On 8/15/05, Andrew Suffield <[EMAIL PROTECTED]> 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, YMMV. 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 beholder.) 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. Cheers, - Michael (IANAL, TINLA)