No Trivial Matter

"No Trivial Matter" might be an example of litotes. When one aggrieved party takes the time, trouble, and expense to go before a judge, it cannot be trivial to them, can it?

A slur could be Tweet-length, and yet be profound in its impact. A photographer's copyright could be infringed unseen, and not be legally "De Minimus".

We'll start with the short form slurs (my own characterization, chosen for the sibilance... and to digress, one online dictionary defines "sibilance" as "having a sibilant quality" !) 

 

From an influencer with a self-alleged botched bottom, to a rural parking dispute (and much more) legal bloggers Emily Cox and Paloma Kotecha  representing the UK law firm of Stewarts LLP tell a series of defamation-related stories:

The Rise And Rise Of Defamation On Social Media.

Lexology Link

https://www.lexology.com/library/detail.aspx?g=e41bf662-4eda-4fe9-b5a1-7418b2c0d9d8

 

Original Link

https://www.stewartslaw.com/news/the-rise-and-rise-of-defamation-on-social-media/

 

Defamation on Facebook seems to be a hot topic Down Under, with indications that media companies with pages on Facebook might be held as liable as any publisher, as far as Australian law goes, for defamatory content posted by Facebook users on the media's pages.

Christine Wong and Greta Ulbrick of Herbert Smith Freehills LLP explain the latest thinking on defamation law for the digital age:

Lexology Link:

https://www.lexology.com/library/detail.aspx?g=39e86874-023d-4b3b-9409-15503466b489

 

Original Link:

https://www.herbertsmithfreehills.com/latest-thinking/defamation-law-for-the-digital-age-the-high-court-decides-media-companies-are-

The media allegedly tried to claim a defense of innocent dissemination.

All bloggers and writers and publishers should take note and beware of "innocent dissemination". Moderating comments would be a good start.

Apropos of nothing...except perhaps running your own small business website, possibly as an author, the Eastern District of New York has recently held that stand-alone websites (not linked to your own bricks-and-mortar bookshop, for instance) are not subject to the Americans With Disabilities Act.

If that was a concern for any of our dear readers, find out more from an Advertising Law blog article by Caren Decter for Frankfurt Kurnit Klein and Selz PC.

Original Link:

https://advertisinglaw.fkks.com/post/102h6jd/edny-holds-that-stand-alone-websites-are-not-subject-to-the-ada

 

Finally. for the law firm Weil Gotshal & Manges LLP (which I am delighted to get my tongue around), legal bloggers Benjamin E. Marks and Michael Goodyear ask "Is There a De Minimus Defense For Trivial Use of Concededly Infringing Material...?"

Can't you just picture Dirty Harry asking that question?  Seriously, the well reasoned answer might surprise at first reading.

Lexology link:

https://www.lexology.com/library/detail.aspx?g=f3b1f4f3-5d49-417d-8cae-3d39861b7174

 

Original link:

https://www.weil.com/-/media/mailings/2021/q2/ipmediaalert202109.pdf

There's a lot to unpack in the case (pardon the pun), but when it comes to copyright, if you copy the entire work, you cannot claim a De Minimus defense. The.pdf version is especially well done and easy reading.  And, if you happen to have lost track of the photos on your long-abandoned Facebook pages, you might not be in the clear if any belong to another copyright holder.

All the best,

Rowena Cherry 

SPACE SNARK™ 

http://www.spacesnark.com/  http://www.rowenacherry.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

"Publish And Be Damned" (Of Sensational Defamation)

Dishing the dirt does not always pay. Those who do not know History are doomed to repeat it.

"Publish and be damned," is believed to have been the first Duke of Wellington's response to literary blackmail. He was offered the opportunity to pay heftily to have a chapter about his extra-marital sexual exploits omitted from a tell-all series.

Brian Cathcart tells the scurrilous tale.
https://www.independent.co.uk/voices/rear-window-when-wellington-said-publish-and-be-damned-the-field-marshal-and-the-scarlet-woman-1430412.html

Modern day legal bloggers, Patrick Considine,  Peter Bartlett, and Dean Levitan writing for Minter Ellison reflect on the current state of sensational defamation and suggest four lessons for publishers (media companies), following a major lawsuit which resulted in the largest defamation payout to a single person in Australian history.

See here:
https://www.minterellison.com/articles/four-lessons-for-media-companies-after-major-defamation-payout

So much for blackmail, and scurrilous scandal that may or may not be approximately accurate, at least as regards His Grace. It boggles the mind why writers of fiction would both "date" their work and expose themselves to the risk of a lawsuit by mentioning a living person, even a celebrity (known to have fewer rights in America) in an unflattering context.

Ron Charles, writing for The Washington Post reports on one such instance in particular, and several recent instances in general.
https://www.washingtonpost.com/entertainment/books/alan-dershowitz-claims-the-good-wife-defamed-him-the-implications-for-fiction-writers-are-very-real/2020/08/05/703e7106-d699-11ea-aff6-220dd3a14741_story.html

Ron's article is a jolly good read, with a nod and a wink to the Odyssey and to Shakespeare's Historical Plays, and also to Walt Disney's famous water fowl, an actor or two, and current and former politicians.

Talking of Hollywood, legal blogger Toni Oncidi for Proskauer Rose LLP notes that publishing Hollywood actors' full birth dates is perfectly acceptable.
https://calemploymentlawupdate.proskauer.com/2020/07/dark-day-for-hollywood-law-prohibiting-online-publication-of-actors-ages-is-struck-down/#page=1

In these days of rampant identity theft, it seems wrong to this writer that birthdays can be exploited against the wishes of the celebrity... but no doubt it's good for LifeLock. For those not being exploited and exposed by IMBD and its like, many of those "person-locator sites" are required by law to remove information upon request, but they don't make it easy to find out how.

Try reading all the way through Terms Of Use or Terms Of Service, or Contact Us, or Privacy Policy, and legitimately scurrilous sites will have an explanation of users' opt out rights.

Be watchful, also, about the information you provide for "two factor id" on sites such as Twitter.

According to legal blogger Jenny L. Colgate, writing for Rothwell Figg's Privacy Zone blog, Twitter has been exploiting that supposedly super private data and sharing it with advertisers.
https://www.theprivacylaw.com/2020/08/time-to-double-check-your-corporate-practices-twitters-use-of-personal-information-gathered-for-security-e-g-two-factor-id-fo

All the best,
Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/ 

PS. Apologies for the late "Publish". Thunderstorms, power cuts, loss of internet is the reason.

Damned If You Do...

Social media is a minefield.

Anyone can make an accusation, anyone can repeat terminological inexactitudes, and although a reasonable person might think that it would be safe to set the record right, it's not. It might cost you.  You might give others the impression that the first person is... a liar.

And that is actionable.

John C. Greiner, writing for the law firm Graydon Head & Ritchey LLP discusses an emerging trend of using defamation lawsuits to resurrect untimely complaints of sexual assault (after the statute of limitations deadline.)
https://graydon.law/sexual-assaults-and-defamation-litigation-an-emerging-trend/

There's more this month on the topic of defamation in social media.

Jerod MacDonald-Evoy, writing on Law & Government for the AZ Mirror writes about a discussion taking place in Arizona about removing the current statute of limitations, which rules that a defamed person can only sue for defamation  within the first year that a libelous comment is published online.

https://www.azmirror.com/2020/01/08/internet-libel-lawsuits-social-media-posts/

Given that "the internet is forever", perhaps the current law is inadequate. Unless one obsessively "googles" oneself (which may not be a reasonable expectation), it is possible that one might not discover an untruthful and scurrilous assertion within a year of it being published.  Many authors, for instance, deliberately do not read their books' reviews.

Authors are discouraged from responding to published reviews, and if a reviewer could sue an author for defamation if an author were to suggest in writing that that reviewer was veridically challenged, there's all the more reason to stay away!

For any Scottish readers, Marianne Griffin, writing for Brodies LLP and the Enlightened Thinking blog explains the Defamation and Malicious Publication (Scotland) Bill.
https://brodies.com/blog/dispute-resolution/katie-price-and-the-defamation-and-malicious-publication-scotland-bill/

It's worth reading, especially for those who re-Tweet others' social media comments without great mindfulness.


Happy reading!

Rowena Cherry 
SPACE SNARK™ http://www.spacesnark.com/

Getting Off On Punctuation ?

There are many twisted variants of, "If you don't have something nice to say...."
See https://quoteinvestigator.com/2014/08/09/sit-by-me/
 
Here's a new one. "If you don't have anything nice to pen about anybody...use a question mark."

Apparently, a question mark can turn an offensive and otherwise actionable --or defamatory-- utterance into an offensive but innocent query.

Legal bloggers Lee. S. Brennan and Michael C. Godino (with special kudos to Josh McWhorter), explain some of the grosser* (?) points of how James Woods got off a defamation charge in the interesting case of Boulger vs Woods.

Original:
https://www.closeupsblog.com/2019/09/james-woods-avoids-defamation-liability-for-a-tweet/
 
Precautionary punctuation works on Tweets, too.

Writing for the law firm Charles Russell Speechlys LLP,  legal blogger Claire Greaney, discusses privacy and defamation on Twitter, and cleverly appends a protective question mark on "Roodunnit?"

Original:
http://blog.charlesrussellspeechlys.com/post/102fs73/the-privacy-tales-of-wagatha-christie

If everyone lards their otherwise intentionally defamatory statements with interrogation points, the Courts' presumption of ambiguity may go away.

The best defence (UK) or defense (USA) is to be very sure that offensive revelations are true.

Venable LLP has a blog about that, too.
https://www.closeupsblog.com/2019/09/fair-and-balanced-reporting-pays-off-newspapers-avoid-defamation-suits-by-sticking-to-the-truth/

Venable's legal bloggers Lee S. Brenner and Matthew J. Busch provide good advice for investigative journalists and less than malicious publishers.

In conclusion, to quote another proverb, "Honesty is the best policy."
https://www.phrases.org.uk/meanings/honesty-is-the-best-policy.html

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

*
Disclaimer:
"grosser" was used as the antonym of "finer", and was chosen purely for self-amusement.

PS. If one has characters to spare, and a question mark doesn't make sense,  it is always wise to liberally sprinkle salacious sentences with the word "allegedly".

Malice Actually

In a recent article for vox dot com, Constance Grady wrote that, "In book publishing, the onus for fact-checking is on the author. That creates problems."

https://www.vox.com/culture/2019/1/15/18182634/jill-abramson-merchants-of-truth-fact-checking-controversy

Scandal ensued.

Compare the fact-checking problems there, with the "fact checking" issues discussed by legal bloggers
Alan L. Friel,  Linda A. Goldstein,  Amy Ralph Mudge and Randal M. Shaheen  writing for the law firm Baker & Hostetler LLP  about Olivia de Havilland's unsuccessful complaint about a mini-series that allegedly deliberately portrayed Olivia de Havilland as the kind of person Olivia de Havilland despised and spent a professional life-time NOT being.

https://www.lexology.com/library/detail.aspx?g=610d48da-8b16-47e9-9b91-0043c40d182a&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-01-31&utm_term=

The problem with writing in America is that authors are legally responsible for what they write.

The problem with being written about in America is that libel laws are often trumped by the First Amendment, and would-be plaintiffs who are public figures have to be able to prove "actual malice" on the part of the author.

Those who sympathize with creators of "historical dramas", might argue that it is dramatically necessary to turn a real, living public figure into a scandal monger or whatever else advances the plot for the sake of telling the story succinctly and with as few characters as possible.

Those who have more European attitudes to respect for the feelings and reputations of historical and public figures --and historical accuracy-- might deplore authorial laziness and lack of creativity in resorting to character assassination, when they could have added a fictional villainess.

 The Kelly Warner legal blog has an eye-opener of an explanation of  DEFAMATION.in the United States.

http://kellywarnerlaw.com/us-defamation-laws/

Bookmark this, because different States have different statutes about libel and defamation, and Kelly Warner has links to every one of them.

Note also, not only are politicians, celebrities, authors, sports figures etc "public figures", but teachers are, too.

Kelly Warner also has a highly alarming and entertaining article explaining ACTUAL MALICE.

http://kellywarnerlaw.com/what-is-actual-malice/

However, since authors also advertise, and as the Baker & Hostetler LLP lawyers point out, advertisers cannot hide behind creative license and freedom of expression if they stretch the truth when advertising.

Gonzago E. Mon, writing for Kelley Drye and Warren LLP discusses the "Dumpster Fyre of Advertising Issues";

https://www.lexology.com/library/detail.aspx?g=bb3ce673-3a21-4011-967b-4047176efbbf

The most important take-away for authors  from this cluster of issues may be that  social media postings --of a promotional nature-- are subject to advertising laws, so must be truthful.  And not malicious..

All the best,
Rowena Cherry