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Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Saturday, January 17, 2009

Horse Industry Defamation: Liability Revisited

As previously discussed in You Cant Say That! What Horse People Need to Know about Libel, Slander and Defamation, claims of horse industry defamation are frequent, but successful lawsuits are rare. However, a recent situation has highlighted an area of great potential liability for both individuals and equine websites. Equine Legal Solutions certainly doesn't condone abusive training practices. However, we feel a responsibility to outline the legal risks of publishing animal abuse allegations.

Popular websites such as GoHorseShow.com and HorsemansLibrary.com have published accusations of abuse allegedly committed by multiple world champion Western Pleasure trainer Cleve Wells. The accusations concern a horse allegedly discovered at Mr. Wells' property with infected spur wounds and fractured bone in the bars of its mouth. The accusations are detailed, and they include graphic color photos of the alleged wounds. In some published accounts, the allegations include written statements that appear to have been made by the horse owner, another witness and two veterinarians. All of that information tends to make the accusations look more credible.

As a result, concerned horse people are reading these allegations, believing them, and spreading them like wildfire. To date, Equine Legal Solutions has received three separate emails and two telephone calls about these allegations, all from folks with no firsthand knowledge who are simply passing on what they have read and commenting upon it. Equine chat boards are live with commentary on the situation. Obviously, these allegations have reached a very wide audience and, presumably, have negatively affected public opinion about Mr. Wells.

Each "publication" and "republication" of a defamatory statement can be counted for the purpose of determining liability. What is a "publication"? The written statements were "published" when they were given to another person, whether that exchange took place by email, hand delivery, or otherwise. So, the horse owner published her statement each time she sent it to a website or emailed it to a friend. Each time those statements were then passed on, whether posted to a website, emailed or otherwise, they were "republished". So, in situations like this one, there are usually many, many republications. Note that the republications are typically beyond the control of the original publisher, yet the original publisher can have liability for them. So here, the horse owner appears to be the original publisher, and therefore she may have liability for all of the republications.

While equine websites republishing defamatory statements might argue that they are simply reporting news (and therefore should be immune from liability), there are potential problems with that defense. If the websites don't make appropriate efforts to verify facts before publishing defamatory statements, i.e., if they are negligent, that can lead to liability. In addition, when websites make decisions about what materials to publish, such as in the case of chat forums where some negative threads are removed and others left intact, that exercise of discretion can lead to liability. The publishing website is in effect helping its readers decide which statements are credible.

Unless the subject of the defamatory statements is a "public figure," mere negligence is sufficient to defeat a fair report privilege defense. Here, while Mr. Wells may be well-known in certain segments of the horse industry, he is arguably not well-known outside the horse industry. Therefore, it's highly debatable whether he is a "public figure". If he is, he would almost certainly be a "limited public figure" - that is, a public figure only to a certain narrow audience.

If a court were to determine that Mr. Wells is a limited public figure, that may provide the equine websites with a viable defense, but that defense won't likely help the horse owner and other parties. Public figures are expected to endure a certain amount of public criticism and therefore, a public figure bringing a defamation case must show that the publisher of the defamatory statement acted wtih "actual malice" - that is, that they meant to the cause the public figure harm. Here, the witness statement allegedly made by Gary Russ looks like it was made with actual malice, because it calls for AQHA to take disciplinary action against Mr. Wells. On the other hand, in the absence of evidence to the contrary, the websites and individuals republishing Mr. Russ' statement likely meant no harm to Mr. Wells. (This is a situation where emails could provide evidence of actual malice, such as "I'm going to post this on my website and destroy this guy!" So, website managers, take heed of what you say when deciding to publish negative materials!)

On casual examination, there are some notable issues with the alleged evidence being published, perhaps enough to support a claim that those publishing and republishing the allegations were negligent in doing so. The typewritten statement allegedly made by the horse owner is not signed, nor is it dated. This statement alleges that the horse in question, Slow Lopin Scotch, is co-owned by Nicole Marrs (the alleged author of the statement) and Wayne Holley, her father. However, there are no published statements that appear to have been made by Mr. Holley. The statement allegedly made by veterinarian Larry McConnell is not dated. Neither Dr. McConnell's alleged statement nor Dr. Karen Adler's alleged statement is printed on clinic letterhead - rather, these letters simply have a typewritten clinic name and address at the top. In Equine Legal Solutions' experience, veterinarians' statements usually appear on clinic letterhead, particularly if they are made in anticipation of a lawsuit. There are no copies posted of the actual veterinary records with the original notes made by the examining veterinarians, or copies of the radiographs showing the bone fragments in the bars of the horse's mouth. The photos of the wounds are not time- and date-stamped. They also do not show any details that uniquely identify the horse in the pictures. Slow Lopin Scotch appears to be a bay with no white markings or brands, so the photos could theoretically be of any bay horse, taken at any time. If the evidence and allegations are in fact truthful, the defendants, not Mr. Wells, would bear the burden of proving truth.

While most opinions posted by persons commenting on the allegations are likely protected by the First Amendment, some are not. For example, if a chat board poster were to opine, "I used to work for Cleve and I'm not surprised," they are implying that they have special knowledge and therefore their opinion has a basis in fact. As a result, that poster could be liable for their defamatory statement.

Unlike most horse industry Internet defamation claims, Mr. Wells should have ample evidence to support damages claims. Given that Mr. Wells not only trains for private clients, but also sells training videos and tack to the general public, these horrific accusations are sure to have a measureable negative impact on his business. However, because the allegations impugn his professional reputation, Mr. Wells may not even have to prove damages. The court may consider the allegations to be per se defamation.

All things considered, this situation should be a cautionary tale for the horse industry - whether the allegations are true or not. Horse trainers should be aware that what happens in their barn may not stay in their barn. Training clients should check in on their horses. Equine website managers should be aware that evidence may not always be what it seems, and that if they publish juicy materials without proper due diligence, they could be liable. And finally, individual horse owners should be careful about what they say when they pass along negative information.

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