Okay, the title is a little misleading, but here’s the situation.
I publish a newsletter and recently wrote an editorial that sparked some controversy. Someone has submitted a response to the editorial that closes with a comment that attributes a base motive to me in writing the original article. IMO, it verges on libel.
But that’s not really the issue, since I plan to ask the writer to revise his comments and even if he doesn’t, I won’t file a libel suit.
But theoretically, could I? After all, it is my decision to publish (or not) the allegedly libelous material. Could the theoretical defendant respond to my complaint by saying that if I hadn’t published the response there would have been no libel? Would such an argument void or fatally weaken my case?
Yes. Libel requires publication by the defendant. (Publication in this context means communication to at least one third party and need not involve publication in the usual newpaper/magazine sense.)
(Answer assumes US law. Although IAAL, I’m not your lawyer, and probably not licensed in your jurisdiction. This is general information only and not legal advice. See a lawyer licensed in your state for that. No animals harmed in the drafting of this response, unless you count the delay in feeding my dog resulting from too much SDMB surfing.)
I’m not a lawyer. Sure, but isn’t the remedy either a retraction or money damages? If you brought a lawsuit against yourself for libel this would seem to me to be one open-and-shut case of a frivolous lawsuit. Even without a hearing on the merits.
Guys (except Random): I’m not talking about suing myself. I’m talking about suing the guy who wrote the response to my editorial that I (theoretically) published.
Random: So even though third parties “hear” the libel, it’s not considered “publication” if the publisher is not a third party?
I am not a lawyer. But remember that libel cases are extremely difficult to win. When rich celebrities sue the National Inquirer, their cases drag on (expensively) for years. A public figure must meet a particularly high standard to win, and “public figure” is interpreted pretty broadly. A publisher, even of a small newsletter, would probably be considered a public figure, at least for purposes relating to his editorials. Apart from the question of whether you would be responsible for “publication” of the libel in a legal sense, per Random, if a judge allowed you to get to trial you would have to persuade a jury that the writer actually knew that his statement was false, and that he published anyway with actual malice (an intent to hurt you), and that you in fact were injured in a tangible way. Many jurors would see a shot at an editorial writer (who after all sits in judgment on the world) as richly deserved payback. And of course you could be open to an abuse of process action from the other side, and if/when you lost your case you might be ordered to pay for the other side’s defense. All that is on top of the public relations catastrophe of a journalist suing somebody who disagrees with him.
How often have you heard of a publisher suing somebody who didn’t like an editorial? The sensible thing would be to publish the letter and respond directly, and factually, to the criticism. If your critic is suspicious of your motives you can be sure other readers are too, even if they are not writing letters.
No. For purposes of defamation law, “publication” refers to any act whereby someone other than the defamer or the defamed “hears” the defamatory matter. However, it doesn’t seem from your OP that that has happened. The alleged defamer has written a letter which you have read. So far, no third parties, no publication. If you print the letter, third parties will see the defamatory matter, but not because the alleged defamer published it to them – you did that. Indeed, the letter-writer left the matter entirely in your hands to do proclaim or to bury as you wish. You would clearly have no cause of action in such a situation. If, however, the letter-writer spread his statements around to others as well as sending you the letter, then those statements might be actionable; if you were to publish the letter it seems like some courts might consider that you obviously weren’t damaged by those accusations if you’re willing to shout them from the rooftops.
Publication is a critical element of libel. Only the person who publishes a defamatory statement can be liable for libel. If you chose to publish the letter yourself, you have no case.
Publication is a critical element of libel. Only the person who publishes a defamatory statement can be liable for libel. If you chose to publish the letter yourself, you have no case.