Watch Your Mouth!

Be careful what you say on your business’s blog, it could land you in court.

The question of libel and the Internet has come up once more. There have been lawsuits by and against online writers for some time, and their number grows every year. The rules are often the same as for print publications, but depending on where you are, a libel suit could be filed against the author, the website, the ISP, or even the place where the author posted his remarks. For example, if you write your libelous blog post in a Singapore Internet cafe, you and the cafe would be liable. In fact, your neighbor two computers away, reading your blog, could incur additional liability. The international nature of the Internet means you must be careful in your writings. This article, however, will concentrate on American defamation law. If you are writing for an overseas audience, or are overseas yourself, you should check any applicable laws.

Slander and Libel: A Definition

Slander and libel are types of defamation, which is defined as an injurious attack on someone’s reputation. The difference between them is the means of their expression. When the expression is fleeting—speech, sign language—then it is slander. If you are at a party and begin to talk about Mr. Green and tell others that he is a thief and a con man who beats his wife—representing these things as fact—then Mr. Green will be able to take you to court for slander. If you say those very same things in a medium that is not fleeting, such as a newspaper or on your blog, then it is not slander, it is libel. At its most basic, slander is spoken, it’s fleeting; libel is written, more permanent.

For a libel case, you need these ingredients:

* The information was published
* The plaintiff was directly or indirectly identified
* The remarks were defamatory towards the plaintiff’s reputation
* The published information is false, and that the defendant is at fault
* The plaintiff suffered legally cognizable damage

So, if Mr. Green can demonstrate these five conditions, he has a libel case against you. One of the questions before the courts these days is whether or not blogs and bulletin boards qualify as “publishing.” From the point of view of defending against a libel charge, that question offers poor footing. There are, however, other defenses available.

Defending Against the Libel Accusation

Assume that your blog qualifies as “publishing” for the purposes of libel law. According to intellectual property attorney Alfred C. Frawley, that is just what it is:

Blogging is publishing, just like traditional newsprint publishing or broadcast media publishing. Whether you are a for-profit publisher, an independent writer or an employee blogging on company time, you are subject to the same rules and legal standards as other publishers.

No new legal rights or obligations are created by blogs. It is simply a different means of carrying out existing activities, but given its capacity for nearly real-time dialog, blogging may result in your employees publishing information before carefully considering the consequences.

In the blogosphere, nothing is private and everything published is subject to legal implications, including: defamation and libel, copyright and trademark issues, rights of privacy and business-related intellectual property issues.

That said, here are some other defenses you can use to fight Mr. Green’s libel charge:

Truth. The truth is an absolute defense against defamation in the United States, as well as in the common law jurisdictions of Canada. The idea of this goes back to Roman times in that you cannot seek legal protection for a false reputation. So, if Mr. Green really is a thief and a wife-beater, he has no libel case against you. Also, statements made in a good faith, with a reasonable belief in their truth, are generally treated the same as true statements, but that will be determined by the court. Ordinary people, for example, can reasonably rely on a single newspaper report to believe that something is true. That newspaper, on the other hand, must carefully check multiple sources to assure accuracy.

Privilege. Privilege comes into play as a defense when dealing with witness testimony, attorneys’ arguments, judges’ decisions, rulings, and statements made in court; statements by legislators on the floor of the legislature; or statements made by a person to their spouse. Such statements cannot be cause for any defamation claim.

Opinion. Because the nature of opinions makes them inherently non-falsifiable, if the allegedly defamatory statement is not a statement of fact but rather an expression of opinion, a defamation claim cannot normally be brought. Be careful. Some jurisdictions see little, if any, legal distinction between fact and opinion.

Fair Comment. In a matter of public interest (such as legislation or other official acts), arguments made with an honest belief in their soundness are defendable against a defamation claim. This is true even if the argument offered is not logical as long as a reasonable person could honestly entertain such an opinion.

Consent. This defense, which is based on the claim that the plaintiff actually consented to the release of the defamatory statement, is rarely invoked.

Innocent Dissemination. This defense is for a defendant with no knowledge of the defamatory statement, or no reason to believe the statement was defamatory, as long as such ignorance was not due to negligence. For example, FedEx cannot be held liable for delivering a sealed, defamatory letter to Mr. Green’s employer.

Libel-Proof. There are some people who are simply incapable of further defamation. Their reputation in the community is so bad that any new defamation could do no further real damage. Since, in most jurisdictions, the plaintiff has to prove damages, if he is already so tainted that no new damage can be done, he has no case.

Harmless Statement. An insulting statement that does not harm someone’s reputation is not defamatory. You may write something nasty about that ghastly discolored hanging mole on Mr. Green’s nostril that you have been staring at all evening, and the way it vibrates as he breathes, but since that has nothing to do with his reputation it is not defamatory.

Higher Standards for Public Figures

There are special rules that apply in the case of legitimate public figures (celebrities, politicians, etc.) that can be applied as a defense against a libel suit. The plaintiff must prove that the author published the defamatory material with malice and a reckless disregard for the truth. This is a higher standard than one would see if the matter involved private citizens. This will be very important to remember since most blogging concerns public figures.

Blog Libel in Action

One of the most dangerous types of blogging is when you engage in debunking. The reason for that should be obvious. You are going into someone’s activities and you are calling them out as frauds. Some actually are frauds, others are merely true believers. Either way, you open yourself up to lawsuits if your blog goes after them. Consider the following 2003 blog post

Men are from Mars…

17/11/2003 in Media and Journalism by Gavin Sheridan | 19 comments

The author of the famous book, “Men are from Mars, Women are from Venus”, John Gray, is a fraud.

Man I haven’t seen this story anywhere…

The relationship guru who constantly promotes himself as ‘Dr. John Gray’ and lists a ‘PhD.’ has only one accredited degree, a high school diploma. Neither his BA nor his MA is from an accredited institution of higher education.

The author, Gavin Sheridan, then discusses Gray’s ex-wife, Barbara DeAngelis, who also received her PhD from the “now-defunct Columbia Pacific University (CPU).” It seems that Sheridan is troubled by the degrees these relationship experts hold. He is surprised that he has seen this nowhere else in the media and so he runs with it. Some time later, in 2004, he gets a response from a California law firm. Gavin’s reaction:

To my surprise it was a formal letter from a firm, Phillips, Erlewine & Given LLP, Attorneys at Law, with a subject “Cal. Civ. Code 48a Demand for Correction”. I was being told in the letter that I must retract a remark made on my blog last November, and to publish an apology, within three weeks. The remark is considered, it said, “false, unprivileged, and defamatory.”

The remark in question was the word “fraud.” The letter points out that CPU was a “State of California approved university” and that the doctorate is legally valid and therefore so are any credentials upon which it is based. The letter also points out that Gray’s professional credentials are all perfectly valid. The letter also points out that Gray received his undergraduate and graduate degrees from the Maharishi European Research University (MERU) in Switzerland in 1977.

CPU was closed in 2000 and had never been accredited, but the State of California holds that doctorates awarded between 1978 and mid-1997 are valid. Gray received his in 1982. As for the Maharishi European Research University, it is related to an accredited American school, the Maharishi University of Management USA, but the European branch seems far more focused on alternative healing, meditation and spiritual pursuits. There is really no way to tell if it was accredited during the time that Gray attended classes there or even if the curriculum was not dominated by thought therapy and Sitha healing.

Did Sheridan do this kind of vetting before writing his piece. Maybe, but it is not reflected in the blog post. He needed to be fair and tell the whole story. Does Gray have a valid doctorate? Yes. True, we are not talking about a doctorate from Johns Hopkins, but the State of California is satisfied with it. Regarding MERU, who knows? Is the man’s undergraduate and graduate education unconventional and does that invite skeptical questions? Yes, but none of these things means that Gray is a fraud.

Understanding that, Sheridan should have never called the man a fraud. At least, he should have never stated the assertion as fact. In doing so, he opened himself up to libel charges and possible legal trouble if he did not fix that blog post. The fact that he is in Ireland may help him avoid real consequences, but if Gray was determined to pursue this, he could go after Sheridan, his Internet Service Provider, the service that publishes Sheridan’s blog—whoever has pockets he can reach into for damages, assuming he can prove that he was damaged. The other problem that Gray faces is that as a public figure, he would have to prove actual malice in the form of reckless disregard for the truth, but knowledge that Gray’s doctorate is considered valid could do that since that would constitute reckless disregard for the truth.

Like the Old West, the days of the wide open cyber-spaces is fast coming to an end. The law is catching up and with it comes regulation, litigation, and all the other trappings of civilized discourse. One sign of that is the growth in libel cases on the Internet, especially coming from public figures for whom an actual malice standard is recognized. People are being held accountable for what they say as well as for what they do. Remember, the truth is an absolute defense, but play it safe: If you don’t know the truth, or you know what you are saying is a lie, don’t write it. Doing so makes you vulnerable to a charge of actual malice. It is as simple as that.

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