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Who gets sued for libel?

Ross at Play

Hypothetically speaking, if Stalin thought the character Napoleon in Animal Farm was an inaccurate portrayal of him, would it have been George Orwell or the publisher of the book he'd have had to sue for libel?
Is there any difference between British and American law for that question?

helmut_meukel

@Ross at Play

To me it looks like both are liable, one wrote it, the other published it.
So I can go after both. To decide whom first I have for me to answer two questions.
1) Who has more money?
2) Who will sooner cave in?

HM.

Hopeless Writer

Stalin would probably choose UK law, as it puts the burden of proof on the defense.

Taking David Irving v Penguin Books and Deborah Lipstadt as an example, he might sue both at the same time.

According to US lawyer Amy Cook, however, a (maybe mostly US) author will usually find they've signed a publishing contract in which they have agreed to indemnify the publisher, so they end up on their own in a libel lawsuit.

Crumbly Writer

Don't forget though, the U.S. was actively hostile to all of his ideas, and he was already an outlaw in Russia, so Stalin had no safe or reasonable way to file a suit, and no hope at all for winning one. Thus it made no sense to even file one.

He knew, in the end, he'd either win over the Russian public, or he wouldn't and he'd spend the rest of his life in jail. The book wouldn't have any effect whatsoever. Besides, how many of the Proletariat would be likely to read the book anyway?

Ernest Bywater

@Ross at Play

In that specific case it would be up to Stalin to prove to the court that it was in he and no one else that was being portrayed as Napoleon, and it was clear everyone saw it that way before the court would even hear the case.

In most libel cases, as in most slander cases, the person being abused is clearly identified and named - if that isn't there the case gets very hard to be allowed to be heard.

Replies:   Dominions Son
Ross at Play

Thanks everyone. Your comments confirm what I expected: both could be sued, under both American and British-style laws.

Replies:   Dominions Son
AmigaClone

Now if Stalin were to take a page from the radical Muslin playbook, George Orwell and possibly his family would be assassinated. The publisher would likely get hit by a terrorist attack.

Ross at Play

@AmigaClone

Please don't give anyone any ideas. I live in Indonesia and need to be careful I limit my blasphemies to other faiths. I don't want to become Salman Rushdie's pen pal. :(

Replies:   Crumbly Writer
Vlad_Inhaler

@AmigaClone

You know what happened to Trotzky?

Replies:   awnlee jawking
awnlee jawking

@Vlad_Inhaler

He head-butted an ice-pick ;)

AJ

Crumbly Writer

@Ross at Play

I don't want to become Salman Rushdie's pen pal.

Salman Rushdie did very nicely, thank you very much. He made a fortune, became a household name, and while he kept a low profile for several years—not a bad thing for an author interested in writing anyway—he came out of it none the worse for all the vile threats.

Replies:   Ross at Play
Ross at Play
Updated:

@Crumbly Writer

He made a fortune, became a household name, and while he kept a low profile for several years

Let's put things in their correct order here ...
In 1981 he wrote the Booker Prize winning, Midnight's Children. He was wealthy and a household name long before he was forced to spend years in hiding, under police protection, with bombers intending to kill him accidentally blowing themselves up.
There was no plus-side at all from what he went through in my opinion.

Replies:   Crumbly Writer
Dominions Son

@Ernest Bywater

In that specific case it would be up to Stalin to prove to the court that it was in he and no one else that was being portrayed as Napoleon, and it was clear everyone saw it that way before the court would even hear the case.


Not only would Stalin have to prove that under US law, the First Amendment to the US constitution presents a number of obstacles.

Stalin would have to prove that the portrayal was false. Truth is an absolute defense against libel in the US.

The First Amendment protects parody. After proving it was a false portrayal, he would have to prove that the reader was meant to see it as a true portrayal of Stalin.

The First Amendment protects political and other public commentary. The defense would be sure the argue that Stalin was a public figure. As a public figure, the burden of proof on Stalin gets even higher. He would have to prove that the author knew that the portrayal was false or acted with reckless disregard for the truth.

Replies:   Ross at Play  REP
Dominions Son

@Ross at Play

both could be sued, under both American and British-style laws.


Anyone can be sued for anything under American laws. However, a libel suit against either the author or publisher of Animal Farm would be almost impossible to win.

Ross at Play

@Dominions Son

Truth is an absolute defense against libel in the US ... also ... also ...

Thanks. That was very helpful. The US law is quite different.

REP

@Dominions Son

He would have to prove that the author knew that the portrayal was false or acted with reckless disregard for the truth.


Not precisely accurate. In the US, even true statements are slanderous/libelous if they are made to harm someone.

richardshagrin

@REP

In the US, even true statements are slanderous/libelous if they are made to harm someone.

Some of the comments here occasionally seem to fit that category. Although I suspect Canadian rules apply.

Dominions Son

@REP

In the US, even true statements are slanderous/libelous if they are made to harm someone.


You are wrong.

http://injury.findlaw.com/torts-and-personal-injuries/defenses-to-libel-and-slander.html

The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.

A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.

Replies:   REP
REP
Updated:

@Dominions Son


You are wrong.


The case of Noonan v. Staples established a precedent that a truthful statement can be considered defamation if it is worded maliciously.

In that case, Staples fired Noonan and sent out an email that appeared to be malicious. Noonan sued Staples for defamation and won because Staple's truthful statement was besmirching Noonan's character and causing him harm.

So you are wrong about Truth being an absolute defense against defamation.

Replies:   Dominions Son
Dominions Son
Updated:

@REP


The case of Noonan v. Staples established a precedent that a truthful statement can be considered defamation if it is worded maliciously.


Not quite.

https://harvardlawreview.org/wp-content/uploads/pdfs/vol123_noonan_v_staples.pdf

1. It's a 1st Circuit decision, so it's has presidential value in the 1st Circuit.

2. It's a Massachusetts state law case moved to Federal court by diversity jurisdiction. Such cases are handled by the federal courts, but they are still decided on the basis of state law.

In Massachusetts, as elsewhere, truth is usually an absolute defense to libel.

But Massachusetts law contains an exception: truth is not a defense to libel if the plaintiff can show that the defendant acted with "actual malice"


So apparently, it's only in the State of Massachusetts where truth is not an absolute defense to libel.

Replies:   Crumbly Writer  REP
Crumbly Writer

@Ross at Play

There was no plus-side at all from what he went through in my opinion.

I never said there was a plus side. I was merely noting that he came though it, after everything was said and done, largely unscathed. Whether there was emotional damage inflicted or not, he's never said.

Crumbly Writer

@REP

Not precisely accurate. In the US, even true statements are slanderous/libelous if they are made to harm someone.

You mean like: "Trump is a habitual liar and can't be counted on to tell the truth!"

Somehow, I find that assertion difficult to accept.

Crumbly Writer

@Dominions Son

So apparently, it's only in the State of Massachusetts where truth is not an absolute defense to libel.

I can see that, in cases like HR practices where publicly releasing otherwise confidential informtation could be considered libel if it was done purely to inflict damage on a targetted individual.

Thus calling Trump a liar wouldn't get you convicted, since everyone knows that to be a fact, but for a company (or a doctor) to publicize that John Jay Smith has gonorrhea might be, since John Jay has an expection of privacy.

Replies:   robberhands
robberhands

@Crumbly Writer

There is a difference between libel/slander and insult. All three are criminal offenses but whereas libel and slander are determined by verifiable facts, an insult is defined by a non-verifiable value judgment. So, "Trump is a habitual liar," can be libel or slander but "[Trump] can't be counted on to tell the truth" is an insult.

Replies:   Ross at Play  REP
Ross at Play
Updated:

@robberhands

All three are criminal offenses

That depends on the jurisdiction, but I thought in most English-speaking countries it was entirely a civil matter.

The distinction between libel (print) and slander (speech) barely matters - both are merely different types of defamation - beyond technicalities like establishing allegedly false statements were actually made. For example, in Australia all distinctions were removed recently when new, uniform laws across all jurisdictions were introduced.

Replies:   robberhands
robberhands
Updated:

@Ross at Play

That depends on the jurisdiction, but I thought in most English-speaking countries it was entirely a civil matter.

I didn't study criminal law in any English speaking country, nonetheless, I very much doubt that.

ETA: Reference 'Defamation and Insult Laws in the OSCE Region' (OSCE: Organization for Security and Co-operation in Europe)

Replies:   Ross at Play
Ross at Play

@robberhands

I didn't study criminal law in any English speaking country, nonetheless, I very much doubt that.

You are correct.
What "I thought" is totally wrong.
I checked and in Australia making statements with malice can be a criminal offense, and truthfulness is not necessarily a defense.

Replies:   Vlad_Inhaler
Vlad_Inhaler

@Ross at Play

I checked and in Australia making statements with malice can be a criminal offense, and truthfulness is not necessarily a defense.

So celebrity well known for having an adversarial attitude to the truth (not just) in his malicious tweets, would be in real trouble.

Replies:   Ross at Play
Ross at Play

@Vlad_Inhaler

So celebrity well known for having an adversarial attitude to the truth (not just) in his malicious tweets, would be in real trouble.

I am an Australian, but I haven't lived there for some time, and I never bother with any "news" about "celebrities" there.

My answer to what I think you're suggesting is someone may be safe if their tweets were only damaging socio-economic classes, ethnic groups, entire countries, and entire planets: they would be no one with the "standing" before a court to get any case started. :(

REP

@Dominions Son

In Massachusetts, as elsewhere, truth is usually an absolute defense to libel.


You need to read your quotes. As the above clearly states, truth is usually an absolute defense to libel in Massachusetts and elsewhere.

Replies:   Dominions Son
REP

@robberhands

but "[Trump] can't be counted on to tell the truth" is an insult.


No, it is a fact that has been proven many times.

Replies:   robberhands
robberhands

@REP

No, it's not. "Can't be counted on," is a value judgment, which neither can be proven nor refuted. It's the same as calling someone an asshole. You can state your reasons for calling him an asshole, and those might be very good and comprehensible reasons, but that doesn't turn a personal verdict into a fact.

Replies:   Vlad_Inhaler
Vlad_Inhaler

@robberhands

Calling someone an asshole is a value judgment, saying someone tells lies is verifiable - possession of a law degree would be a strong indication but not proof without corroborating evidence.

awnlee jawking

@Vlad_Inhaler

saying someone tells lies is verifiable - possession of a law degree would be a strong indication but not proof without corroborating evidence.


Yes, you'd need to demonstrate the lawyer's lips moving to prove that they were lying ;)

AJ

Replies:   Ross at Play
robberhands

@Vlad_Inhaler

Calling someone an asshole is a value judgment, saying someone tells lies is verifiable -

I agree, and I did not state anything to the contrary.
For personal reasons, I won't comment your second statement.

Ross at Play

@awnlee jawking

Yes, you'd need to demonstrate the lawyer's lips moving to prove that they were lying ;)

Come off it! Lawyers hardly ever stop lying. They keep on doing it while they sleep; not even death stops most of them. :)

richardshagrin

@Ross at Play

Lawyers hardly ever stop lying. They keep on doing it while they sleep; not even death stops most of them. :)


Most of them stand up in court.
"lie
[lahy]
Spell Syllables
Examples Word Origin
See more synonyms on Thesaurus.com
verb (used without object), lay, lain, lying.
1.
to be in a horizontal, recumbent, or prostrate position, as on a bed or the ground; recline.
Antonyms: stand.
2.
(of objects) to rest in a horizontal or flat position:
The book lies on the table.
Antonyms: stand.
3.
to be or remain in a position or state of inactivity, subjection, restraint, concealment, etc.:
to lie in ambush."

Replies:   Joe Long
robberhands
Updated:

@Ross at Play

Lawyers hardly ever stop lying.

I assume it's a matter of supply and demand. If clients would demand an honest, law-abiding (specially formulated for you, Ross) lawyer, they would get an honest, law-abiding lawyer. They don't do that, of course. When someone needs a lawyer, he wants the nastiest, filthiest whore-son he can get. After his trial, he then happily continues complaining about this morally-challenged occupation.

Replies:   Crumbly Writer
Crumbly Writer

@Vlad_Inhaler

Calling someone an asshole is a value judgment, saying someone tells lies is verifiable - possession of a law degree would be a strong indication but not proof without corroborating evidence.

The key is the 'value judgement' extends into the future, but the likelihood of Trump continuing to lie is, technically, not a fact. Instead, it's just a 0.999999% probability.

Replies:   REP
Crumbly Writer

@robberhands

I assume it's a matter of supply and demand. If clients would demand an honest, law-abiding (specially formulated for you, Ross) lawyer, they would get an honest, law-abiding lawyer. They don't do that, of course. When someone needs a lawyer, he wants the nastiest, filthiest, whore-son he can get. After his trial, he then happily continues complaining about this morally-challenged occupation.

It's not just that. When the U.S. Construction was first founded, they really hoped that 'gentleman farmers' would run the government. However, just as police forces recruit head bangers, and medical schools attract self-important mindsets, politics attracts those hungry for power and the ability to use power in their personal lives. Likewise, the legal profession attracts professional liers.

robberhands

@Crumbly Writer

...the U.S. Construction...

You should disable all spell checkers.
As for the rest of your statement, what was first, the hen or the egg?

Replies:   madnige
Dominions Son
Updated:

@REP


You need to read your quotes. As the above clearly states, truth is usually an absolute defense to libel in Massachusetts and elsewhere.


That's true, but then the only exception to truth being an absolute defense that is cited is based entirely on Massachusetts state law.

While other states, may have similar exceptions to truth as a defense to libel in their laws, there is nothing in the case you cited to prove that it's an issue beyond Massachusetts.

You also apparently missed the part of my comment where I said the case only has presidential value in the 1st Circuit (Main, Massachusetts, New Hampshire, Rhode Island, Puerto Rico). So it's at worst an issue in 4 states an one territory.

richardshagrin

@Crumbly Writer

liers

"What is the correct spelling of Lier?
It's apparently quite common for people ask themselves "is it spelled lier or liar?" and choose the wrong answer. But lier is a real word—it's just rarely used. It's also an agent noun, just like liar, but it comes from the other meaning of the verb lie—to rest in a horizontal position. Remember, that's lie, not lay."

Replies:   Ross at Play
Ross at Play

@Crumbly Writer

police forces recruit head bangers, and medical schools attract self-important mindsets, politics attracts those hungry for power and the ability to use power in their personal lives. Likewise, the legal profession attracts professional liers.

Yes, yes, yes, and no. Professional liers become hookers; professional liars become lawyers.
Sadly, with politics, the people who should be least trusted with power are those who want it the most.

Replies:   robberhands
Ross at Play

@richardshagrin

@You
But lier is a real word—it's just rarely used.
@Me
Professional liers become hookers; professional liars become lawyers.

As robberhands would say ... two dimwits, one thought.

BTW, dictionary.com does give a definition of 'lier' as a person who lies.

robberhands
Updated:

@Ross at Play

professional liars become lawyers

That makes no sense. An amateur liar may choose to become a professional liar, thus a lawyer. Why would he be a professional liar before he even choose a profession?

Replies:   Ross at Play
Ross at Play
Updated:

@robberhands

That makes no sense. An amateur liar may choose to become a professional liar, thus a lawyer, but why would he be a professional liar before he even chose a profession?

Please take that one up with CW. I was paraphrasing words he had written for literary effect.

Replies:   robberhands
robberhands

@Ross at Play

Please take that one up with CW. I was paraphrases words he wrote for literary effect.

Here is another German saying for you: 'Mitgefangen, mitgehangen'

Replies:   Ross at Play
Ross at Play
Updated:

@robberhands

Mitgefangen, mitgehangen

The translation I got is 'caught, hung'.

There's a nice rhythm to the sound of that one - if you can afford the time to wait around wondering if Death will arrive before the end of all those long words.

So WHO are you suggesting was caught and hung in the previous exchange?

Replies:   robberhands
robberhands
Updated:

@Ross at Play

The translation I got is 'caught, hung'.

That's a bad, literal translation, whereas a sensible translation would be: "Caught together, hung together." That should also answer your question.

Replies:   Ross at Play
Joe Long

@richardshagrin

1.
to be in a horizontal, recumbent, or prostrate position, as on a bed or the ground; recline.
Antonyms: stand.


Those are all examples of laying around.

Ross at Play

@robberhands

That's a bad, literal translation, whereas a sensible translation would be: "Caught together, hung together."

Wow! Hung, for the crime of committing a pedantic literal inaccuracy while trying to incorporate some literary flair in a joke? That's a bit tough, don't ya think?

Replies:   robberhands
REP

@Crumbly Writer

it's just a 0.999999% probability.


You saying that there is only a 1% probability of Trump continuing to lie. I think you meant 99.9999%.

madnige

@robberhands

what was first, the hen or the egg


The egg; dinosaurs laid eggs.

Replies:   robberhands  REP
robberhands

@madnige

The egg; dinosaurs laid eggs.

Of course, you are right. Explicitly asking for hen-eggs in a rhetorical question sounded silly to me, though.

robberhands

@Crumbly Writer

However, just as police forces recruit head bangers, and medical schools attract self-important mindsets, politics attracts those hungry for power and the ability to use power in their personal lives. Likewise, the legal profession attracts professional liers.

I'm no fan of such blanket judgments. They are good enough for drunken discussions at the regulars' table but that's about it. Furthermore, especially if such a statement is decisively negative, it's usually based on self-righteousness rather than objective observations - which is, of course, just another blanket judgment.

Replies:   Vlad_Inhaler
Vlad_Inhaler

@robberhands

Likewise, the legal profession attracts professional liers.

Simplifying somewhat: A lawyer represents someone before a court of law. A lawyer has to do the best for his/her client(s). My understanding is: if that "best" includes telling big whoppers and getting away with it, so be it. Obviously poor judgments can be appealed - reducing the effectiveness of lies - but does that apply to "not guilty" verdicts? I can also imagine civil cases where appealing a poor verdict is simply too expensive.

Replies:   robberhands
robberhands

@Ross at Play

Wow! Hung, for the crime of committing a pedantic literal inaccuracy while trying to incorporate some literary flair in a joke? That's a bit tough, don't ya think?

Nope, sounds fair to me. You were caught by a figure of speech and your continued mouthiness proves your condemnation was also merely figurative. I'd call that a reprieve.

Replies:   Ross at Play
Ross at Play

@robberhands

your continued mouthiness

We both know there ain't no cure for that, so, whatever!

robberhands

@Vlad_Inhaler

I really don't want to get credited for one of CW's statements.

That aside, and to answer your question, at least in Germany an acquittal can be contested the same way as a guilty verdict.

Replies:   richardshagrin
richardshagrin

@robberhands

in Germany an acquittal can be contested

In the US there is a concept of "double jeopardy" where defendants can only be tried once for the same offense. However sometimes multiple jurisdictions view the same circumstances as two different crimes. States try for assault, for example and the defendant is not guilty, but the Feds try him for civil rights violations.

robberhands

@richardshagrin

In the US there is a concept of "double jeopardy" where defendants can only be tried once for the same offense.

The 'double jeopardy' concept is valid in Germany, too. A judgment needs to gain legal validity before it applies, though. Legal validity is determined by a simple deadline.

Ernest Bywater

@richardshagrin

In the US there is a concept of "double jeopardy" where defendants can only be tried once for the same offense.


Double jeopardy is on many countries and it usually applies only to criminal charges for the one event within that court's jurisdiction. For most countries there is only one jurisdictions that can apply for criminal charges relevant to an event, but in the US you can run into some matters that could be charged under both state and federal charges, at which point I'm not sure if the feds can lay charges before a federal court if the state charges aren't proven. You'll need to check that with a goo lawyer in the US.

However, despite what happens with the criminal charges a civil case can still be brought to court for the same event regardless of the outcome of the criminal case - O.JSimpson is a major case of that happening.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

at which point I'm not sure if the feds can lay charges before a federal court if the state charges aren't proven.


They can. Current standing precedent at the US Supreme Court level is that while the Feds and the states are both bound by the double jeopardy prohibition, it doesn't apply across them.

Replies:   robberhands
robberhands

@Dominions Son

Not that it really matters here but generally the legal force brought on by a previous final judgement prohibits to reopen a trial. The 'double jeopardy interdiction' is a rather rare subcategory in this regards.

Vlad_Inhaler

Moving away from lawyers a bit, those readers in the UK may have noticed parallels between The Donald and Ken Bates.
Ken B has owned (at least) two football (as in soccer) clubs, he has repeatedly used libel laws to attack people he disliked and has also used libel to the same end.
The biggest lie I remember him telling was when he took Leeds United into Administration (Chapter 11? Restructuring). I can't remember the exact details and there were tax havens with secretive banking laws involved. The main creditor only permitted the club to be sold to one of the interested parties, any other would have to pay millions more. This creditor claimed *not* to belong to Mr Bates. A statement years later corrected the first statement, removing the word *not*. He had sold the club to himself while offloading millions of debt on the way.
Various courts have found other statements of his to be materially false.

REP

@madnige

what was first, the dinosaur or its egg.

REP

@richardshagrin

What that means is if they can't get you one way, they will go after you a different way. The problem is the person did something, and the officials say it was a crime.

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