Business & Insurance Litigation Newsletter for Indiana

Parody Defense to Defamation Suits

The proliferation of internet websites increasingly provides disgruntled customers and clients with a convenient public forum for attacking businesses, and in turn, businesses are increasingly defending such tactics by filing defamation suits to counter the negative websites. In Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. 2007), the Indiana Court of Appeals addressed application of the so-called parody defense and Indiana's Anti-SLAPP Statute, I.C. §34-7-7-1, in deciding such a case.

Hamilton owned a water conditioning business, and defendant Prewett created a website dedicated to ridiculing Hamilton. The website contained numerous bizarre statements regarding Paul Hamilten (one letter in the name changed):

· "I have a Master's Degree in Water Conditioning from Smartass University, a prestigious mail order college."

· "The mayor of this town is terrified of me because I am so smart, but occasionally I do have to put him in his place."

· The website intimates that "Hamilten" engages in unfair trade practices by advertising a low price for salt, but then selling customers only the first bag at the low price and inflating the price on subsequent purchases.

· The website includes fabricated testimonials that Hamilten's water can cure severe facial disfigurement and attract women.

Prewett moved to dismiss Hamilton's complaint and for summary judgment based on the parody defense. The Court began by ruling that parody provides a defense to a defamation claim. The Court relied upon the U.S. Supreme Court's decision in Hustler v. Falwell, 485 U.S. 46 (1988), that parody "could not reasonably be understood as describing actual facts..." and therefore, by definition, parody cannot constitute "the false statement of fact" that a defamation claim requires.

Interestingly, the Court left open the possibility that with "actual malice" a defendant might still be liable, although this is inconsistent with the Court's statement that a parody can never provide the "false statement of fact" that is required for a defamation claim. A lengthy concurring opinion notes that the majority employed a false dichotomy and that the proper test is whether the facts support a defamatory imputation; the fact that a statement may be uttered in jest does not necessarily insulate that statement from an action for defamation.

On another issue, Prewett sought attorney fees pursuant to Indiana's Anti-SLAPP Statute, I.C. §34-7-7-1. This statute applies to "Strategic Lawsuits Against Public Participation," that is, to meritless suits aimed at silencing an opponent's speech on a public issue. the statute provides for recovery of attorney's fees and costs by a defendant who prevails on a motion to dismiss. The Court denied a fee award to Prewitt, finding that Hamilton's suit was not an attempt to silence Prewett's exercise of free speech.