The short answer. To win a defamation case in California you generally must show that someone published a false statement of fact about you, that it was not privileged, and that it harmed your reputation. You usually have one year to file. Opinions are protected, websites are usually not liable, and anonymous posters must first be identified.
What defamation means in California
California Civil Code section 44 divides defamation into libel and slander. Online posts, reviews, images and videos are usually libel, defined in section 45 as a false and unprivileged publication that exposes a person to hatred, contempt, ridicule or obloquy, causes them to be shunned or avoided, or injures them in their occupation.
The California Supreme Court has summarized the claim as the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or causes special damage (Taus v. Loftus, 40 Cal.4th 683 (2007)).
The elements, one at a time
Publication
The statement was communicated to at least one person other than you. A public post easily meets this.
A statement of fact
Opinion is protected. "This person is the worst manager I have ever had" is opinion. "This person stole money from the company" is a factual claim that can be proven true or false. Courts look at the words, the context and the platform. A statement framed as opinion can still be defamatory if it implies false facts (Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)).
Falsity
Truth is a complete defense. In practice you should expect to prove the statement is false, which can mean proving a negative.
Not privileged
Civil Code section 47 makes some statements privileged, such as statements made in court proceedings or official reports to police. A false police report about you, for example, raises different and harder questions than a blog post.
Harm
Some statements are defamatory on their face, such as false claims that you committed a crime, have a contagious disease or are unfit for your job. Others require proof of specific financial loss.
Fault
If you are a public figure, you must prove actual malice: that the person knew the statement was false or recklessly disregarded the truth (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). A private person in California generally needs to show only negligence (Brown v. Kelly Broadcasting Co., 48 Cal.3d 711 (1989)).
The one year deadline
Code of Civil Procedure section 340 gives you generally one year to sue for libel. Under California's single publication rule (Civil Code section 3425.3), the clock generally starts when the post first appears, not each day it stays online. Courts have applied this rule to internet posts. If you are trying other routes first, keep the deadline in view.
Why online cases are so hard in practice
- The website is not liable. Section 230 generally protects sites and search engines, so you must pursue the person who wrote it.
- The poster may be anonymous. You often need to file a lawsuit against an unnamed defendant and subpoena records before you know who to sue.
- Anti SLAPP risk. If the defendant brings a successful anti SLAPP motion, you may be ordered to pay their attorney fees.
- Cost and time. A full defamation case can take years and cost far more than most people can afford.
- Winning may not remove it. In Hassell v. Bird, 5 Cal.5th 522 (2018), a plaintiff who won a defamation judgment still could not force Yelp, which was not a party, to remove the reviews.
What Right to Remove wants to change
Most people targeted by false posts do not want money. They want a court to say the post is false so they can get it taken down. Our proposal asks California for a fast, low cost falsity ruling with no damages at stake, which search engines and hosts can then act on.