Anonymous (207.44.134.33)
06-23-2004, 06:05 PM
Gray Cary Ware & Freidenrich LLP
By Guylyn Cummins
America's tree-lined streets were once natural places for disseminating information and opinion, and for doing business. Lawsuits for defamation and invasion of privacy were few; dissemination of information was limited to the crowds that attended.
But America's "streets" today are broad and treeless. They transcend the continent, and have merged with foreign byways into an electronic fiberoptichighway linking millions. Information, opinion and defamatory falsehood are now heard 'round the world' the moment the missive is sent.
Other things have changed as well. While speech is still free in America, it is not cheap. To the contrary, it can be tremendously expensive unless it is painstakingly accurate (and provably so) or privileged. Even then, it may not be protected in countries where it is received which have no free speech protection.
Like so many other areas of our American life, it has become prudent for the risk adverse to practice safe speech -- especially on the Internet. Here is a quick road guide.
Rules of the Road for Safe Speech
Defamation is used to describe libel (written falsehoods) and slander (oral falsehoods).
What defamation is to individual reputation loss, trade libel or product disparagement is to product or business (economic) loss. These rules of the road generally apply to statements concerning both products and individuals or companies alike.
Questions You Should Ask Yourself
Most speech can be transmitted safely in America if you carefully answer the following questions before engaging your fingers.
Is what I am saying defamatory?
If defamatory, is it true and can I easily prove it?
Or does a privilege exist to protect myself from liability?
The answers to these three questions are the crux of protecting yourself against liability.
The Answers
Answer No. 1:
Defamation is a statement of fact, not opinion, which is false, unprivileged, and harms another's reputation by exposing him or her to hatred or ridicule, or which causes her or him to be shunned or avoided, or which has a tendency to injure him or her in occupation or business. Clear as mud?
In more graphic parlance, it includes such things as falsely accusing someone of a crime, professional misfeasance, incompetence or unfitness, a "loathsome" disease, or a serious moral transgression. For example, falsely attributing a "Scarlet A" to a minister is defamatory.
A statement of fact is one which is susceptible to objective proof, i.e., calling the Mayor "a felon." Since felonies are proscribed by law, the Mayor either has been convicted of a felony and is a felon, or has not and is not.
A statement of opinion is a subjective judgment, i.e., calling someone "mean-spirited" or a "rogue." Since opinion is protected speech, it is far better to accuse the Mayor of being "mean-spirited" and a "rogue" than a felon and a liar (although it doesn't make for as spicy journalism!).
Simply adding, "In my opinion the Mayor is a felon," will not get you off the hook. Statements of opinion are safe only so long as they do not imply facts which are false. Thus, it is okay to say, "In my opinion, the Mayor is a rogue"; however, it is not okay to add "and in my opinion, if the IRS were on its toes, he wouldn't be roaming the streets." The implied fact underlying the opinion which is not protected is an accusation of "tax evasion".
Answer No. 2:
A true statement is defensible and can not support liability for defamation. Truth will also deter most people from filing lawsuits against you.
However, for those few rebels who intend to teach you a lesson, the real issue is how expensive will it be to prove truth?
If the "truth" is a matter of public record (i.e., a felony conviction), you're home free and the lawsuit will be short lived. However, one of truth's major shortcomings is that it is variable. Rarely does anyone know what "the truth" is, but many people will loudly profess they do! Worse yet, try to convince a jury the statement is true after the plaintiff has taken numerous shots with his or her own witnesses at telling the jury all the reasons why it's false.
Answer No. 3:
If you can, try to wrap yourself in a privilege. Even bald-faced lies are protected if they are privileged.
Public Report Privilege: Fairly and accurately reporting public proceedings or official acts are privileged, even if the official loudly and falsely proclaims, "The Mayor is a drug addict!" Be accurate, though. Unfairly characterizing or inaccurately recounting what happened (i.e. "Joe Blow said the Major is an adulterer") is not privileged.
Fair Comment Privilege: This is a little like protected opinion. It is okay to say, "The Governor is mean-spirited"; but it is not okay to say, "The Governor has a brain tumor" if he does not. The key is to get the facts right! Your fair comment is then protected if it is fair. Fair comment is an especially important tool in consumer journalism, analysis of public officials and the like.
Constitutional Protection Privilege: This defense is better left to the lawyers as it involves analysis of "fault." In general, the rule is that if you pick on a public official or public figure, it is okay to be innocently wrong on your facts. However, you cannot be knowingly wrong or have serious doubts about truth or you're unprotected. If you are discussing a private figure, it is better to get the facts right.
The rationale for this privilege is that high-profile types necessarily expose themselves to public critique even before all of the true facts come to light (those politicians asked for the job of running this country, didn't they?). Thus, its alright to comment on the President's dishonesty in "Watergate" or perhaps "White Watergate" before all the facts are known, at least as long as you're not making the story up.
Just remember, it is far better to ask for permission (or for documentation of the true facts) than to ask for forgiveness -- especially when the missive you sent was received by millions.
False Light, Invasion of Privacy and Other Wrongs
False Light: "False light" is another theory of legal liability similar to defamation. The only real difference between the elements of false light and defamation is that the falsehood need not be defamatory to sustain liability, but need merely be false and cause offense to a person of reasonable sensibilities. Thus, "fictionalizing" or "shading" true facts in a false, offensive way may give rise to liability, despite the fact the facts are true and not defamatory.
Private Facts: Another theory of liability is "public disclosure of private facts." Under this theory, the information published is true, but will support liability if the fact was private (not publicly known), highly offensive to a person of ordinary sensibilities, and unnewsworthy or lacking "public interest" (i.e., no real reason the public needs to know). While it is alright to criticize your neighbor's product he has offered for sale in the marketplace, it is not okay while critiquing his product to lambast him for having AIDS, if that is not publicly known and newsworthy.
Wiretapping: It is not permissible to wiretap your enemy's telephone for information unless he consents. Stringent federal and state laws prohibit wiretapping. It is also not okay to trespass on your neighbors property unless he or she consents. It is okay, however, to overhear on the table of enemies next to you at a restaurant open to the public, as long as you do not plant a hidden microphone or other amplification device in their centerpiece.
Infliction of Emotional Distress: Variants of intentional or negligent "infliction of emotional distress" are also popular, but must clear all of the First Amendment hurdles for either defamation or privacy torts in order to be actionable. Thus, a plaintiff cannot plead around the First Amendment to silence your freedom of speech by alleging you caused him or her emotional distress.
Breach of Contract: Lastly, a new breach of contract tort has arisen for promising not to disclose information (i.e., a source or specific information), but then doing it. ("So Mrs. Gingrich, how does Newt really feel about Hillary, confidentially of course?") This falls into the category of don't make promises you can't or won't keep, or you may find yourself liable for breach of promise.
Correcting Errors
While the general rule is that a correction may reducedamages, it probably will not undo the harm caused by your falsehood or error. Moreover, it will establish that you made an error. Accordingly, before a retraction or correction is made, it is time to consult a lawyer.
Right to Remain Silent
The most important rule of speech when you're in trouble may well be found in your right to remain silent or the Fifth Amendment, rather than the First Amendment. That rule simply says, unless you are compelled by law to talk, you have the right to say nothing. When a lawsuit is threatened or pending, criminals and innocents alike would do well to follow this rule.
--------------------------------------------------------------------------------
This article is a publication of Gray Cary Ware & Freidenrich and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions you may have.
Torts/ Personal Injury False Light 6205
By Guylyn Cummins
America's tree-lined streets were once natural places for disseminating information and opinion, and for doing business. Lawsuits for defamation and invasion of privacy were few; dissemination of information was limited to the crowds that attended.
But America's "streets" today are broad and treeless. They transcend the continent, and have merged with foreign byways into an electronic fiberoptichighway linking millions. Information, opinion and defamatory falsehood are now heard 'round the world' the moment the missive is sent.
Other things have changed as well. While speech is still free in America, it is not cheap. To the contrary, it can be tremendously expensive unless it is painstakingly accurate (and provably so) or privileged. Even then, it may not be protected in countries where it is received which have no free speech protection.
Like so many other areas of our American life, it has become prudent for the risk adverse to practice safe speech -- especially on the Internet. Here is a quick road guide.
Rules of the Road for Safe Speech
Defamation is used to describe libel (written falsehoods) and slander (oral falsehoods).
What defamation is to individual reputation loss, trade libel or product disparagement is to product or business (economic) loss. These rules of the road generally apply to statements concerning both products and individuals or companies alike.
Questions You Should Ask Yourself
Most speech can be transmitted safely in America if you carefully answer the following questions before engaging your fingers.
Is what I am saying defamatory?
If defamatory, is it true and can I easily prove it?
Or does a privilege exist to protect myself from liability?
The answers to these three questions are the crux of protecting yourself against liability.
The Answers
Answer No. 1:
Defamation is a statement of fact, not opinion, which is false, unprivileged, and harms another's reputation by exposing him or her to hatred or ridicule, or which causes her or him to be shunned or avoided, or which has a tendency to injure him or her in occupation or business. Clear as mud?
In more graphic parlance, it includes such things as falsely accusing someone of a crime, professional misfeasance, incompetence or unfitness, a "loathsome" disease, or a serious moral transgression. For example, falsely attributing a "Scarlet A" to a minister is defamatory.
A statement of fact is one which is susceptible to objective proof, i.e., calling the Mayor "a felon." Since felonies are proscribed by law, the Mayor either has been convicted of a felony and is a felon, or has not and is not.
A statement of opinion is a subjective judgment, i.e., calling someone "mean-spirited" or a "rogue." Since opinion is protected speech, it is far better to accuse the Mayor of being "mean-spirited" and a "rogue" than a felon and a liar (although it doesn't make for as spicy journalism!).
Simply adding, "In my opinion the Mayor is a felon," will not get you off the hook. Statements of opinion are safe only so long as they do not imply facts which are false. Thus, it is okay to say, "In my opinion, the Mayor is a rogue"; however, it is not okay to add "and in my opinion, if the IRS were on its toes, he wouldn't be roaming the streets." The implied fact underlying the opinion which is not protected is an accusation of "tax evasion".
Answer No. 2:
A true statement is defensible and can not support liability for defamation. Truth will also deter most people from filing lawsuits against you.
However, for those few rebels who intend to teach you a lesson, the real issue is how expensive will it be to prove truth?
If the "truth" is a matter of public record (i.e., a felony conviction), you're home free and the lawsuit will be short lived. However, one of truth's major shortcomings is that it is variable. Rarely does anyone know what "the truth" is, but many people will loudly profess they do! Worse yet, try to convince a jury the statement is true after the plaintiff has taken numerous shots with his or her own witnesses at telling the jury all the reasons why it's false.
Answer No. 3:
If you can, try to wrap yourself in a privilege. Even bald-faced lies are protected if they are privileged.
Public Report Privilege: Fairly and accurately reporting public proceedings or official acts are privileged, even if the official loudly and falsely proclaims, "The Mayor is a drug addict!" Be accurate, though. Unfairly characterizing or inaccurately recounting what happened (i.e. "Joe Blow said the Major is an adulterer") is not privileged.
Fair Comment Privilege: This is a little like protected opinion. It is okay to say, "The Governor is mean-spirited"; but it is not okay to say, "The Governor has a brain tumor" if he does not. The key is to get the facts right! Your fair comment is then protected if it is fair. Fair comment is an especially important tool in consumer journalism, analysis of public officials and the like.
Constitutional Protection Privilege: This defense is better left to the lawyers as it involves analysis of "fault." In general, the rule is that if you pick on a public official or public figure, it is okay to be innocently wrong on your facts. However, you cannot be knowingly wrong or have serious doubts about truth or you're unprotected. If you are discussing a private figure, it is better to get the facts right.
The rationale for this privilege is that high-profile types necessarily expose themselves to public critique even before all of the true facts come to light (those politicians asked for the job of running this country, didn't they?). Thus, its alright to comment on the President's dishonesty in "Watergate" or perhaps "White Watergate" before all the facts are known, at least as long as you're not making the story up.
Just remember, it is far better to ask for permission (or for documentation of the true facts) than to ask for forgiveness -- especially when the missive you sent was received by millions.
False Light, Invasion of Privacy and Other Wrongs
False Light: "False light" is another theory of legal liability similar to defamation. The only real difference between the elements of false light and defamation is that the falsehood need not be defamatory to sustain liability, but need merely be false and cause offense to a person of reasonable sensibilities. Thus, "fictionalizing" or "shading" true facts in a false, offensive way may give rise to liability, despite the fact the facts are true and not defamatory.
Private Facts: Another theory of liability is "public disclosure of private facts." Under this theory, the information published is true, but will support liability if the fact was private (not publicly known), highly offensive to a person of ordinary sensibilities, and unnewsworthy or lacking "public interest" (i.e., no real reason the public needs to know). While it is alright to criticize your neighbor's product he has offered for sale in the marketplace, it is not okay while critiquing his product to lambast him for having AIDS, if that is not publicly known and newsworthy.
Wiretapping: It is not permissible to wiretap your enemy's telephone for information unless he consents. Stringent federal and state laws prohibit wiretapping. It is also not okay to trespass on your neighbors property unless he or she consents. It is okay, however, to overhear on the table of enemies next to you at a restaurant open to the public, as long as you do not plant a hidden microphone or other amplification device in their centerpiece.
Infliction of Emotional Distress: Variants of intentional or negligent "infliction of emotional distress" are also popular, but must clear all of the First Amendment hurdles for either defamation or privacy torts in order to be actionable. Thus, a plaintiff cannot plead around the First Amendment to silence your freedom of speech by alleging you caused him or her emotional distress.
Breach of Contract: Lastly, a new breach of contract tort has arisen for promising not to disclose information (i.e., a source or specific information), but then doing it. ("So Mrs. Gingrich, how does Newt really feel about Hillary, confidentially of course?") This falls into the category of don't make promises you can't or won't keep, or you may find yourself liable for breach of promise.
Correcting Errors
While the general rule is that a correction may reducedamages, it probably will not undo the harm caused by your falsehood or error. Moreover, it will establish that you made an error. Accordingly, before a retraction or correction is made, it is time to consult a lawyer.
Right to Remain Silent
The most important rule of speech when you're in trouble may well be found in your right to remain silent or the Fifth Amendment, rather than the First Amendment. That rule simply says, unless you are compelled by law to talk, you have the right to say nothing. When a lawsuit is threatened or pending, criminals and innocents alike would do well to follow this rule.
--------------------------------------------------------------------------------
This article is a publication of Gray Cary Ware & Freidenrich and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions you may have.
Torts/ Personal Injury False Light 6205