Airing the Family Laundry: Libel, Slander and Defamation of Character (Part One and Two)

Charles Courtney Curran "Shadows" 

"Freedom of speech is the foundation of a functioning democracy." Guide for Bloggers

I've been on both sides of the Blogger's Rights controversy. I've been written about (ouch!) and I've written about people, some of whom were okay with it and some who felt betrayed. I can speak to my personal experiences but I cannot offer legal advice to anyone. Help yourself and visit the overwhelming number of links embedded in my article because I am not an attorney thank God, and I am not an expert on the law no shit, and my interpretation of libel laws should be limited to my pocketbook not yours. Take my explanations with a grain of salt and if you decide to blog about your experiences, leave a link to your website. I'd love to read what you have to say. It surprises me that we haven't had more libel discussions in the blogosphere since what we are writing about on narcissism blogs is indecorous to say the least. And since narcissists are identified by their thin-skins, relentless desire for revenge, and their litigious proclivities, we should familiarize ourselves with Bloggers' Rights. 

What you need to know concerning the Electronic Frontier is that there's enough legal ambiguity to allow anything you have written (blogs are considered publishing) to be used as grounds for libel if the person you are writing about is: a) identifiable; b) suffers a loss. If they have deep pockets with access to attorneys and are sufficiently offended, they could pursue litigation even when they know they can't win. A successful lawsuit resulting in financial compensation is unlikely, though judges have forced the removal of offensive material. What will happen for sure if the people you're writing about find your blog and recognize themselves is that they won't suddenly have a change of heart. They'll get pissed. They'll hate you, even though your motivations were pure as the driven snow, or even more likely, if they weren't. Let me remind readers that on blogs like mine---we get down and dirty, willing to wrestle with ugly truths about others and ourselves. We are attempting to understand and CHANGE dysfunctional behaviors because by the time we create a blog, we realize that the only person we can change is ourselves.

Our change can influence other people's change...but only if they allow it. And this is a wild west guess, but I'd bet my best washtub that siblings don't draw closer together after reading a blog that uses their family dynamics as perfect examples of dysfunctional behavior. I have a sneaky, sneaky suspicion that this writer has heretofore been suspended from future dinners for time and all eternity pass the trifle and whipped cream please. I suppose a strong-armed authority could, possibly, blindfold me, plug my ears and sit me at the table after forcing me to swear an oath and cross my heart and hope to die stick a pin in my eye should I ever dare tell a hyperbole again. This post might be the death knell for sure and if y'all don't hear from me in the next twenty-four hours, please check your newspapers. Imagine the headlines: "Judge Gags Prolific Blogger Who Has NOT Shut Her Mouth in TEN Long Years!"

I'm kinda like the Julian Assange of ickiLeaks right now. Persona non grata, that's me.

Maybe my involvement with recovery work is why I'm not ashamed airing my family's laundry in public. Maybe I'm so seasoned to rigorous self-honesty that shadows behind bleached sheets don't frighten me. Maybe I forget that people who haven't immersed themselves in Adult Child Recovery work, are shocked when the family's underwear flaps in circulating breezes.  After all, the first rule of the dysfunctional family is the No Talk Rule. (And remember: all families are dysfunctional in their own peculiar way). Family members collude in maintaining the status quo, pretending perfection, passing unhealthy behaviors to the next generation who dare not defy the sacrosanct family story. And so the story goes as unhealthy behaviors rigidify into generational patterns.

Breaking the No Talk Rule divides family members against each other and who hasn't experienced this after recognizing dysfunction and making an effort to change? Talking about problems may isolate a family from their community, too. The No Talk Rule came about for good reason. If we value our reputation, unabashed honesty could threaten our status IF other people don't reciprocate such breathtaking veracity. This happens in religious communities which unfortunately (and unintentionally) stifle honesty, admission of mistakes, and individual authenticity since deviation from 'the ideal' invites gossip, judgement, even ostracism.  In recovery communities however, there's a refreshing acceptance of dysfunction as normal. In recovery communities, nobody flinches when we admit we're a mess, our family's a mess, and the family we thought we were protecting from our family-of-origin's messiness, is still a godawful mess. Maybe even worse Lord help us we surely need it.

For all the criticism directed towards self-help groups (notwithstanding critical scrutiny which is good-and-necessary), our willingness to confront familial patterns has improved the psychological health of our general community. I believe this. I also believe communication with those who are working through childhood issues is essential to a healthy future---an even better society than the one we inherited. I know from experience that our willingness to confront dysfunction will, without a doubt, piss a lot of people off. But if nobody's mad, nothing's changing. Nothing will change. 

Not all of the time but some of the time, it is true that dysfunctional families lack problem-solving skills. They avoid confronting one another since everyone would rather pretend and hope for the best. They lack negotiation skills to get to the root of the conflict. They don't trust each other, often perceiving malicious intentions where there are none. Some behave like victims without trusting their ability (or a family member's willingness) to negotiate solutions. They dig in their heels, refuse to compromise---as if compromise is a dirty word---and there's no conclusion that's acceptable other than punishment. Their knee-jerk reaction? Hire an attorney. "Come hell or high water, that blogger needs a flogger!"

I forget sometimes how shameful it was to admit my life wasn't perfect and that I had, indeed, and despite my best of intentions and efforts, married someone who could not love his family back. You get used to being criticized when you wear my shoes and you learn to steel your nerves and you learn to gird your loins and you learn to accept people's judgments about you, for there but for the grace of God go they.

Being part of the Internet Brigade for Mental Health since 2002, makes me a WWW Veteran in a way. Statistics suggest women of my age are fewer than other age groups using the Internet to work through relationship problems but for me, blogging was a natural fit. I like it much better than the key-locked diary I lost my key to and had to cut open with garden scissors to destroy the bitchy pages written about my sisters. 

And now, you've arrived at Part Two, the really serious stuff. You can come back later to read part two if by this point, your eyeballs have fallen out of their sockets. 

PART TWO

Defamation of Character

The Right to Privacy

Libel or Slander

Hyperbole & Opinion in Context

The Chilling Effect

Blogger's Rights

Cyberspace is most definitely a new world from the print-world I grew up in when the printed word (newspapers and magazines) was the only source of information. Retractions for false information couldn't be edited at a moment's notice and people had no voice for opposition if they didn't own a printing press. Libel suits were integral to a fair and just society because reputations could be ruined and financial losses irreparable by the time a retraction could be published.  This is not our reality today. Our first action ought be contacting the author. Working things out. Resolving our differences. Not hiring an attorney. 

Defamation of Character & Our Right to Privacy

Defamation is: "any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person."

In the "civilian" population without much (if any) recovery, people protect their image/facade as if it were life or death and it might be. Losing status is nothing to diminish. We are vested in protecting our name and we are driven to present ourselves in the best of light. We realize that being anything less than perfect invites water cooler gossip, juicy rumors, rejection and isolation, even justified bullying. It may not be healthy serving as martyrs to the No Talk Rule; but it's no picnic being rejected by your community either. In recognition of the importance of one's name and reputation, everyone's right to privacy should be respected. In order to protect us from one another and our varying degrees of comfort with disclosure, we have laws:

"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." ~On Privacy, EFF organization

Any fact that has not been disclosed to the public and would be considered offensive to a reasonable person, establishes precedent for a lawsuit. If you know for a fact that your neighbor had a sex-change operation, don't publish this information unless you enjoy spending money and time defending yourself.

Read more about privacy laws at the Electronic Frontier Foundation's webpage on Privacy: Legal Guide for Bloggers. Please note that laws vary from country to country and in the USA, laws vary from state to state. 

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Is it: a) Libel; b) Slander; c) Butthurt?

Libel is a written defamation; slander is a spoken defamation. Be sure you don't slander someone's character while attempting to garner support for your libel suit. On recovery blogs like mine, talking shit about people is called The Smear Campaign; i.e.: ruining someone's reputation and maligning their character to prove they are inferior retrogrades deserving of a public flogging. If you believe your character has been defamed by someone's online writing, or if someone believes YOU have defamed their character, then according to EFF's Online Defamation Law, the following elements must be met. The defamatory material must be: 

1-[in] a publication to one other than the person defamed; 

2- a false statement of fact; 

3- 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.   

As an attorney wrote, "Butthurt is not defamation. Butthurt is butthurt, and you don't get paid for that." So take a deep breath and ask yourself the following questions before seeking legal redress or sending written threats. I know you want to defend yourself initially because I felt reactionary, too. BUT ask yourself:

1- Was the offensive statement or article true or false?

2- Did more than one person read it?

3- Was your/her/his sexual chastity compromised?

4- Were you/they accused of a crime?

5- Were you/they accused of having a loathsome disease?

6- Was your/their workplace compromised?

7- Did you/they suffer financial losses as a result of the published material?  

EFF, Online Defamation  "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."

The case against John Hoff, aka Johnny Northside "The Star Tribune reports that the appeals court ruled in Moore v. Hoff that Hoff can’t be liable if the information he posted is true." Read about the Moore v. Hoff case HERE  

Barrett versus Rosenthal  "Judge Richman dismissed the case (against Rosenthal only) under the California anti-SLAPP statute, which is intended to stop lawsuits that are "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances." The court further ordered that all three plaintiffs pay Rosenthal's attorney's fees." 

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Hyperbole and Opinion in context 

"...context matters: courts have held that given the nature of online forums, online comments cannot be taken as seriously as those made in real life or in the media. Because of these requirements, bringing a claim for internet libel is a challenge." ~ the Legality 

In the context of the workplace, blogging about the boss isn't the smartest thing a person could do.  So any advice suggesting people avoid writing about their workplace (while AT work especially, duh) makes sense if you need a salary to pay for your Internet connection.  You can read about a popular blogger being fired for writing about her workplace.

I read several articles in preparation for this post and most of them suggested it was ill-mannered and probably not-very-wise to write about family and friends. However, in context of the recovery community, personal narrative and disclosure are de rigueur. Readers expect a certain type of blog when reading about narcissism. We don't expect love stories---unless the blog is seriously pathological and merits being flagged as inappropriately ludicrous like Chicken Soup for the Soul-less or something. We expect bloggers to write from the gut, interspersing emotion-laden anecdotes, not clinical appendages suitable for publication in the Diagnostic and Statistical Manual of Mental Disorders. We expect to see a cooperative blog where people share their troubles with one another; i.e.: airing out the family linen together.

On blogs like mine, self-disclosure is i-m-p-e-r-a-t-i-v-e. Bloggers connect the dots between past and present which will, if we are doing our recovery work, focus on family dynamics. Bloggers write about sensitive topics such as: family patterns and dysfunctional behaviors; internalized beliefs and assumptions; distinctions between normal and pathological behavior; traumatic events; intimate details in relationships; our thoughts, behaviors and reactions to other people's thoughts, behaviors and reactions; and never forget: the armchair diagnosis based on accessible information about pathology. We do not expect bloggers to be professional psychologists so whatever diagnosis bloggers have determined best fits, is not libelous. It's opinion. 

"Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact." ~EFF's Online Defamation Law

For example, I have written on my sidebar that my X-husbaNd is a "Rat Bazturd." Is that libel? Well, it's not libel, it's rhetorical hyperbole and it's also my well-informed opinion. The statement that he is a "Rat Bazturd" communicates no factual proposition susceptible of proof or refutation and is therefore a non-actionable item of opinion. In the context of my blog's subject matter, calling him a "Rat Bazturd" is being generous and I should win an award for uber-kindness.

How about if I had written that my X-husbaNd was a murderer? Well, he's not a murderer as far as I know, so that would be a false statement. Grounds for libel. Being accused of murder would affect his ability to earn a living, not that it matters since the rat bazturd hasn't worked for close to ten years but who's counting? Hypothetically though, calling him a murderer would be a verifiable fact resulting in a measurable loss to him thus allowing financial recompense from me for having defamed his character. I could however, in context of my blog about psychopathology, say he had murdered my soul and this would not be libelous. And if perchance the judge had divorced a narcissist too, s/he'd send my X-husbaNd to Heartbreak Hotel Jail 'cuz she'd know first-hand about soul thieves. 

"Other users have the right to sue you for defamation if they can prove you damaged their reputation or good name with false information.  You can be sued for libel if another user can prove you have distributed defamatory statements about them in a public area---such as a news group or mailing list." ~Link

"A Minnesota trial court did not violate the First Amendment rights of man [Arlotta] by entering a harassment-restraining order that forced him to remove a blog about his relationship with his former girlfriend...Arlotta created a blog called “Help Anna Johnson” that documented his relationship problems with Johnson. It questioned her mental health and stability. Arlotta sent messages about the blog to her relatives, friends and high school classmates. He also sent a message to her employer." ~Takedown of man's blog harassing X-girlfriend UPHELD  

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Charles Courtney Curran  "A Breezy Day"

The Chilling Effect

So let's say you've read enough high-profile stories about libel suits that you're afraid. I know your "self-silencing" pattern of behavior has risen to the fore (don't try to fool me. I'm on to your reindeer games!) You're thinking about deleting your blog just because someone might be offended and besides, the last thing you want to do is go to court. This is called The Chilling Effect and blowhards count on scaring critics into gluing their blogging fingers to their arses. Political bullies capitalize on the l'il people's litigation fears, too. So do big businesses, celebrities, organizations with more money to spend than pajama-clad bloggers in basements. It's what we learn about dysfunctional families: you don't have to beat up ALL the kids. Just one.

"A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called libel chill." ~Wikipedia

Narcissists use intimidation to frighten people into silencing themselves. And if the narcissist has more money to spend than yourself, you may back down even though his case has no merit, which is exactly what he intends for you to do. But the law is on to these guys.

"The court agreed that "subjecting Internet service providers and users to defamation liability would tend to chill online speech."~Barrett versus Rosenthal

Don't let the fear that you 'might' be sued stand in the way of speaking your truth.  I would imagine that more than one blogger writing about narcissism has been warned---finger in the blogger's nose---that should she write even ONE WORD disparaging the narcissist's most excellent reputation and untarnished character, that she would be sued into the netherworld of Hell. And yet, here we are---still blogging, still learning, still fighting for healthier relationships by opening the doors on dysfunction...whether people like being written about or not.

The chances that you will be sued are slim-to-none if you follow Good Faith practices protecting your anonymity. If you're the one being unjustly written about, be careful reading websites sponsored by ambulance-chasing attorneys who'll feed your greed and your desire for revenge. You're better off  toughening your own thin-skin and keeping the narcissist away from your blog, than you are engaging in litigation that could cost thousands of dollars and a decade of your life. And what for? So you could tell the narcissist she was a scuz? So you could stick it to the person who said you were scuzzy? I am preaching to myself as much as anyone because it isn't easy defending people's right to free speech when you're seriously butthurt from something they said or wrote about you.

"FirstAmendment Center A local court official has found that a blog that mocks a Northern California newspaper reporter is “rude and boorish” but is allowed under the First Amendment." 

Citizen Media Law Project "SLAPP stands for "Strategic Lawsuit Against Public Participation." It refers to a lawsuit filed in retaliation for speaking out on a public issue or controversy. You might be "SLAPPed" for actions such as posting a blog entry, posting a comment on another person's blog, writing a letter to the editor of a newspaper, testifying before the legislature, reporting official misconduct, or circulating a petition. Often, SLAPPs are brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions." 

"[The] cyberSLAPP aims at chilling free speech by intimidating critics with the prospect of defending an expensive lawsuit. But it also often aims at uncovering the identity of the anonymous critic."

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If you are concerned about your blogging rights and if you would like more information about your protections under the First Amendment, visit the Chilling Effects website: a joint project of the Electronic Frontier Foundation (EFF.org) and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.

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Blogger's Rights

Bloggers have rights and for valid reasons. Some bloggers are writing about oppressive regimes, bringing human rights violations to global attention and putting their lives on the line to do so. Some bloggers put their jobs on the line, acting as whistle blowers to corruption. All bloggers everywhere create a collective voice recording a social history of what we're thinking and what we're doing; how we're changing; recording rights and wrongs---sharing the best and the worst of our human experience.

1- Know your rights. I hope this blog article is a good start on educating yourself. I had taken my right to free speech for granted and never realized the privilege it is, stating my opinion without political reprisals 

2- Tell the Truth. Always good policy. It is the only way to heal. If you are concerned about litigation, keep records with dates and times for every incident you're writing about. If you're worried, document.

3- Write anonymously. Avoid any identifiers of the people you're writing about. The goal is to share your experience. You needn't name-the-narcissist in order to heal. Revenge may be sweet but it always has a price.

4-Ask an attorney to review your blog. If you want to file a libel suit, consult a reputable attorney.

5- Purchase Insurance coverage General liability may be available under your homeowner's policy. If you receive any monies including donations, homeowner insurance may not apply. I read one story from a blogger who called his homeowner insurance to see if he was covered and they canceled his insurance policy.

Lily Spencer "The Jolly Washerwoman"

Wishing each of you Safe and Happy Blogging,

CZ

RESOURCES

Wikipedia: Defamation per se

Wikipedia: Defamation

Electronic Frontier Foundation

Blogger's Rights 

On The Media

Chilling Effects

First Amendment Center

Citizen Media Law Project 

California Anti-SLAPP Project 

Federal Trade Commission

This article by Ethan Zuckerman speaks to an even more complex level of anonymity for bloggers reporting on global events and corruption 

Laundry images located here: It's About Time