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Victor Cretella Successful in Defamation Suit Over Statements Posted Online

Victor Cretella, a Maryland lawyer, sued David Kuzminski, editor of “Preditors and Editors” for defamation. The statements that Cretella sued over were postings Kuzminski made at the Absolute Write forum. The statements stated that Cretella was engaged in extortion, a crime, and that he had engaged in conduct that could be sanctioned by a disciplinary committee, thereby endangering his professional reputation. The court in an earlier ruling found that the statements, if uttered as alleged by Cretella, constituted defamation unless Kuzminski could prove that they were true.

A jury trial was held and appeared only to be a two day trial resulting in a verdict for Cretella. The judgment had not been entered at the time of the writing of the blog post, but an order allowing Kuzminski additional time to file post trial motions was filed. The order noted that an adverse judgment had been rendered against the Defendant.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

33 Comments

  1. Emmy
    Feb 04, 2009 @ 20:43:24

    There’s a new era pf people suing for online commentary and reviews. Did you hear of the Dentist in CA who is suing one of his patients for leaving him a negative review?

    Wonder how long it will take for publishers to hop on the bandwagon, lol.

  2. Rebecca
    Feb 04, 2009 @ 21:00:36

    Since when did the truth on a Web site count for less than that offered in a newspaper or news broadcast? I guess, since 2009. :(

    This sucks. Preditors and Editors does a good job.

  3. Leah
    Feb 04, 2009 @ 21:01:56

    I don’t get it. How is it defamation if it’s true?

  4. Jane
    Feb 04, 2009 @ 21:03:10

    @Leah The Defendant had to prove the statements were true but apparently was not able to convince the jury.

    Sorry, I edited the post to clarify what I mean. If the statements were actually made, which Cretella would simply need to print out screenshots from the forum, then the burden is on the Defendant to prove that they were true.

  5. Anion
    Feb 05, 2009 @ 01:22:55

    This is heartbreaking. Dave overstepped himself with those statements, he did, but they were in essence true as they relate to PA’s lousy business model. I just really don’t get this.

  6. Leah
    Feb 05, 2009 @ 07:24:15

    Ok! Thanks for the explanation!

  7. Jane
    Feb 05, 2009 @ 12:06:48

    @Anion: Contrary to what you might read out there in the interwebz, this is what happens in a defamation trial

    The Plaintiff must prove (bears the burden of proving) a prima facie case of defamation
    1) statements were made that were either per se or per quod defamatory (in this case a criminal act is per se and one tending to harm the business reputation can be per quod depending on various caselaw)
    2) statements were made to someone other than the Plaintiff

    The Defendant then has the “affirmative defense” of truth. The Defendant has the burden of proving the truth of the statements. The burden is an important concept because it is always, always, always the Plaintiff that has to prove the initial elements of any claim.

    At the end of the Plaintiff’s case in chief (all the testimony and evidence that the Plaintiff has to prove the case), the Defendant always gets up and moves for “directed verdict” wherein you ask the judge to dismiss the case because the Plaintiff hasn’t met his or her burden.

    The jury in this case (not the judge according to the papers) rendered a decision that a) Plaintiff had proved that defamatory statements were made and b) that the Defendant hadn’t proved that they were true.

    In an appeal, you ask the higher court to review the case for errors at law. This means that the wrong jury instructions were given or the wrong evidence was allowed in. An appeal cannot overturn the decision of the jury on the facts so long as the facts were appropriately in front of the jury.

    The district court can enter a remittur (reduction) of damages based on the idea that the jury was moved by inappropriate passion or prejudice.

  8. Jane
    Feb 05, 2009 @ 12:16:50

    Let me add that only statements of fact and not opinion are subject to defamation suits. The court didn’t view the Defendant as making statements of opinion when he referenced Cretella as engaging in extortion and being unethical.

  9. Anion
    Feb 05, 2009 @ 12:55:45

    I’m sorry, Jane, I worded that badly I guess. I didn’t misread anything on the internet; I was sad to see this but I do believe Dave made a mistake with his statements (although that I believe there is some truth to some of them with regards to PA’s business model and the “legal action” which started the whole thing, which was threats made to another party). I didn’t approve of Dave’s statements the day he made them (although I do think they looked like opinions to me). I still don’t. I like the man a lot and think he provides a great service, and I have done what I could as far as donating to his defense fund (which sadly wasn’t much) and putting the word out for others, and I am very sad and upset to see this.

    Just because I believe Dave overstepped himself doesn’t mean I think he should pay a hefty fine for it. Just because I believe had he worded his statements differently and not been quite so–shall we say–goading? he might have had a better defense doesn’t mean I can in any way just shrug it off and not be personally affected or upset because someone I believe is a deeply unethical person has won a lawsuit against someone I believe is a deeply ethical–if occasionally overzealous.

    When I said “I don’t get this” I meant the whole thing; how it started, why it went this way, all of it. It was more of a general statement of head-shaking than a genuine confusion over how the ruling was reached; that, sadly, I understand very well. I didn’t word it very well, I guess. I was too busy feeling sick about it.

  10. Jane
    Feb 05, 2009 @ 13:35:25

    @Anion No, I was actually referring to a post I saw on a message board re: this suit and who had the burden and I thought I would just explain how the case actually goes when tried and what I think (without looking at the transcript) would be appealable issues.

    Sorry for not explaining myself better.

  11. Deb Kinnard
    Feb 05, 2009 @ 16:04:22

    So it sounds like you can’t say “if she works for PA, she must be a lousy lawyer” because you might get sued. I’ve been following the aftermath on the Water Cooler and it does amaze me. Anyone associated with a sleazoid outfit should expect some guilt by association. To sue someone for pointing this out seems disingenuous at the very least.

    Slinking off now to see if I need to change some of my D+ reviews to A-…just in case. Sheesh!

  12. Jamaica Layne
    Feb 05, 2009 @ 16:48:51

    Deb, libel/defamation law specifically excludes expressed _opinions_. So as long as you make it clear what you are writing is an _opinion_ (and reviews are of course implied as such), you are fine and protected by the First Amendment.

    I think the reason this case was brought was because Dave publicly accused the guy of criminal extortion, and stated it in a way that could be construed by some as being presented as fact. If Dave can prove that what he said was his expressed opinion, rather than him posting a fact that he couldn’t prove (i.e., like showing the guy had a criminal conviction for extortion), then he would have been fine. But for whatever reason he wasn’t able to either a) prove what he said was true or b) prove what he said was an expressed opinion.

    In either case I don’t think justice is served here, but having served on a jury myself, I know that jurors have to set their personal opinions aside and strictly interpret the law according to the instructions they were given.

    Obviously the PA lawyer who brought the case thought he had a good chance of winning, or he wouldn’t have bothered with bringing it to trial.

    Moral of the story is, if you’re posting something online, even on a message board, make sure you couch anything you say that can’t be backed with hard evidence with “in my opinion.”

  13. Jane
    Feb 05, 2009 @ 17:54:23

    @Jamaica Layne: So glad that you came over to post because I wanted to ask you where you got your legal information and if you feel competent to give legal opinions because over at Absolute Write you wrote something absolutely wrong.

    Not knowing the facts of the case, I can’t comment whether this is a fair outcome or not. But I do know that in civil cases, the burden of proof is on the defendant, not the plaintiff. Which makes it hard to defend cases like this.

    Do you think you should be going around making legal pronouncements that are completely wrong? Just wondering.

    BTW – you don’t prove something is an opinion. It either is or it isn’t and the court determines what is an opinion and what is a fact.

  14. Jamaica Layne
    Feb 05, 2009 @ 19:25:09

    What I meant to say in the AbsoluteWrite post but didn’t clarify was that in civil _defamation_ cases, the burden of proof is on the defendant (i.e., to prove what he said was true, which is the main defense against libel/defamation) or to convince the court (i.e., jury) that it was stated as an opinion.

    I believe it is the jury’s decision to determine whether something is an opinion, fact or otherwise. That’s why they make the decision on these cases, not a judge.

    In general civil cases dealing with business law (such as small claims), the burden of proof is generally on the plaintiff. So I agree what I posted on Absolute Write is misleading. (a result of typing too fast – sigh).

    The gist of what I said regarding defamation/libel is correct.

    (Full disclosure; I’m not a lawyer. But I have consulted attorneys regarding libel/defamation because I’ve done journalism over the years exposing some unsavory things about people and companies, and it pays for journalists to know the legal definitions of libel).

  15. Jamaica Layne
    Feb 05, 2009 @ 19:38:58

    I corrected what I posted on AbsoluteWrite, BTW.

  16. Jane
    Feb 05, 2009 @ 19:42:36

    @Jamaica Layne: Maybe you should correct another statement then because whether an utterance is a statement of fact or a statement of opinion is a question of law. Look it up.

  17. Jamaica Layne
    Feb 05, 2009 @ 19:55:27

    utterance is a statement of fact or a statement of law is a question of law

    —Statement of law is a question of law? I’m sorry, but that statement doesn’t make sense.

  18. Jane
    Feb 05, 2009 @ 19:56:24

    @Jamaica Layne whether an utterance is a statement of fact or a statement of opinion is a question of law.

    I mistyped. What’s your excuse?

  19. Jamaica Layne
    Feb 05, 2009 @ 20:13:19

    Here’s my excuse:

    “Opinion is a defense [to libel] recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.”[13]

    The [13] footnote refers to a U.S. Supreme Court decision. In a landmark decision handed down in 1990, (Milkovich v. Lorain_Journal Co., 497 U.S. 1), the United States Supreme Court essentially determined that there is no legal definition of fact versus opinion. The results of that case really muddied the waters as to what constitutes fact and opinion under the law (i.e., that the law cannot necessarily make this determination) to the point that several US states have modified their own laws to reflect the fact that federal law is pretty much silent on this following the supreme court decision.

    Here are some links to the summary of that case:
    http://en.wikipedia.org/wiki/Milkovich_v._Lorain_Journal_Co.
    http://www.bc.edu/bc_org/avp/cas/comm/free_speech/milkovich.html
    http://www.answers.com/topic/milkovich-v-lorain-journal-co

    So no, the law is not at all clear on this, nor is it settled, mostly thanks to this Supreme Court case.

    I looked it up, Jane, and found ample proof that you are wrong.

    Have a nice day.

  20. Courtney Milan
    Feb 05, 2009 @ 20:40:05

    @Jamaica Layne:

    (Full disclosure; I'm not a lawyer. But I have consulted attorneys regarding libel/defamation because I've done journalism over the years exposing some unsavory things about people and companies, and it pays for journalists to know the legal definitions of libel).

    Then why didn’t you get it right?

    You can’t cloak defamation with a statement that it’s an opinion–and it’s false and completely misleading to tell people that this is the case. If you say something like, “My opinion is that Jeanne Doe is a fat whore who commits adultery and has syphilis,” you’re making defamatory statements, and the fact that you said they were an opinion doesn’t help you. Likewise, if you say, “It’s a fact that Loretta Chase is the greatest living historical romance author,” no court is going to say that just because you said it’s a fact, it counts as a fact and not an opinion.

    The court isn’t going to take your word for it that it’s an opinion or a fact.

    Now, it may color the court’s assessment of the matter–think of the difference between the effect of these statements–”It’s my opinion that he blackmails people and extorts money,” versus “He engages in questionable business practices, that in my opinion, are akin to blackmail.” But the ultimate question is what the effect of the statement is on the person who hears it, and merely adding, “that’s my opinion” is not going to sanitize an otherwise defamatory statement.

  21. Courtney Milan
    Feb 05, 2009 @ 20:44:02

    @Jamaica Layne: Actually, the law is pretty clear. The muddying of the waters you refer to is that the Court has said that there is no hard and fast line to be drawn, no bright-line test to determine what is fact and opinion.

    Opinions are shielded.

    But this supports Jane’s position, that the COURT decides what is fact and what is opinion. The person making the statement cannot shield their statement from defamation by adding “it’s my opinion.”

    The reason why you are confused is that you are confusing “no bright line test for determining fact from law” with the question of who makes the determination.

    The COURT makes the determination. How they make that determination may not be settled, but Jane is absolutely right.

  22. Jane
    Feb 05, 2009 @ 20:48:51

    @Jamaica Layne Actually, I’m not wrong. You cite the law but you evidence no understanding of it. Whether a statement is a fact or an opinion is something that a judge decides, not a jury. It’s the difference between a question of fact (all questions deemed appropriate for a fact finder) and a question of law (all questions to be determined by the judge – except in a non jury or bench trial in which both questions of fact and questions of law are determined by the judge).

    The Milkovich decision stands for (among other things) the proposition that there does not need to be a separate constitutional defense for a statement of opinion.

    The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege

    The Supreme Court attempts to clarify the difference between fact and opinion. It does not change the nature of the question.

  23. Jane
    Feb 05, 2009 @ 20:57:33

    @Jamaica Layne The reason I am so irritated by your bald assertion of legal opinions isn’t that you have bald assertion of legal issues, but because your assertions are wrong. These could place others in legal jeopardy as you try to play lawyer without actually knowing what the law really is. As a journalist, I would think that you would take special care to get things right, to be accurate; but clearly you have no compunction running around the internet making legal claims that could put people in legal danger.

  24. Honeybun
    Feb 05, 2009 @ 21:13:18

    I think if someone runs their mouth, then let them foot the bill. I don’t think giving this man (DK) money for running his mouth will help teach him to stop defaming someone else on the net. IN MY OPINION, he should have kept his his opinion to himself.

  25. HelenKay Dimon
    Feb 05, 2009 @ 23:00:12

    I hate it when non-lawyers lecture lawyers on the law. Makes me want to take my pretty framed law degree and smack someone with it.

  26. MaryK
    Feb 06, 2009 @ 00:13:25

    @Jamaica Layne:

    (Full disclosure; I'm not a lawyer. But I have consulted attorneys regarding libel/defamation because I've done journalism over the years exposing some unsavory things about people and companies, and it pays for journalists to know the legal definitions of libel)

    So, you’re not a lawyer, but you play one on the internet? Do the people at AbsoluteWrite know this?

    It makes me really uncomfortable when non-lawyers start throwing around legal opinions. It sounds a lot like the unauthorized practice of law to me. But since I’m not a lawyer, I don’t know for sure. I wonder who would.

  27. Anion
    Feb 06, 2009 @ 05:38:20

    Personally, in deciding whose legal advice to take, I go with the lawyer.

    If none is available and I am determined to hear other viewpoints, I go for the one who doesn’t have a reputation for talking out of his or her ass and making ludicrous statements as a matter of course.

    That could just be me, though.

  28. Anion
    Feb 06, 2009 @ 05:44:23

    @Jane: I should have said, though, the explanation was appreciated either way. So many people seem to be leaping in to give legal opinions all over the place. It is nice to have someone who actually knows what they’re talking about, and is qualified, explain it.

  29. Jane
    Feb 06, 2009 @ 07:03:13

    @MaryK: It’s probably not the unauthorized practice of law, but in a horrible case of irony a lay person that runs around dispensing incorrect legal advice cannot be sued for malpractice or ethical violations or whatnot, but a lawyer can. Sad, but true.

  30. Kevin Nelson
    Feb 07, 2009 @ 00:04:27

    In #14 above she did at least preface her incorrect statement with “I believe.” Unfortunately then she dug in her heels. I have to say that I was under a somewhat similar impression, but I will accept correction. I thought that either judge or jury could decide for the defendant on grounds of the allegedly defamatory statement being mere opinion. But now I think I am being told that this is strictly a question of law, hence ONLY a matter for the judge to decide. (Which normally will occur in the course of a pre-trial motion.) Do any actual lawyers wish to confirm that my present understanding is right?

    I hope this doesn’t come across as too sarcastic, but I feel like anyone who takes legal advice from possibly pseudonymous online postings by an admitted non-lawyer pretty much deserves what they get.

  31. Jane
    Feb 07, 2009 @ 08:43:09

    @Kevin Nelson Kevin, I and Courtney Milan are both lawyers. The question of whether a statement is one of opinion or fact is definitely the province of the judge.

  32. Deb Kinnard
    Feb 08, 2009 @ 12:19:20

    So, my previous question stands: in the view of the attorneys among us, does a negative book review constitute defamation? What about reporting an author’s words and then writing my reaction to his own statements? How much actual protection do we have if we don’t like something, and say so?

    PA is also said to be posting, on its own blog, “Don’t say anything negative about us because we’ll sue…look what happened to Dave K.” Disingenuous it seems to me, because PA wasn’t a party to the P&E lawsuit.

    Thoughts?

  33. Michael Mendershausen
    Jan 23, 2010 @ 19:01:14

    One must always be circumspect with regards to attorneys’ opinions as they are wrong half the time. Is that my opinion? No, at trial, one attorney wins and one attorney loses, so overall attorneys lose half the time.

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