The areas I know best are criminal law and tort law (personal injury/wrongful death/defamation/etc.)
Hi Nolo
I don't live in any state but I believe defamation can be prosecuted across international boundaries?
I think many forum members would benefit from a tutorial on how to communicate on a forum without using defamatory language/accusations
or maybe a guide to those that feel they have been defamed so they know what they can actually do.
I realise its a bit hard, anonymous people abusing each other, but for the good of Bitcoin and the appearance of some forum threads ... especially as more new people discover Bitcoin.
I would happily throw a couple of Bitcoins in your wallet - it would also give other forum members an opportunity to verify that you know your stuff - just a thought
Welcome to the the forum
Graet
Thank you for the suggestion, and thank you for the welcome.
The Law of Defamation
(Skip to the bottom for the TL:DR version and general advice)
Defamation is a false statement made about a person that is injurious to his reputation, published to a third party, that causes damage. Any living person, corporation, or other legal person may be defamed. There is, however, no cause of action for defamation of a deceased person.
The term defamation is made up of two different torts. Slander and Libel. Slander is the publication of defamatory matter by orally spoken words. Libel is the publication of defamatory matter by written or printed words. Therefore, when posting on a message board such as this, libel would be the tort that could be sued on.
(The exception to this rule, which I have never really understood why, is that statements made on television or over the radio are considered libel, rather than slander, even though the words are orally spoken. I can only imagine this is because the words probably originated from some type of script that was written first.)
Elements that must be proven in court to succeed on a defamation (libel or slander) claim include:
1) Defamatory Language;
2) Of or concerning the plaintiff;
3) Published;
4) The defamatory language must be false;
5) The defamatory language must damage the plaintiff's reputation; and
6) Fault Standard
Now lets address each of these elements individually, as some are not self explanatory. (But note, even if all 6 of these are not met and the plaintiff cannot prove defamation, the plaintiff may have other torts he can turn to, such as Intentional Infliction of Emotional Distress.}
1)
Defamatory Language is any communication about the plaintiff that reflects unfavorably on the plaintiff and that in turn injures his good name or reputation. (If the plaintiff already has an incredibly bad reputation, such as is a convicted murderer, then it may not be possible to damage his reputation, and thus that plaintiff would be defamation proof.)
If the language is not defamatory on its face (obvious) then the plaintiff will have the opportunity to prove "inducement". Inducement is simply a fancy legal word that means additional facts/circumstances that make the language defamatory. The person that hears the language does not have to believe it is true, he just has to understand it is derogatory toward the person. (But if the person doesn't believe it is true, this probably reduces plaintiff's damages.)
It is not illegal to call someone a name. ("You're a jerk!" "You're a #%@%$@#!!!!")
But opinions may be actionable if they are based on an underlying fact. ("I think X is a thief because I think he once stole money from me.")
2)
Of or concerning the plaintiff: If the defamatory language used the name of the plaintiff, this is obvious. But if it did not use the name of the plaintiff, outside facts may be used to show the recipient understood the communication to be concerning the plaintiff. This putting into context to satisfy this element is known by the legal term of "colloquium".
An entire group/association of individuals (such as the moderators of this forum) can be defamed. If the group is small enough, under 12 people, then all members of the defamed group could probably recover. But the general common law principal is that once the group gets past about 12 though, none can probably prove they have been defamed, and therefore they will not be able to recover.
3)
The communication must have been published. Publication is a legal term that simply means at least one third party was the recipient of the information. If I say to you, “You’re a thief!” this is not defamatory, as the statement was not made to a third person.
If the defendant publishes multiple times defamatory language to multiple people, then each publication is a separate lawsuit. However, if the defamatory language is heard by multiple people at the same time, then there is only one lawsuit. Example: TV broadcast heard by 5 million people. Only one lawsuit here.
Repeating defamation is also defamation.
4)
The statement must be false. If the statement is true, even if made out of spite or malice, and even if it destroys the person’s reputation, no liability attaches. The general common law rule, and majority opinion in the United States is that the burden of proving the truth is on the defendant. In a few states however, the plaintiff must prove falsity. The Supreme Court of the United States has held that in cases involving the media and "newsworthy events", the plaintiff must prove falsity due to the protections of the 1st Amendment.
5)
There must be damage to the plaintiff's reputation in order for him to be able to recover. The majority rule is "Libel per se". This means if the statement is defamatory on its face (obvious), the court will presume damage to one's reputation. Here you wouldn't have to prove special damages (loss of job, lost profits, etc.). The minority rule is that yes, you must prove actual harm in any defamation case. A court case out of New Jersey lists 5 exceptions to the minority rule.
- Where the D makes a statement that affects the P’s ability to earn a living
- Defamatory publication where the D suffers from a lowsome communicable disease (this has been limited to leprosy and STDs)
- Defamatory publication that the defendant has committed a crime involving moral turpitude (child sexual abuse, bigomy, incest, etc.)
- Defamatory publication of the sexual immorality of a female
- Defamatory publication of the sexual immorality of a female
- False accusation that the plaintiff is a racial bigot.
6)
Fault Standard refers to whether we are talking about a public official or person (actor/musician/politician) being defamed or a private person. The fault standard for defaming a public official requires actual malice to be used in the publication. Malice means that by clear and convincing evidence the defendant made that publication knowing it was false OR by clear and convincing evidence that the defendant made the publication recklessly. Reckless means that the defendant in fact had serious doubts to the truth of what he was publishing, and he published it anyway.
Who is a public official? The occupant in any position of any branch of government, if that person appears to the public to have substantial responsibilities or control over governmental affairs. So the governor of a state would qualify, but his secretary would not.
If the plaintiff is a private person, the fault standard drops from the high standard of malice, to mere negligence.
Defenses to defamation include consent, truth, redaction, absolute privileges, and qualified privileges.
Consent - If the plaintiff agrees to the publication he cannot sue later on that same publication.
Truth - If the statement is true, it is never defamation.
Redaction - If the defamatory article was published in good faith, its falsity was due to an honest mistake, there were reasonable grounds for believing that the statements in the article was true, and the publisher within 10 days retracts the statement, then the plaintiff can only recover his actual damages.
Absolute privileges – Even if the D acted with malice these are valid defenses:
Judicial proceeding privilege - Defamatory statements made by someone who is participating in a judicial proceedings (the lawyers, judge, juror, witness) are absolutely privileged.
An attorney is absolutely privileged from defamation suits if:
- the communication was made by an attorney acting in the capacity of counsel
- the communication was related to the subject mater of the proposed litigation
- the proposed proceeding must be under serious consideration by the attorney acting in good faith, and
- the attorney must have a client or identifiable prospective client at the time the communication is published.
Those involved in a legislative or executive governmental proceeding.
Spousal communications are privileged – I can’t be sued if I defame you to my wife.
What damages are recoverable in a defamation suit?
i) Compensatory Damages (the plaintiff's actual loss)
ii) Punitive Damages (those designed to punish the defendant for making the statement. These can be quite heavy in some cases) To recover for punitive malice must be proven.
Qualified Privileges
Protection of Private Interest - Example: Mother tells daughter that her fiancé is having an affair with someone, and therefore she shouldn’t marry him. This turns out to be false. As long as mom is acting reasonably, acting without malice, she can’t be held liable for defamation.
Protection of Public Interest - Example: The defendant reports what he believes to be criminal activity to the police, and it turns out that is wrong information. The person reported was not doing anything illegal. As long as he didn’t report with malice then he is protected from defamation liability.
International Defamation:Article 17 of the United Nations International Covenant on Civil and Political Rights states
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
TL:DR version - Yes, you can be sued for making false statements about someone even over a message board such as this. It is especially easy to prove, since the record is public and written. Evidence is not difficult to gather in these cases.
The most basic legal advice that can be given in these cases is don't do it. Typically there is very little to be gained by posting negative comments about someone on the internet. That being said, if it is an honest review of a product/service that has been sold or offered, then by all means be honest in your review. Remember, the most powerful defense against a defamation lawsuit is the truth. That is why I make sure that even if I am angry at someone, and even if I am only giving my "opinion", it may be best to just walk away from the screen for a few minutes. Cool off. Consider what you are about to type, and whether you are about to get yourself into legal hot water. Name calling, while inappropriate and childish is not illegal. It just makes you look like a fool.
If you feel you have been defamed and your reputation injured (even your online reputation) and you have suffered damages, contact an attorney. (Or just PM me the details and I'll let you know in my opinion whether you have a good case.) Most attorneys will give you an initial consultation for free, but be wary. Most attorneys have little to no experience with international defamation, and most have never even heard of Bitcoins. Bitcoins are an emerging market, and reputation is huge here. A false statement about a bad transaction can have severe consequences.
If this summary of the law of defamation has been helpful for you, please feel free to contribute to: 1N8LfVL4FeMRaZRSgkKiY9c8wuPdeaKfM8
I do quite a bit of pro bono work, and any extra I can earn online providing legal advice, allows me to spend more time during the day assisting and providing high quality legal services to the indigent and those that simply can't afford high priced attorneys.
