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Disclosure: The author is not a practicing attorney. This is advice is provided for educational purposes only, please seek an attorney for any legal issue.
Imagine yourself in this situation: You relay a fellow writer’s comment about a picky magazine editor on a message board. Some time later, you’re facing a libel lawsuit for the comments you made.
Wait a minute. Did you really make the comment, or did you just state someone else’s opinion in written form? According to the legal definition of the term, you just committed libel.
Slander, libel, and defamation of character are very serious crimes, punishable by a fine of up to $100,000. How harmless do message boards seem now? The truth is that people probably make slanderous or libelous comments almost every day. It’s just the luck of the draw on who winds up paying the price for them.
Defamation includes four main points:
“Defamation of Character is made with the intent – intentional or otherwise – to injure the reputation of someone else, but a really important aspect to defamation cases is that you’ve got to be able to prove that the comment was made with malice and that it was a false comment,” says Joseph Day, Attorney at Law in Iowa City, IA.
Simply put, libel is a written defamatory statement, while slander is a spoken defamatory statement. The tricky thing about libel is that it includes symbols, drawings, or the written word. So, those pictures you drew of your high school science teacher with the head of a pig were technically libelous.
“Because slander is expressed verbally, it’s not a criminal offense like libel. This really makes slander hard to prove, because not only do you have to show that the statement was made, but you also have to show that damage was done,” says Brown.
Writers and journalists often face libel cases, because they depend on quotes from sources, interviews, and anecdotes from the average person. A journalist obviously doesn’t have all day to verify each and every statement for accuracy, and would probably go crazy if they tried. But there are important ways to protect yourself from lawsuits.
Take the message board for instance. A person relaying a comment about someone else, especially when it’s negative or potentially harmful to someone’s reputation, should avoid using specific details and names. Write the incidence as a hypothetical or general question like we have below:
I’ve heard through the grapevine that a newsstand magazine I’m writing for is stealing writer’s ideas. Is there a legal organization that deals with these types of issues, or should I just overlook the comments until I have proof?
“By leaving out the specifics, you’ve greatly reduced your chances of a potential lawsuit,” says Attorney at Law Davis Mullins, of Willey, O’Brien, Mullins & Hanrahan of Cedar Rapids, IA.
It’s 2003, which means that just about everyone has their own website. Many websites accept reviews, essays, or contain message boards where moderation of content is limited. These can be prime examples of lawsuits waiting to happen, because they are the least likely to verify the content they receive for accuracy. Many of these places are built on the idea of “venting” or “letting off steam” about products, services, or people. “If a website owner publishes a personal experience review based on a negative experience with the latest gadget, the website owner is just as likely to face litigation as the author. Perhaps even more so, because the website is the outlet for libelous content,” explains Mullins.
Take the ever-growing idea of blogging that has emerged lately. People share their thoughts, feelings, and opinions innocently for thousands of web-browsers to read. Many of them unintentionally commit libel by what they write. Most aren’t going to wind up in court over it, but most of us aren’t going to sue McDonald’s over receiving a hot cup of coffee, either.
The idea is that what you write or speak can be used against you if it harms a person’s reputation and if it’s false – which might include those blog opinions. If you own a website, message board, or some other means of public communication, protect yourself by editing out actual names of people and businesses, or incriminating generic remarks that might be easily recognized as intended towards someone else.
The first thing you need to determine is if the statement is true or false. If you can prove truth, then the Constitution’s First Amendment protects you. If you’re commenting on a public figure, malice has to be proven, but if the statement is made against a “private” person – your friend, parent, neighbor, or co-worker – you’ll have more difficulty defending yourself. “In civil cases of libel or slander, all the person has to prove is that you were negligent in your comments. So if I tell a friend that a fellow writer traded sexual favors to get assignments, I’ve been negligent (unless of course I can prove it’s true),” says Day.
If you can’t prove that the statement is factual, you may be able to prove that the statement was an opinion and lacks malice. “This means that a writer could state an opinion about a product or person without intentionally trying to harm. This is harder to prove, because it basically amounts to a “my word against your word” scenario,” Day says.
Website owners, magazine editors, or even writers who are relying on quotes or opinions from others, may be able to depend on their innocence. If you’ve been accused of printing a defamatory statement that you didn’t make, courts do consider the fact that it was an “innocent mistake.” Maintain records of your research and conversations when using someone’s opinion.
A final method of winning a defamation lawsuit is to prove that the reputation you’ve allegedly harmed was poor beforehand. If you’ve written a false statement about a local car dealership that sells lemons or skims cash from customers, you might be able to prove that the dealer already had a bad reputation before you stated it. When writing, try to back up your opinion with that of many others, as they can be called upon in a court situation later.
The best way to protect yourself from libel lawsuits is to be cautiously aware of the people around you. There is no way to guarantee that you won’t find yourself facing a lawsuit, as almost all of us make daily comments that don’t reflect well on people, products, and businesses. If you’re left feeling worried over recent comments or written statements you’ve made, look on the bright side. You could be the writers for National Enquirer.
- Holysmoke.org was served a letter of intent by a ministry because they published an article that accused the ministry members of criminal activity.
- JobFinders International served a letter of intent to a private recipient accusing them of libel. The private recipient allegedly accused JobFinders of fraud.
- The United States Trademark Protection Agency (USTPA) sent a letter of intent to a private recipient for sending out a false hoax email as spam regarding false and libelous information about USTPA.
- Ripoffreport.com was issued a letter of intent for making “false” statements about an attorney and his practice. The statements centered around the writer’s experience with the unethical practice of the attorney.
- Writer’s Guild of Canada offers a list of Canadian lawyers who specialize in representing writers.
- National Writer’s Union offers numerous methods for dealing with legal issues.
- American Society of Journalists and Authors
- American Society of Newspaper Editors offers great information on the first amendment and legal issues for news journalists.
- American Civil Liberties Union offers numerous articles and resources on libel and slander cases.
- The Committee to Protect Journalists offers a listing of hundreds of free speech organizations and resources.