So You've Been Threatened With A Defamation Suit

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66 Responses

  1. Tim! says:

    McDonald's isn't even exactly the same everywhere.

  2. Ken White says:

    @Tim!

    I had a comment about rice balls from McDonalds analogizing them to civil law jurisdictions and then I decided that a footnote to a footnote approached self-parody.

  3. Wayne Borean says:

    I've been threatened a number of times over the years. Some of the threats have been hilarious.

    Problem for them, I'm accurate. I site chapter and verse. So when I get complaints, I point them back at what they said. That usually cools them off.

    I also explain that I have a rule that no post will EVER BE REMOVED from the site.

    Ken is right though. You need to sit down, and take time to cool off. Getting excited is the best way to mess yourself up. And keep a lawyer's number handy.

    Wayne

  4. Clark says:

    Reddit isn't responsible for what Redditors write in threads

    As best I can tell, no one is responsible for what Redditors write in threads.

  5. Rhonda Lea Kirk Fries says:

    I was threatened–endlessly, relentlessly, in countless online posts–and then I was sued. By a deranged lawyer (who is not unlikely to file suit again if he sees this comment, because that's just the kind of nutbar he is). He's still mucking about with one of the crossclaimants in the appeals court, but I had a very good lawyer who extricated me (and my husband and all our co-defendants, save one) tout de suite.

    You can read the succinct version here:

    http://blog.ericgoldman.org/archives/2010/04/online_defamati.htm

    It was pure comedy. Costly, to be sure, and it cemented my decision to never work again as a paralegal, but for the educational and entertainment value, I wouldn't have missed it for the world.

    As to your guide, I know people who will find it very useful, so I plan to spread it far and wide.

  6. Shane says:

    Fuck, fuck fuck fuck … you said Equatorial New Guinean Taint Rot. I think that I have that OMG … what … errr … ohhh Step 1.

  7. Wayne Borean says:

    Two things.

    1) Is that really a lawyer threatening you? I had a case where I received an email threatening me a while back. It didn't pass the smell test, so I did some investigating. Lawyer's office is in Kentucky. Threat came from California. Turned out the lawyer's client was trying to save money, and the lawyer had no clue anything was happening.

    2) Think about the jurisdiction. I was running a site hosted in Canada, with a DOT.CA domain name, using a hosting company with no American presence. I get a DMCA notice. Pointed out that the DMCA was an American law, and that the American legal system has no jurisdiction in Canada. Offered to find out what Canadian court they needed to file in, but they declined my kind offer.

    A lot of people will attempt to steamroller you, with no justification. Just sitting still for a day or two to think will often take the wind out of their sails. It is also a good idea to investigate anyone who makes threats, in case, like One above, they aren't really who they say they are.

    Wayne

  8. TJIC says:

    @Rhonda Lea Kirk Fries:

    I was threatened–endlessly, relentlessly, in countless online posts–and then I was sued. By a deranged lawyer

    I had a deranged lawyer tell me that he was going to fly me to California so that we could have a no-holds-barred street fight.

    It was special.

  9. Rhonda Lea Kirk Fries says:

    @TJIC

    Oh, I'm laughing too hard to type (because I actually knew a lawyer who made a similar proposal to an individual who infuriated him to the point of derangement).

    When lawyers go crazy, they offer up more comedic moments than ordinary human beings should have to bear. I've never seen anything quite like it…and I hope never to have up close and personal experience again.

    I trust you declined the offer?

  10. Kevin says:

    Are you the sort of person who gets a little itch and looks on WebMD and becomes convinced you have Equatorial New Guinean Taint Rot and starts scouring the Usenet for home remedies and ordering poultices from web sites run by people who make Alex Jones look like Mr. Spock and your spouse sleeps on the couch and looks sad a lot?

    This selection is designed for Americans because I don't know the law of other countries and because I'm pretty sure it's supposed to be unpatriotic to acknowledge their existence and/or geographical location.

    If you get all James Joyce up in my grill and begin with something like "okay for the context of this threat you have to understand how my grandparents met at a dance at the Savoy and there was an unfortunate incident involving my grandfather's undiagnosed hernia," then within moments I'm going to be idly wondering if Google will introduce a way to taze somebody through the internet.

    This… this right here is why I read Popehat. Not because I agree with you politically/ideologically (although I usually do), but because of the quality of your prose. Honestly, you could focus your blogging on defences of Communism, or Satanism, or Nickelback, and you would still be in my "must read" RSS feed, simply due to how goddamn entertaining your writing is. It reminds me of Dave Barry in his prime.

    Seriously, you should write a book or something.

  11. Ken White says:

    I had a deranged lawyer tell me that he was going to fly me to California so that we could have a no-holds-barred street fight.

    It was special.

    Bitch, I would have gone through with it too, if your travel demands weren't so ridiculous. Seriously, allergic to pretzels? And who needs to check three extra bags for a duel? How many shoes do you own?

  12. Matthew Cline says:

    I plugged "Charles Novins" into Google search and the first search suggestion was "Charles Novins lawsuit". Not a good sign.

  13. TMLutas says:

    I just wrote up an email linking to this post. He's a little bit further in the process. The local Democrat county chair's brother filed a suit today. On general principle I recommended that he take a look at PopeHat and now I find this very timely article.

    Thanks!

  14. Chris says:

    Bitch, I would have gone through with it too, if your travel demands weren't so ridiculous. Seriously, allergic to pretzels? And who needs to check three extra bags for a duel?

    Someone with a proper set of both dueling swords and dueling pistols. If you'd been willing to choose the form of combat before I got on the plane it wouldn't have been an issue!

  15. Bear says:

    I get the occasional threat. Not lawsuit threats, though (which would probably amaze folks familiar with what an outspoken SOB I am).

    Death threats. I have my own ways of dealing with those.

  16. Wayne Borean, I am totally stealing your idea for handling legal threats. Except Canada is too easy: "Oh, I haven't actually lived in Chicago for eight years. I'm on a small island under disputed jurisdiction between Netherlands Antilles and Montserrat. I don't know if we have defamation laws. I can try to find out if you'd like…"

  17. sorrykb says:

    Season your defiance with a rational amount of humility about your capacity to make mistakes.

    On the other hand, if it's just someone saying "you can't call me an asshole, that's libel!", then fuck 'em.

    The juxtaposition of these two sentences is a thing of beauty.

    P.S. Tell us about the Belgians.

  18. En Passant says:

    Small observation on:

    SECOND STEP: FIGURE OUT WHAT'S GOING ON.

    Is it sent by a human being on their own behalf, or by a lawyer on somebody's behalf?

    Seriously delusional persons often file suits pro se, or representing themselves. A legal threat not sent by a lawyer, and especially one that seems legally frivolous on its face, or simply screwy and touchy, may indicate more danger than a misbegotten lawsuit.

    Evaluate carefully just who the would-be plaintiff is. I have seen one such criminally inclined delusional and obsessive person terrorize various people spread across the continent for more than a decade until his targets organized and the law caught up with him. Threats to sue were just one early introduction to a repertoire of death threats, stalking, assault and other crimes.

    Not every idiot who files or threatens to file an apparently frivolous libel suit is dangerous. Probably the overwhelming majority aren't. But it is prudent to check out as much information as possible about the sender if one receives such a threat.

  19. wgering says:

    @Wayne Borean: Smell test?

  20. Sami says:

    Which step lets me tell them to snort my taint?

  21. PubDef says:

    Equatorial New Guinean Taint Rot wasn't really a good example. It's just not that serious. A few minutes with a belt sander, a blowtorch and some super glue and you're as good as new. No muss, no fuss.

    Grand Fenwickian Taint Rot, now, that can get ugly. Really ugly.

  22. JRM says:

    I worked part-time for an online gaming company during my first few years as a lawyer. My job was not to be their lawyer, but I gave some advice early on. I got into very similar discussions with many bad actors (my job was largely dealing with cheaters.)

    Angry Gaming Person: You threw me off the site! I am calling in a fleet of lawyers to sue, sue, sue you into the ground with death and terror.

    JRM: Oh, good. Have your lawyer call me. I'm a lawyer too! Works great.

    AGM: But I have a lawyer…. wait, what?

    JRM: I'm a lawyer. I shouldn't talk to you when you're represented. I'll wait patiently for your lawyer. (The site was $100 a year and as I understand lawyers can cost up to twice that for a month's work.)

    AGM: Do what I want, please.

    JRM: LAWYER. WAITING FOR LAWYER.

    AGM: I don't have a lawyer and I am sad.

    Moral: Legal threats are funnier when you are a lawyer.

    –JRM

  23. SPQR says:

    "then within moments I'm going to be idly wondering if Google will introduce a way to taze somebody through the internet."

    Ken, after the phone calls I took this week, I'm thinking Kickstarter. Higher subscription levels will have higher wattage. Waddya say?

  24. Michael Hardy says:

    I encountered an exceptionally deranged lawyer once. He was a prosecutor who was later fired from his position after he was convicted of stealing a car. He spent the last couple of decades of his life forcing people to take defamatory statements about him down off the internet: detailed accounts of his business dealings and suchlike things.

  25. G Thompson says:

    Wonderful post Ken.

    If people really thought about it your ending flowchart of how to handle it should be a mantra for nearly everything that people no matter where they are, who they are, or what age they are perceive to go wrong in their lives.

    Calm down. Don't panic. Carefully assess the situation. Act methodically and deliberately. Educate yourself. Seek competent advice.

  26. Poet Beware says:

    I once received some vague legal threats on my blog very similar to "you are wrong and you are libel!!!!" from one disgruntled person. I was decidedly underwhelmed because (a) the threats were left by an anonymous poster (although I'm pretty it was the husband of someone I blogged about) and (b) he was wrong (in my IANAL opinion) and I had screenshots to back up what I wrote. If the threat had come from a lawyer, I would have taken it much more seriously and found a lawyer of my own.

  27. JTG says:

    Are you the sort of person who gets a little itch and looks on WebMD and becomes convinced you have Equatorial New Guinean Taint Rot and starts scouring the Usenet for home remedies and ordering poultices from web sites run by people who make Alex Jones look like Mr. Spock and your spouse sleeps on the couch and looks sad a lot?

    I haven't scoured Usenet for anything for a *really* long time. This makes me think that the people who are looking at Usenet for remedies aren't looking for just any remedies, they're looking for authentic medieval remedies. Maybe they're able to find a cure for a choleric humor on rec.humor…

  28. nlp says:

    As I was rereading the Bigfoot column I was seized by a sudden desire to find out the reaction of the DA who received a letter asking him to start an investigation of a Bigfoot Massacre at some unknown locale at some previous date.

    And thank you for the legal advice. I hope I never need it, but if someone does lose control over my repeated statements that some people don't find it necessary to spend every cent on buying Stuff, I'll know the proper procedure to follow.

  29. That Anonymous Coward says:

    I think I failed at step 5.
    While stopping short of telling them to go fsck themselves (I'm way classier than that) , I think I made it clear that their attempt to bully me and my friends would go poorly.
    Given the recent filings and mewling whines from them being crushed under their own ineptness, I think I was correct.
    But YMMV…

  30. nathan says:

    One of the most important concepts in defamation law is that statements of fact can be defamatory ("you got drunk and ran over my polecat on your Segway!")
    Truth is an absolute defense to defamation

    these appear to conflict. Is there some subtle difference in 'statement of fact' and 'truth' (heck, with 'facts', one can prove anything), or is it the context of a true statement that can cause it to become defamatory? Or something else?

  31. Kris Shannon says:

    nathan,

    One of the most important concepts in defamation law is that statements of fact can be defamatory ("you got drunk and ran over my polecat on your Segway!")
    Truth is an absolute defense to defamation

    these appear to conflict. Is there some subtle difference in 'statement of fact' and 'truth'

    Whether something is a 'statement of fact' has nothing to do with whether it's true or false, and much more about whether it makes sense to ask if it's literally true.

    An opinion isn't really true or false.

    Satire and rhetorical hyperbole aren't either because the literal meaning is not the same as the intended meaning.

    Finally, Ken said "statements of fact can be defamatory"

    If it is a 'statement of fact' and it also happens to be true, then it's not defamatory.

  32. Greg Johnson says:

    Nathan, I don't think it's actually a conflict. My attempt at summarizing follows.

    A statement must be about a claimed fact to be defamatory. If the claimed fact is provable to be true then that is a defense to defamation. If the claim was not of a factual nature in the first place, but a statement of opinion, then it can't be proved to be true but it also can't be defamatory.

  33. DarthChocolate says:

    OK, how about this, when someone actually defames you?

    A few weeks ago, I had an exchange with a group moderator on LinkedIn where I made light of the fact that I was a "bad boy" because my posts were moderated. I know I can be quite sarcastic, and I watch the line carefully.

    The moderator responded publicly that I was in moderation due to "racist or offensive" comments. Turns out that I was labeled a "racist" for referring to someone as "a Brit from Britland" and I was "offensive" for pointing out the person in question exhibited a certain amount of "youth and inexperience".

    I contacted the person and told him to remove the public post implying that I was a racist within 24 hours, and if he did not I would contact a lawyer for advice and his employer (the group was the official group of a professional organization).

    I initially got a note back saying basically "I stand by what I wrote and I dare you to contact my employer" and waited over the holiday weekend. Finally, I got a response stating that he reread what was posted and decided to remove the offensive post. He also removed me from moderation.

    I will not be rejoining that organization.

  34. nathan says:

    @Kris, @Greg, thanks. I see the subtlety. 'statement of fact' should be read as 'statement of claimed fact'? I was reading it as 'statement of *a* fact'.

  35. Damon says:

    "Equatorial New Guinean Taint Rot "

    First class!

  36. AliceH says:

    nathan – I did the same mental workaround as you re: "statement of fact" before figuring out it's the form of the statement that is relevant, not its truth.

    Whenever I'm perplexed by some legal thing Ken et al says that seems not to fit my ordinary English-is-my-first-language understanding, I remind myself of one of his other enlightening phrases: "The Law is majestic."

  37. Dan says:

    Great stuff Ken. Thanks!

  38. Virgil says:

    This is pretty much what I did earlier this year – found a lawyer, maintained radio silence, lawyer wrote back asking for clarity on exactly what was being disputed, no response so far and let's hope it stays that way. That being said, I eventually took the chicken route and just removed the posts, because I can't be arsed dealing with all this legal crap.

    The bigger issue was that my employer found out (thanks to the opposing party emailing a lot of my colleagues) and started getting very antsy. The content of the posts was very close to my area of work, and the possibility that the thoughts expressed could be misconstrued as coming from me with my "work hat" on, got their lawyers all uppity. So, even though the original legal threats were not that bad, the notion that these people might try to sue my employer was enough to incur some pressure to back down or lose my job. Kinda sucks, but the blog was a hobby and I value my job more than the enjoyment the blog provided.

    One thing missing from your post – statute of limitations. Varies from 1-3 years depending on where you live (I understand its a year where I am). So far my lawyer's chief strategy has been to "run out the clock". If you can keep the suckers from actually filing suit until after the S-O-L has run its course, that's a win.

  39. One important thing you forgot, Ken: call your homeowners insurance agent or, if it was business-related, your business insurance agent to see if you are covered and to preserve your rights under your policy. I was threatened with a $500,000 defamation claim by my son's teacher. An adjuster from our insurance company called the teacher's lawyer, and if we are sued, they have a lawyer all lined up to help us.

  40. Ken White says:

    " One of the most important concepts in defamation law is that statements of fact can be defamatory ("you got drunk and ran over my polecat on your Segway!")"
    "Truth is an absolute defense to defamation"

    these appear to conflict. Is there some subtle difference in 'statement of fact' and 'truth' (heck, with 'facts', one can prove anything), or is it the context of a true statement that can cause it to become defamatory? Or something else?

    They don't conflict. A statement of fact can be defamatory if false. A statement of opinion can't be defamatory because it cant' be factually true or false.

  41. JWH says:

    the Belgians are behind 9/11

    I thought it was the Swedes …

  42. Trebuchet says:

    Don't forget Belgians are horses, which are not all that far removed from ponies.

    A quite excellent post, I think. I'm probably not likely to need the advice but if I ever do I'll certainly be looking it up again.

  43. Michael S. says:

    This could make a great educational video hosted by Troy McClure..

  44. Southern says:

    I'm really not interested in passive-aggressive Slympitters vaguecommenting up the place, thanks. –Ken

  45. JAWolf says:

    Miserable fat Belgian bastards!

  46. Wayne Borean says:

    Wayne Borean, I am totally stealing your idea for handling legal threats. Except Canada is too easy: "Oh, I haven't actually lived in Chicago for eight years. I'm on a small island under disputed jurisdiction between Netherlands Antilles and Montserrat. I don't know if we have defamation laws. I can try to find out if you'd like…"

    Mark,

    This only works if you REALLY live in the jurisdiction you claim to live in. Since I do live in Canada, and everyone knows it (since my address is public for a bunch of reasons), I can use that. Lying about your address is a dumb move.

    Moving to another jurisdiction before you make a post is one thing. Moving after, and trying to claim you are free and clear is another from what I understand. Kem would be better to comment on that than me.

    FYI, I usually post complaints after they've run the course, and again, this is public knowledge. I suspect that policy may have an impact. I haven't had many complaints recently.

    Wayne

  47. Wayne Borean says:

    @wgering,

    Yes, smell test. If an email smells like bovine byproduct, well, since my computer doesn't have "Scratch and Sniff" capabilities, I can be sure that there's something weird going on.

    Wayne

  48. Vince Clortho says:

    I dunno Ken. As a lawyer, this kind of sounds like legal advice…

  49. Quantum Mechanic says:

    Also keep in mind that you may have insurance coverage for a libel/slander claim against you. Even if you don't have an umbrella or excess liability policy.

    If your homeowner's/renter's policy has "personal injury" (not to be confused with "bodily injury" coverage), or if you have a personal injury rider, you very likely have some coverage. Which in addition to all the good things Ken says, means you probably should also tell your insurance company about what's going on at some point.

  50. Roger Strong says:

    > Truth is an absolute defense to defamation

    Are there not side-steps around that absolute defense? For example "Public disclosure of private facts?"

    My vague understanding is that if you blog about your arch-nemesis's fourth testicle – secure behind defamation law's truth defense – your invincibility may be foiled by privacy laws instead.

    I've also read that many jurisdictions still have centuries-old laws protecting government officials from having inconvenient truths spread about them.

  51. Owlishious says:

    Web sites, forums, and similar venues are not legally responsible for defamation that visitors leave in comments.

    But what if the person that runs that site states that they "zealously guard the comments section", and "personally approve all comments before they are shown"?

    Doesn't them approving the comments make them liable for those comments?

  52. Ken White says:

    But what if the person that runs that site states that they "zealously guard the comments section", and "personally approve all comments before they are shown"?

    Doesn't them approving the comments make them liable for those comments?

    No.

    Did you follow the link and read the provided resource?

  53. Owlishious says:

    Ken,

    I did read it. Did you?

    From the source cited: However, if you selected the third-party information yourself, no court has ruled whether this information would be considered "provided" to you.

  54. AMM says:

    My understanding is that "truth is an absolute defense against libel" is not true everywhere. In particular, in Europe, publishing true but defamatory facts is actionable.

    Also, just because you don't live in a jurisdiction doesn't mean they can't come after you or at least make like difficult. Someone who wins a suit against you in a non-US court can petition the US courts to enforce the judgement in the US. I don't know to what extent failing to contest the suit in the non-US court would prejudice your case against the petition to enforce the judgement in the US.

  55. "True but defamatory," aside from its self-contradiction, sums up just about everything that's wrong with Europe.

  56. Ken White says:

    @AMM:

    My understanding is that "truth is an absolute defense against libel" is not true everywhere. In particular, in Europe, publishing true but defamatory facts is actionable.

    Which is why I explicitly called out that I was only talking about US law.

    Also, just because you don't live in a jurisdiction doesn't mean they can't come after you or at least make like difficult. Someone who wins a suit against you in a non-US court can petition the US courts to enforce the judgement in the US. I don't know to what extent failing to contest the suit in the non-US court would prejudice your case against the petition to enforce the judgement in the US.

    I didn't mention this in the post but I've written about it before: The SPEECH Act prohibits American courts from recognizing foreign defamation judgments unless they satisfy First Amendment standards.

  57. AMM says:

    "True but defamatory," aside from its self-contradiction, sums up just about everything that's wrong with Europe.

    I see no "self-contradition." A statement certainly can be both true and damage someone's reputation.

  58. ysth says:

    My favorite threat letter story ever (albeit IP, not defamation).

  59. AMM says:

    The SPEECH Act prohibits American courts from recognizing foreign defamation judgments unless they satisfy First Amendment standards.

    Most of what I know on the subject comes from someone I know (in the US) who was sued in several European countries for trade libel.

    His attorneys didn't seem to think it was certain that US laws (and constitution) would protect him from a European judgement being enforced in the US. This might simply attorneys being cautious (that's after all what they're paid to do), or it might be indeed possible for a foreign judgement to be worded in a way that it wasn't obvious that it violated US constitutional protections. In any case, they thought it was better to avoid getting in a situation where they might find out.

    But there's another reason for not blowing off a foreign defamation suit: if you lose, you basically can't ever go to that country again, or any other country that recognizes that judgement. The person I knew who was being sued had colleagues in Europe and went to conferences in Europe. It would have been a painful limitation on his life if he could no longer travel there.

    (Fortunately, his employer — the State of Wisconsin — paid for his defense, and also fortunately, he prevailed in all the suits. Unfortunately, he died of cancer only a few years later.)

  60. Dennis says:

    After reviewing a doctor's comments to my father, I received a threat letter that said to be mindful of the fact that the doctor had "the means and motivation" to pursue . . . Although it was only a threat letter, it sought contact with my insurance agent.

    Unfortunately, contrary to your above advice, I sent a reply letter to to the doctor's attorney. Rather than prevent a suit, my reply became a prominent exhibit, after I was very promptly sued.

    Only during my Minnesota Supreme Court hearing did I hear how I should have worded my review.

    Taken from comments to Minnesota Supreme Court:

    He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make statements like that: “He didn’t spend enough time in my opinion.” He can make factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St. Luke’s Hospital with a placard saying those things if they are opinions . . .

  61. flip says:

    Thank you for posting this Ken. I wish I'd known these things years ago when I was being threatened – lucky for me the 'law suit' never materialised. But this is still bookmarked for future reference.

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