Chilling Effects Clearinghouse > Defamation > Frequently Asked Questions
Frequently Asked Questions (and Answers) about Defamation
Q: What is defamation?
Q: What are the elements of a defamation claim?
Q: What defenses may be available to someone who is sued for defamation?
Q: Can an opinion be defamatory?
Q: Is there a difference between reporting on public and private figures?
Q: Who is a public figure?
Q: What is libel?
Q: What is slander?
Q: What is libel per se?
Q: What is the "publication" of a defamatory statement?
Q: May someone other than the person who originally made the defamatory statement be legally liable in defamation?
Q: What is Malice or "Actual Malice"?
Q: Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?
Q: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?
Q: What are the rules about reporting on a public proceeding?
Q: What is a "fair and true report"?
Q: What if I want to report on a public controversy?
Q: If I write something defamatory, will a retraction help?
Q: What if I change the person's name?
Q: What's the statute of limitation on libel?
Q: What are some examples of libelous and non-libelous statements?
Q: What is a "false light" claim?
Q: What is a SLAPP suit?
Q: What is trade libel?
Q: What are "special damages"? When are they awarded?
Q: What is the duty of confidentiality of an employee?
Q: What is Slander Per Se?
Q: How do courts look at the context of a statement?
Q: Do blogs have the same constitutional protections as mainstream media?
Q: What are the privacy torts?
Q: Can I be sued for publishing somebody else's private facts?
Q: What are private facts?
Q: What is offensive to a reasonable person?
Q: How do I know if a private fact is "newsworthy"?
Q: What is "intrusion into seclusion"?
Q: What is a right of publicity claim?
Q: What is a statement of verifiable fact?
Q: What is cyberstalking?
Q: What is the duty of confidentiality of an employee?
Q: What are considered public records?
Question: What is defamation?
Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.
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Question: What are the elements of a defamation claim?
Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements:
a publication to one other than the person defamed;
a false statement of fact;
that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.
If the plaintiff is a public figure, he or she must also prove actual malice.
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Question: What defenses may be available to someone who is sued for defamation?
Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.
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Question: Can an opinion be defamatory?
Answer: No ? but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database").
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Question: Is there a difference between reporting on public and private figures?
Answer: Yes. A private figure claiming defamation ? your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop ? only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement.
A public figure must show "actual malice" ? that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.
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Question: Who is a public figure?
Answer: A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures ? a government employee, a senator, a presidential candidate ? someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure ? for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.
Examples of public figures:
A former city attorney and an attorney for a corporation organized to recall members of city counsel
A psychologist who conducted "nude marathon" group therapy
A land developer seeking public approval for housing near a toxic chemical plant
Members of an activist group who spoke with reporters at public events
Corporations are not always public figures. They are judged by the same standards as individuals.
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Question: What is libel?
Answer: Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What are the elements of a defamation claim?
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Question: What is slander?
Answer: Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. Actual damages must be proven for someone to be held liable for slander. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing.
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Question: What is libel per se?
Answer: When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se:
A statement that falsely:
Charges any person with crime, or with having been indicted, convicted, or punished for crime;
Imputes in him the present existence of an infectious, contagious, or loathsome disease;
Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
Imputes to him impotence or a want of chastity.
Of course, context can still matter. If you respond to a post you don't like by beginning "Jane, you ignorant slut," it may imply a want of chastity on Jane's part. But you have a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact.
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Question: What is the "publication" of a defamatory statement?
Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken.
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Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation?
Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.
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Question: What is Malice or "Actual Malice"?
Answer: Malice is often defined as, "the intent, without justification or excuse, to commit a wrongful act." It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. "Actual malice" is a legal term of art that is mainly relevant to defamaton claims. "Actual Malice" is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity-- a "should have known" standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with "actual malice".
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Question: Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?
Answer: Not in the United States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.
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Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?
Answer: No, they are not required to delete. 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.
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Question: What are the rules about reporting on a public proceeding?
Answer: In some states, there are legal privileges protecting fair comments about public proceedings. For example, in California you have a right to make "a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued." This provision has been applied to posting on an online message board, Colt v. Freedom Communications, Inc., and would likely also be applied to blogs. The California privilege also extends to fair and true reports of public meetings, if the publication of the matter complained of was for the public benefit.
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Question: What is a "fair and true report"?
Answer: A report is "fair and true" if it captures the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but should not deviate so far as to produce a different effect on the reader.
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Question: What if I want to report on a public controversy?
Answer: Many jurisdictions recognize a "neutral reportage" privilege, which protects "accurate and disinterested reporting" about potentially libelous accusations arising in public controversies. As one court put it, "The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them."
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Question: If I write something defamatory, will a retraction help?
Answer: Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting "special damages" ? the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff's failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)
If you get a reasonable retraction request, it may help you to comply. The retraction must be "substantially as conspicuous" as the original alleged defamation.
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Question: What if I change the person's name?
Answer: To state a defamation claim, the person claiming defamation need not be mentioned by name ? the plaintiff only needs to be reasonably identifiable. So if you defame the "government executive who makes his home at 1600 Pennsylvania Avenue," it is still reasonably identifiable as the president.
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Question: What's the statute of limitation on libel?
Answer: Most states have a statute of limitations on libel claims, after which point the plaintiff cannot sue over the statement. For example, in California, the one-year statute of limitations starts when the statement is first published to the public. In certain circumstances, such as when the defendant cannot be identified, a plaintiff can have more time to file a claim. Most courts have rejected claims that publishing online amounts to "continuous" publication, and start the statute of limitations ticking when the claimed defamation was first published.
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Question: What are some examples of libelous and non-libelous statements?
Answer: The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false):
Charging someone with being a communist (in 1959)
Calling an attorney a "crook"
Describing a woman as a call girl
Accusing a minister of unethical conduct
Accusing a father of violating the confidence of son
Not-libelous:
Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
Calling a TV show participant a "local loser," "chicken butt" and "big skank"
Calling someone a "bitch" or a "son of a bitch"
Changing product code name from "Carl Sagan" to "Butt Head Astronomer"
Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.
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Question: What is a "false light" claim?
Answer: Some states allow people to sue for damages that arise when others place them in a false light. Information presented in a "false light" is portrayed as factual, but creates a false impression about the plaintiff (i.e., a photograph of plaintiffs in an article about sexual abuse, because it creates the impression that the depicted persons are victims of sexual abuse). False light claims are subject to the constitutional protections discussed above.
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Question: What is a SLAPP suit?
Answer: SLAPP stands for Strategic Lawsuit Against Public Participation, or lawsuits aimed at squelching speech and involvement in government. Many states, including California, have anti-SLAPP statutes allowing one who has been targeted by a SLAPP to sue back.
Online, SLAPP suits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. Many SLAPPers stop after discovering their critic's identity, using the tactic to intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.
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Question: What is trade libel?
Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true).
Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages.
Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage.
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Question: What are "special damages"? When are they awarded?
Answer: "Special damages" are awards made to plaintiffs to compensate for actual monetary losses. In a libel case, the "special damages" would be awarded to compensate for specific losses caused by the libelous speech. The plaintiff would be required to show the specific monetary losses were caused by the libelous speech, in addition to showing that the speech was libel, in order to be awarded special damages.
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Question: What is the duty of confidentiality of an employee?
Answer: Confidential information or trade secrets received during the course of an employer-employee relationship cannot be used or disclosed to the detriment of the employer during or after termination of the relationship, even if the employee and the employer had no express contract prohibiting the use or disclosure.
However, an employee can use all the skills and knowledge he acquired during his employment, if the skills and knowledge are commonly used in the trade.
Many states have adopted the Uniform Trade Secrets Act, which is intended to provide states with a legal framework for improved trade-secret protection. The Act contains a definition of trade secrets which is consistent with common-law definitions. Factors used to determine if information is a trade secret include:
? The extent to which the information is known outside of the employer's business.
? The extent to which the information is known by employees and others involved in the business.
? The extent of measures taken by the employer to guard the secrecy of the information.
? The value of the information to the employer and to competitors.
? The amount of effort or money expended by the company in developing the information.
? The extent to which the information could be easily or readily obtained through an independent source.
Trade secrets need not be technical in nature. Market-related information such as information on current and future projects, as well as potential future opportunities for a firm, may constitute a trade secret.
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Question: What is Slander Per Se?
Answer: Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing.
Slander Per Se is slander for which special damages (e.g. actual loss in revenue) need not be proved in order to recover general damages (e.g. for emotional distress). Slander Per Se only applies to slanderous publications which imputes to the plaintiff one of the four following categories:
1)a crime involving moral turpitude,
2)a loathsome disease (e.g. a sexually transmitted disease),
3)Unchastity (particularly concerns women)
4)conduct that would adversely affect ones business or profession
General damages are presumed legitimate even in abscence of proof of special damages when a plaintiff proves slander in one of these four cateogories.
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Question: How do courts look at the context of a statement?
Answer: For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog's audience.
Context is critical. For example, it was not libel for ESPN to caption a photo "Evel Knievel proves you're never too old to be a pimp," since it was (in context) "not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment." However, it would be defamatory to falsely assert "our dad's a pimp" or to accuse your dad of "dabbling in the pimptorial arts." (Real case, but the defendant sons succeeded in a truth defense).
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Question: Do blogs have the same constitutional protections as mainstream media?
Answer: Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."
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Question: What are the privacy torts?
Answer: Much privacy law is state law, and may differ from state to state. As general categories, states may recognize interests in:
unreasonable intrusion upon the seclusion of another;
appropriation of the other's name or likeness;
unreasonable publicity given to the other's private life; and
publicity that unreasonably places the other in a false light before the public.
(from the Second Restatement of Torts, ? 652A)
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Question: Can I be sued for publishing somebody else's private facts?
Answer: Some jurisdictions allow lawsuits for the publication of private facts. In California, for example, the elements are (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern. Publication on a blog would generally be considered public disclosure. However, if a private fact is deemed "newsworthy," it may be legal to print it even if it might be considered "offensive to a reasonable person."
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Question: What are private facts?
Answer: Private facts are personal details about someone that have not been disclosed to the public. A person's sexual orientation, a sex-change operation, and a private romantic encounter could all be private facts. Once publicly disclosed by that person, however, they move into the public domain.
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Question: What is offensive to a reasonable person?
Answer: To state a claim, the plaintiff must show that the matter made public was one that would be offensive and objectionable to a reasonable person of ordinary sensibilities. For example, disclosing that the plaintiff returned $240,000 he found on the street was held not to be offensive, but the publication of an "upskirt" photo would likely be found to be offensive to a reasonable person.
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Question: How do I know if a private fact is "newsworthy"?
Answer: A private fact is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private fact is pertinent to an otherwise newsworthy story.
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Question: What is "intrusion into seclusion"?
Answer: Intrusion into seclusion occurs when you intrude upon the solitude or seclusion of another person or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person. It generally comes up in the context of paparazzi photographing celebrities, but covers any reasonable expectation of privacy that is intruded upon. If the person intruded upon gave you consent to do it - i.e., gave you permission to take his picture or write about him - then you have a defense against this claim. Interception of an electronic communication (i.e., an email or IM chat) can raise additional legal issues, such as federal wiretap laws.
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Question: What is a right of publicity claim?
Answer: The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you're using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. Here are a few examples of cases where the right of publicity was at odds with the Constitution.
A newspaper's 900 number survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member's name
A newspaper's sale of a poster reproduction of its front page depicting Joe Montana was determined to merit protection under the First Amendment
A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity
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Question: What is a statement of verifiable fact?
Answer: A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. To illustrate this point, consider the following excerpt from a court (Vogel v. Felice) considering the alleged defamatory statement that plaintiffs were the top-ranking 'Dumb Asses' on defendant's list of "Top Ten Dumb Asses":
A statement that the plaintiff is a "Dumb Ass," even first among "Dumb Asses," communicates no factual proposition susceptible of proof or refutation. It is true that "dumb" by itself can convey the relatively concrete meaning "lacking in intelligence." Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use "dumb" in isolation, but as part of the idiomatic phrase, "dumb ass." When applied to a whole human being, the term "ass" is a general expression of contempt essentially devoid of factual content. Adding the word "dumb" merely converts "contemptible person" to "contemptible fool." Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. ... If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.
This California case also rejected a claim that the defendant linked the plaintiffs' names to certain web addresses with objectionable addresses (i.e.
www.satan.com), noting "merely linking a plaintiff's name to the word "satan" conveys nothing more than the author's opinion that there is something devilish or evil about the plaintiff."
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Question: What is cyberstalking?
Answer: It has been defined as the use of information and communications technology, particularly the Internet, by an individual or group of individuals, to harass another individual, group of individuals, or organization. The behavior includes false accusations, monitoring, the transmission of threats, identity theft, damage to data or equipment, the solicitation of minors for sexual purposes, and gathering information for harassment purposes. The harassment must be such that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress.
The current U.S. anti-cyberstalking law can be found in 47 USCS ? 223
? 223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications
(a) Prohibited acts generally. Whoever--
(1) in interstate or foreign communications--
(A) by means of a telecommunications device knowingly--
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly--
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; or
(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
(b) Prohibited acts for commercial purposes; defense to prosecution.
(1) Whoever knowingly--
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with title 18, United States Code, or imprisoned not more than two years, or both.
(2) Whoever knowingly--
(A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person's consent, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $ 50,000 or imprisoned not more than six months, or both.
(3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(5) (A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either--
(i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or
(ii) by the Commission after appropriate administrative proceedings.
(6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.
(c) Restriction on access to subscribers by common carriers; judicial remedies respecting restrictions.
(1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of--
(A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or
(B) any access permitted--
(i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access.
(d) Sending or displaying offensive material to persons under 18. Whoever--
(1) in interstate or foreign communications knowingly--
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regardless of whether the user of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
(e) Defenses. In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.
(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person--
(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.
(6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.
(f) Violations of law required; commercial entities, nonprofit libraries, or institutions of higher education.
(1) No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.
(2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section.
(g) Application and enforcement of other Federal law. Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under subsection (a) or (d) shall be construed to affect or limit the application or enforcement of any other Federal law.
(h) Definitions. For purposes of this section--
(1) The use of the term "telecommunications device" in this section--
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act [47 USCS ?? 151 et seq.];
(B) does not include an interactive computer service; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet (as such term is defined in section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151 note)).
(2) The term "interactive computer service" has the meaning provided in section 230(f)(2) [47 USCS ? 230(f)(2)].
(3) The term "access software" means software (including client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(4) The term "institution of higher education" has the meaning provided in section 101 of the Higher Education Act of 1965 [20 USCS ? 1001].
(5) The term "library" means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et seq.).
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Question: What is the duty of confidentiality of an employee?
Answer: Confidential information or trade secrets received during the course of an employer-employee relationship cannot be used or disclosed to the detriment of the employer during or after termination of the relationship, even if the employee and the employer had no express contract prohibiting the use or disclosure.
However, an employee can use all the skills and knowledge he acquired during his employment, if the skills and knowledge are commonly used in the trade.
Many states have adopted the Uniform Trade Secrets Act, which is intended to provide states with a legal framework for improved trade-secret protection. The Act contains a definition of trade secrets which is consistent with common-law definitions. Factors used to determine if information is a trade secret include:
-The extent to which the information is known outside of the employer's business.
-The extent to which the information is known by employees and others involved in the business.
-The extent of measures taken by the employer to guard the secrecy of the information.
-The value of the information to the employer and to competitors.
-The amount of effort or money expended by the company in developing the information.
-The extent to which the information could be easily or readily obtained through an independent source.
Trade secrets need not be technical in nature. Market-related information such as information on current and future projects, as well as potential future opportunities for a firm, may constitute a trade secret.
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Question: What are considered public records?
Answer: Public records is information that has been filed or recorded by local, state, federal or other government agencies, such as corporate and property records. Public records are created by the federal and local government, (vital records, immigration records, real estate records, driving records, criminal records, etc.) or by the individual (magazine subscriptions, voter registration, etc.). Most essential public records are maintained by the government and many are accessible to the public either free-of-charge or for an administrative fee. Availability is determined by federal, state, and local regulations.
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Maintained by USF Law School - IIP Justice Project
