Just Sayin'

Let me state up front that Michael Coakley is a fine lawyer and I would not hesitate to hire him to represent me in a defamation lawsuit. But if I were the largest law school in the state - the largest in the nation - and were accused by a former student of being little more than a diploma mill, I would make a special point of finding a graduate of my own institution to lead the litigation. (Well, no, even if I believed in its merit I wouldn't file the case at all, for reasons summarized here, but if for some reason I were to file such a case....)

Nothing Makes You Seem More Interested In The Truth...

... Than threatening your critics with a lawsuit.

The site, RipoffReport.com, has generated controversy by allowing people to post attacks on pretty much anybody, then charging people a fee if they wish to dispute the attacks. Although the site suggests that responding is free unless you have a significant number of complaints, I know somebody who tried to respond to a single complaint against him. He indicated that he was told that he would have to pay a fee for his rebuttal to be posted. I can't verify what happened - it's second-hand information - and this happened a couple of years ago so perhaps they've softened their policies. But I can verify that a search of the site produces only one complaint under his name.

The site claims to fall under the safe harbor provisions of the DMCA. Thus, a new round of lawsuits attempts to take them outside of the safe harbor by suggesting that they create or modify posts, have engaged in extortion, or are in violation of RICO.

Judging from the number of lawsuits the site has defended, it seems reasonable to infer that their business model generates significant revenue.

One of the site's lawyers, Thomas B. Duffy, has responded to a summary of the allegations and legal claims about the site. Two of the comments suggest that the keyword-stuffed, often repetitive titles of the site's pages are truly user-generated. I run a site where I get a lot of user-generated complaints about people and businesses, so I am only partially willing to accept this explanation. I do get some lousy titles, but there is a strong correlation between the quality of the title and the quality of the post. RipOff Report seems often to have a lousy title followed by a reasonably well-written post. Also, while many of RipOff Reports' titles seem to be lengthy and keyword-stuffed, I get few posts with such rambling titles.

You have to register to post a "Ripoff Report" and I'm not willing to take that step, but I suspect that the title is composed of three different fields - first, the target's business name, second a summary of the complaint, and third the target's location. Those components appear to be strung together into the title for the post and page. Either that, or there is instruction to provide a title composed of those three components in that order. This can't be random.

But none of that inspired this post. What got to me was this:

I do know that on several occasions during the course of the phone call, Duffy informed me that Magedson was upset, talking to his "litigators," and thinking about suing the SEO community for "ganging up" on him. While he did not go into detail, Duffy hinted that Magedson may try and bring some kind of antitrust lawsuit against everyone who has participated in the recent online discussions about RipOff Report.

Incredible.

Digging Yourself A Giant Hole

Several years ago I wrote a simple summary of defamation law, including a discussion of why litigation isn't necessarily a good idea, concluding,

the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true. While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted.

The Internet now brings us a case study - Paul Deignan versus Professor Wally Hettle and Bitch, Ph.D..... (Ouch, Ouch.) While some blogs are sympathetic to Mr. Deignan, he gets little support for his belief that a defamation suit is wise, viable, or would result in the $500,000.00 award he guesstimates as the damage to his future earnings (although he has yet to complete his Ph.D. and enter the job market).

As a lawyer, the potential client who declares "I have a great defamation case" sets off an initial set of alarm bells - add dreams of a half-million dollar recovery and my instinct is to conclude the conversation and suggest that they seek counsel elsewhere. It's not that there aren't big money defamation cases - Mr. Deignan mentions Carol Burnett's suit against the Enquirer as an example - but few plaintiffs are Carol Burnett, few defendants are the National Enquirer, and few incidents of defamation are as reckless as that one. Not mentioned, Ariel Sharon's pyrrhic victory against Time Magazine, or Jerry Falwell's unsuccessful suit against Hustler. Or General Westmoreland's suit against CBS which, after costing the General an estimated $2 million, was dropped during the course of trial in exchange for an apology.

What now appears to be happening is that Mr. Deignan's indignation is becoming the focus of debate, as opposed to the offenses he deems worthy of a libel suit. Arguably, had he just let things go, the controversy would have revealed itself as a tempest in a teapot - a few snarky remarks in a weblog and a letter by Prof. Hettle to Mr. Deignan's university which would likely have had no impact on Mr. Deignan or his career, quickly fading from memory.

Instead, Mr. Deignan's placing himself in an awkward position. To maintain his credibility he needs to either find a lawyer willing to file a lawsuit, or state a plausible reason why he has not done so. (A third option, which might not be such a bad idea, would be to declare that he is no longer going to discuss the matter on advice of counsel, and never utter another public word on the dispute.) The more Mr. Deignan expounds on the virtues of his case and the riches he will ultimately recover, the more difficult it becomes for him to credibly say, "I've changed my mind and decided that I don't want to sue." (Am I being premature in my estimate that at the end of the day, no suit will be filed?)

Meanwhile, the attention that he is drawing to himeself and the controvery may have a more profound and lasting impact on his future career than anything that Professor Hettle or Dr. Bitch have said.

Times v Sullivan

Today, George Will demonstrates why the Supreme Court had it right, when they set a high legal burden for public figures who claim defamation. Responding to the suggestion by Jimmy Carter that he gave Carter's debate briefing book to Ronald Reagan, Will says (in my crude paraphrase):

Carter is a liar who lost the election because of his bad foreign policy and poor management of the economy, not because of a briefing book. He's lying when he says I gave the briefing book to Reagan, because I have denied taking it. And it wouldn't have made any difference if I had, because Reagan was that good. Carter read my book about baseball, which he really liked. Did I mention that he's a liar? And that he was incompetent?

Yup. Public figures can usually take care of themselves.

Defamation

While the United States has defamation laws which make it very difficult to hold a media company liable for publishing false information about a public figure, many European nations do not. The Wall Street Journal, faced with that reality in England, has been working to create a "public interest" exception to British libel laws, under which "newspapers could print untrue and defamatory information if they could prove it was in the public interest and was the product of responsible journalism.". The Journal's lawyer described the situation:

"There is a flaw in the qualified privilege defence that is highlighted where you have five anonymous sources that cannot come to court. It is obviously a major concern for people who want to see a free flow of information."

This creates an interesting tension between "protecting an anonymous source" and avoiding liability. While there is certainly something to the argument that there is a "chilling effect" if you make a newspaper reveal its anonymous sources in order to defeat a libel action, there is also something to the argument that if a newspaper chooses to premise a story entirely upon anonymous sources who will refuse to come forward if the story proves false, the newspaper should be willing to accept the consequence of that decision. A cost of doing business (in that manner).

Freedom of Speech

Public figures - typically celebrities and politicians - in the United States sometimes complain about the Times v Sullivan standard for slander actions, pursuant to which they must demonstrate "actual malice" before they can recover damages for false statements printed about them. ("Actual malice" means that the statements are made despite "knowledge that statements are false or in reckless disregard of the truth".)

Other nations don't follow the same rules. In fact, few other nations offer publishers similar protections, and most offer far less. This has resulted in what is now referred to as "libel tourism", where the rich and famous seek out a nation where a work is published or distributed, but which offers few protections to publishers, and brings suit in that nation.

The United Kingdom has been the subject of such "libel tourism" in recent years and, according to the London Guardian, this has resulted in a decision by the U.K. subsidiary of Random House not to carry House of Bush, House of Saud by Craig Unger, a book about the connections between the Bush family and the Saudi royal family.

Unger's thesis is that the eagerness of US politicians to tap into Saudi money over the years may have compromised Mr Bush's determination to fight terrorism: "Never before has an American president been so closely tied to a foreign power that harbours and supports our country's mortal enemies."

How far Unger's thesis is credible is something that the US reading public will be able to decide for themselves. The book is becoming a bestseller in US election year. In Britain, however, the deputy chairman of Random House denied that the decision to suppress it was "pusillanimity or unnecessary self-censorship".

The article includes some complaints from the Deputy Chairman of Random House, criticizing the U.K.'s libel laws as "draconian" and "disgraceful", "stifling legitimate freedom of speech".

The principle behind the U.S. approach to "public figures" is that a public figure is in an excellent position to respond to any criticism, fair or unfair, and thus needs fewer protections than a similarly situated private citizen. This has certainly been borne out in practice. A "defamed" celebrity can appear on several, perhaps dozens, of talk shows and conduct similar numbers of interviews to respond to accusations. A private citizen has no similar opportunity to reply. And despite the fact that some nefarious rumors get published, celebrities seem to weather the occasional storm quite well.

Meanwhile, the U.S. public gains access to information which, when true, can be quite valuable - and when false or misleading, can nonetheless trigger important public debate and discussion. No, not the nonsense in the Enquirer, but books like Unger's. Given the societal costs and benefits, perhaps other nations should consider sending the tourists back home.

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