defamation self-help (for myself, too)
What does a person do when falsely accused of defamation? I’m not sure, since yesterday’s charge by “victim-of-the-law” June Maxam of the North Country Gazette was the first time it has happened to me, despite 30 years as a lawyer and over three as an opinionated and sometimes grumpy weblogger. I don’t think I’m going to set up a Defense Fund like Ms. Maxam’s. However, as a shlepper, there is one thing I can do that might help myself and our readers: collect links to a few good online resources on defamation. So, here we go:
— You can find very helpful FAQs on Defamation (especially in the internet context) at both the Electronic Frontier Foundation and The Chilling Effects Clearinghouse. As EFF says in its Bloggers’ FAQ on Online Defamation Law, “Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.” The FAQ also points out that truth is an absolute defense, and “For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.”— The AOL Legal Department has put together a page on Online defamation Decisions and litigation.— Prof. Euguene Volokh posted a piece just today that explains: “In a defamation case, at least when the speech is on a matter of public concern, “the plaintiff [must] bear the burden of showing falsity, as well as [the defendant’s] fault, before recovering damages.” This is true whether the plaintiff is a public figure or a private figure. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). The common-law rule was that the defendant must prove truth, but Hepps changed that for First Amendment reasons.”Ironically, my accuser, legal pundit June Maxam stated last month in a North Country Gazette editorial that “In a libel and defamation suit, truth is the best defense.” With that principle in mind, Mike at TechDirt.com asked today “Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?” (Oct. 26, 2006) Unfortunately, unless blocked from courts due to a pattern of vexatious lawsuits, just about anybody can sue for just about anything. Although sanctions can be levied for frivolous lawsuits (as we recently discussed here), responding to baseless charges is never enjoyable, can be very time-consuming and stressful, and very expensive. Nonetheless, spending a little time understanding the law and its protection for truthful speech, can help a shlepper with a clear conscience sleep even better.p.s. Although she is the one who has repeatedly hurled threats at me, I’ve also been accused of harassment by Ms. Maxam. Just looking at its definition in the Law.com dictionary, however, was enough research for me tonight. I’m going to be sleeping like a baby.
Update & Correction (Oct. 27, 2006; moved from top to end of post Dec. 31, 2006): [this story starts here, with a discussion of Fair Use and Copyright] I have learned this morning that, a day after I was accused of defamation by the Editor of North Country Gazette, I made an erroneous statement about NCG in a Comment to a prior post: After comparing the text of the two articles, I mistakenly said that NCG had taken another newspaper’s story without attribution. It appears that NCG had actually used a press release from a district attorney’s office, and followed it with its copyright notice forbidding reproduction without permission and saying “Fair Use is not applicable”. Here is the Correction notice that I have placed in the Comments to that post:
CORRECTION (Oct. 27, 2006): Yesterday evening, I erroneously stated in this Comment that NCG had copied from this article in the Westchester News, when it wrote this story — showing that at least five sentences from the NCG article were identical to the sentences in the Westchester.com article. It has been brought to my attention that the source of the NCG article was this release from the Westchester County District Attorney. I apologize for my error. Clearly, NCG did not take the information from Westchester.com. If NCG had attributed its story and facts to the Westchester DA’s press release, my mistake would not have occurred. My main point remains, however, that NCG was claiming exclusive rights to use materials that the public has every right to reproduce, when it placed the statement “This material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable” at the end of the article.
I have never had an “axe to grind” with NCG. In Oct. 30, 2005 and December 8, 2005, I had pointed to NCG articles as new sources at my other legal weblog and, on September 26, 2006, had discussed one of its editorials in a posting at this weblog. When I approached the Editor of NCG last week, it was with one simple purpose: to ask that she remove the incorrect clause “Fair Use is not applicable” from NCG articles and commentary. My purpose when I wrote about the topic at this weblog was to get the clause changed and to help the public better understand the Fair Use concept. That is why I wrote to Ms. Maxam thanking her, as soon as I learned that the clause was removed in the Oct. 24, 2006 articles at her site (and why I was disappointed when she reverted back to useing it the next day. I apologize to her for the one erroneous claim that I made, which is discussed above. I apologize to shlep‘s readers and Team for allowing the story to take up so much of this weblog’s resources this week and for allowing the situation to get muddied by making that one incorrect assertion. Having said that, I hope the sources supplied below on defamation law will be helpful.
A.R.Yngve
October 27, 2006 @ 7:14 am
I have no legal schooling, but this I know:
A) It matters how “big” the publication was in which the alleged defamation occurred(or not). A line in NEWSWEEK or on CNN carries greater weight than a blog.
B) Public figures are expected to take some badmouthing without resorting to lawsuits. Simply put: The more “in-your-face” a public figure is, the more people are allowed to say they’ve had enough of him/her getting in their faces.
Question: how many read Ms. Maxam? How well-known is she?
C) The Americans are a very litigious people. (Go ahead, sue me. You know it’s true.)
david giacalone
October 30, 2006 @ 1:04 pm
After reading our Oct. 28th Copyfraud posting, a non-expert wonders if claiming a copyright on a document from a government agency would be considered copyfraud, and whether or when doing so might violate the criminal section of the Copyright Law mentioned in that posting [Sec. 506(c)]. Do any copyright experts have an answer or opinion?
david giacalone
November 27, 2006 @ 12:41 pm
See Denise Howell’s Nov. 20, 2006, Lawgarithms column, California Supreme Court says individuals not liable for defamatory online third party acts, about the decision in Barrett v. Rosenthal. Denise collects addidional internet links on the case, as does Peter Black, in Blawg Review #85.