“Real Housewives” cast members evidently like spending time in law offices based on the numerous cease and desist (“C&D”) letters floating. I too relish scanning the complimentary People magazines that pervade my law firm’s waiting area, but no one wants to be on the receiving end of a lawsuit for defamation.
On Jan. 27, “Real Housewives of Atlanta” star and “Celebrity Apprentice” contestant, Kenya Moore posted a cease and desist letter on Instagram that she received from co-star, NeNe Leakes’ attorneys. In pertinent part, the letter states, “You are hereby directed to cease and desist making any and all false and defamatory statements, which are injurious to her [Leakes’] character and reputation.”
Claudia Jordan also received a C&D letter, compliments of NeNe, which you can read exclusively about here:
The specific nature and temporal aspects of the false and defamatory statements Kenya and Claudia allegedly uttered/wrote is unknown. NeNe is charging Kenya with making actionable statements during “television broadcasts and through social media and the BravoTV blog.” The C&D letter does not detail the false and defame statements themselves. We do not know the date The Secret Firm, P.C. sent Kenya the C&D letter.
C&D letters do not actually signal litigation. In fact, a C&D letter does not even have to be signed or reviewed by an attorney, though it should be. This one was issued by The Secret Firm, whose law firm practice areas include personal injury, criminal defense, civil litigation, and immigration, according to its website.
C&D letters are cheaper than litigation and can achieve a speedier result if the defendant is willing to cooperate. A C&D tells someone to stop his or her illegal behavior (cease) and not resume it in the future (desist). Typically, it also expresses to the offender what legal actions you’ll take if they ignore the C&D. Be forewarned that these letters lack teeth. If Kenya and Claudia do not believe NeNe will pursue a claim, or they can dispute her claims, NeNe will have no choice but to either file a lawsuit or abandon her accusation. In some C&D circumstances, letters are sent as a form of gamesmanship and seek to intimidate their recipients into giving up their rights without judicial intervention.
The fact the former Miss USA posted the letter on her Instagram account may demonstrate, at least superficially, that she finds its contents meritless. The model captioned:
“I guess this is @neneleakes way of saying happy birthday #RHOA #HypocrasyAtItsBest #byegirl #SheTriedIt #SoNastySoRude.”
In response, the Broadway actress and friend to RHONJ’s Teresa Giudice tweeted, “They need me for press because they can’t get none.”
Georgia’s tort law of defamation includes claims for libel and slander. Defamation can appear either in written form, which is called libel, or spoken form, which is deemed slander. Defamation is a state law cause of action and it protects a party’s “interest in reputation and good name” by compensating harm brought to a person’s character through the use of false statements.
In Georgia, the elements of a defamation claim are:
- a false statement about the plaintiff;
- communication of the statement to a third party in the absence of a special privilege to do so;
- fault of the defendant amounting at least to negligence; and
- harm to the plaintiff (damages), unless the statement amounts to defamation per se.
Public figures (like NeNe Leakes) have a more difficult legal burden to overcome since a public figure plaintiff must prove actual malice in order to prevail in an action for defamation. Actual malice means NeNe has to show Kenya and Claudia exhibited a complete disregard for the truth when making defamatory statements against the plaintiff.
What words were so careless and false to set NeNe on a C&D letter-shopping spree? I encourage AATT readers to post their thoughts on that question here. Remember, the C&D letter does not outline the particular nature of NeNe’s defamation claims.
Kenya and Claudia may not be the only potential defendants: The immense popularity of reality television may ultimately necessitate courts to weigh in on defamation actions with the network and/or producer as defendant.
Some in the legal community argue the network gives life to the unscripted programming and offers a platform for defamatory statements to arise. (Networks and producers have historically used contract theory as a defense, insinuating that the participants consented to any consequences resulting from their involvement.)
Nonetheless, consider the notion that editing can unfairly portray participants bordering on defamation. Moreover, will staging an event where one person is likely to defame the other create new legal implications for the networks?
To date, there have been legal claims against networks and producers over contestants/cast members having their reputations ruined. Lawsuits are filed against deep-pocket defendants for a litany of causes of action, including defamation, invasion of privacy, breach of contract, negligence, and intentional infliction of emotional distress.
Cast members may sign away personal privileges when they place their John Hancock on the dotted line of a reality television contract, but they do not relinquish their constitutional rights. The law may eventually create new parameters on the genre in light of defamation claims.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.