Man has defamation claim for online post

June 27, 2008

A lawyer can sue a man who posted a message about him on an Internet chat board for defamation for suggesting he should be turned into bar disciplinary authorities.

The online poster claimed he was just offering an opinion.

But a Richmond federal judge let the lawsuit proceed, refusing to dismiss defamation claims filed by a Maryland lawyer who got into an online spat with writers who posted to Absolute Write Water Cooler, “an online forum for aspiring authors.”

Victor E. Cretella III represents PublishAmerica, a Frederick, Md.-based firm that calls itself the nation’s number-one book publisher. The PublishAmerica Web site describes the company as a “traditional advance-and-royalty paying” publisher that uses print-on-demand technology, but a 2005 Washington Post story described authors’ complaints that the company operated more like a vanity press.

U.S. District Judge James R. Spencer’s opinion last month in Cretella v. Kuzminski laid out the lawyer’s allegations:

In 2007, Cretella sent two cease-and-desist letters asking a female poster to the AWWC site to stop defaming his client. When that poster said Cretella was forcing her to stop complaining about his client, Petersburg poster David Kuzminski weighed in the next day.

Kuzminski posted a message saying “it’s time to report Vic Cretella to the Maryland Bar Association for attempted extortion” and that Cretella’s law firm, Gordon and Simmons, “might not want the black-eye that he’s giving them.” Kuzminski also posted a copy of an e-mail he sent to the law firm and to several members of the Maryland bar asserting that Cretella “seems to be involved in what I would characterize as extortion” and that he intended to report Cretella to “the Maryland State Bar Association.”

Almost three months later, Kuzminski posted a message saying, “We can only speculate on how much embarrassment [Cretella] caused” his law firm, which he left in April 2007. Kuzminski also posted messages that Cretella “might be just that closer to losing his license” to practice law; that Cretella had “attempt[ed] to attack [another] writer”; that he has “infringed upon or is breaching the terms of [a PublishAmerica] contract”; and that “it’s time to report Vic for his behavior” to the Maryland State Bar Association.

Kuzminski also posted a comment suggesting Cretella had left his law firm job because “[s]omewhere along the line you actually have to produce.”

Cretella sued Kuzminksi in Richmond federal court for $200,000 in compensatory and $200,000 in punitive damages.

Statements of opinion are protected, and Kuzminksi tried to duck the defamation charge by claiming he was only expressing his opinion about Cretella’s allegedly unethical conduct.

But Spencer said that an opinion that is “laden with factual content” may be defamatory, citing a 2007 Virginia Supreme Court opinion. A statement that a person has broken the law “may amount to an expression of opinion,” Spencer said, but “many courts have regarded accusations of unlawful activity as statements of fact.” Kuzminski did not necessarily escape liability by saying Cretella had been “involved in what I would characterize as extortion.”

The court said several of Kuzminki’s other alleged statements – the accusations of extortion and unethical conduct, embarrassment by Cretella’s former law firm, that Cretella took action against another author – all were statements of fact that could be shown to be false.

Under Virginia law, Cretella only has to prove that Kuzminski acted negligently in posting the allegedly defamatory comments in order to recover compensatory damages, Spencer said.

Cretella’s claims that Kuzminski accused him of breaking the law and professional ethics rules without explaining or providing evidence for this belief, and his request that other people provide “documentation” to the Maryland State Bar Association, supported the claim for punitive damages.

Cretella and Kuzminski each appear pro se in the lawsuit.

Written by Deborah Elkins  |  Filed Under Uncategorized 

Comments

2 Responses to “Man has defamation claim for online post”

  1. Susan Dotson on August 29th, 2008 12:16 am

    Reads like an opinion to me. Free speech needs to be preserved. While statements may not be pleasant it’s a stretch to call them defamatory. I’m not certain of what ethics rule is in question here — if someone could identify it — I’d like to know if the Bar has ever brought any lawyer up on that ethics charge. So, if the courts view the statement re unethical conduct as actionable as a cause for defamation, does that mean the Bar has to investigate to determine if there was unethical conduct???? BTW, complaints to the Bar are exempt from being defamatory — likewise statements to those who have an interest in the issue. I would view lawyers as public figures being officer’s of the court and that would provide protection to the author of the comments.

  2. Susan Dotson on August 29th, 2008 12:22 am

    One more thing…. See Penn Warranty Corp. v. DiGiovanni, 600659/04 where a NY Supreme Court Judge rules that statements made on DiGiovanni’s site was protected free speech, not defamation. THe statements included: “blatantly dishonest company” “running scams” “committing fraud on a grand scale” ….

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