FAQ: Questions and Answers

[back to notice text] Question: Is a cease-and-desist letter confidential? Answer: There is ordinarily no expectation of privacy or confidentiality in a letter sent to an adversary. Unless you have made a specific promise of confidentiality beforehand, such as in a protective agreement or NDA, a letter demanding confidentiality doesn't bind you. [back to notice text] Question: What is defamation? Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation. [back to notice text] Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content. [back to notice text] Question: What is the "publication" of a defamatory statement? Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken. [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: 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: Who is a public figure? Answer: A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures ? a government employee, a senator, a presidential candidate ? someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure ? for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence. Examples of public figures: A former city attorney and an attorney for a corporation organized to recall members of city counsel A psychologist who conducted "nude marathon" group therapy A land developer seeking public approval for housing near a toxic chemical plant Members of an activist group who spoke with reporters at public events Corporations are not always public figures. They are judged by the same standards as individuals. [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 ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board? Answer: Not in the United States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws. [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: Is a cease-and-desist letter confidential? Answer: There is ordinarily no expectation of privacy or confidentiality in a letter sent to an adversary. Unless you have made a specific promise of confidentiality beforehand, such as in a protective agreement or NDA, a letter demanding confidentiality doesn't bind you. [back to notice text] Question: What does it mean if the cease-and-desist letter I got has a copyright notice? Answer: Copyright can be claimed on any original expression, but some uses of copyrighted works, including use for commentary and criticism, are fair uses, not infringement. It is highly unlikely that someone could sue successfully for the posting of a cease-and-desist notice (most notices are minimally creative; the use is for purposes of commentary and research; the amount used is necessary to the understanding; and there is no effect on a "market" for cease-and-desist letters).

Topic maintained by USF Law School - IIP Justice Project