Influencer's Nondefamatory Service Review Could Be Aiding and Abetting of Defamatory Comments
From Auto Junction Inc v. Kaluzhin, 2024 WL 7050639, decided Oct. 8, 2024 by Arizona Superior Court (Maricopa County) Judge Melissa Iyer Julian, but just posted on Westlaw several days ago—I'm skeptical about the aiding and abetting analysis, but wanted to flag the case in any event:
In this case, the only alleged defamatory statements Defendant made were included in his YouTube video where he stated that Auto Junction "don't give me my money," "they don't give me my bucks." As Defendant's reply brief points out, these statements are not defamatory because they are not substantially false. Indeed, Plaintiff's First Amended Complaint admits that the contract between Plaintiff and Defendant provided for a delivery price of $1,150.00. Because the vehicle was delivered late and with only one set of keys, Auto Junction paid what it considered to be the "reasonable value" of the delivery, but did not pay the full contract amount. Accordingly, Plaintiff's defamation claim fails as a matter of law.
The crux of Plaintiff's Complaint, however, is not that Defendant made defamatory statements himself. Instead, the Complaint asserts that Plaintiff encouraged his many followers to post false, negative reviews about Plaintiff's business. The damage to Plaintiff's business was accomplished by those false negative reviews posted by Defendant's Youtube followers. As a result, Plaintiff also asserts a claim against Defendant for "aiding and abetting" defamation.
In order for a plaintiff to prevail on an aiding and abetting claim, proof of the following elements is required: "(1) the primary tortfeasor must commit a tort causing injury to the plaintiff; (2) the defendant must know the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in achieving the breach." "Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance." Restatement (Second) of Torts § 876, cmt. d (1979). An illustration to section 876 of the Restatement (which Arizona follows) elucidates the kind of encouragement necessary to create aiding and abetting liability under Illustration 4: "A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C."
The Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion establishes that Defendant's conduct was intended to encourage his followers to attack Plaintiff's business publicly. Plaintiff presented evidence that these third-party reviews were false and defamatory and are therefore unprotected speech.
While Defendant's encouragement in the video does not reflect a direct request that his followers post negative reviews of Plaintiff's business, the Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion are sufficient to infer that Defendant intended that result and knew it would be achieved by the statements made in his video. See Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund (Ariz. 2002) (knowledge for purposes of aiding and abetting "may be inferred from the circumstances."). Accordingly, the claim that Defendant aided and abetted the defamation of Plaintiff's business is not subject to dismissal as a matter of law, either under the anti-SLAPP statute or for its failure to allege the elements of an aiding and abetting claim….
But the court also concluded that the claim was foreclosed by the statute of limitations, and the Arizona Court of Appeals affirmed on that ground this February. Here are more details on Kaluzhin's post, from the appellate decision:
[Kaluzhin's] video showed a verbal altercation between Kaluzhin and an Auto Junction representative. At the time, Kaluzhin had about 150,000 YouTube followers. {As of 2024, Kaluzhin had about 1 million YouTube followers.} To support its claims, Auto Junction highlighted a portion of the 2019 video where Kaluzhin addressed his followers and stated:
Hey, gang, they don't give me my money. Here is the name of the dealership center: Auto Junction Benz & Beemers. The huge appeal… huge appeal to you, guys… Phoenix, dealership center… they don't give my bucks. How is it possible to screw people like this?! …
You must show what crazy subscriber you are, who stand… stand for the truth. This is the very case to stand for truth. Go ahead, my… my crazy ones. Nobody can take money from an average driver. Nobody can…
The record shows that reviews began on or about November 1, 2019, from various sources. Some reviews included only a rating while other reviews included comments. The following are some of the comments Auto Junction received:
You will delete reviews for a long time. Until you return to the driver his earned money….
Awful customer service. Rude people. Don't buy anything here! …
Scammers! …
the owner rude pig. He dont wanna pay for delivery everytime. stay away!
Kaluzhin's videos are apparently in Russian, and plaintiffs argued on appeal that "his fanbase is largely made up of persons in Russia and surrounding areas in Western Asia and Eastern Europe." His YouTube channel appears to be https://www.youtube.com/@i_am_americanec.
Note that on Feb. 7, 2022, Judge Sara J. Agne issued a TRO blocking defendant "from posting or allowing to remain posted the video on YouTube dated 10/28/2019 with the link as follows https://youtu.be/Bpdmys6EMW8, as well as any online reviews on any internet platform to include but not limited to YouTube, Google, Yelp, Car.com, BBB.org, or Trustpilot, concerning the Plaintiff and/or encouraging others to post online reviews about the Plaintiff."
By the way, the court didn't discuss 47 U.S.C. § 230, perhaps because it wasn't raised by the defendant. It's not clear whether § 230 have offered Kaluzhin a defense against the aiding and abetting theory.