Demand to Cease and Desist and Retract Libel -- Chilling Effects Clearinghouse

Chilling Effects Clearinghouse > Protest, Parody and Criticism Sites > Notices > Demand to Cease and Desist and Retract Libel (NoticeID 780, http://chillingeffects.org/N/780)

August 18, 2003

Sender Information:
Eufora, LLC
Sent by: [Private]
Nelson Mullins Riley & Scarborough. L.L.P.
Atlanta, GA, 30309, Fulton

Recipient Information:
[Private]
[Private]
Atlanta, GA, 30303, Fulton

Sent via: Hand Delivery
Re: Demand to Cease and Desist and Retract Libel

Law Offices
Nelson Mullins Riley & Scarborough, LLP
999 Peachtree St, N.E.
Suite 1400
Atlanta, GA 30309

August 18, 2003

Via Hand Delivery

Dear [Private]:

This law firm represents [Private], and we have been
asked to write this letter to you. Many of your
statements about [Private] in your e-mail postings are
untrue and defamatory. You made them maliciously to
injure [Private]in its trade, office and profession. As
such, they are defamatory per se. Under O.C.G.A.
51-5-11, this letter constitutes a demand for
immediate retraction in writing of these false and
libelous statements. In accordance with O.C.G.A
51-5-11(b)(1)(C), [Private] deamnds that your retraction
and correction be accompanied by an editorial in which
you specifically repudiated your libelous statements.

Your web psotings and conduct also constitute
tortious interference with the business and
contractual relations of [Private]. As such, they are
actionable and expose you to the imposition of
compensatory as well as punitive damages.

Below, we have noted some of the more patent,
malicious, and libelious comments made by you in your
e-mails; some of them also evidence your tortious
interference. If [Private] is forced to file suit to stop
your wrongful conduct, it will also seek an award of
its attorney fees and litigation expenses.

(Note: Complaints were not numbered in the original
letter-I have done so here so each can be easily
addressed)

1. In your postings, you repeatedly stated that
you have been "contacted by the CEO of this company,
[Private] [Private] is not the CEO of
Eufora.

2. In your psotings, you consistently and falsely
stated the high limit of [Private's] credit builder
program. It is $138.85, and not "$59.95 with payments
of $6.95" as you state.

3. On the [Private] program high limit, you mistated
the facts. The high limit for the [Private] program is
$219.85 and not as you have statedm "$95.95 with
payments of $10.00."

4. You incorrectly contecded that [Private] does not
report the high limit. This is patently false.

5. [Private] does not claim to build credit in the
second year, and your comments about credit building
in the second year are false and malicious.

6. In one of your postings, you referenced an
article on [Private] and claim with no basis in fact
that it is similar to [Private's]program. The product
referenced in that article is not similar to [Private's]program.

7. In your postings you stated: "It's been a
couple of days since I had communications with [Private] or his legal team." You have never had
communications with [Private's] or [Private's] legal
team.

8. In your posting of July 2, 2003, you
proclaimed: "No response from any of the credit
bureaus. I guess it's BBB complaint time. Update
07/03/03 BBB complaint filed against Trans Union..but
Equifax is investigating the matter." YOur malicious
attempt to interfere with [Private's] business and
contractual relations with Equifax has damaged [Private],
for which you are liable in damages.

9. In a web posting you stated: "One thing is for
sure [Private] cards were never 'backordered due to high
demand'. The bank told me the truth-the delay was
caused by printing problems...not high demand at all."
Your contact with the bank constitutes tortious
interference in [Private's] relations and contract with
the bank. This delay was due to printing problems,
which further delayed an already exisitng backorder
due to high demand. There is no basis in fact for your
malicous comments.

10. In another posting you stated: "No wonder
they seem to be having problems building an affiliate
network." This is not true. [Private] has successfully
built an affilaite network.

11. In numerious postings you claimed that
[Private's] credit card is not designed to build credit.
In fact, you knew at the time that you made these
false and malicious statements that [Private's] prepaid
credit card does build credit. This is what makes it
unique in the industry.

Many of these errors have been previously brought to
your attention. Also, on occasion you have admitted
that your postings exceeded the bounds of free speech.
Your failure to correct your erroneous and false
statements and their repitition after notice of their
falsehood constitutes further publication of libel. It
also confirms your malicious intent.

If you do not immediately publish the requested
retraction, and cease and desist from tortious
interference and making false and malicious comments
about [Private], it's officers, and its programs, wewill
file suit against you. Please govern yourself
accordingly.

Sincerely yours,

[Private]

FAQ: Questions and Answers

[back to notice text]

Question: What is "interference with contract" or "interference with prospective business relations"?
Answer: One can be held liable for intentionally or negligently interfering with the existing or prospective economic relationships of another. (e.g. contractual/business relationships)
The 2d restatement of the law which contain general defintions of the law taken from the laws of many states, defines the tort of Intentional Interference with Prospective Contractual Relations as follows:
"One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation."
Rest 2d (Torts) section 766B.

Usually, damages are dependent on proof that "but for" the allegedly interfering behavior, an economic relationship, the contract, would have been entered into.
Most jurisdictions and the restatement have slightly different wording for the seperate tort of interference with an already existing contractual relationship.(e.g. when a 3rd party's behavior prevents the performance of or induces the breach of a pre-existing contract)

[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.

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Question: What is libel?
Answer: Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What are the elements of a defamation claim?

[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: What is libel?
Answer: Libel is a defamatory statement expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What is the legal definition of defamation?

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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 are the elements of a defamation claim?
Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements:

a publication to one other than the person defamed;

a false statement of fact;

that is understood as

a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual malice.

[back to notice text]

Question:
Answer: [not yet answered]

[back to notice text]

Question: What is "interference with contract" or "interference with prospective business relations"?
Answer: One can be held liable for intentionally or negligently interfering with the existing or prospective economic relationships of another. (e.g. contractual/business relationships)
The 2d restatement of the law which contain general defintions of the law taken from the laws of many states, defines the tort of Intentional Interference with Prospective Contractual Relations as follows:
"One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation."
Rest 2d (Torts) section 766B.

Usually, damages are dependent on proof that "but for" the allegedly interfering behavior, an economic relationship, the contract, would have been entered into.
Most jurisdictions and the restatement have slightly different wording for the seperate tort of interference with an already existing contractual relationship.(e.g. when a 3rd party's behavior prevents the performance of or induces the breach of a pre-existing contract)

[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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Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?
Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.
If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.

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