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Re: Pledge To Killfile Andrew Suffield

On 8/15/05, Andrew Suffield <asuffield@debian.org> wrote:
> That does not extend to permit a group to go around making accusations
> and advocating that other people do something based on those
> accusations. In the real world, this is a tort, specifically
> defamation of character. And benefit of the doubt does apply in the
> manner I have indicated, even though it's not normally a criminal
> offense, in order to prevent *exactly* the situation we're seeing
> here.

There's a better overview of libel (defamation when written, slander
when oral) law at the EFF (
http://www.eff.org/bloggers/lg/faq-defamation.php ).  I'll summarize
for your convenience, along with some more general comments about tort
law in general (in most US jurisdictions, at least); IANAL, TINLA,

First and foremost, defamation has to be a false statement of fact
about a person.  Advocacy of some private response has nothing to do
with this requirement, although it may help establish malice if that's
at issue.  Pure opinions, i. e., assertions that are not matters of
verifiable fact, are not defamation; so "Z is a jerk" and "Z's
postings don't often contribute usefully to the discussion" are safe
too.  (Assuming, of course, that you can convince a jury that "jerk"
is figurative hyperbole rather than a factual statement about
masturbatory frequency, and that "useful" is in the eye of the

Also, the part of a criticism that is a verifiable statement of fact
("Z's posts are short"; maybe "Z rejoices in the flames that his posts
inspire", which is more or less the factual content of "Z's posts are
trolls" [1]) isn't defamation if it's true to within the applicable
standard.  This "truth defense" can be an uphill battle, especially if
the criticism imputed criminal activity, violation of a professional
code of ethics, or unsuitability for employment.  But that's not the
ground on which a defense is usually fought.

Defamation of a private person is basically a tort of negligence, and
the accuser has to demonstrate that the accused acted negligently --
that a reasonable person, knowing that doing X (in this case,
publishing a given verifiable statement about the accuser) was likely
to result in harm, would not have done X, *on the basis of the
information available to the accused at the time*.  Demonstrating that
the criticism contained no verifiable statement of fact, or that it
was true in an absolute sense, has nothing to do with this negligence
standard -- it simply removes the criticism from the subject matter
domain of the defamation statute.

Demonstrating that the accuser was criticized in his capacity as a
public figure raises the bar from "negligence" to "actual malice" --
knowledge of falsehood or a reckless disregard for the truth, in
addition to the inadequate regard for consequences that characterizes
negligence.  This is perhaps the most important defense against an
accusation of defamation -- if you can show that the accuser is a
"limited-purpose public figure" in a relevant matter of public
controversy, and you have a reasonable basis for suspicion about his
conduct, it's hard for him to demonstrate "actual malice".

I doubt that Andrew is a public figure for any present purpose; but I
also doubt very strongly that any of his detractors are publishing
statements of verifiable fact that meet the "reasonable people
wouldn't have written this in this forum" standard of negligence.

- Michael

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