So You've Been Threatened With A Defamation Suit

Effluvia, Law

Note: this is not legal advice. You pay for legal advice. You should not look for legal advice from the Internet, the place you go to get pictures of ungrammatical cats and theories about why the Belgians are behind 9/11. You should go to a real lawyer to get legal advice suited to your situation and your jurisdiction.

Hi! I'm Ken White. You may remember be from such defamation-related posts as "You can't call a Bigfoot hunter crazy, that's libel!" and "If all critics of dentists go to jail, then only criminals will criticize dentists!"

So. You have a website, or a Facebook page, or you comment on a forum, and somebody just sent you an email saying that they are going to SUE YOU FOR DEFAMATION because of SOMETHING TERRIBLE that you said.1

OMG! OMG! OMG! OMG!

You'll lose your job! Your spouse will divorce you! You'll lose everything and have to eat your pets, even the ones that don't clean themselves properly! You'll be in depositions all day every day and they won't let you leave to go to the bathroom and you'll soil yourself right there in the Aeron chair! You'll have to talk to a lawyer! WHAT WILL YOU DO? WHAT WILL YOU DO?

Okay. First things first:

FIRST STEP: CALM. THE FUCK. DOWN.

GETAGRIP

No, seriously. GET A GRIP. Get up from the computer and go walk around the block. Don't do any things. Don't rush to put up a big correction post, don't send apologies, don't send threats, don't start emailing all of creation, don't start deleting things. CALM DOWN.

Criminal defense attorneys like me tell our clients about something we call the Martha Stewart Rule: lots of people get into trouble not because the did something wrong, but because they heard they were being investigated for doing something wrong, and they panicked and started lying and deleting files and setting cabinetry on fire and making angry statements to the press and generally venting their agitation. They go to jail for stuff they did when they lost control over themselves, or they go to jail because in their panic they generated new evidence of prior wrongdoing.

A defamation threat — like many legal threats — presents the same risk. A not-real-problem can be transformed into a real-problem by panicky behavior: quickly deleting things, quickly changing things, writing new things when you're all atwitter, saying incriminating things you don't mean because you've turned your mouth to "on" and wandered off, and so forth.

Stop writing. Stop talking. Stop emailing. Resist the urge to DO SOMETHING RIGHT NOW OMG.

To Be Blunt

I'm not telling you to ignore the problem. I'm not telling you to put the threat letter in a drawer and ignore it for a few weeks. You shouldn't engage in lengthy delay. I'm telling you to take the time you need to calm down. Maybe it's a few hours. Maybe it's a whole day. Don't start doing stuff.

SECOND STEP: FIGURE OUT WHAT'S GOING ON.

Okay. Do you have a grip now? Good.

Now: have you determined the who/what/when/where of this situation?

In other words:

Do you know who sent this threat?

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

Do you know what blog post or Facebook comment it is complaining about?

Do you know where that post or comment or whatever is?

Do you have a link to it? Is it still there? Is it public?

Do you know what country and state/province/etc. you are in? I hope?2

Do you know where the person threatening you lives? Do you know where the lawyer works, if it is a lawyer threatening you? Do you know where the blog/site/etc. is hosted?

Do you understand what content, specifically, the angry person is complaining about? Is the person angry about defamatory statements ("you said I have a fourth testicle!") or copyright or trademark ("you used my chuch's logo to sell organic non-exploitatively-cultivated beeswax dildos!") or threats or harassment ("you told me you are renting a gimp suit and it's not due back all weekend!")? Or is the threat very vague?

Does the communication threaten a lawsuit, or say a lawsuit has already been filed, or will be filed soon in a specific place?

Did you write the content in question? Did someone else leave it on your site, like a commenter?

Have you actually read the threat all the way through, or did you just read the first two sentences and get angry or terrified and start shouting at appliances?

You're going to need to know all of these things, to the extent possible, to progress further. If you can't gather this information you are probably not finished with processing Step One, above.

STEP THREE: GO BACK TO STEP ONE.

No, really. Go back. We'll wait.

STEP FOUR:  DO A LITTLE READING, IF YOU CAN HANDLE IT.

Look, it's time for some sober self-assessment.

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?

Or can you read a little about a subject, reach a reasonable stopping point, and then consult a professional if necessary?

If it's the first one, please skip to Step Five, because if you start reading this stuff you're not going to stop until you've framed a libel defense premised on being a sovereign citizen or something.

Otherwise, consider reading up a bit about the following subjects to improve your grasp of defamation law in general, and your situation in particular. 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.

So:

  • 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!"), but satire ("this is a Downfall video about you") and pure opinion ("you're an asshole") and "rhetorical hyperbole" ("you're the worst dad ever!") cannot. Some statements can be hard to classify ("you're a crook") and whether they can be defamatory depends on their context. Once again, the Digital Media Law Project has a useful guide, and I have discussed the difference repeatedly.
  • Truth is an absolute defense to defamation, and "substantial truth" — meaning that the statement got the "gist" or "sting" of the statement right — is also a defense.
  • It's easier to fight defamation charges in some states than in others. Some states have an anti-SLAPP statute, which is a law that allows a defamation defendant to force the plaintiff early in the case to show a valid basis for the defamation claim. I explained how anti-SLAPP statutes work here. Find out if your state has an anti-SLAPP statute here.
  • Web sites, forums, and similar venues are not legally responsible for defamation that visitors leave in comments.  Reddit isn't responsible for what Redditors write in threads; Facebook isn't responsible for what Facebook users post there; I'm not responsible for what you lot write in the comments.  Thank God.  You enjoy this protection under Section 230 of the Communications Decency Act, which you can read about here.

Okay, that's enough reading.  Under no circumstances should you search for legal guidance on Reddit.

STEP FIVE: CONSIDER LIMITED COMMUNICATIONS WITH YOUR ADVERSARY

So.  You've calmed down, you've figured out what's going on, and maybe you've educated yourself a little bit.

Should you respond directly to the threat?

If you have quick and easy access to legal counsel, no.  Talk to your lawyer first. That's discussed in Step Seven, below.

If you have to spend some time finding a lawyer, or if your lawyer isn't available, or if the threatener is putting time pressure on you ("respond in 24 hours or I will file suit"), or if you are confident you don't need a lawyer and ready to accept the consequences if your confidence is misplaced, you may want to consider one or more of the following.

First, consider writing back merely "I have received your legal threat.  I am securing legal counsel, and will respond once I have done so."

Second, if your threatener doesn't specify what's wrong about your writing, consider asking for clarification.  For instance, if your threatener writes only something like YOU ARE WRONG AND YOU ARE LIBEL, consider responding with an extremely limited statement like this:

Dear Mr. Angrypants,

I received your legal threat. I understand it refers to my post of July 4, 2013, "How Mr. Angrypants Didn't Get Syphilis From An Invertebrate After All." However, your threat does not specify what part of the post you believe to be false. If you think some part of the post is inaccurate, please specify which part and your basis for saying so, and I will review your claim and make a change if appropriate.  In addition, if you would like for me to add a statement from you at the end of the post, I will do so.

I'd be less inclined to do that if the threat came from a lawyer, whose threat was probably deliberately vague. The benefit of such a statement is that it positions you to look responsible and reasonable, and it might flush out what they think is false — which may force them to admit that what they are complaining about is an opinion.

You don't want to do these things if you are anonymous or don't want to confirm your control over the web site in question, obviously. You also don't want to send the "what do you mean" message if this is a Section 230 situation — in other words, if the threatener is not complaining about something you authored, but about a comment from a visitor, for which you are not liable.

But do not engage in extensive correspondence with someone threatening you without legal advice.

STEP SIX: CONSIDER ANY TEMPORARY MEASURES

So. Should you take the challenged post down, or change it, or make some statement about it?

Ideally, you shouldn't do so until you've talked to a lawyer. That's discussed in Step Seven, below.

Under no circumstance should you make any apology or admission of fault like I AM WRONG AND I AM LIBEL without talking to counsel.

However, on calm and sober reflection, it may be prudent to take down a post while you figure out whether there's a problem with it. If you are confident that it is true — or if you are confident it states only opinion — and you're ready to accept the consequences, then keep it up. If you have significant doubts you may consider taking it down temporarily, particularly if you anticipate delays finding legal advice or if the threat has a particularly short fuse ("we will be filing a defamation by the close of business unless you take down the post."). Does this mean that you may take something down and then later put it up again? Yes. Should you have to take something down if it's not defamatory? No. But we speak of managing risk at the moment.

Alternatively, you could add a statement to the post like this:

Mr. Angrypants has sent us an email stating that this post is not accurate. We are reviewing his claims and consulting counsel and will update the post if appropriate.

Should you put up a post saying "Mr. Angrypants, the syphilitic invertebrate-molester, doesn't like us writing about how he molests invertebrates, and has threatened us?" Well, that depends on whether you're ready to accept the consequences of your actions if you're wrong about your analysis of whether your post is defamatory. Be it on your head.

Let me suggest this: many legal threats are angry attempts to chill speech by people who hate being criticized. But there's nothing inherently admirable about speaking false facts about people, even innocently. 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 bottom line: unless you are completely confident about your analysis and ready to accept the consequences of being wrong, anything you publish in response to the threat should be a temporary measure designed to preserve the status quo until you talk to a lawyer.

STEP SEVEN: BETTER CALL SAUL

Yeah, I know: here's the lawyer lining his own pockets by advising people to go to lawyers rather than help themselves.3

But the nation is what it is, not what you'd like it to be. The legal system is both complex and imperfect, and you face risks that may require training and experience to assess.

So call a lawyer.

How do you choose a lawyer? What do you say when you've found one? My tips for finding and talking to a lawyer are here. If you've completed Step Two and retained that information, you will find dealing with a lawyer much easier. An email that says "I live in Texas and I got the attached threatening letter from a Texas lawyer based on the blog post linked below," I will feel affection for you. 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.

Impecunious, are you? Consider emailing the Electronic Frontier Foundation or the Digital Media Law Project, or ask your friends if anyone knows a qualified lawyer who would give you some advice.4

But get legal advice, if you can.  And for God's sake listen to your lawyer, who may actually know what he or she is talking about.

To sum up:

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

Chances are that it will blow over.  If it doesn't, you'll be in a better position if you were cautious.

 

  1. Since this is the internet, there is an excellent chance the person will say "slander," even though they are talking about written content.  
  2. I can't count the number of times that someone sends me an incredibly elaborate description of a post and a resulting legal threat and their resulting tsouris without giving me any indication of what state or country or freaking continent they're on as if the law is exactly the same everywhere like McDonald's or something. It makes me want to drive this freshly sharpened pencil right through an associate.  
  3. For values of "lining his own pockets" that equal "5-10 hours of freebie guidance on an average week."  
  4. I help when I can, but it's getting a little overwhelming, to be honest.  

Last 5 posts by Ken White

66 Comments

61 Comments

  1. Tim!  •  Sep 26, 2013 @6:07 pm

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

  2. Ken White  •  Sep 26, 2013 @6:12 pm

    @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  •  Sep 26, 2013 @6:12 pm

    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  •  Sep 26, 2013 @6:34 pm

    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  •  Sep 26, 2013 @6:36 pm

    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  •  Sep 26, 2013 @6:40 pm

    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  •  Sep 26, 2013 @6:45 pm

    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  •  Sep 26, 2013 @6:48 pm

    @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  •  Sep 26, 2013 @6:56 pm

    @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  •  Sep 26, 2013 @6:57 pm

    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  •  Sep 26, 2013 @7:02 pm

    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  •  Sep 26, 2013 @7:03 pm

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

  13. TMLutas  •  Sep 26, 2013 @7:09 pm

    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  •  Sep 26, 2013 @7:16 pm

    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  •  Sep 26, 2013 @7:18 pm

    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. Mark Draughn (Windypundit)  •  Sep 26, 2013 @7:29 pm

    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  •  Sep 26, 2013 @7:30 pm

    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  •  Sep 26, 2013 @7:46 pm

    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  •  Sep 26, 2013 @7:51 pm

    @Wayne Borean: Smell test?

  20. Sami  •  Sep 26, 2013 @7:56 pm

    Which step lets me tell them to snort my taint?

  21. PubDef  •  Sep 26, 2013 @8:05 pm

    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  •  Sep 26, 2013 @8:09 pm

    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  •  Sep 26, 2013 @8:50 pm

    "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  •  Sep 26, 2013 @8:52 pm

    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  •  Sep 26, 2013 @8:55 pm

    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  •  Sep 26, 2013 @9:11 pm

    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  •  Sep 26, 2013 @9:15 pm

    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  •  Sep 26, 2013 @9:52 pm

    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  •  Sep 26, 2013 @11:09 pm

    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  •  Sep 27, 2013 @12:52 am

    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  •  Sep 27, 2013 @2:05 am

    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  •  Sep 27, 2013 @2:26 am

    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  •  Sep 27, 2013 @3:31 am

    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  •  Sep 27, 2013 @3:57 am

    @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  •  Sep 27, 2013 @5:04 am

    "Equatorial New Guinean Taint Rot "

    First class!

  36. AliceH  •  Sep 27, 2013 @5:34 am

    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  •  Sep 27, 2013 @6:13 am

    Great stuff Ken. Thanks!

  38. Virgil  •  Sep 27, 2013 @6:33 am

    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. The Skeptical Lawyer  •  Sep 27, 2013 @6:53 am

    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  •  Sep 27, 2013 @7:00 am

    " 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  •  Sep 27, 2013 @7:35 am

    the Belgians are behind 9/11

    I thought it was the Swedes …

  42. Trebuchet  •  Sep 27, 2013 @8:21 am

    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.  •  Sep 27, 2013 @8:23 am

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

  44. Southern  •  Sep 27, 2013 @1:32 pm

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

  45. JAWolf  •  Sep 27, 2013 @2:10 pm

    Miserable fat Belgian bastards!

  46. Wayne Borean  •  Sep 27, 2013 @2:54 pm

    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  •  Sep 27, 2013 @3:01 pm

    @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  •  Sep 27, 2013 @3:24 pm

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

  49. Quantum Mechanic  •  Sep 27, 2013 @5:50 pm

    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  •  Sep 28, 2013 @2:01 am

    > 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  •  Sep 28, 2013 @7:48 am

    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  •  Sep 28, 2013 @8:23 am

    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  •  Sep 28, 2013 @9:27 am

    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  •  Sep 28, 2013 @3:04 pm

    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. Patrick Non-White  •  Sep 28, 2013 @3:11 pm

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

  56. Ken White  •  Sep 28, 2013 @4:06 pm

    @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  •  Sep 28, 2013 @4:12 pm

    "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  •  Sep 29, 2013 @1:25 am

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

  59. AMM  •  Sep 29, 2013 @2:13 pm

    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  •  Oct 1, 2013 @1:42 am

    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  •  Oct 10, 2013 @4:24 am

    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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