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 Post subject: Forums liability
PostPosted: Fri Mar 01, 2002 8:44 pm 
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A timely subject.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>DEFAMATION LIABILITY OF COMPUTERIZED BBS OPERATORS

A. Computerized Defamation: Libel or Slander?

Libel is the "publication of defamatory matter by
written or printed words, by its embodiment in physical form, or
by any other form of communication that has the potentially
harmful qualities characteristic of written or printed words.

Publication of a defamatory matter is "its communication
intentionally or by a negligent act to one other than the person
defamed.

A communication is defamatory if it "tends to so
harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or
dealing with him.


The difference between libel and slander
has traditionally depended upon the form of the communication:

oral defamation generally is considered slander, while written defamation is generally considered libel. The distinction is
important, because libel requires no proof of special damages
and is actionable by itself, while slander generally requires
proof of special damages in order to be actionable.


We have seen that while the appropriate degree of fault
for a SYSOP[system operator] to be liable for defamatory messages appearing on
his BBS is subject to dispute, a showing that the defamation
appeared there due to the SYSOP's negligence is much more
capable of resolution.

The jury should be made aware of the
actual validation/security procedures practiced by the SYSOP and
should weigh them in light of the prevailing practice.

Several facets of an emerging standard of care for SYSOPs have
already been suggested in this Comment, and the SYSOP's
adherence to them could be shown through users' testimony.


Damages

Once the plaintiff establishes that the SYSOP [ system operator] failed to
act reasonably in removing statements known to be libellous from
his BBS or in negligently failing to prevent their appearance
there,no proof of special damages is necessary as libel is
actionable per se.

The state's interest in protecting private
reputations has been held to outweigh the reduced constitutional
value of speech involving matters of no public concern such that
presumed and punitive damages may be recovered absent a showing
of actual malice.<HR></BLOCKQUOTE>


(C) 1989 John R. Kahn

Questions for you Alan:

1] Is there a standard of liability you can access?

2] What is the legal relationship between GEM sensei as the owner of the system and the moderators?
What are the individual liability potentials of the owner as well as the moderators and the offending poster on these pages?

3] Do we have a reasonable mechanism in place to prevent and to respond to defamatory remarks, harassement, and or intentional infliction of emotional distress?

4] Given these forums are private, would there be any basis for liability of the owner, if someone gets kicked off the forum and he doesn’t think it fair?

------------------
Van Canna

[This message has been edited by Van Canna (edited March 01, 2002).]


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 Post subject: Forums liability
PostPosted: Sat Mar 02, 2002 10:20 pm 
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Interesting and scary questions Van. Since Al only posts during the week at the office, I wanted to take the opportunity to pose a few more comments for Al to consider:

How many of you watched "First Monday" on Friday? The topic was the First Amendment as it related to the internet. My guess is that because the series discusses Supreme Court issues, the subject matter probably is fairly accurate, althought the story line is made-up.

This time they were discussing whether to uphold an appeal to a verdict, where a defendant was awarded a 6 million judgement in a lawsuit involving a website. The web published pictures of doctors who performed abortions, stating that they deserved to die. A couple of the doctors were killed and the website put big X's through their pictures with a statement "they deserved to die". One of the doctors pictured, sued the website (I forgot what the charge was) and won the verdict. It was appealed and the verdict/award was thrown out. The decision ended up at the Supreme Court, where after an interesting story line, the decision was upheld.

The basis was that regardless of what was said or posted on the Internet, the web operator did not cause the deaths and therefore should not be penalized. All of this was based on freedoms we are given under the First Amendment.

Our forums are private and I will run them any way I wish. (First Amendment priviledges??) I elected to give my moderators total freedom to run their individual forums any way they wish, as long as they enforce and follow the rules of our forums, that every registered member agrees to when they join. (We don't have to enforce rules, but if we didn't, we would soon have a place none of us would want to vist.)

If websites have such broad freedom to post whatever they want, I sense that even though anyone can sue anyone at any time, their case would simply be annoying and perhaps expensive. . . but futile.

What say you Counselor??

------------------
GEM


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 Post subject: Forums liability
PostPosted: Mon Mar 04, 2002 4:59 pm 
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To: Van Canna and GEM, senei:

Defamation is a timely topic and certainly applicable to the internet and its ability to create a third person into the equation in the form of a moderator or system operator.

I believe that I have to post a bit more about defamation to avoid misunderstandings as to definition. This area of the law is not stagnant and developing constantly; to be sure we are all on the same page, I feel that we should look at this complex law and break it down.

Defamation is classified as a Tort ( a civil wrong from the French) and as a communication by one person, by words, pictures, or other means, concerning a plaintiff, to a third person or group of persons which tends to expose the plaintiff to public hatred, ridicule or contempt, or tend(s) to hurt his standing with a considerable class in the community. It is an invasion of the plaintiff’s interest in his reputation and good name. Defamation takes two forms; libel, which is predominantly written, and slander which concerns oral communications. The essence of the tort is the "element of personal disgrace" which may follow from the spreading of false information about a person.

The communication or publication of the defendant’s words or statement, need not be universally interpreted as defamatory. So long as the plaintiff’s reputation would be injured in the minds of at least a significant and respectable class or segment of the community, even a minority, or one person, the plaintiff has a cause of action. There is no publication and hence no cause of action if the words are comprehensible only by the plaintiff (e.g.) Mass Case where store clerk uttered defamatory words to plaintiff but only understood at that time by the plaintiff.

Defamation as a tort must be distinguished from two other related intentional torts. The tort of intentional infliction of emotional distress is similar to defamation, in that in that the plaintiff suffers personal grief from the defendant’s statements. The chief difference is that the defendant does not publish derogatory information about the plaintiff to third persons. The tort of invasion of privacy is closely related to defamation, the difference being that unlike defamation, the truth of the words is not a defense to liability.

A publication may be unambiguously defamatory and therefore actionable on its face, or may require proof of extrinsic facts and circumstantial evidence, known as inducement, in order in order to support a defamatory meaning or “innuendo”. If either of these conditions are met; i.e. the words are incapable of a defamatory meaning, the complaint may be subject to dismissal.

The common law was that defamation is an intentional tort in the sense that the defendaant must have intended to publish or disseminate the statement, not that he intended to defame. In other words the defendant published at his own peril. Thus, material published as a joke, or concerning fictitious persons which the community could nonetheless interpret as referring to the plaintiff, was considered actionable, lack of intent to defame notwhithstanding.

The established rule of strict liability began to give way, in 1964, to the concept of fault on the part of the defendant as a prerequisite to recovery in a defamation case. The fault concepts are malice and negligence. Malice, a term often used confusingly, is used properly in only two instances: to negate the defense of truth in libel cases, and to limit the privilege of a defendant in defaming a public official or public figure. If a statement cannot reasonably be interpreted as defamatory, malice in the publication does not make it so.

Prior to a 174 Supreme Court Decision (SCOTUS), most states used a strict liability standard. If a statement was published by a private individual, the defendant was held liable irrespective of fault. since 1974, however, many state courts, including Massachusetts, have adopted the negligence standard, meaning that a public media can be liable for defaming a private person only upon proof of negligence in the publication.

DEFAMATORY OPINION: ACTIONABILITY:

The law of defamation had traditionally distinguished between fact and opinion. That is to say to be defamatory a statement must be an assertion of fact which can be proven false. Indeed the First Amendment protects the expression of a false idea but not a false statement of fact. It is not always easy to determine whether a statement is one of fact or opinion, however, the determination of this question is one of law for the court.

There are various classifications of opinion. A “pure” opinion is based on disclosed , or assumed nondefamatory facts, and is not actionable no matter how unjustified and unreasonable it may be or how derogatory it is. A “mixed” opinion is based on facts which have not been disclosed or assumed to exist and can be defamatory in order to justify the opinion.
However, although an opinion is based on undisclosed, false facts, it is NOT actionable unless those facts also have a defamatory meaning.

In 1990 SCOTUS dismissed the notion that there is q “wholesale defamation exemption for anything that might be labeled ’opinion’. “ The court said that the relevant question is not whether the challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact. These propositions werer reaffirmed: (1) statements made by a media defendant must be provable as false before there can be defamation liability.; (2) statements that cannot reasonably be interpreted as stating actual facts about an individual are protected, (this, includes statements clearly recognizable as pure opinion because there factual premises are revealed); (3) The court will make an independent evaluation of the whole record to assure that these determinations are made in a manner so as not to constitute a forbidden intrusion on the field of free expression. In this manner opinion about matters of public concern receive substantial constitutional protection under the First Amendment principles.

We will continue this by taking the next step as to who may be defamed, followed by Libel and its general meaning and the elements of Libel.

I did not think I could answer the questions posed at this point because of the complexity of the law without addressing the various aspects of the law.

I do feel that the comments of Van and GEM are extremely relevant in an environment where spoken and published language become a matter of concern with the advent of the internet.

For years before the internet I was constantly concerned with compliance with FCC Regulations and slander as an officer of a large amateur radio club; as to that, the problems were nothing to what can happen on the internet.

The growth of these forums is amazing but can be a cause of concern when there are personal disputes. Those concerns have also been going on for years on HAM radio repeaters, when problems of disputes, language and good taste are involved. The “repeaters” (computer controlled radio stations), are supervised by a “Trustee” who would be the equivalent of a forum moderator, and the proprietary interest in the radio club, and in the case of the internet it would be the web site owner or operator.


My own experience was that if the Trustee found some offensive conduct by a user the user would be warned, but if a Trustee was too tough would be deemed a tyrant and repeater use would drop and the radio station would be considered a censorship station.

I intend to develop awareness of Defamation law if you feel that this method is responsive to the questions at hand.

Respectfully,

Alan K


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 Post subject: Forums liability
PostPosted: Mon Mar 04, 2002 10:32 pm 
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Counsellor,

Keep it coming - this is VERY good information, especially for those of us who frequest the USEnet newsgroups.

Respectfully,

Lee Darrow, C.Ht.


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 Post subject: Forums liability
PostPosted: Tue Mar 05, 2002 3:22 pm 
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Defamation, Part 2.

This post is to continue where we left off on the presentation of a synopsis of the law of defamation. It is my belief that the questions posed by Mattson-sensei and Canna sensi will be easier to answer once we review the law.

They are very relevant questions and a review by readers may assist in discerning responsibility for system operators, sponsors, moderators and forum posters.

The subject matter could cover a two semester law school course and to outline the subject matter, I have omitted for the most part, case references, evidence and references.

Who May be Defamed:

Any live person; but a decedent’s estate or relatives can’t recover unless the defamation unless the same defamation affects the living relatives personally.

Corporations or associations including non-profit entities , may be defamed only if the published material adversely affects their standing in the business community.

Plaintiff has to show that the defamation was of and concerning the plaintiff, or that I applied to him personally. Plaintiff can satisfy this test with proof that defendant intended the defamatory material to apply to plaintiff, and it was so understood OR that defendant’s words, reasonably could be interpreted to refer to plaintiff and the defendant was negligent in publishing them is such a way that they could be understood. It is not necessary that plaintiff be named so long as it may be reasonably understood by others that the plaintiff is the subject of the statement.

I believe the paragraph above is an important one to web site publications which tend to be a little less guarded than media publications.

A large unorganized group of individuals tied together by a common ethnic or religious characteristic may not maintain a suit for defamation of the entire group, nor may a member of the group by virtue of the membership sue in his own name. If the group is smaller and if it can reasonably be said that the defamatory statement has reference to the particular plaintiff and could affect his standing with others, that plaintiff may have a cause of action.

But, a person may have such a notorious reputation that he is incapable of recovering damages for defamation, 1.e., he is libel-proof, in the sense that his reputation could not suffer from the publication of libelous statements.

LIBEL-GENERAL STATEMENT:

Libel is that species of defamation which has more of an enduring or permanent quality than the other type of defamation, known as slander. Usually libel occurs through the written or printed word, but pictures, photographs, cartoons, statues, even actions having a permanent or persistent result such as dishonoring a valid check, , are included in this category.. Television and radio broadcasts are now considered to be libel, earlier cases to the contrary notwithstanding. And now we have the internet where more cases will develop.

The distinction between libel and slander is important when considering damages, because all libel is actionable without proof of special damages, but some forms of slander do require such proof. (This I believe is relevant to one of Canna, senei’s questions).

THE ELEMENTS OF LIBEL.

To prove libel, first there must be a statement in writing or a similarly permanent form, which has the effect of harming the plaintiff’s reputation in the community. All the elements which were discussed earlier which make up a defamatory communication, discussed earlier, are applicable here. Second the defamatory statement must also be false and untrue but under the established common law, a statement shown to be defamatory was regarded as false, and the defendant had the burden of proving the truth of the statement as an affirmative defense.

In Massachusetts, truth is only a conditional defense to libel. This means that even if the defendant proves the truth of the defamation, the plaintiff may defeat the defense of truth by proving malice on the part of the defendant. The malice required in this instance is described as “an actual malevolent intent’” i.e., hatred or ill will. It is to be distinguished from the malice which a public official or public figure must prove to establish a case of libel. Third there must be a publication of the defamatory matter, meaning that at least one person other than the parties to an action for defamation must have been exposed to the defamatory material. Not only must the third person be apprised of the defamatory matter, he must understand it. Publication may be accomplished either intentionally or negligently..

Republication of libelous material renders the republisher liable, even if the original publisher is privileged, or the republisher attributes the libel to him. But a newspaper which republishes allegedly defamatory statements verbatim from reliable wire services or accurately restates the contents of the reports is not negligent in doing so , and hence not liable for republication of a libel. Television and radio stations are not liable for publication of defamatory statements which are beyond their control or censor either by federal law or directive of the Federal Communications Commission. (Note this is by MGL Chapter 231,Section 91A in Massachusetts.)

Fourth, the final element of a plaintiff’s libel case is to show damage from the defamation about him. Libel, as opposed to slander in this respect, is actionable without proof of special damages. At common law a plaintiff could recover nominal or general damages merely on proof of the elements of libel. General damages are those which are “naturally and necessarily to be expected from the publication.” such as harm to reputation or emotional harm and which need not be established by specific proof. The plaintiff may also recover special damages which must be supported by specific proof and usually concern economic losses. Punitive damages are not recoverable in Massachusetts in any defamation action.

THE ESTABLISHED COMMON LAW RULES WERE ALTERED BY A 1974 SUPREME COURT DECISION. In that case the Court put aside the presumption that a libel plaintiff sustains compensable general damage to his reputation just from the fact of a defamatory publication. Instead the Court required that, at least in a case against a public medium, there must be affirmative proof of “actual injury” resulting form publication of the defamation. Such injury is not limited to out-of-pocket economic losses but may include provable injury to reputation and personal humiliation and mental anguish. This rule is intended to reconcile state laws on defamation with constitutional freedoms of free speech, and it has been followed in Massachusetts .

Damages may be mitigated by defendant’s proof of a published full and unequivocal retraction, or proof that the plaintiff has sued, or recovered, or agreed to settle, an action brought elsewhere for the same defamation, or evidence that the “acts of the plaintiff’…create reasonable suspicion that the [defamatory statements] are true”…..The defendant may also introduce evidence, for the purpose of mitigating damages, that the plaintiff “invited libel” by recently defaming him and that the plaintiff possesses a bad general reputation or character.

In the next post continuing this subject matter will be the law of SLANDER.


Respectfully submitted,

Alan K


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 Post subject: Forums liability
PostPosted: Wed Mar 06, 2002 3:57 pm 
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The defamation series continues with Part 3

I do hope that the text book type of presentation is helpful in sorting out this complex area of the law:

PART 3

To go on with the defamation presentation is the subject of Slander.

The general concept of Slander is defamation orally, and as such is a less permanent species of defamation. I usually consists of spoken words, but can include gestures. Under traditional common law. the chief difference between slander and libel was that while all libel was actionable without proof of special damage, slander was not actionable unless the plaintiff could prove actual pecuniary damage, (see Part 2 last post) except for a few categories of slander called slander per se for which damages were recoverable without proof of actual harm. Under the law as altered by the U.S. Supreme Court (SCOTUS), however, there is no longer a presumption of damage from published defamation, and actual injury to reputation must be shown in cases of slander per se (per say).

Of course, the requirements for slander are like those for libel in the sense that the plaintiff in a slander case must prove that the defendant published defamatory matter which injured his reputation in the minds of a significant segment of the community.

SLANDER PER SE:

Not all slander is actionable in and of itself, even if grossly defamatory . Because of the ephemeral nature of the spoken word, proof by the plaintiff that he has suffered tangible, pecuniary harm, or special damages, is required before he may recover. Certain categories of slander, however, were regarded by traditional common law as disparaging enough on their face to constitute a cause of action without proof of special or general damage. These are:

Criminal Conduct. if defamatory words impute criminal conduct on the part of the plaintiff, they are actionable per se. They need not imply that the plaintiff was prosecuted, nor expose him to future prosecution, nor describe the criminal conduct in technical terms in order to satisfy the requirements.
Certain “Loathsome” Diseases. A defendant’s imputation to the plaintiff of a disease likely to cause a negative public reaction harmful to the plaintiff’s reputation is also actionable per se. Disease most commonly falling within this category are venereal disease, leprosy, the plague, AIDS and others. The words must imply that the plaintiff is presently suffering from the disease; to have recovered is to eliminate the basis for social repugnance
Injury to business, Profession or Public Office. Words charging the plaintiff with conduct which tends to injure him in the trade, business or profession, or in his standing as a public official are also actionable per se, because the likelihood of economic harm is obvious. The plaintiff must be actively engaged in the activity at the time of the slander, and the conduct alleged must be related to the business in such a way as to harm it.
Want of Chastity: I won’t go into this one which is Victorian and non interest to us.
You have enough to deal with in this series.

SLANDER- THE ELEMENTS:

Slander, like libel, requires proof that the defendant published defamatory matter which tended to hold the plaintiff up to public ridicule or hatred or to injure his reputation. But unlike libel, truth is an absolute defense to liability for slander, even if the defendant acted maliciously , and the defendant has the burden of proving the truth of the act

The publication requirement is essentially the same for slander as it is for libel. The third person who hears the words must understand them and interpret them as defamatory . This point is critical when the words spoken are in a foreign language.

Finally , an action for slander will fall unless the words are actionable per se or special damage caused by the words is alleged and proved. By traditional common law slander per se was presumed to cause injury to reputation permitting recovery of general damages, but by virtue of modern constitutional doctrine, some actual injury to reputation must be proven, even for slander per se. All other slander, i.e., that which does not fit into a per se category, requires proof of a specific, pecuniary damages to be actionable, no matter how defamatory or offensive the slanderous words are. For instance, slandering the plaintiff by calling him a liar, a Communist, a deadbeat, a bum, or a bedwetter, requires proof of special damage. Special damages are those computable in money which “are the natural, but not the necessary result of the alleged wrong.” These may include loss of business or customers, loss of a particular contract, or loss of employment. Once these are shown however, the plaintiff can also recover for injury to his reputation, humiliation, and mental suffering.

The last segment of this series will deal with Privilege.

Also remember that new developments and theories will be relevant to the internet as the law evolves in the future.

Respectfully submitted,

Alan K


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 Post subject: Forums liability
PostPosted: Wed Mar 06, 2002 4:10 pm 
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Alan,

Great job, keep it coming.

Few things: could you explain the legal relationship between a moderator and system operator? Any implied contracts? Agency?

Does moderator's forum activity inure to the benefit of the operator?

If suit is brought against the operator, the moderator, and the offending poster,what is the respective liability exposure of all three?

Any implied indemmnification to be considered?

And do we have liability insurance coverage as operators/moderators of these forums?

Would moderators be "additional insureds" under any existing liability policy held by the operator?


------------------
Van Canna



[This message has been edited by Van Canna (edited March 06, 2002).]


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 Post subject: Forums liability
PostPosted: Wed Mar 06, 2002 8:05 pm 
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Van, sensei,

I think that we are a part of common group of persons. In that sense we are not in an agency relationship but more of a club of MA's (agency in the context of master and servant, employer v. employee_. We do not receive compensation (monetary) and are not required to do anything but adhere to the standards published by the owner.

Since I have been in HAM radio for many years, I can liken the role of Trustee for a radio repeater to a moderator and the owner of the operation in the same manner as Radio Organization which hosts the station and appoints the Trustees, who must follow FCC Regulations and those of the club.

We are here at the discretion of the owner, but unless there is some police work to disuade those who would post scandalous or defamatory material, we could expose our host to negligence and law suits.

That is not to say that we have to censor every word. I think that there have been times when some posts were not in good taste, but except in the case of some kid or quack who is an MA wannabe, some statements are made in the heat of passion, but I think in the long run, we are brothers and sisters under the skin.

My next posts will deal with the subject of privilege, and we just may fit in under some circumstances of enjoying "Conditional Privilege".

I think that we have a contractual relationship to the extent that we agreed to abide by the rules of the SYSOP. He has delegated broad powers in the moderators to run the forums in their own manner, observing good taste. I say that without even consulting GEM, sensei only because his policies are quite clear.

I think that under the conditional privilege concept, and provided that this has not been abused, we might not be liable if say a poster, who posts libelous matter has the post removed ASAP, and a statement is made retracting the statement. Now of course we see in the forums MA's who battle over credentials and factual matter. Suddenly one mentions that he has been disrespected; this may not be the interpretation of some readers, but to the poster who belives he has been "dissed", exchanges are made and posted tempers are revealed.

I think then that the moderator should be able to benefit the operator.

To answer the question of respecitve liability, the reasonable conduct of the operator and moderator would be in question, but the poster would be liable in the event that the publication is proved to be defamatory in the sense that we are addressing in this forum.

Well you could see a S**t Storm develop depending on the facts if the insurer of the operator want's to plead for contribution (Your question on Indmenification) because it does flow down hill.

I am quite familiar with liability contracts for negligence or injury for HAM radio stations, but these cover negligence as the tortious conduct, not defamation.

Each repeater station in the club has a separate sheet in the policy which covers negligence and equipment loss, and the event, station, repair and all officers are covered by design of the policy.

Now the ARRL (American Radio Relay League)
the NRA of ham radio has been instrumental in providing model policies that carriers may adapt.

Since I am not computer literate, I have no knowledge of what insurance is available to cover these types of torts. I also am unaware of any insurance policy in effect now. And finally, any policy should have coverage for all involved on the web site.
I doubt that this increases the premium.
In ham radio its the number of sites, not the number covered.

I am sure that many policies have been designed for commercial web-site operation, but come to think of it, you would know better than me about the insurance end.

You have made me think, and the bottom line is that I don't know the answers to these relevant questions.

Alan K


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 Post subject: Forums liability
PostPosted: Thu Mar 07, 2002 3:50 pm 
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The next subject matter is most important and covers a lot of material. I think that you will find the Conditional Privlege presentation will include and answer some questions concerning the obligations of Web Site or Forums. The following material ends before it has been completed because of my time constraints, but we will get in all in

Part 4

Continuing this series we will look at the various types of defense or exclusion provided by doctrines known as Privilege.

The first is Absolute Privilege:

This is based on the theory that circumstances exist in which society’s need for complete freedom of expression is paramount to the right of the person not to be defamed. The absolute or unqualified privilege is a complete defense to slander and libel suits and immunizes the defendant from all liability even if the defamatory statement is uttered maliciously or in bad faith. This privilege is usually restricted to cases in which public policy or the administration of justice requires complete immunity from the threat of defamation suits. It is limited to a few will defined situations.

One category relates to Judicial Proceedings and we won’t go too deeply into these because they do not really relate to our concerns. Included in this Group would be judges, lawyers statements made during judicial proceedings, parties to a dispute and witnesses, and a host of others who take part in proceedings.

The others I will mention briefly as a category without too much comment

Legislative Proceedings Federal and State if part of duties

Executive Officers; Varies from state to state if absolute or conditional but US Government Officials depending on rank have absolute privilege.

Publication Required by Law. If a publication is required by law, an absolute privilege vests in the publisher. Thus a radio or television station or network required by the FCC to carry a broadcast of a political candidate over which it has no control or censorship is absolutely immune from liability for defamation spoken by the candidate.

Husband and Wife—Absolute privilege to communications between husband and wife concerning a third person.(based on the confidential character of the H & W relationship.

Clergy: Members of the clergy ARE NOT immune from liability under the First Amendment’s provision regarding freedom of speech or religion. It does confer an absolute right to believe, but not absolute freedom to act. In short clergy are not immune for defamation.

The next category will be dealt with in more depth:

PRIVILEGE-Conditional or Qualified

Traditional common law recognized a “conditional” or “qualified” privilege because of the “need for free expression in areas of vital importance.” This privilege is conditional or qualified because it may be lost on a showing that it was abused by the defendant, usually through evidence of malice.

Conditional or qualified privilege exists in varied contexts. News media accounts if judicial proceedings, if they are substantially fair and accurate, are conditionally privileged. Publication of the pleadings or other material before the case reaches trial , however is not privileged. The privilege extends to a report of the exercise of judicial powers, although not by a judge, such as a clerk’s issuance of an arrest warrant or the submission of an affidavit to a magistrate as part of an application for a search warrant. It also extends to reports of quasi-judicial administrative proceedings. As a result of decisions of the U.S. Supreme Court attempting to find a suitable balance between the constitutional right of free press and the state law of defamation, it may be that the mass media enjoy a constitutional privilege to make an inaccurate report of a judicial proceeding. That is, while Massachusetts decisions extend the qualified privilege to only accurate reports, the constitutional right of free press entitles the public media to publish an inaccurate report of judicial proceedings so long as it is not negligent in doing so.

Fair comment by the news media, as well as private individuals on matters of public concern is protected by a conditional privilege. The words published may employ “ridicule, sarcasm and invective” but they must be based on “fact and not falsehood”. In other words, opinion and comment on matters of public concern, such as management of public schools or a public exhibition, is protected, but false statements of fact, or opinions based on undisclosed but falsely defamatory facts, are not so protected. Today, of course, there is a constitutional privilege to state one’s opinion and to make comments about public officials and public figures. To this extent the conditional privilege of fair comment may be absolute.

There are other instances of conditional privilege. One has a conditional privilege to publish defamatory matter for the protection of his own legitimate interests, such as protecting his property from a suspected arsonist, or defending his own reputation against the defamation of another. One is conditionally privileged to make derogatory statements about third persons whose conduct might impair or jeopardize the speaker’s family relationships or the cecipients family relationships.

A conditional privilege attaches to defamatory statements made by a person, acting under a legal or moral duty, to protect the interests of another. Thus, an employer’s statement as to the character and capabilities of a former employee made to a prospective employer is conditionally privileged. A credit mercantile agency has a conditional privilege to report credit and other information to subscribers specifically requesting such information. And a physician or attorney may speak out to protect the interests of his patient or client. Also a telegraph company has a conditional privilege to transmit defamatory information about a third person unless its agents know or had reason to know that the transmitted defamatory information about a third person unless its agents know or had reason to know that the transmitted message was false and that the sender was acting in bad faith. Finally one who makes a report to a public official about an important matter of public interest, such as detection and apprehension of a criminal is conditionally privileged to communicate defamatory matter, similarly, an inferior government official who does not have an absolute privilege to make defamatory statements has a conditional one.

(to be continued in Part 5, same subject)

Alan K


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PostPosted: Mon Mar 11, 2002 8:11 pm 
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Part 5 on the contiuing series of DEFAMATION

Part 5
Conditional Privilege continued:

A statement is conditionally privileged if its publisher and the recipient have a common interest in the subject and the statement is of a kind reasonably calculated to protect or further it. Often the speaker and the recipient of the statement are members of the same group, and the statement is made in order to protect an interest of the group. For example, statements made by a stockholder at a stockholders’ meeting about a matter pertinent to the corporate business are conditionally privileged, as are statements made at meetings of a church group and similar organizations. This conditional privilege has its widest application in the business world where officers and employees within one company communicate with others within the same company, or with those having positions within the same company or with those having positions within other companies about matters of mutual concern.

Abuse of privilege. A conditional or qualified privilege to publish defamatory information may be lost or forfeited if it is abused by the defendant. The basic inquiry here is whether the defendant’s conduct in publishing the defamation fell within the purposes and scope of the privilege. In this connection, the concept of malice, which “has plagued the law of defamation from the beginning” comes into play.

Malice is of two types. First thee is actual malice or ill will or malevolence on the part of the defendant towards this plaintiff. Second, thee is “express” malice or Malice in fact which means that the defamatory words were not spoken pursuant to the right and duty which created the privilege but…from some other motive. That is, “the defendant abused its privilege by failing to confine itself to the purposes for which the law granted the privilege.” Evidence of this type of malice is shown by proof that the defendant acted with “improper motive” in reckless disregard of the rights of another or with “absence of good faith”, of that the defendant engaged in “the wilful doing of an injurious act without lawful excuse”…Also the conditional privilege is abused in the absence of actual or express malice, by unnecessary , unreasonable or excessive publication of the defamatory matter. this requires proof that the defendant acted recklessly. Finally, a conditional privilege is lost if the defendant knows that his publication is false, or publishes with reckless disregard for the truth, since there is no benefit to society from publishing of a deliberate lie.

BURDEN OF PROOF. In a defamation action the defendant has the burden of proving that the publication of which the plaintiff complains was conditionally privileged. Once the existence of the privileged occasion is established, however, the burden shifts to the plaintiff to prove that it was abused by the defendant and thereby extinguished.

End of Part Five.

(to be continued in PART SIX CONSTITUTIONAL PRIVILEGE

Alan K


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PostPosted: Wed Mar 13, 2002 4:02 pm 
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CONTINUING OUR PRESENTATION OF THE LAW OF DEFAMATION IS:


The following is a post on the continuing series of the law of Defamation:

PART SIX CONSTITUTIONAL PRIVILEGE

Traditional common law made some accommodations that newspapers and other mass media will make errors in publishing information about so many people—government officials, public celebrities , and private individuals. There was a rule that publications commenting fairly on matters of public interest and reporting procedures of governmental bodies were conditionally privileged. The legislature helped out by allowing reduction of damages against media publishers who retracted libelous statements.

But in 1964, the Supreme Court of the United States confronted the tension between the state common law of defamation and the free speech and free press guarantees of the First Amendment to the United Sates Constitution. In New York Times Co. v. Sullivan, a police commissioner in an Alabama city sued the New York Times and others, including prominent black civil rights leaders, because the newspaper published a paid advertisement criticizing the handling by the city police of various racial incidents. In the state court the police commissioner obtained a verdict of $500,000 damages, upheld by the state supreme court which reaffirmed traditional libel law that general damages were to be presumed from publication of material libelous per se and that punitive damages could be recovered on a showing of malice. SCOTUS reversed the state judgment, holding that these traditional libel principles as applied to an action brought by a public official against critics of his official conduct, abridged the freedom of speech and press. The Court held that a public official may recover for a defamatory falsehood relating to his official conduct only by proof that the statement was made with “actual malice”, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. The constitutional privilege to criticize public officials about the manner in which they carry out their public duties, as announced in the Times case, was expanded a few years later to include “public figures.”

In 1971, the Court (by a plurality of only three judges) issued a decision which seemed to extend the privilege even further, to matters of “public interest or concern”, but in 1974 this position was rejected, and the Court again restricted the constitutional privilege to public officials or public figures. A public figure is one who assumes a role of importance in the resolution of public issues or affairs of general importance to people, usually by injecting himself into the controversy, but also by being drawn into one. (public figures are persons who achieve fame and notoriety) If a defamation case plaintiff is a public official or a public figure, he must prove that the defamation was published with actual malice, i. e. with knowledge of its falsity or with reckless disregard of whether it was false or not. Recklessness is shown by evidence that the defendant in fact entertained serious doubts as to the truth of the Publication. And, this proof of actual malice must be by “clear convincing” evidence that is, evidence which is greater than proof “by fair preponderance of the evidence” but less than proof “beyond a reasonable doubt.”

SCOTUS in 1974 went further in defining the constitutional privilege to defame. It held that the First Amendment did not permit imposition of liability for defamation without fault against the public media, even so to publications about private citizens, and private matters, and that the states were free to define for themselves the appropriate standard of liability for statements defamatory of a private individual. This means, apparently, that such a publication must have been made either (1) with knowledge of its falsity, or (2) recklessly, or (3) negligently with respect to its truth or falsity. Massachusetts has opted for the negligence standard—a private person bringing suit for defamation may recover compensation on proof of negligent publication of a defamatory falsehood. Private persons, unlike public officials and public figures, have not voluntarily injected themselves into public controversies, thereby inviting comment and criticism, and they do not enjoy access to media outlets so as to counteract false statements about them; hence, they are more vulnerable to injury than public persons and more deserving of recovery.

Finally, the First Amendment requires that in a defamation action, a plaintiff be allowed to recover only for “actual injury”, which is not limited to out-of-pocket loss but includes actual injury to reputation, humiliation, and mental suffering. Although the Supreme Court would allow recovery of punitive damages on proof of actual malice, Massachusetts does not allow punitive damages in defamation cases on any state of proof, because of the possibility that excessive jury awards will impermissibly chill exercise of First Amendment rights. (readers should check respective state law on acceptance and damage).

The next post will deal with STATUTE OF LIMITATIONS and a segment of the law dealing with MISUSE OF LEGAL PROCESS.

Next post is Part 7

Alan K


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PostPosted: Mon Mar 18, 2002 6:56 pm 
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Part 7 Defamation Statute of Limitations

Prior to 1968, the statute of limitations was two years for slander and one year for libel. The present statute of limitation is three years to both types of defamation. (Massachusetts law).

MALICIOUS PROSECUTION.

The tort of malicious prosecution exists to protect “the interest in freedom from unjustifiable litigation”, and was once limited to wrongful institution of criminal proceedings.

In order to recover in an action for malicious prosecution the plaintiff must prove that the defendant (who instituted the previous action) (1) formally initiated the proceedings, (2) did so with malice and (3) without probable cause, and (4) that the action was terminated in favor of the plaintiff (defendant in previous action. To prove malicious prosecution of a criminal case you have to prove that the defendant caused to be initiated the formal criminal proceedings against you. If the person filed a complaint against you upon which process subsequently issues, satisfies the requirement. The mere filing without issue of process does not. When a police officer or other appropriate authority acts upon the narration of material facts related to him, and the PO makes the decision and what he will do, the defendant is not liable for that action then taken However if that officer is not expected to exercise his “judgment and responsibility as a public officer, the defendant is responsible for the official’s subsequent acts. In other words the defendant in the malicious prosecution action must have been “the moving force” behind the earlier institution of a criminal proceeding against the plaintiff.

The Second Restatement of Torts states that an action for malicious prosecution is not defeated simply because the court or tribunal before which the plaintiff was brought upon initiation of the criminal proceeding against him lacked jurisdiction.

Malicious prosecution can be brought for abuse of civil process as well as criminal process..

You do have to prove that the action against you resulted in judgment in your favor, and were motivated maliciously and without probable cause.

Malice is a magic word necessary but not easy to define, and is an essential element. It does not necessarily mean revenge or ill will on the part of the defendant toward the plaintiff, although such feelings of hostility or actual malice may be shown. If the person initiating the action knew this action was wrong or unlawful, or is initiated by an improper motive this can be “malice”.
Malice may be inferred from the absence of probable cause, however, the absence of probable cause may not be inferred from proof of malice..

Here again the plaintiff has to prove that the prior proceedings terminated in his favor.

If interest remains in this topic, the final posts shall be Want of Probable Cause, and Favorable Termination.

End part 7

Alan K


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PostPosted: Mon Mar 18, 2002 7:12 pm 
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I'm still reading your posts Al. When completed, we might try to translate some of these complex issues into more practical examples that we martial artist might appreciate.


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PostPosted: Tue Mar 19, 2002 3:51 pm 
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GEM,sensei

Thanks George,

I have used this type of presentation, which is law student level, because I did not want to omit any element and be criticized for ommissions.

The complexity does make absorbtion difficult when text is presented without a number of examples.

I have all the parts except the last one in the series in one document in Word.

We could archive that and post examples of relevance to MA's on their posts to eachother, and in making statements about third parties. I presume internet examples are what is needed but I am not sure how far to go on the subject. It is no doubt dry and boring to read, but relevant in these forums and to dojo owners who publish statements in their own ads or in the internet.

Their will be one more post to complete the text book type presentation.

Best Regards,

Alan K


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PostPosted: Mon Mar 25, 2002 9:56 pm 
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This is the last post on the presentation on the law of defamation, as it applies in Massachusetts, and in a large part to other jurisdictions.

Questions on real or hypothetical cases may be discussed on this post after you have reviewed all eight posts. Perhaps we may take all 8 and combine on one sheet for convenience.

Part 8

This will conclude the text book type of discussion on the law of Defamation:

The subject matter under the general heading of Malicious Prosecution has two parts, namely. Want of Probable Cause and Favorable Termination.

Want of Probable Cause is perhaps the most essential element of the tort of malicious prosecution. The plaintiff has the burden of proving that the defendant lacked probable cause at the time he brought the original action; it is not enough to show that the prior action was terminated in favor of the plaintiff, or that the defendant abandoned the prosecution. It must be proved even if malice exists, that is, it is not to be inferred from the existence of malice.

Here again, the proof must be judged in the usual “reasonable man/person” sense that if the defendant initiated the process he could reasonably believe that a man of ordinary causation and prudence would believe, or entertain an honest and strong suspicion, that the plaintiff had committed a crime. Probable Cause is judged by an objective standard, and is said to exist if a reasonable man in the position of the defendant would believe, and the defendant in fact believed, that he had sufficient information as to both the facts and the law to justify him in initiating the criminal proceeding without further investigation or verification. Accordingly a defendant who instituted a criminal action against a plaintiff whom he knew had confessed to the police had probable cause to do so, but a defendant who accused the plaintiff of forgery without knowledge whether or not the plaintiff had signed the check in question lacked probable cause to initiate the proceeding.

When the malicious prosecution action is based on the alleged wrongful initiation of civil proceedings, the standard is relaxed and probable cause will exist if the defendant had a “reasonable belief in the possibility that the claim may be held valid.

Summing it up, the effect of the requirement of lack of probable cause demonstrates that “Private persons are not at liberty to initiate criminal prosecutions precipitously, on the basis of information which is neither reasonably complete nor reliable,

FAVORABLE TERMINATION:

To entitle the plaintiff to recover in an action for malicious prosecution, he must prove, in addition to the elements discussed above, that the prior proceedings were terminated in his favor.

The result must not only be favorable to the plaintiff (defendant in a criminal action), but it must terminate the proceedings with finality. A dismissal of a criminal complaint by the court, or a nolle prosequi entered by a district attorney satisfies the requirement that the criminal prosecution has been terminated in favor of the plaintiff. But the reasons stated for the dismissal or the nolle prosequi must be consistent with the innocence of the plaintiff, i.e., that there is a lack of reasonable grounds to pursue prosecution. It follows that “criminal prosecution terminated by nolle prosuqui on the basis of a procedural or technical effect will not suffice as a final and favorable termination.

This will end the posting of the law of defamation in its present form but readers may post questions on hypothetical questions for discussion.

Alan K


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