Liability risk

Liability risk:

Whether you run a theater, recording studio, or an e Commerce website, all businesses need to minimize their legal liability and risk. Our lawyers will assess the structure of your operation, such as its physical or digital space, the types of products you sell, who your consumers are, what type of company you have filed under (LLC, Inc, etc.), and so on. From there, we will tailor the right risk plan, complete with permit applications, insurance policies, and more, so you can worry less about liabilities and concentrate on growing your business.

In the state of California, libel is a serious civil offense that comes under the umbrella of personal injury. Libel is one of two defamation causes of action, the other being slander.

So, what is libel, and how is it different from slander?

In essential terms, libel is a visually-represented form of defamation. Libelous statements may be written, printed, pictorially-represented, or otherwise represented in a fixed, non-transient form. Slanderous statements, on the other hand, are made in an unfixed, transient form, such as oral statements or even by physically gesturing.

Let’s consider two basic examples to illustrate the difference between libel and slander in a real world scenario.

Suppose that you are a carpenter. You sell high-quality wood tables and chairs to buyers, both online and in-person. Now, suppose that one of the buyers is unhappy with the crafted product they bought and has decided to deride your work publically. This buyer claims that you lied about the wood used in the product, and that the wood actually used was of a different type than advertised.

Scenario #1: the buyer discusses their specific dissatisfaction (the false advertising claim) during in-person conversations with attendees of a popular regional carpentry trade show.

Scenario #2: the buyer posts their claims on a popular online message board frequented by residents of your city.

Scenario #1 is oral defamation, and therefore slander. Scenario #2 is a fixed, written defamation, and therefore libel. In both cases, you may be able to successfully argue – assuming that the buyer’s claims are false, and depending on the circumstances – that the buyer’s defamation substantially damaged your reputation and business.

In California legal actions, libel and slander rely on quite different frameworks, so let’s focus on the libel cause of action for now.

Understanding Libel from a Legal Perspective

California Civil Code sections 44(a), 45, and 45(a) cover libel. According to the letter of the law in Civil Code section 45, libel is defined as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

In simpler terms, libel can be broken down into the following elements:

a) the defendant published a statement (written or visual) with the intention of having it perceived as a statement of fact, and not one of opinion.

b) the statement caused plaintiff injury in the form of exposure to public contempt and ridicule, reputational problems, social problems, or even career problems.

c) the statement is false.

d) the defendant was not given permission to publish said false statement, nor was defendant privileged to publish it.


The concept of “publication” can be confusing to the layperson unfamiliar with legal terminology. Publication in the libel context does not indicate formal publishing in the media sense, where publishing is frequently used to describe commercially written work.

In other words, it is not necessary that a writer-defendant “publish” their libelous statements in a commercial newspaper, for example, in order to be found liable. If the same writer-defendant wrote the libelous statements in a personal email to their acquaintances, they might similarly be found liable.

Publication in the libel context simply means a communication to a third party who is aware of the statement’s defamatory meaning, and who is aware of the identity of the person for whom the statement supposedly applies. Crucially, the publication element is satisfied by communication to a single person – publication does not have to involve multiple parties, nor does it have to be made in a public space (though of course, public statements are easier to prove from an evidentiary perspective).

Suppose that a person makes a false statement regarding a particular car maintenance issue that occurred at an auto repair shop, but does so in an email to a friend who lives in another country. Perhaps the friend does not own a car, and is totally unfamiliar with car maintenance. Unless the tone of the statement was particularly negative, a simple descriptive false statement in the email might not be libelous, as the friend would most likely be unaware that such a statement was even defamatory, nor would the friend likely be aware of the auto shop involved.

False Statements

For a defendant to be held liable for libel, their statements must be false. True statements of fact will completely shield a defendant from liability.

The “truth” defense may seem odd at first glance, given that defamation is intended to protect people from harmful reputational damage, but in reality, defamation law is only intended to protect people from harmful reputational damage caused by false statements.

Thus, even if a person wrote seriously harmful negative statements about you in a popular newspaper, if those statements are probably true, then you cannot successfully sue them for libel. Normally, in a libel case, the burden of proof is on the defendant to prove that their statement is true, and not false. However, in situations where in the plaintiff is a public figure, or where the statements involve an issue of public concern, then the burden shifts to the plaintiff to prove that the statement is false.

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