{"id":234,"date":"2006-10-26T21:46:03","date_gmt":"2006-10-27T01:46:03","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2006\/10\/26\/defamation-self-help-for-myself-too\/"},"modified":"2006-12-31T11:10:06","modified_gmt":"2006-12-31T15:10:06","slug":"defamation-self-help-for-myself-too","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2006\/10\/26\/defamation-self-help-for-myself-too\/","title":{"rendered":"defamation self-help (for myself, too)"},"content":{"rendered":"

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\"question\u00a0What does a person do when falsely accused of defamation?\u00a0 I’m not sure, since <\/font>yesterday’s charge<\/font><\/a> by “<\/font>victim-of-the-law” June Maxam<\/a><\/font> of the North Country Gazette<\/em>\u00a0was the first time it has happened to me, despite 30 years as a lawyer and\u00a0over three as an <\/font>opinionated<\/font><\/a> and sometimes <\/font>grumpy<\/font><\/a> weblogger.\u00a0\u00a0 I don’t think I’m going to set up a <\/font>Defense Fund<\/a><\/font> like Ms. Maxam’s.\u00a0 However, as a shlepper<\/em>, there is one thing I can do that might help myself and our readers: collect links to a few good online resources on defamation.\u00a0 So, here we go:<\/font><\/div>\n

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— You can find very helpful FAQs on Defamation (especially in the internet context) at both the Electronic Frontier Foundation<\/a> and The Chilling Effects Clearinghouse<\/a>.\u00a0\u00a0 <\/font>As EFF<\/a> says in its Bloggers’ <\/em>FAQ on Online Defamation Law<\/em><\/a>, “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.”\u00a0\u00a0\u00a0 The FAQ also points out that truth is an absolute defense, and “For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.”<\/font><\/font>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n
— The AOL Legal Department<\/a> has put together a page on Online\u00a0defamation Decisions and\u00a0litigation.\u00a0 <\/font><\/div>\n
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— Prof. Euguene Volokh posted<\/a> a piece just today that explains: “In a defamation case, at least when the speech is on a matter of public concern, “the plaintiff [must] bear the burden of showing falsity, as well as [the defendant’s] fault, before recovering damages.” This is true whether the plaintiff is a public figure or a private figure. See <\/font>Philadelphia Newspapers, Inc. v. Hepps<\/em>, 475 U.S. 767, 776 (1986)<\/font><\/font><\/font><\/a>. The common-law rule was that the defendant must prove truth, but Hepps<\/em> changed that for First Amendment reasons.”<\/font><\/div>\n
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Ironically, my accuser, legal pundit June Maxam <\/font><\/font>stated last month<\/font><\/a> in\u00a0a\u00a0North Country Gazette<\/em> editorial that “In a libel and defamation suit, truth is the best defense.”\u00a0\u00a0 With that principle in mind, Mike at TechDirt.com<\/em> asked today\u00a0“Can You Sue For Defamation<\/font><\/a> If Someone Points Out Publicly That You Are Wrong?”\u00a0(Oct. 26, 2006) Unfortunately, unless blocked from courts due to a pattern of <\/font>vexatious<\/font><\/a> lawsuits, just about anybody can sue for just about anything.\u00a0 Although sanctions can be levied for frivolous lawsuits (as we recently discussed <\/font>here<\/font><\/a>), responding to baseless charges is never enjoyable, can be very time-consuming and stressful,\u00a0and very expensive.\u00a0 Nonetheless, spending a little time understanding the law and its protection\u00a0for truthful speech, can help a shlepper<\/em> with a clear conscience sleep even better. <\/font><\/font><\/div>\n
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\u00a0\"napperStump\"\u00a0 p.s.\u00a0 Although she is the one who has repeatedly hurled threats at me, I’ve also been accused<\/a> of harassment by Ms. Maxam.\u00a0 Just looking at its definition<\/a> in the Law.com dictionary, however,\u00a0was enough research for me tonight.\u00a0 I’m going to be sleeping like a baby.<\/font><\/div>\n

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Update & Correction <\/strong>(Oct. 27, 2006;<\/em> moved from top to end of post Dec. 31, 2006): [this story starts here<\/a>, with a discussion of Fair Use and Copyright]\u00a0\u00a0I have learned<\/a> this morning that, a day after<\/em> I was accused of defamation by the Editor of North Country Gazette<\/em>, I made an erroneous statement about NCG<\/em> in a Comment to a prior post<\/a>:\u00a0After comparing the text of the two articles,\u00a0I mistakenly said that NCG<\/em> had taken another newspaper’s story without attribution.\u00a0It appears that NCG<\/em>\u00a0had actually\u00a0used a press release from a district attorney’s office, and followed it with\u00a0its copyright notice forbidding reproduction without permission and saying “Fair Use is not applicable”. \u00a0Here is the Correction notice that I have placed in the Comments to that post:<\/font><\/div>\n
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CORRECTION<\/strong> (Oct. 27, 2006): Yesterday evening, I erroneously stated in this Comment that NCG<\/em> had\u00a0copied from\u00a0<\/font>this article<\/font><\/a> in the Westchester News<\/em>,\u00a0when it wrote <\/font>this story<\/font><\/a>\u00a0— showing that at least five sentences from the NCG<\/em> article were identical to the sentences in the Westchester.com article.\u00a0\u00a0 It has been brought to my attention that the source of the\u00a0NCG<\/em> article was <\/font>this release<\/font><\/a> from the Westchester County District Attorney.\u00a0 I apologize for\u00a0my error.\u00a0 Clearly, NCG<\/em> did not take the information from Westchester.com.\u00a0 \u00a0If NCG<\/em> had attributed its story and facts to the Westchester DA\u2019s press release,\u00a0my mistake would not have occurred.\u00a0 My main point remains, however, that NCG<\/em>\u00a0was claiming exclusive rights to use materials that the public has every right to reproduce, when it\u00a0placed the statement \u201cThis material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable\u201d at the end of the article.<\/font><\/div>\n<\/blockquote>\n
I have never had an “axe to grind”\u00a0with NCG<\/em>.\u00a0\u00a0 In Oct. 30, 2005<\/font><\/a> and\u00a0December 8, 2005<\/font><\/a>, I had\u00a0pointed to\u00a0NCG<\/em> articles as new sources at my other\u00a0legal weblog and, on September 26, 2006, had discussed one of its editorials in a posting<\/font><\/a> at this weblog.\u00a0 When I approached the Editor of NCG<\/em> last week, it was with one simple purpose: to ask that she remove the incorrect clause \u201cFair Use is not applicable\u201d from NCG<\/em> articles and commentary.\u00a0\u00a0My purpose when I wrote about<\/a> the topic at this weblog was to get the clause changed and to help the public better understand the Fair Use concept.\u00a0 That is why I wrote to Ms. Maxam thanking her, as soon as I learned that the clause was removed in the Oct. 24, 2006 articles at her site (and why I was disappointed when she reverted back to useing it the next day.\u00a0 I apologize to her for the one erroneous claim that I made, which is discussed above.\u00a0 I apologize to shlep<\/em>‘s readers and Team for allowing the story to take up so much of this weblog’s resources this week and for allowing the situation to get muddied by making that one incorrect assertion.\u00a0 Having said that, I hope the sources supplied below on defamation law will be helpful.<\/font><\/div>\n

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\u00a0What does a person do when falsely accused of defamation?\u00a0 I’m not sure, since yesterday’s charge by “victim-of-the-law” June Maxam of the North Country Gazette\u00a0was the first time it has happened to me, despite 30 years as a lawyer and\u00a0over three as an opinionated and sometimes grumpy weblogger.\u00a0\u00a0 I don’t think I’m going to set […]<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[896,899],"tags":[],"class_list":["post-234","post","type-post","status-publish","format-standard","hentry","category-resources-consumer","category-website-admin"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/234","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=234"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/234\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=234"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=234"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=234"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}