adjacent to the cost claim and with appropriate prominence.

However, if details about the additional fees are too complex to describe adjacent to the price claim, those details may be provided by using a hyperlink.”

In other words, you should make every effort to include limitations and disclosures within the ad itself. If, however, the limitations are too long to fit, you can direct users to a lengthy disclosure page via a hyperlink.

Language & Confirmations

As has been preferred for nearly two decades now, the new Dot Com Disclosures makes a point of praising “plain language.” Gone are the days when a good contract was one freighted with complex Latin phrases and superfluous qualifiers. These days, a contract like that could harm you instead of protecting you.

The new Dot Com Disclosures unambiguously state: “Use plain language and syntax so that consumers understand the disclosures.” The guidelines go on to assert that in order “for disclosures to be effective, consumers must be able to understand them.”

The FTC specifically mentions avoiding the following language pitfalls:

  1. Legalese
  2. Technical jargon
  3. Non-universal and little-known abbreviations (“other abbreviations or icons may or may not be adequate”)
  4. Extraneous language and material, which only serve to make things more confusing

In addition to the above four language points, the 2013 Dot Com Disclosures point blank state that advertisers should require “the consumer to take some affirmative action to proceed past the pop-up or interstitial [page].” It also lays out in black and white that disclosures must come before the “add to shopping cart” stage. More specifically, “disclosures must be effectively communicated to consumers before they make a purchase or incur a financial obligation.”

New Social Media Rules

Perhaps the most talked about aspect of the 2013 Dot Com Disclosure updates is the addition of social media-related standards. The most important new social media marketing rule is that the word “Ad:” or “Sponsor:” must be included in a tweet (or other short social media message).

From the Dot Com Disclosures:

“‘Ad:’ at the beginning of a tweet or similar shirt-form messages should inform consumers that the message is an advertisement…”


“the word ‘Sponsored’ likely informs consumers that the message was sponsored by an advertiser.”


“It is the advertiser’s responsibility to draw attention to the required disclosures.”


A few other notable points included in the newest version of the Dot Com Disclosures:

  1. Negative option trials are mentioned by name – and discouraged.
  2. The guidelines concerning the use of Endorsements and Testimonials in Advertising (“Endorsement Guidelines”) are still in effect.
  3. Disclosures must match the medium of the advertisement. So, if an ad is an online ad, the disclosure must be made online, too; if an ad is a radio ad, the disclosure must be auditory, as well.

If you need to speak with a lawyer who knows and understands the Dot Com Disclosures, get in touch today. Kelly Warner is an Internet law legal practice that has helped swarms of affiliate marketers, online businesses and startups with various FTC and online marketing issues. Hope to hear from you soon.

Gossip, Defamation & The Law — Why It’s Tough To Successfully Sue Gossip Publications

gossip defamation and the law
Gossip and defamation go hand-in-hand. But it’s tough to win a defamation lawsuit — especially for celebrities.

Ever wonder why celebrities rarely sue gossip magazines for defamation? Yes, the lack of celebrity libel lawsuits is in part because the sources for those salacious tid-bits are public relations people. And let us not give-in to spin: many of the stories are true. But no, the main reason why scandalous tales appear is because it is difficult for a public figure to win a defamation lawsuit in the United States. And you are about to find out why. We’ll unmask the legal reasons why many celebrities – of both the dubious and legitimate varieties – simply suck in their pride and don’t bother with a lawsuit when untrue stories hit newsstands and the Net.

Let’s Pick A Test Case

In the United States, it’s rare to hear about a celebrity successfully suing a media outlet for defamation. But thankfully, for our purposes, Tom Cruise recently decided to go for legal gold and filed a libel suit against Bauer Publishing – the celeb-entertainment pushers behind In Touch and Life & Style magazines. Even more fortuitous for our purposes, the lawsuit is playing out in the public arena — and it’s proving to be a master class in defamation law.

For those reasons, we’ll be using Cruise v. Bauer as a case study to explain why it’s so darned difficult for celebrities and public figures to win defamation lawsuits.

Gossip Magazine Defamation Lawsuit: Background

This legal tale begins in 2012 – a few months after Katie Holmes pulled off the so-called baller divorce of the decade by allegedly blindsiding Cruise with “I’m totally ovah this marriage” papers. Human interest media outlets published every succulent morsel of information about the separation; speculation was rampant on gossip websites and TV entertainment shows.

Two magazines under the Bauer Publishing banner – In Touch and Life & Style – ran articles claiming the couple’s daughter, Suri, was “Abandoned by her father” in the wake of the divorce. One of the pieces also opined that Suri was having a “difficult time in the wake of her parents’ split,” and that the “normally sunny Suri has had several tearful episodes while out with Katie recently.” They also said Suri “[hadn’t] seen her Dad in a month.” Bauer’s claims of alleged emotional neglect were attributed to “sources.”

Cruise’s legal team insists the actor’s camp informed reporters that Cruise spoke to Suri “every day, and often more frequently,” but that Bauer neglected to print those assertions along with the accusations. Bauer says this is untrue. The gossip magazine publisher, however, does admit to receiving a letter from Cruise’s camp, but had a “good faith” belief in the accuracy of their source(s)’ information.

Irate over the allegations, Cruise opted to file a defamation lawsuit against Bauer Publishing. His longtime attorney, Bertram Fields, shot off a comprehensive libel complaint to the media outlet.

Defense Response In Gossip Defamation Lawsuit

Sometimes publishers simply back down when faced with potentially costly and time consuming libel lawsuits. But Bauer decided to fight back. While the news conglomerate admitted to publishing the material in question, and fessed up about using the headline “Suri in Tears, ABANDONED BY HER DAD” as a means of “conventional incidental promotion for the issue,” they adamantly deny any legal wrongdoing.

So, one of the legal eagles at Bauer got down to the business of trying to defend his client against Cruise’s claim.

The attorney who responded to the defamation complaint clearly has sharp libel law chops. In a masterfully written response, the Bauer team outlines over 30 points of contention with the original filing. Regardless of whether or not a judge accepts all the points as accurate, Bauer’s response to Tom Cruise’s celebrity defamation lawsuit is a practical workshop in the nuances of libel law, and how rules are different for public figures when it comes to defamation.

Point by painstaking point, the responding attorney laid out the defendant’s 34-part counter argument. By doing so, the publishing company created a comprehensive study guide that illustrates why it can be an uphill battle for public figures who file libel lawsuits.

Below is a list summary of Bauer publishing’s reply to Tom Cruise’s defamation lawsuit.


Cruise’s Complaint Didn’t State a Violation – The Bauer rebuttal begins with a standard defense: “Failed to state a cause of action upon which relief can be granted.” All that means is that the defense is alleging the plaintiff didn’t conclusively state a legal violation in the original complaint. It’s an oft-used argument in civil litigation. If this battle were taking place on a playground, this argument is basically the same as: “Bobby hit me for no reason!”

The Plaintiff’s Case Isn’t Specific Enough – The Bauer rebuttal includes several claims involving specificity. The publisher argues that the plaintiff did not give enough detail about the nature of the defamation, which, it argues, makes it impossible to claim defamation. In one section, Bauer alleges the “Plaintiff’s damages, if any, are vague, uncertain, imaginary, and speculative.” The rebuttal also states that the plaintiff “didn’t plead libel per se or special damages with sufficient particularity.”

Essentially:  DETAILS & DOX or STFU!

Insufficient Knowledge or Information – Another standard defense used by the Bauer team was the inclusion of an “insufficient knowledge” claim. By adding it, Bauer is basically saying: “we don’t have enough information to determine whether or not certain allegations are true; in order to prove we’re incorrect, the plaintiff must provide evidence of Suri’s mental state at the time of the incident.”

This argument, if accepted, presents an undeniable dilemma for Cruise. If he continues with the suit, as a result of this claim, he may be forced to disclose personal information about Suri’s state of mind during the divorce debacle – which could lead to a major unearthing of a lot of personal information.


Constitutional Free Speech Rights – Citing the First and Fourteenth Amendments of the United States Constitution is a popular – and effective – defamation of character defense. If the claim is brought in state court, prosecuting attorneys usually cite any free speech articles or amendments of the jurisdiction’s state constitution. In this case, Bauer used Article 1 Section 2 of the California Constitution.

Truth Is Strong Defense To Defamation – Since 1733, when Andrew Hamilton schooled Sir William Cosby in a lawsuit over an article in the New York Weekly, truth has been recognized as an absolute defense to defamation in the United States. Back then, Hamilton successfully argued that John Peter Zenger, Editor of the New York Weekly, had a right to publish material critical of the then British governor of New York, Cosby. He won – and subsequently convinced a judge and jury to change the law.

In 2013, Bauer is using the same defense as Hamilton by arguing some of the statements printed in their magazines are true.

Show Me The Money Harm! – To win a slander or libel lawsuit, it’s not enough to say your feelings were hurt. In order to win damages, you must provide evidence of material harm*. In Cruise v. Bauer, the defendant argues the plaintiff “can’t prove he has suffered  any compensable damage as a result of the statements.” In other words: Cruise hasn’t lost any money or movie deals because of the Life & Style and In Touch stories, therefore the statements are not defamatory.

*An exception to this is defamation per se. That is when the material in question is of such a vile nature it’s considered defamatory in it of itself.

Actual Malice: Actual malice is a legal standard unique to United States defamation law. Legally speaking, actual malice is present when a plaintiff in a defamation case knowingly publishes or transmits false information. Under federal statutes – and subsequently in most states – the standard of actual malice must only be met when the plaintiff is a public figure.  The definition of public figure varies from region to region. In some, anybody paid with government funds (including teachers) is considered a public figure. In nearly all jurisdictions, however, ubiquitous celebrities (i.e., movie stars, professional athletes, musicians, famous business luminaries, politicians) qualify as public figures.

In some jurisdictions, actual malice can be proven by simply demonstrating gross due diligence neglect, whereas in other jurisdictions, a defendant must prove the plaintiff knowingly lied with the intention of causing harm.

One way to beat a defamation rap is to demonstrate that you, the defendant, did not act with “actual malice.”

Not Offensive – The original filing charged both defamation and false light. Briefly, defamation deals with reputation, whereas false light has more to do with dignity. Presumably in an attempt to poke holes in the claimant’s false light suggestion, Bauer’s attorney addressed the issue of “offense” and whether or not the material in question would be found highly objectionable by the average person; because if it did not, then the plaintiff would, in theory, lose the argument. This is one of the more subjective aspects of defamation and false light law; after all, one person’s offense may be another person’s compliment. As such, jurisdiction, in addition to the nature of the judge and jury, weigh heavily in cases that turn on the offensiveness of a given statement.

We Had Faith In What We Said – Faith isn’t just a religious concept. Defamation lawsuits can be won or lost on the question of honest belief. Meaning, if the defendant can show they had every reason to believe their source was accurate and the topic at hand would be of “public interest,” than it’s possible for the defendant to win. In their response, Bauer argued their actions were “reasonable, justified and in good faith.”

False Light & Defamation Are The Same Thing Here – In some jurisdictions, false light and defamation are considered so similar that plaintiffs are forbidden to argue both points in a single case, as it’s regarded as redundant. Bauer is using the administrative argument in their arsenal against the Cruise camp. Clearly, if the jurisdiction of a lawsuit does allow for both arguments to be presented in tandem, then this defamation defense would not work.

The Statements Made Aren’t Provably False & Some Are Rhetorical Hyperbole – Under U.S. law, in order for a statement to be defamatory, it must be verifiably false. To illustrate: saying some is a jerk is not defamatory, because one can neither prove nor disprove jerkyness. Everybody has a different opinion on what constitutes jerkdom. In this case, Bauer argues that some of the material in question is subjective, punctuated with a healthy dollop of recognizable (and legal) hyperbole, and therefore not defamatory.

A Reasonable Reader Wouldn’t Take The Headlines Literally – We live in a gossip-hungry world where sensational headlines are as commonplace as iPhones – and Bauer is counting on convincing a judge and possibly jury that the average reader would not come to the same conclusions stated in Cruise’s claim. Basically, Bauer is arguing that we average Joes and Janes fully understand media sensationalism and would not believe Cruise actually abandoned his daughter.

Being A Celebrity Has Its Risks, And Celebrities Know That – Attorneys for the defense reasoned that “if plaintiff was harmed, which the Bauer Defendants deny, plaintiff impliedly assumed the risk of that harm.” In other words, every occupation has its ups-and-downs. One of the downs of fame is that you’re a prime target for media outlets that knowingly make abundant use of rhetorical hyperbole. Therefore, as people with free will, celebrities know they’re going to be photographed and discussed, and in choosing to pursue their career, knowingly assume the risk of being a target of sensationalistic media outlets. Get over it.

The Plaintiff Is The One Bringing Attention To This — Another way to use harm in a defense argument is to argue that any damage caused was a result of the plaintiff bringing additional attention to the matter. Bauer makes this case, opining that damages “were not proximately caused by the defendants.” The respondents also suggest that Cruise “failed to mitigate” his alleged injuries and that “any damages allegedly suffered by plaintiff were the result, in whole or in part, of plaintiff’s own legal fault, and any recovery by plaintiff should be reduced in proportion to plaintiff’s fault.”

Common Law Doctrine Defamation Defenses

Doctrines of Unclean Hands, Laches, Waiver and Estoppel – Lawsuits are often like sports matches, complete with offensive and defensive strategies. One of the more popular plays is arguing the doctrine of unclean hands, or laches, waiver and estoppel. They’re grand sounding doctrines, which are intricate, but the basic premise is this: citing the unclean hands doctrine is the same as saying your opponent acted in bad faith in filing the claim and therefore should not be granted an injunction or monetary award for their complaint. In elementary school speak: “Bobby wasn’t playing fair, so he should not be rewarded!”

Doctrine of Fair Comment — In simple terms, fair comment is a common law defamation defense that aims to guarantee free speech. It’s most often used in cases where a member of the press is being sued for expressing statements on a matter of public interest. Generally speaking, a given truthful statement can be considered a “fair comment” so long as it’s not spiteful and its intent is not harm.

Read More About Fair Comment Here.

Doctrine of Neutral Reportage – Under common law doctrine, in most cases, repeating a defamatory statement is also defamatory. Exceptions, however, exist – amongst the most used is the “neutral reportage” argument. Basically, if a publication distributes a report discussing a given defamatory statement in a neutral manner, they are sometimes let off the hook. In order for the neutral reportage argument to work, though, the material in question usually must be a matter of public concern and the statements must be as neutral as Switzerland.

Now, in this case, the judge and jury would have to consider whether or not Suri Cruise’s relationship with her father is a matter of public concern – a very interesting legal question in this age of the burgeoning (and highly profitable) celebrity gossip industry.

Incremental Harm Doctrine – If you’re looking for little-used libel defense arguments, put the incremental harm doctrine on your list. Here’s the gist: under U.S. law, the crux to defamation is material and reputational harm. As such, if a defendant can prove that no additional harm befell the plaintiff as a result of the material in question, then the statement(s) under review cannot be defamatory – or so the logic goes. As explained on LexisNexis:

“If the defendant can show that the publication would have had exactly the same effect on the plaintiff’s reputation had the challenged portion been excised, then the incremental harm defense compels judgment for the defendant.”

The problem with the incremental harm doctrine is that many courts – including the highest in the land – have all but rejected it as a viable option. That said, some state courts still accept and consider the claim. Curiously, California doesn’t seem to have a strong pro IHL precedence – but hey, when you’re fighting the big boys, why not throw in the kitchen sink to see what sticks.


After rattling off arguments related to the nature of the comments under review and whether or not said statements were defamatory, the Bauer defense team switches gears and gets into the legality of the types of damages the plaintiff could potentially ask for in a slander or libel lawsuit.

Punitive Damages Should Be Out Of The Question:  Punitive damages are financial awards intended to punish. They’re not based on actual monetary damage caused, but instead are determined by what a judge or jury thinks the defendant should pay to, well, teach them a lesson. In some jurisdictions, punitive damages are not allowed in slander or libel suits involving private citizens. In many, however, punitive damages are allowable in cases involving actual malice.

In this case, Bauer is preemptively arguing that granting punitive damages would “be grossly out of proportion to the alleged wrongful conduct at issue.” The response goes on to suggest that the material under review was “not reprehensible” and therefore not worthy of a financial award. Continuing, the response states that punitive damages would deny Bauer “equal protection under the law” and that doing so violates Bauer’s right to due process. In addition, since celebrity entertainment is a money generating industry in California, the defense cunningly avers that seeking punitive damages in California is moot because “there is no legitimate state interest in punishing the allegedly unlawful conduct…or deterring its possible repletion.” In other words, celebrity gossip is a big revenue generator in this financially struggling state – let’s not unintentionally hinder the market.

Excessive Fines Are Unconstitutional — Many jurisdictions have regulations about awarding obscene amounts of money.  Article 1, Section 17 of the California Constitution addresses the issue of “excessive fines.”  In this lawsuit, the defendant argues that requested exemplary damages would unfairly burden Bauer and postulates the award would qualify as an “excessive fine.”

TL;DR: It’s Difficult For Public Figures To Win Defamation Lawsuits, But Not Impossible

And there you have it. If you’ve made it this far, hopefully we’ve done an adequate job of explaining why celebrity defamation lawsuits can be difficult to win. The operative word in that sentence is “difficult” – for while it may be hard for a public figure plaintiff to emerge victorious in a slander or libel lawsuit, it’s not impossible.

If you are dealing with a defamation crisis and are considered a “public figure” under the law (which could be as little as being a public school teacher in some jurisdictions), contact Kelly Warner law. We are a legal practice with a dedicated slander and libel litigation team. Our track record is a point of pride, and we’d like to help you in any way we can. Get in touch today to begin the conversation.

In the meantime, be careful what you publish, people. While free speech is a right we all enjoy in the good ‘ole USA, there are limits – and defamation is one of the biggest.