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PostPosted: Wed Aug 15, 2001 7:12 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
In a competitive society which has increasingly become more and more global in scope, it becomes more important than ever to know the parameters one can tread in the promotion of his or her products or self, without defaming other persons or products. You see more and more “knocking” of others and other products in commercials on television and it is not always subtle.

The same thing can be said for the Martial Arts World where pride and egoism often result in the puffing of the person uttering or publishing material without thought that statements not truthful, can harm other persons or products and result in litigation.

Slander is the offense relating to the spoken word against the person.

Slander of Title is the offense relating to the defamation of a product or brand name.
(An early Massachusetts case evolved against a man who was not satisfied with his automobile, had it painted yellow, wrote “lemon all over it”, and if my memory serves me correctly, had a large artificial lemon on the top of the car). In this case of first impression the Court held that his conduct was actionable for damages and was a Slander of Title.

Libel is the printed or published version of defamation.

The law in general:

Slander and libel, as committed against an individual, consist of the malicious defamation of the person, made public, and thereby exposing him to the hatred, contempt or ridicule of the public.
The malice, as applied to the defamation and distinguished from the actual malice which must be shown when truth is established as a defense to libel, is inferred by law where the slanderous words are actionable per se, or where the alleged libel is based upon a misstatement of fact. And although the plaintiff ordinarily bases his action upon the spoken or written words, the libel may equally consist of signs or pictures or the like. The wrong done to the plaintiff is the injury to his reputation, and this is the only basis upon which an action for defamation may be grounded.

In litigation, to establish a prima facie case (minimum evidence necessary) of slander or libel, the plaintiff must sustain the burden of proving (1) defamation, either oral or written as the case may be, (2) of and concerning the plaintiff, (3) made public, (4) that the defamation was false, or in actions of libel only, if the defamatory writing was true that it was written with actual malice, and (5) that he was damaged, with proof of special damage required in actions of slander where the words used were not actionable per se.

The above standards are based upon Massachusetts Law but are a pretty good guide as to the majority rule in this country.

This was intended to be a guideline only because the subject can, as in any legal matter, become more complex with such issues as facts that will establish legal evidence and what in each case is needed to develop the proof of each case.

My thanks to the Massachusetts Practice series (author Bishop) from which I was able to put this law in a concise form.

This post was made to help guide MA's and was not meant to be a disrespect to any dojo owners or sensei, but conversely to be used as a tool or guide.

Alan K


------------------
"The Goddess of Justice is Blind"


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PostPosted: Wed Aug 15, 2001 9:38 pm 
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Joined: Wed May 09, 2001 6:01 am
Posts: 986
Location: Chicago, IL USA
Thank you Counselor,

The information below is very useful. Care to delineate a similar post on defamation of character? The line seems a bit blurry and a clarification would help several people I know in another forum.

With thanks and respect,

Lee Darrow, C.Th.
(and yes, I AM related)

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:


In a competitive society which has increasingly become more and more global in scope, it becomes more important than ever to know the parameters one can tread in the promotion of his or her products or self, without defaming other persons or products. You see more and more “knocking” of others and other products in commercials on television and it is not always subtle.

The same thing can be said for the Martial Arts World where pride and egoism often result in the puffing of the person uttering or publishing material without thought that statements not truthful, can harm other persons or products and result in litigation.

Slander is the offense relating to the spoken word against the person.

Slander of Title is the offense relating to the defamation of a product or brand name.
(An early Massachusetts case evolved against a man who was not satisfied with his automobile, had it painted yellow, wrote “lemon all over it”, and if my memory serves me correctly, had a large artificial lemon on the top of the car). In this case of first impression the Court held that his conduct was actionable for damages and was a Slander of Title.

Libel is the printed or published version of defamation.

The law in general:

Slander and libel, as committed against an individual, consist of the malicious defamation of the person, made public, and thereby exposing him to the hatred, contempt or ridicule of the public.
The malice, as applied to the defamation and distinguished from the actual malice which must be shown when truth is established as a defense to libel, is inferred by law where the slanderous words are actionable per se, or where the alleged libel is based upon a misstatement of fact. And although the plaintiff ordinarily bases his action upon the spoken or written words, the libel may equally consist of signs or pictures or the like. The wrong done to the plaintiff is the injury to his reputation, and this is the only basis upon which an action for defamation may be grounded.

In litigation, to establish a prima facie case (minimum evidence necessary) of slander or libel, the plaintiff must sustain the burden of proving (1) defamation, either oral or written as the case may be, (2) of and concerning the plaintiff, (3) made public, (4) that the defamation was false, or in actions of libel only, if the defamatory writing was true that it was written with actual malice, and (5) that he was damaged, with proof of special damage required in actions of slander where the words used were not actionable per se.

The above standards are based upon Massachusetts Law but are a pretty good guide as to the majority rule in this country.

This was intended to be a guideline only because the subject can, as in any legal matter, become more complex with such issues as facts that will establish legal evidence and what in each case is needed to develop the proof of each case.

My thanks to the Massachusetts Practice series (author Bishop) from which I was able to put this law in a concise form.

This post was made to help guide MA's and was not meant to be a disrespect to any dojo owners or sensei, but conversely to be used as a tool or guide.

Alan K


<HR></BLOCKQUOTE>


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PostPosted: Thu Aug 16, 2001 3:42 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Thank you Lee,

You are correct in stating that my topic was incomplete as to the subject of Defamation, which is exactly the subject I will report on next if there was an interest.

I felt that I needed to put out the warning in the first post because many of us believe that we can publish anything (especially on the internet) so long as it is not profane.

I suppose you can call this verbal and printed self defense knowledge.

I will post "Defamation" next.

Alan K


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