LEGAL ISSUES.

I have received an e-mail from a firm of solicitors alleging “extremely serious defamatory allegations and innuendoes posted on your web site” by a commenter; they add: “The impact of these scurrilous allegations on our clients has been compounded by your endorsement of the allegations in the final paragraph of the posting” (i.e., in my next comment, which basically said “Thanks for the information”). They go on:

We demand that you immediately remove these outrageous defamatory allegations from your web site forthwith and agree to publish a full retraction and apology in terms to be first agreed with us. We also require your proposals for compensating our clients for the serious damage caused to their reputation.
We await hearing from you within the next seven days, failing which we have instructions to institute legal proceedings against you without further notice.

Needless to say, I hate to remove a blog post just because somebody with access to lawyers was offended by it, but I also have no desire to be forced to defend myself against a lawsuit: even if it’s thrown out in the end, I can’t afford the costs. So: anyone know what a safe and appropriate response would be? (Obviously, I am not asking for technical legal advice, but I’m hoping some of you will have experience with this sort of thing and have some useful suggestions. “Tell them to go to hell,” while appreciated as an expression of solidarity, is alas not useful advice without a convincing reason why that would not wind up costing me money.) If you want further details, e-mail me at languagehat at gmail dot com. Thanks!

Comments

  1. This should not be taken as legal advice. It is my limited experience with these that such companies usually contract legal firms to send out dozens, if not hundreds, of C&D letters all at once. This is an intimidation measure, and they certainly will not follow on any of these letters. This could be a sensitive issue, but you might want to check whether your IPP has received a similar letter and what their response could end up being. Many providers will gladly dump their client’s website at the slightest hint of a legal threat. Best of luck in all ways this holiday season.

  2. Alas, no legal advise. But could you at least tell us what post it was as long as it still is legally there?

  3. I agree it’s probably an intimidation measure.
    My inclination would be to firmly inform them that comments represent the opinions of those who make them, and they should take it up with that particular individual.
    Your unwillingness to cower and cave in to a bully (as many would) is to be commended! :)

  4. I’m no lawyer, but opinion is opinion. They have to prove that someone’s stated opinion constitutes unlawful speech and has caused them genuine damages in order to collect a civil settlement from you. I don’t know what jurisdiction they’d have to do this in or what laws would apply, but it would almost certainly be difficult and expensive for them to do so. The question is whether you can avoid difficulty and expense of your own without removing the comment(s) in question. I hope that the time comes when you can cry barratry and identify the bully and his lawyers.

  5. Wimbrel: Excellent idea about contacting my hosting service; I’ll get right on it.
    SN: Check your e-mail.
    Thanks, everyone!

  6. Keep an eye on the EFF. I believe they’re taking aim at threats against bloggers based on comments.

  7. Again, IANAL, but…
    We demand that you immediately remove these outrageous defamatory allegations from your web site forthwith and agree to publish a full retraction and apology in terms to be first agreed with us. We also require your proposals for compensating our clients for the serious damage caused to their reputation.
    They are asking for much more than just removing the comments. And by doing so, I’d be concerned that you’re admitting wrongdoing. Give them an inch and they might reach for a mile.
    Good luck. This sucks.

  8. Seconding Songdog, the expression of opinion is not libel. Hopefully it’s clear from context that it’s opinion. Suing a blogger for libel is a strategy recommended in this Forbes story, a sidebar to “Attack of the blogs” (linked to at bottom of the piece): http://www.forbes.com/home_europe/free_forbes/2005/1114/128sidebar.html
    Rather than responding I would ignore the email and don nothing until and unless you get an actual written demand from the law firm. At that point you might want to have your lawyer right back a pointed response. If that doesn’t dissuade them, well, then you might have to settle by removing the story, which is the suggested strategy in Forbes. It’s easy to threaten a libel suit but unless the post in question misstates actual facts in a way that’s defamatory, it’s pretty hard to win the case.

  9. The EFF is a good suggestion. They have a whole section of FAQ’s for bloggers, and in particular a page dealing with Section 203 protections.

  10. Thanks for the link – if it’s any consolation to you, I asked a friend of mine who’s a lawyer and he said those people wouldn’t have a leg to stand on – here in the Netherlands.

  11. Thanks for the EFF stuff — nice to know there’s someone out there watching out for us bloggers! But the fact that I’m legally protected with regard to expressions of opinion by my commenters is cold comfort if said protection is contingent on my hiring a lawyer and fighting it out; I simply can’t afford to do that. I can’t afford to even consult a lawyer. (And SN, I don’t imagine those people have a leg to stand on even outside the Netherlands, but the big guys have a leg to kick with even if not a leg to stand on!)

  12. I’m getting a whiff of bullshit on my end. Maybe there’s a newsgroup online where you could post your question and get advice. Alternatively, if the post happened a while back, maybe just remove it and call it the ‘half way point’. I don’t see how an apology is necessary. Sounds like someone’s just being pithy.

  13. Mark Clark says:

    Since anyone can sue anyone else for anything or for nothing at all no matter what you do (even if only to be thrown out in the end), this is a game of probabilities.
    The way it usually works is that the offended party calls a lawyer who listens to him vent and then reminds him that the first amendment has not yet been repealed and that legal action is totally out of the question. The client then asks well how much would you charge just to send a letter. Then, if his name is not Bill O’Reilly, that’s the end of it.
    It’s hard to evaluate without seeing the offending post, but since the temptation seems to be to tell them to go to hell, I’ll just assume that it’s not genuinely actionable or, at most, it’s not a real reputation buster.
    Since the probability of actually being sued is remote, then why not give a principled response? If the offending comment is truly an assertion of fact (as opposed to opinion) that you do not know to be true, then remove it with an explanation that you have removed a poster’s comment because it has since been disputed by the comment’s subject and you have no basis for evaluating its truth.
    Going farther, with a substantive retraction and apology would only be appropriate, however, if you are now convinced that the comment was in fact false and defamatory, which doesn’t seem to be the case.
    If the comment was not an assertion of fact, but rather an expression of opinion, then leave it up and post a note in the same thread stating that the offending comment is disputed by its subject along with the full text of the lawyer’s letter. Then post an additional comment either disclaiming that the comments of posters do not necessarily reflect your own views or standing by whatever it said.
    In other words, respond just as if you had received a polite letter of concern rather than a bullying legal threat.
    Good luck.

  14. Unreal. But you have received some good suggestions here and must decide based on rereading the post and comments made, particularly the one in question and your response. I would guess that if its an ethnic issue, or a named company or individual, at the very least I would remove the post. Otherwise, follow some of the advice you’ve been given here and tread lightly. You don’t need the grief. BTW, try http://findlaw.com (I think it is).

  15. Much as it sucks, you’re probably right in that you’ll just have to remove the supposedly offending material without them having any right to ask. But I would consider reporting the company to the EFF and anyone else you think is relevant (the BBB if it’s a consumer-oriented company) so at least they’ll be aware. If there’s a large countersuit organized, you could get in on it.
    Definitely save copies of the material for future reference, as well as the emails. If the request from the company is vague, ask for clarification. Ask for citations to the law they’re basing their request on. Then they won’t be able to fudge if there’s a countersuit.
    None of this is legal advice, of course, just what I’ve pieced together from paying attention to the copyfight the last several years. :-)
    Oh, and if you don’t already, reading BoingBoing is a good idea, both generally and because they pay attention to these kinds of issues.

  16. Here’s the Committee to Protect Bloggers website.
    Here’s the MLRC site on libel and related lawsuits against bloggers.
    According to the MLRC what you need is a First Amendment Lawyer.
    The jurisdiction is important. The laws of libel in England are very different to the laws in the US, for instance. People with enough cash often come to take action in the UK courts because of the difficutly of defending libel accusations and the enormous sums awarded by judges in compensation.
    It’s something people should be aware of, especially since the ruling in Australia which broadened the bounds of cyberlaw.
    I wish I could offer some practical advice but my knowledge (such as it is) is limited to the laws in England.
    Good luck – your position is admirable.

  17. This guy might be able to help in some way… Media Law blog.

  18. I wish I could offer some practical advice but my knowledge (such as it is) is limited to the laws in England.
    Unfortunately, UK law is involved here, which makes me especially nervous — I gather it’s extremely plaintiff-friendly in this kind of case. Many thanks for all the links; I’ve also contacted chillingeffects.org.

  19. aldiboronti says:

    You have my best thoughts and wishes, lh. Principle be damned, if things look as if they’re going to get ugly, remove the article and chalk it up to experience. You’re too valuable a resource to be tied up fighting lawyers for years!

  20. Calm down: US courts are unlikely to second anything decided in England
    http://www.dwt.com/related_links/adv_bulletins/CMITFall1998USMedia.htm

  21. I believe both EFF and ACLU will provide legal representation for free or near it in certain cases; I’m sure either or both would be very interested in this sort of case. . . .

  22. (It would be helpful for your position, however, if you were to transfer your Chelsea mansion to me in perpetuity. If you don’t own it they can’t get it. Please fix the roof before signing.)

  23. I also would like to know what the post was. That would be helpful in determining the correct course of action. BTW – I sincerely doubt that you should do anything at all, but maybe asking for a small donation from readers in order to consult a lawyer if things deteriorate.
    Best,
    Chris

  24. The ACLU will not take you on for legal assistance in most cases unless you already have a lawyer retained and the lawyer requests the assistance. Generally, the ACLU cherry-picks can’t lose cases with large damages their volunteer attorneys will share in.
    That being said (and the usual IANAL) I’ve had to deal with these sorts of threats repeatedly and have never had one of the bluffers follow through. My usual response to a frivolous libel threat is to request the lawyer’s send a letter and I will pursue discovery against their client and disbarment proceedings against the shyster. They fade like the morning mist.
    Libel or defamation charges are frequently threatened and rarely true. If the facts are on your side, truth is an absolute defense. If it is a public controversy, anything other than a willful and reckless disregard for the truth is never libel. Peter Zenger and all that.
    For one thing, initiating a legal action without first attempting a resolution out of court can be a very serious ethical charge the bar association will take very seriously. SLAPP (strategic lawsuits against public participation) suits are minefields for the people who attempt them.
    It is worth following up this letter with a complaint to the ethics board of the bar association where these guys are members. These complaints are taken very seriously because if they are behaving unethically, the bar association MUST pull their license to practice. And barratry is a serious ethical violation.
    OTOH, the bar association’s standards for ethical conduct are, generally speaking, lower than a snake’s belly.

  25. Solicitors? From England? Do they have jurisdiction over you? On the other hand, the laws of libel in England are notoriously strict and plaintiff friendly.

  26. the laws of libel in England are notoriously strict and plaintiff friendly.
    Ay, there’s the rub.

  27. this sort of thing has happened several times to me. IANAL, but my practice has been to immediately replace the “offending content” with a scan of the C&D letter, and reply with a mocking, sarcastic email detailing my vast accumulation of riches (one 1993 jeep cherokee) and generally hooting at the demand for recompense. blood from stones and all. i once implied to a NASCAR ambulance chaser that i’d suffered some rather unsatisfactory deviant sexual encounters with his maternal ancestor, but they had REALLY pissed me off in objecting to my assertion that jeff gordon was engaging in a torrid homosexual love affair. go figure.

  28. Could there be any advantage in getting in touch with the magazine Private Eye: they have lots of experience with libel and their ability to humiliate someone very publicly might give you a weapon to fight with.

  29. I am also curious as to what the post entailed. I would like to know how minor an infraction may have sparked this response.

  30. That’s weird–your blog is benign.

  31. Our libel laws are weighted in favour of the plaintiff? Well, there have been high-profile cases recently but mostly newspapers making outrageous allegations about public figures who stood to lose out career-wise because of the scandal…
    UK law is still pretty grown-up and sensible, we are not a litigation-led society, yet
    May I request me details of the ‘offending article’, I have a few Oxford lawyers in my circle who could be called upon to review and advise, gratis and all that…
    finally, my sympathies….
    I find your writings informative and enlightening and I love your links (recently read Genesis chapter 1 in Finnish courtesy of you)
    best wishes…

  32. “Our libel laws are weighted in favour of the plaintiff?”
    Very much so. The standard for harm is very low, relatively speaking. I’m far too lazy to Google at the moment, so I can’t give you any specifics, but if you do Google it you’ll get some answers easily.

  33. This isn’t legal advice, but there’s a faint chance that the man who made this threat would look like a pompous bloviator if it were widely known. This is almost as unlikely as, say, one of your commenters and admirers being due to have lunch with the short cuts editor of the Guardian tomorrow and looking around for amusing stories — stories whcih might remain amusing even if the original offending post were removed.

  34. This isn’t legal advice, but there’s a faint chance that the man who made this threat would look like a pompous bloviator if it were widely known. This is almost as unlikely as, say, one of your commenters and admirers being due to have lunch with the short cuts editor of the Guardian tomorrow and looking around for amusing stories — stories whcih might remain amusing even if the original offending post were removed.

  35. Have you contacted the commenter who made the offensive allegations? Maybe you should just remove the post and/or comments.

  36. Taking Andrew Brown’s advice above together with Dearieme’s suggestion upthread about contacting Private Eye, it’s quite possible that if PE think the objection is sufficiently idiotic, they will report and comment on it. the circulation of Private Eye is microscopic, but it’s disproportionately influential among media types. Worth a try.

  37. This is not a suggestion, just a reflection of what I’d do: I’d tell esteemed Esq. that this insult could only be wiped out by blood and I’m intending to send them a proper duel declaration; time, place and weapon of my choosing.
    That, and minding all of the above very helpful advice, naturally.

  38. Have you contacted the commenter who made the offensive allegations?
    Alas, the commenter provided no usable contact information. I may have to move to some sort of comment-verification system, though I hate to do it because I want everybody to be able to comment, not just those who feel comfortable providing e-mail addresses.
    it’s quite possible that if PE think the objection is sufficiently idiotic, they will report and comment on it.
    Thereby possibly vastly increasing my troubles. If it develops further (into an actual court case, heaven forfend) I may want publicity, but for the moment I am hoping to get out of the situation with as little disturbance as possible.

  39. rou_xenophobe says:

    Maybe I’m just dense, but do you have assets in the UK or another reason to care whether or not a British court rules against you? It might be embarrasing to have a civil judgment against you in Britain, but I have to think that it wouldn’t affect your life in Massachussetts in any concrete way.

  40. I’ve only just seen this and will post it on my blog. Have been away and will be away.
    I wouldn’t describe English libel law as plaintiff-friendly so much as totally unpredictable. It goes both ways. Damages awards can be out of all proportion too.

  41. See this discussion at “Tom Raftery’s I.T. views” for some thoughts on the problem (and a remarkably clueless commenter).

  42. No legal advice, but here’s the thing about libel in common law systems: truth is an absolute defence. Also, without knowing what the “offending” post was all about, if the information at issue was published to inform or warn the public and/or an interested third party, you are fully justified under the law to publish such information.

  43. Yes, but the problem is not whether I’m “in the right” and would eventually be vindicated in a court of law, the problem is that I don’t want to have to go down that road. Life is complicated (and expensive) enough without lawsuits.

  44. Generally, a foreign judgment may be enforced in the United States, based on comity, treaty or otherwise. But it may have to jump through certain hoops before it can be executed.
    One of the hoops your lawyer in the United States would consider is ordre public factors: The foreign libel standard may be such that it violates public order standards under the First Amendment to the federal constitution, or a similar standard under your state’s constitution.
    For any lawyer who enjoys these international aspects a case like yours would be fun to take on. There’s no money in it. But the principle is great. It is really unfortunate that you are at the not-so-fun end of the case. My sincere hope is that the matter will not even be filed or come to a judgment in the U.K.

  45. Hat, sorry I can’t do anything more than express solidarity by saying rude things about your tormenter(s), but: When they fry in hell, may it be in lite oil, without garlic.
    Apc if you could tell me where to find the allegedly offending post. I hope and expect the whole thing is just some pinhead roaming free with legalese, but it sounds like it might be worth a classroom discussion along the line.
    best,
    fev

  46. Yuck. Also cannot provide legal advice, but it seems that it would be wise to check the statutes to make sure your blog is in accordance. Maybe to avoid such problems all you need to do is put something up about “not liable for comments posted.” But the phrase in the part of the letter you quoted that shouts out from the page to me is the bit about compensation. I would think that if this were a matter of honor and reputation, they’d just want the “offending” post removed. It seems very suspcious that they are bringing up the concept of cash right away.
    Don’t know what the situation is where you live, but there are often legal clinics run by law schools. Once some kids from NYU law school defended me free of charge against a huge law firm — and we won. (Very gratifying!) Perhaps someone could help you “decode” the letter you received and draft an appropriate response.

  47. Michael Farris says:

    I could be wrong (it wouldn’t be the first or hundred and first time) but I agree that the letter seems …. suspect. I agree with MAB that the part demanding money right away seems _really_ odd. Is that standard British practice? It reminds me somehow of those letters I often receive requesting my assistance in stealing from Nigerian customs.

  48. Have you checked to see if this be reputable English Solicitors? or are they just solicitating.
    I have had Email from big names and they be in fact fake. Have the names been verified and checked out.
    Lawyers today are loosing their good reputation by [for] using the law in an illegal way. Just today there is one in LA., Arrested [Latimes.com/california/ {Lawyer Held in Car Cash Fraud Ring}] for Car crash ring Fraud using a bible study class too, and others have debarred for sending demand letters to small businesses, knowing that the cannot afford a lawyer to fight a fraudenlent claim.
    Best of Bl**** English Luck.

  49. David Lyle says:

    It does seem more like a somewhat unprofessional attempt to get you to panic, using hyperbole (“outrageous”) and alarmist language “without further notice”.
    We may of course all be wrong on this. I would definitely first check the attorney’s credentials. Did they even provide you with a proper postal address and a phone number? I may be somewhat old-fashioned (and like just about everyone else here, not a lawyer), but I would think that using real tactile post to send this sort of threat would be the more usual legal procedure than just sending an angry e-mail. It all seems rather fishy.

  50. No legal advice, but here’s the thing about libel in common law systems: truth is an absolute defence.
    I, also, am not a lawyer, but I do know enough to say this: no no no no no. No. Truth is absolutely not an absolute defence, certainly not in UK libel law. Statements of fact that are even slightly selective or out of context, whilst entirely true, can be and often are found to be libelous if made with malicious or defamatory intent. Certainly, truth helps your defence significantly, but as you don’t even want to get to the stage of presenting a defence, I’d warn against any course reliant on the assertion that they don’t have a case because it was all true.
    Other than that, my advice is utterly useless, so all I can do is wish you the best of luck. The bastards, grind you down, do not let…

  51. A long shot this, but everyone is talking about UK Law. In fact it will be either English or Scots Law. It’s the former that you need to be worried about, so no doubt it’s the one under which you are being threatened?
    Anyway, good luck.

  52. A small company in CA that I’ve been with for a few years dealt with the C&D letters in the most effortless way: they never replied to them; they stood by it, in fact, very firmly, and it worked every time. There were 4 to 6 of these letters, AFAICR, and no one of them had any reasonable grounds. None of these lawyers wrote twice. YMMV, but you are unlikely to make the matter any worse by not replying, and you must still have plenty of time, even if you receive a second one. Unless you are rich AND that you are is well known to lawyers out there, they are unlikely to follow up.

  53. I am not rich, in fact I am a penniless freelancer, and the people involved have no reason to think otherwise, so I may try that strategy.

  54. How is jurisdiction decided on the net ? Is it according to the location of the site’s server ?

  55. I’d love to know which comment led to this ludicrous threat, but you’re right to leave this unsaid! I do see that ‘UK law is involved here’ (that means one of three possible legal systems- but the style of the letter looks English, not Scottish or N-Irish), so beyond the fact that US courts don’t automatically enforce European defamation judgments, it isn’t desperately helpful to look at US legal advice.
    There’s some general advice as to UK law as to defamation on the internet at http://www.jonathanmitchell.info/internet.html – this does need updating, in particular to give a firmer position on the second question, which is your question, in the light of recent authorities, but i hope you find it helpful. Putting it shortly:
    1. Unless the wounded victim has some reputation in England, the English courts have no jurisdiction, although they will regard the ‘place of the libel’ as being wherever it was seen or downloaded, not the place of the server.
    2. There is no general liability in English law for hosting a blog in which others make defamatory comments; liability may rest on ISPs in extreme cases (see e.g Godfrey v Demon Internet http://www.bailii.org/ew/cases/EWHC/QB/1999/244.html which has never been repeated). In any event, the Electronic Commerce (EC Directive) Regulations 2002 give you a defence as an innocent hoster.
    I fully agree with the commonsensical advice, already given, to ignore this letter; the chance these people will throw money at a litigation in London that could never recover its own expenses is so minimal it can be ignored.
    Best wishes!

  56. I am sorry to say that I consider it completely wrong to hold that in the Netherlands such people would not have a leg to stand on. In the Netherlands one is utterly dependent on the the verdict of the judge. Law means nothing here in the Netherlands. Any day it is changed. Any judge judges differently. Any case again is a gamble. Not any certainty exist about any outcome of any trial. I know no one, except lawyers who draw their lifelihood and sustenance from it, who have any trust or faith in the Dutch juridical system. I wish you strength though and good luck.

  57. You know, I’m finding it very hard to take seriously a threat like this in an *email*. Frankly this sounds like a new variant on phishing to me. Last time I looked, English legal firms tended to go in for proper letters for proper business. I might check this firm out first… and then ignore the email anyway: when they’re prepared to shell out a few pence on headed paper, an envelope and international postage, then it’s time to sit up and start to take some notice and not before.

  58. michael farris says:

    “Frankly this sounds like a new variant on phishing to me”
    my thoughts exactly, though I was obtuse enough in mz phrasing that that point could be missed.

  59. Language Hat, I’ve only just seen this post (as I’ve been away), and I must join those questioning the authenticity of the e-mail. I read letters from British solicitors all day long, and in my experience they simply do not write like that. Also, most solicitors I have dealt with refuse to accept important legal correspondence by e-mail, and I would be extremely surprised if they sent it that way.
    If you’d like to check whether these solicitors are for real, I’d suggest looking them up on one of the following sites:
    Law Society of England and Wales — http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law
    Law Society of Scotland — http://www.lawscot.org.uk/ ; click ‘Legal firms and branches’
    The Law Society of Northern Ireland ( http://www.lawsoc-ni.org/ ) do not have a search facility on their site, but you can find the society’s contact information there. The Law Society of [the Republic of] Ireland ( http://www.lawsociety.ie/solicitorSearch.aspx?groupID=165&node=165 ) has some Northern Irish solicitors in its database, but not all.
    If the ‘solicitors’ aren’t registered with one of these organisations, they can safely be ignored.
    (Oh, and if they still won’t leave you alone, tell them someone else read the e-mail over your shoulder and you’re going to make a complaint under the Data Protection Act. That terrifies everyone over here.)
    Good luck!

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