Some Thoughts on Defamation

Yesterday, I posted a link on Twitter and Facebook to a recent John Scalzi blog post:

So THIS is how adults handle being defamed. http://t.co/sEzyenaP6B #notchilled

— Deirdre Saoirse Moen (@deirdresm) December 27, 2014

But some people misunderstood what I actually meant partly because a) one can’t show a lot of context in a tweet, and b) lots of people who read my tweets or FB aren’t following the Ellora’s Cave case, and I meant my tweet partly as commentary on the existence of that case.
I went through a period in the nineties where I was being harassed (and defamed) by Scientology, and I had to consider what I wanted to do about it. Some of what was being posted was true but unflattering (and hence not defamation). Some of it was that was partly true, but not substantially true. And some of it was unflattering but not defamatory (e.g., bullying me about my weight). It was all done with the intent to harass and make me lose status, but, weirdly, I gained status with some people, too.
My own experience made me think a lot about defamation. Scalzi’s viewpoint, as expressed in his blog post, meshes pretty well with my own.

When You File a Lawsuit for Defamation, You’re Saying

1. The other party has more power and more respect than you do, and they had that both before and after the alleged defamation occurred. (Though not necessarily in cases of defamation per se.)
   Think about it. If they didn’t have more respect, then how could what they say actually damage you?
   As Scalzi says in his own post: > However, I would also need to show that Beale’s actions have caused me harm, economically and/or emotionally. Aside from annoyance, which does not rise to actionable levels, I’m not seeing the harm to me personally. Essentially, Beale escapes punishment here because he’s failed to be important enough to be harmful.

   The act of being involved in a lawsuit will also change your reputation, and not always for the better. Some people will respect you more, some will respect you less, and some will lose all respect for you—just because you filed the lawsuit.

2. You believe you know what the alleged defamer’s motivations were.
   Granted, there’s a difference of degree between private person, limited purpose public figure, and public figure here. But how much do we really know about other people’s motivations?
   Even proving negligence (for a private person’s statements) is tricky. I remember having to go over the elements of a negligence claim when I took paralegal classes. The elements are:

   1. Duty of care: one has to show that they had a duty of care.
   2. Breach of duty: one has to so that that duty was breached.
   3. Factual causation: one has to show that that breach of duty actually caused the harm done.
   4. How proximate was the causation to the harm?
   5. There was actual harm done.

   It’s not an easy task, and that’s the easiest of them. You might be surprised how many negligence cases fail to show the required elements of negligence. Three and four are particularly tricky as I recall from the case law I’ve read.

3. You’re willing to remain involved with your alleged defamer for years.
   Cases can go on for 2, 3, 5 years. Not all cases will settle quickly—or ever.
   What does it say about you that you think remaining in relatively constant contact over the course of years is what you feel is your best option?
4. Since you have to file over what the alleged defamatory statements are, you will be dragging your own name through the mud in the course of the lawsuit.
   Further, it’ll all be a part of a permanent, public record. Rulings may be published in federal or state law books.
   A lawsuit creates a tangible, fixed record of what may have otherwise been lost to time.
5. You believe a judge can rescue you.
   I mean no disrespect for judges—or lawyers—here. Judges do have a lot of power within their purview, but one thing a judge can’t do is rewind time to prevent the defamation from happening in the first place. You’ll never get that state back.
   It’s also relatively rare for plaintiffs to get what they expect to or hope to.

The David Beckham Case (So Far)

Let’s look at an example defamation case: David Beckham v. Bauer Publishing (California’s Central District federal case # 2:10-cv-07980-R-SS). It was filed in October, 2010, and is still ongoing (the most recent docket item is less than a week old). It’s had three appeals to the 9th circuit.
The lawsuit stems from In Touch magazine publishing a story saying that Beckham had cheated on his wife with a prostitute.
There was a settlement last year, but there had been an outstanding issue that the appeal couldn’t be heard on until there was a final order. That is still ongoing.
This article from 2011 sure makes it sound like it would be a slam dunk case:

The Los Angeles Galaxy star argued in a court filing in January that he was visiting his ailing father in London during one of the alleged trysts with the purported call girl Irma Nici.
Kendall said a basic investigation by the magazine would have shown that Beckham was elsewhere when the alleged trysts occurred. He asked the judge to allow the case to proceed so that he could conduct depositions that would bolster Beckham’s case, but Real refused.

Part of the problem, though, was that Bauer filed an Anti-SLAPP motion against Beckham. So this article neatly glosses over some of the case’s complications.

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