<insert usual disclaimers about not actually seeking legal advice, and that no person posting to this board intends to represent himself or herself as counsel>
Someone in my family has been sent a certified letter by a lawyer representing a retail establishment. The letter asks my relative (whom I shall hereafter refer to as “D” for simplicity of typing) to recant something posted to a website.
We’ve talked to several people we regard as more knowledgeable than ourselves about legal issues, specifically libel, since that seems to be what the lawyer is implying (although, going from memory, I don’t recall actually seeing that word in the letter). The answers have been all over the map, so I’m now quite confused.
We’ve also consulted, by talking on the phone for a bit, with a few lawyers. So far the most coherent answer we’ve received was “libel cases are so rare, I don’t feel comfortable handling one”…whatever that means.
We are prepared to hire a lawyer if necessary, but since it’s entirely possible that the purpose of the original letter is merely to cost us money, we’re reluctant to actually pony up big bucks unless we need to do so.
Let me get down to the specifics, without going into potentially actionable details.
[ul]
[li]The complaint seems to center on a web page containing an email D sent to some people D knows. D’s email itself is critical of specific things witnessed at the retail establishment, which I know for a fact to be true, as I was also present.[/li][li]The email also contains some general indictments of the industry that do NOT specifically mention the complaining retail establishment. It is for THESE general indictments that the lawyer expressly asked D to apologize (and publish an apology as well) even though the specific comments cited in the lawyer’s letter do not contain the name of the retail establishment. Conspicuously absent is a any request to recant the actual event D did describe witnessing at the retailer.[/li][li]The letter does not mention any specific charge, lawsuit, court date, or subpoena; it simply seems to peremptorily demand that D publish a retraction of specific comments.[/li][li]The lawyer specifically takes D to task for “publishing” on the Internet.[/li][/ul]
D does not precisely recall the entire original email word-for-word, as it has been nearly a year; it’s possible that the version the lawyer sent us (as an attachment to his letter) has been altered to make D look bad, but it’s also possibly strictly accurate, and I know D shouldn’t count on it being inaccurate.
Now see, from my point of view, here’s the thing:
D did NOT publish said email anywhere, unless clicking “send” to several private individuals counts as “publishing on the Internet.” Instead, D sent the email to acquiantances.
The email appears on the website in question with an anonymous introduction saying “A friend sent this to me, and I know I’m probably going to get in trouble for posting it, but…” and then has D’s email, including D’s real name and email address[ul]
[li]Expectation of privacy. Is an email like a snail-mail letter? A conversation? Can D be blamed for “publishing” for merely sending something to specific people?[/li][li]How do they know it was D? All they have is a name, which other people likely share. There’s an email address, but how did the lawyer match it up to D? Did D’s ISP give D up? Or is the lawyer guessing, waiting for D to make an incriminating reply?[/li][li]Why can the retailer demand D recant the statements NOT made about the retailer? Do they have grounds to tell D not to speak against the industry in general? In terms of legal action, aren’t they limited to litigating only statements actually made about their firm?[/li][li]Why does the letter not list consequences? There’s no subpoena, no court date, no threat, no charge, no “or else”. Just words to the effect of “Client requires you to apologize and to publish an apology.” Is this simple scare tactics?[/li][li]Where is the burden of proof? Since D did not actually publish anything, wouldn’t the burden of proof lie on the retailer to prove that D did publish, that the statements in question indeed refer to the retailer (since the specific ones D is asked to recant do NOT mention the retailer’s name, remember), to defend hoiw the lawyer found D in the first place, and to establish that the comments that do mention the retailer are untrue? If I recall, you are allowed to publish statements that are factually true, even if negative. Is the burden of proof on D for anything here?[/li][/ul]
Given all this, is it possible for D to simply ignore the letter? (I’m guessing not).
Speaking of that, since the lawyer sent it certified…is it advisable, or even possible, for D to ignore future certified letters from the lawyer? Can D look at a certified letter the postman brings, and having seen whom it’s from, refuse to take custody of the letter and refuse to sign? I don’t think the Post Office functions as a de facto process server.
Anyway, we’re in over our heads here – which is probably the intent of the whole thing. On the face of it, it seems to me, D could legally just say “I did not publish that, don’t know who did (true, by the way), and forget the details of the original email – have a very excellent day”. The lawyer would then have to escalate to a civil suit for libel, I’m guessing, or drop the matter?
But I don’t think D wants to be sued, so this would be just a bluff on D’s part.
Can any one of you worthies shed any light on this difficulty?
Sailboat
