So You've Been Threatened With A Defamation Suit
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.
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.
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.
- Make sure you have a general understanding of what "defamation" — of which "libel" and "slander" are subsets — means. The Digital Media Law Project has a good basic discussion. So does the Electronic Frontier Foundation.
- 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.
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.
- Since this is the internet, there is an excellent chance the person will say "slander," even though they are talking about written content. ▲
- 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. ▲
- For values of "lining his own pockets" that equal "5-10 hours of freebie guidance on an average week." ▲
- I help when I can, but it's getting a little overwhelming, to be honest. ▲
Last 5 posts by Ken White
- Dinesh D'Souza's Sentence Isn't Remarkable - September 23rd, 2014
- Texas Court Makes Upskirts Mandatory, Outlaws Kittens, Hates Your Mother - September 21st, 2014
- American Spectator Surrenders To Vexatious Litigant and Domestic Terrorist Brett Kimberlin - September 20th, 2014
- A Grumble: United States Courts Website Misinforms About Free Speech - September 18th, 2014
- Follow-Up: U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Right This Time - September 12th, 2014