Editor's note: This post is a follow up to Rachel's last entry: You Can't Say That! Or Can You?
if the Negative Information is True?
Truth is a defense to defamation suits.
Practically, that means you can still be sued
for publishing negative information, even if it is
true. And even if you prevail as a defendant in a
defamation action, what have you won? Your name has
been vindicated, perhaps, but that vindication has a
big price tag. Defending a lawsuit is expensive - you
can expect to spend $10,000 or more just to retain
an attorney, and expenses well into six figures if
your case is complicated and goes to trial. Note that
you probably won't recoup these expenses if you win,
because the law only provides for the award of
attorneys' fees and court costs in very specific
Defamation is just one cause of action
available to someone who has had their professional
reputation injured by the publication of negative
interference with contract, tortious interference with
business relationships, and tortious
interference with prospective business advantage are
three others. Note that truth is not a complete
defense for those causes of action.
If you are a defendant in a defamation lawsuit, you
have the burden of proving that the negative
information you published was true. All of it. At the
same time, the plaintiff will be trying to undermine
your truth defense by showing that the information, or
at least some of it, was false. If you can't prove
that all of the negative information was true,
your defense will have holes, and you will have some
"Where there's smoke, there's fire" doesn't
apply to defamation lawsuits. If the subject of the
negative information has a reputation for taking part
in the types of activities described in the negative
information, that doesn't mean that these
particular allegations are true. And if these
particular allegations are inaccurate, the publisher
can be held accountable, even if there's a lot of
factual support for other similar allegations.
The mere fact that negative information is consistent
with what's already known doesn't make it true. What
better way to discredit someone than to capitalize on
existing rumors? Consistency might just mean the
defamer is clever.
Due Diligence, and Why
Advice from a Paralegal Friend is Not a Legal Opinion
If you operate a website and have some concerns about
posting some information you've obtained, the most
advisable course of action is to ask your lawyer for
advice before publishing it. Sure, it might
cost you, but the benefits will far outweigh the
costs. First of all, your lawyer can advise you on
what the risks are,and how to mitigate them. Your
lawyer can provide you with tools to avoid getting
sued, such as minor wording adjustments,
qualifications and the like. Before you have a lawsuit
filing deadline looming, you can find out if your
lawyer would be the right person to defend you. If you
ask for one, your lawyer can also provide you with a
written legal opinion that what you're about to do is
lawful. And if your lawyer turns out to be wrong, you
can hold them (and their malpractice insurance)
accountable. Unlike advice you might get from a
friend, your lawyer's legal advice is completely
confidential. So, if you elect not to follow all of
your lawyer's recommendations, it won't provide the
plaintiff with evidence you were negligent, because no
one will know what your lawyer's advice was (unless
you waive your attorney-client privilege).
If you need a lawyer, look for one licensed to
practice in your state who has expertise in the area
you need. Here's some suggestions for when
and how to hire an attorney.
We note here that only lawyers can give legal advice.
Paralegals, no matter how
experienced/accomplished/knowledgeable, are not
lawyers and therefore they can't lawfully provide
legal advice. Advice from a paralegal, unless given in
the context of an existing attorney-client
relationship, is not confidential. Therefore, relying
upon a paralegal's advice is very risky. Asking your
paralegal friend for legal advice also puts him or her
at risk. If a paralegal provides legal advice, whether
or not they are paid for that advice, they are
violating their state's unauthorized practice of law
statute, which can have serious legal consequences for
them. In addition, if the paralegal's employer finds
out they've provided legal advice, even outside the
office, they could get fired, and have a lot of
trouble finding another job.
Won't Your Insurance
Company Defend You?
If you operate a commercial website, you most likely
have commercial liability insurance. But will that
insurance pay to defend your website in a defamation
lawsuit? Your commercial liability policy may
specifically exclude coverage for defamation, or it
may limit the amount of coverage. So, it's best to
read your policy before posting negative information.
If your policy doesn't provide sufficient coverage,
it's best to know that (and go get appropriate
coverage) before your website is sued.
So You're Saying No
One Should Ever Publish Negative Information about
No. However, before publishing negative information,
the publisher should be aware of the significant risks
associated with doing so. That means (honestly)
assessing what the publisher hopes to accomplish by
publishing the negative information, and deciding that
it's worth the risks. Included in the decision should
be an analysis of whether publication is the best
means of accomplishing the goals.