FAQ: Questions and Answers

[back to notice text] Question: Does it make any difference if I am commenting on a product or company rather than a person? Answer: Product disparagement law prohibits certain false claims about another's goods or services. While a defamatory statement harms the reputation and character of a person or corporation, a product disparaging statement harms the marketability of the goods being disparaged. Product disparagement is typically harder to prove. [back to notice text] Question: What is defamation? Answer: An attack by speech on the good reputation of a person or business entity. Speech that involves a public figure--such as a corporation--is only defamatory if it is false and said with actual malice. It also must be factual rather than an expression of an opinion. In the United States, because of our strong free speech protections, it is almost impossible to prove defamation of a public figure. [back to notice text] Question: What is false light invasion of privacy? Answer: "False light" is a claim that publicity invades a person's (plaintiff's) privacy by a false statement or representation that "places the plaintiff in a false light that would be highly offensive to a reasonable person." [back to notice text] Question: What is the difference between false light invasion of privacy and defamation? Answer: The distinction between the two is a subtle one. The false light cause of action focuses upon indignity and defamation focuses upon reputation. [back to notice text] Question: How does the First Amendment to the Constitution affect defamation? Answer: The free speech guarantees under the Constitution protect certain speech and commentary. The degree of protection generally depends on whether the person commented about is a private or public figure and whether the statement is regarding a private or public matter. According to the New York Times rule (from the case New York Times v. Sullivan), when the plaintiff is a public figure and the matter is one of public concern, the plaintiff must prove "malice" or "reckless disregard" on the part of the defendant. If both parties are private individuals, there is less protection for the speech because the plaintiff only needs to prove negligence. [back to notice text] Question: What if I want to report on a public controversy? Answer: Many jurisdictions recognize a "neutral reportage" privilege, which protects "accurate and disinterested reporting" about potentially libelous accusations arising in public controversies. As one court put it, "The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." [back to notice text] Question: How do I know if a private fact is "newsworthy"? Answer: A private fact is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private fact is pertinent to an otherwise newsworthy story. [back to notice text] Question: Do blogs have the same constitutional protections as mainstream media? Answer: Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities." [back to notice text] Question: What is a statement of verifiable fact? Answer: A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. To illustrate this point, consider the following excerpt from a court (Vogel v. Felice) considering the alleged defamatory statement that plaintiffs were the top-ranking 'Dumb Asses' on defendant's list of "Top Ten Dumb Asses": A statement that the plaintiff is a "Dumb Ass," even first among "Dumb Asses," communicates no factual proposition susceptible of proof or refutation. It is true that "dumb" by itself can convey the relatively concrete meaning "lacking in intelligence." Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use "dumb" in isolation, but as part of the idiomatic phrase, "dumb ass." When applied to a whole human being, the term "ass" is a general expression of contempt essentially devoid of factual content. Adding the word "dumb" merely converts "contemptible person" to "contemptible fool." Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. ... If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim. This California case also rejected a claim that the defendant linked the plaintiffs' names to certain web addresses with objectionable addresses (i.e. www.satan.com), noting "merely linking a plaintiff's name to the word "satan" conveys nothing more than the author's opinion that there is something devilish or evil about the plaintiff." [back to notice text] Question: What is disparagement? Answer: As defined in Black's Law Dictionary (7th ed. 1999), disparagement is "A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff." [back to notice text] Question: What is malice? Answer: According to Black's Law Dictionary, malice is "the intent, without justification or excuse, to commit a wrongful act." The dictionary further defines malice as "reckless disregard of the law or of a person's legal rights." The adjective "malicious" is defined to also include those acts which are "substanitally certain to cause injury." [back to notice text] Question: What is good faith? Answer: Good faith is defined by Black's Law Dictionary as "a state of mind consisting in ... honesty in belief or purpose ... or absence of intent to defraud or to seek unconscionable advantage." Good faith can be a defense to legal claims where the plaintiff must establish that the defendant had a particular state of mind, such as an intent to do harm. Essentially, it is a defense that can be used by the defendant to establish that he or she was void of the requisite mental culpability necessary to hold him or her liable for an alleged harm. [back to notice text] Question: What is Malice or "Actual Malice"? Answer: Malice is often defined as, "the intent, without justification or excuse, to commit a wrongful act." It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. "Actual malice" is a legal term of art that is mainly relevant to defamaton claims. "Actual Malice" is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity-- a "should have known" standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with "actual malice". [back to notice text] Question: If I write something defamatory, will a retraction help? Answer: Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting "special damages" ? the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff's failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon) If you get a reasonable retraction request, it may help you to comply. The retraction must be "substantially as conspicuous" as the original alleged defamation. [back to notice text] Question: What are some examples of libelous and non-libelous statements? Answer: The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false): Charging someone with being a communist (in 1959) Calling an attorney a "crook" Describing a woman as a call girl Accusing a minister of unethical conduct Accusing a father of violating the confidence of son Not-libelous: Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context) Calling a TV show participant a "local loser," "chicken butt" and "big skank" Calling someone a "bitch" or a "son of a bitch" Changing product code name from "Carl Sagan" to "Butt Head Astronomer" Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact. [back to notice text] Question: Can an opinion be defamatory? Answer: No ? but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database"). [back to notice text] Question: Is there a difference between reporting on public and private figures? Answer: Yes. A private figure claiming defamation ? your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop ? only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement. A public figure must show "actual malice" ? that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet. [back to notice text] Question: What is a SLAPP suit? Answer: SLAPP stands for Strategic Lawsuit Against Public Participation, or lawsuits aimed at squelching speech and involvement in government. Many states, including California, have anti-SLAPP statutes allowing one who has been targeted by a SLAPP to sue back. Online, SLAPP suits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. Many SLAPPers stop after discovering their critic's identity, using the tactic to intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment. [back to notice text] Question: What's the statute of limitation on libel? Answer: Most states have a statute of limitations on libel claims, after which point the plaintiff cannot sue over the statement. For example, in California, the one-year statute of limitations starts when the statement is first published to the public. In certain circumstances, such as when the defendant cannot be identified, a plaintiff can have more time to file a claim. Most courts have rejected claims that publishing online amounts to "continuous" publication, and start the statute of limitations ticking when the claimed defamation was first published. [back to notice text] Question: I have an unsettling feeling in the pit of my stomach about the tone of the C&D I received. Does the tone of the c & d mean I am going to lose this dispute? Answer: "Gorilla Chest Thumping" refers to the tone of most C&Ds: it?s nasty. The first thing to do is take a deep breath. The second thing to do is to acknowledge that the tone of the letter is a function of the letter writer?s perception that aggression is the best defense: do not take it personally. The third thing to do is ignore the tone and focus on the facts. You may eventually choose to respond aggressively yourself, but do not do so because your opponent has egged you into a useless game of whose gorilla is bigger. Take a tip from Ani Di Franco: "If you play their game, girl, you?re never gonna win." Face Up and Sing, Out of Range, Righteous Babe Records (1994). [back to notice text] Question: What if I need to contact an attorney? Answer: This website is meant as an aid to help you decipher Cease and Desist notices so you can make informed decisions about your course of action. If, after reading this, you think the C&D you received might have some merit, or you think you might engage your opponent in battle even if the C&D is, in your opinion, baseless, consultation with an intellectual property attorney is always a good idea. You can find an intellectual property attorney at www.martindale.com or by calling your state or local Bar Association and asking for a referral. [back to notice text] Question: How do lawyers "buy time" when a cease and desist letter is received by a client? Answer: What a lawyer will often do to maintain the status quo is to send a response to the demand letter, within the stated time, saying something like this: We are in receipt of your letter of (date) "Please be advised that we are investigating the matter and will be in contact with you shortly." This letter ordinarily gives additional time to research the allegations, and should give you some additional time to contact a lawyer if you need to.

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