# Defamation discussion thread



## MiamiAG

Please discuss the email that was sent this morning regarding online defamation and what it means to you. Here is a copy of the email that was sent:

_ I wanted to bring your attention to an important subject- online defamation and what it means to you. APC's policy in this regard is to follow our understanding of current law based on the Communications Decency Act and the line of cases thereon. Our policy takes into account that it is impossible for us to prescreen posts and much less make judgments as to their legality. Therefore, by providing you with some basic information I hope that you can craft your posts in a way that is both legal and fair.

* What is defamation?*

Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

* What are the elements of a defamation claim?*

The elements that must be proved to establish defamation are:

1. 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.

* Is truth a defense to defamation claims?*

Yes. Truth is an absolute defense to a defamation claim. But keep in mind that the truth may be difficult and expensive to prove.

* Can my opinion be defamatory?*

No - but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database").

I trust the above provides you with a basic understanding of defamation. It is not intended as, and should not be understood to be, legal advice of any kind.

That being said, I would urge you to always be guided by fairness when posting. Don't let your emotions cloud your judgment. Ask yourself, "Am I stating all the facts?" "Is what I'm saying true and I can prove it in court if I had to?"

Also, as an ex-owner of a commercial venture focused on our hobby, I ask you to treat commercial ventures (APC sponsors or not) just like you would another person. It is sometimes easy to think of company as greedy and only in it for the money. The fact is that most companies in our hobby want to please their customers. Most are hobbyists too. Remember that errors or mistakes happen. So, try to resolve the issue privately with the company before posting about it. Most of the time, the company will admit a mistake, learn from it and rectify it. This benefits us all.

I truly hope you understand the US law of defamation a little better and don't consider it to be a limitation on your right to free speech. You are free to say whatever you want provided you don't unfairly hurt someone else.
_


----------



## Happy Camper

Thanks for the defamation 'enlightening'. I think its fair enough.

One thing we all need to keep in mind is that this is an international forum where users from many cultures gather. It can be very easy for posts to be misconstrued, especially from folks who do not express themselves very well in English, or for that matter in writing. The use of happy faces and such should be encouraged. With all the merging thats been going on this forum is bound to have its fair share misunderstandings.

Warm Regards
Cameron James


----------



## Shibbolet

Were there any problems with anyone that make you post this mail ?

I assume the answer is a yes, but I was really surprised to receive this.

Nevertheless, if there is anything I can do in order to help you in anyway, it would be a pleasure.


----------



## MiamiAG

Thanks.

Just to be clarify, this email was sent to *ALL APC members*. I've been getting emails from people wondering if it was sent only to them.

I felt it was time to provide some guidance to folks in order to avoid misunderstandings on this and other online forums.


----------



## TES

I too question the way in which you decided to deliver this message. having become a member of this forumn only because my preferred forum merged with this one, i read the message with mixed feelings until i realised it was generic.

Could I suggest that however you got into a position that made you feel you had to take such an action and send such an email, you should consider the reactions of your readers upon receiving it and at least try to provide them with some context appropriate to such a mailing.

my reieving it is especially interesting as i was under the impression i had chosen not to be contacted by admin.


----------



## MiamiAG

Gees TES. I didn't mean to insult you. The email's title was "Friendly information on defamation". I really thought folks would take it in such light.

Frankly, I was thinking of the members of the forum when I wrote it. I don't want anyone to end up with a defamation lawsuit on their hands. It can happen here or on any other forum you frequent.

And, if you received this email, you don't have "Don't Receive Emails from Admin" on. Please double check it in your My APC in the Edit Options section.

I will try to be clearer in the future, but please understand that it was sent with good intentions.


----------



## AngJo72

Thank you Art for the clarification! I too was surprised when I received this email, as I havent really posted on the site. I think we should all appreciate the time and effort Art has put into this. Unfortunately, even though we are all adults, occasionally, things may get out of control. Its good to have something like this in place.

The merge is looking good!

Thanks

Ang


----------



## Louie Sangiorgio

TES said:


> I too question the way in which you decided to deliver this message. having become a member of this forumn only because my preferred forum merged with this one, i read the message with mixed feelings until i realised it was generic.
> 
> Could I suggest that however you got into a position that made you feel you had to take such an action and send such an email, you should consider the reactions of your readers upon receiving it and at least try to provide them with some context appropriate to such a mailing.
> 
> my reieving it is especially interesting as i was under the impression i had chosen not to be contacted by admin.


I agree as I also thought same thing you did that it was sent to me lol.


----------



## MiamiAG

I've sent a clarification email indicating that it was sent to everyone who has not disabled emails from Admin.

Sorry for the confusion. The email was sent with good intentions only. If anyone wants to see what can happen when things get out of hand, read this.


----------



## djlen

Art - don't let them get to you. My initial reaction was, 'was this sent to me because of something I'd posted', but I quickly realized that it went to everyone.
Some folks just like to gripe and/or complain. You're doing a good job with this forum. My only suggestion for the future, and you've probably already come to this conclusion, is to make future 'memos' clear from the get-go that everyone is receiving the same letter.
Keep up the good work. 

Len


----------



## MiamiAG

Thanks Len. Noted.


----------



## mifon

At moments a blow came me, did not succeed to understand what had made. Ok, I consent also.


----------



## troy_h

What's all this about logging phone calls !!!????

Um, wait, no wrong email, sorry...

carry on then ....


----------



## Emc2

Great move Art. The Communications and Decency Act complicates the law of libel and slander even further doesn't it? From my brief reading, it sounds like posters can now be held criminally liable if they are "annoying." Is there a line of cases defining that term yet?


----------



## timlawyer

*Friendly comments about the defamation & liability...*

Just some friendly comments - [not intended as legal opinion or advice upon which anyone should rely  ]...I appreciate the post, however, from a liability perspective it is better to not have this thread on the site. All this does is provide evidence that the site is "on notice" of potential defamatory statements - and as such may create a "duty" to monitor the site more closely than if nothing was mentioned at all. But...I'm a cynical, opportunistic, societal vulture...so don't mind me


----------



## Emc2

Good advice but the threads already here. I imagine Art already considered the "notice" issue and decided it was better to educate.


----------



## Sarahpea

Good information Art. Now I actually have to watch what I say though. 

*In court* "So Ms. Pea, according to this thread you have read and understood the constituents of defamation. Therefore, you were fully aware of the grievance of your statement when you wrote it."

"Do'h!"


----------



## MiamiAG

The CDA is extensive. We are specifically dealing with section 230 and the Zeran line of cases.

Tim, you sound like a litigator. I mean that in a good way.  I'm not sure I agree on the notice issue. 

Any forum knows or should know that a member may post a message that ultimately may be found to be defamatory. Ignorance, I don't think, is bliss in this case. A forum or internet service provider (ISP) that does not prescreen posts, like us, has basically no defence if the mere act of posting is considered a "publishing" by the internet service provider. It is for this reason that Congress enacted the CDA. They understood the difficulty of apply traditional publishing standards to ISPs.

The CDA was tested in Zeran v. AOL. The US Supreme Court (cert. denied) agreed with the US Court of Appeal in their finding that AOL, an ISP, cannot be held liable for the posts made by members that are found to be defamatory or against State law. There have been other cases that tested this broad protection offered to ISPs. In fact, one in California tried to limit the protection but was subsequently overturned at the Appellate level.

Based on the CDA and case law, ISPs have begun to add language in their terms of service (our User Agreement) that expresses the findings of Zeran and the law under the CDA. The current thinking is that it is better to help members understand what may be defamatory so that they can structure their posts in a way that isn't inadvertantly defamatory. At the same time, it is clear that an ISP is not in a position to make objective determinations of whether something is defamatory or not. This is something for a court to decide.

Therefore, I don't think a duty to monitor more closely is created because the possibility of defamatory statements is always implied. Notice is therefore implied. Short of declaring that all forums must have a lawyer on the payroll prescreening every post (an impossibility on the internet), there is not good answer. Hence, the CDA's blanket protection.

Did that make sense?


----------



## sixer

I sincerely appreciate this pro-active approach. I hope it is effective. 

I've been scanning many forums over the last few months and while defamation has not been the only issue on online forums it is certainly a problem. I cannot stress enough how tiring (and boring) it is to search online for useful information and to find only petty arguments about people's character instead. 

I just want a friendly place to ask advice and swap information! Yay!

Thanks-and I look forward to participating on this site!


----------



## timlawyer

*defamation stuff*

Hey Art,
I read the cases you mentioned - very interesting. You're right that I'm a litigator but, (obviously) I don't deal with defamation or internet forum issues. But, if you ever want to sue for securities fraud...
Thanks again for the in depth reply!!
Tim


----------



## MiamiAG

Securities fraud, huh? May come in handy the way the market's doing now...

Thanks Tim.


----------



## plantbrain

I think it would be tough to sue you Art for defamation, all your own legal fees and all

Novak vs Me was a rare case, most folks took a beating, namely out of cost, most folks that have something to lose would general have to hire a lawyer, Novak was someone who did not(but his son is a lawyer).

But if you are able to drag things out pro se or are a lawyer, then it's much tougher for someone to go after you.

By suggesting all this, you do give folks ideas about suing you and ways to get around things in the existing law.

You know, those "creative" legal types......

But Novak did lose big with me and in general.........so that is a very strong lesson to a would be plaintiff and deter them.

If anything, it reinforced the futility in suing people for such comments.
At least in this hobby......... 


Regards, 
Tom Barr


----------



## arixonbarnes

Out of curiosity how do these U.S. laws apply to those of us who are accessing your site from Canada or would our Canadian libel laws apply?


----------



## freydo

art,

thanks for the email. i initially did question whether any posts of mine could be construed as defamatory, but realized it was a general forum member memo. the email is a good reminder to some members who post a thread, that to me, seems emotionally based. these threads make me cringe, because most of time, the threads are towards a retailer/seller.

these always make me think of the novak issue... i just shudder at the possibility. people just have to realize that free speech is not necessarily free these days. there can be consequences whether you live in the US, Canada, International, etc.

keep up the great work art, of protecting us from ourselves


----------



## Stas

Defamation is a problem all over the world.
I thing the most important thing is to keep the friendly and good manners.

The legal part of the thread - I am not so interested in US law. The reason: I live in Bulgaria - too far away.  But...

We have in our, bulgarian forum also some problems, regarding defamation.
The only way we resolve this is a moderator intervention.
The e-mail from the admin was necessary and, of course, I don't take it as an accusation. 

Greetings!


----------



## slickwillislim

Thanks for the information. I guess I never realized I could be sued for what I say online, but it makes sense. Will make sure to keep this in mind from now on.


----------



## Chris S

Just my 2 cents. I think it is sad that an Aquatic plants forum feels the need to send emails to all their memebers to remind them how to treat each other.


----------



## turbomkt

It's not sad that we need to remind people how to treat each other. It's sad that we have people who are personally affected by comments on a discussion board to the point of threatening to or taking legal action against individuals or companies.

We live in a society that has decided litigation is an easy way to rectify a problem, rather than address things in a civilized manner.

No offense, Tim, but...

what do you call 1000 lawyers buried up to their necks? 










A good start.


----------



## Emc2

No offense, Turbo but usually it's the client who needs to be talked out of litigating and not the lawyer who talks them into litigating. Laws (and yes, the lawyers who help to shape them) are what allows us to maintain our civility. Litigation shapes and drives our legal system defining the parameters of legality. Spend a few minutes reading the case cited above and then ask yourself how Zeran's lawsuit has effected you. The boundaries of defamation would not be clear if it were not for that piece of litigation.


----------



## Christian_rubilar

Art, I think that the roll of the moderators is the one to avoid conflicts creation and for it sometimes it is necessary to be at least slightly diplomatic. The use of the law is the last option because it estimates that already there is an important conflict that it cannot be solved of another way, seems to me that for that reason your message was so uncomfortable. 
In the other hand, US law it´s just a good expression of desires in an international forum.
Best regards
Christian Rubilar


----------



## turbomkt

Emc2,
Oh, I don't disagree with the plaintiff needing to be talked out of it. Actually, I do a little. I hate the fact that anyone thinks it is a reasonable reaction to litigate in so many of the instances we see on the news, or even in the planted aquarium world.

And lawyers have to follow supply and demand, just like everyone else. If there wasn't a supply of losers who want to sue people because they had a bad morning, we wouldn't have an entire section of the phone book dedicated to lawyers.


----------



## MiamiAG

Tom,

Thanks, but I wasn't thinking about myself but of forum members who may not be clear on the law. Those who don't know about the Novak case should take the time to read up on it. There are a lot of lessons there.

Regarding the applicability of US laws to non-US members, in a practical sense, I would say don't worry about it. US laws need to have jurisdiction over the person who is being sued. If they don't have it, the case cannot proceed. However, the definition of jurisdiction changes every day. Moreover, as the world becomes globalized you see treaties being signed by countries for the protection of free trade. So, we now have the Mutual Enforcement of Judgments Agreement that allows people to enforce judgments in other countries.

I think it is important to face the realities of the day and deal with them appropriately. 

The reality is that Congress, trying to foster free speech on the Internet, passed the Communications Decency Act. Almost all cases subsequent to the Act have enforced its broad protections.

The reality also is that online defamation, at least in the US, can be committed inadvertantly. You don't need to have criminal intent to be liable. 

For example, you see a post by a guy who is tauting the World Trade Center's collapse and selling T-shirts praising it. He posts his phone number where you can order the T-shirts. You are indignated and you post a copy of the post in AOL's bulletin board saying, "Look at this guys! We should call his number and tell him what we think!" Soon, the guy is flooded with death threats and people telling him off. Unfortunately, it's a hoax and the phone number really belongs to someone who didn't make the original post. 

Oops! How could you know? Did you defame the person? If you look at distributor liability, maybe you did?

The point is that it is better to know a little something about what defamation is so that you can make informed posts and not get into the trouble above. It isn't a new limitation on free speech. It's a limitation that always existed.


----------



## plantbrain

Good old fashion misinformation via the media.
Sounds like one particular news channel hehe.
At least the Onion tells you it's satire

The hobby tends to have it's own set of misinformation and woefully problematic outdated books that persist many problem issues in this hobby. But like most anything, things get better and new things are learned along the way and modified.

Just because so and so says so on the web or in a book, does not make it so, compelling arguments, your own test, observations and support are required. 


Yes, the Novak case has been forgotten by most folks in the web hobby today form the look of things.

New folks fill in where the old timers fade/get burned out etc.

Regards, 
Tom Barr


----------



## plantbrain

Here's a classic APD post Novak made about me:

http://fins.actwin.com/aquatic-plants/month.200203/msg00039.html

It was as funny then as it is today.
Defamation?

You bet. 
Should I sue Novak?
Would be kind of fun.
Thought about it. 
He went bankrupt before it was needed to avoid a 50,000$ judgement Benn has against him then was denied the bankruptcy since he'd already filed one prior before and did so incorrectly. That was funny.

Some of the post between he and John Benn were almost so funny that it made the headache worth while, at least till we all stopped laughing.

But Mark (APD list owner), Dan Resler, Erik Olson etc took a beating.
Seems like Novak crawled back under the rock he came out from. 
John is still after him for the $ for the judgement won against him.

I think looking back at that case, we know how to mess with a nitwit should they come after us on the web.

But it's a good bit of advice to know in general, thanks for raising it again Art.

Regards, 
Tom Barr


----------



## Laith

And Jerry Baker's response in the "Follow-ups" link at the end of the post is also a good read!


----------



## plantbrain

Here's the site detailing the Novak black hole:

http://www.petsforum.com/psw/apd.htm

All that even when we praised and suggested that folks buy from PSW way back when before Novak lost his marbles and went after us:

http://fins.actwin.com/aquatic-plants/month.200203/msg01257.html

50K$ in debt to a relentess lawyer you pissed off, the ire of every web customer the world over, the laughing stock of news stations and mags from here to Japan, waste of time, bankruptcy, coraporate shell games, and who knows what all else.

We did not do this to him, he did all that on his own.
We were his pals prior.

He could have made out great by simply saying play nice and I'll take care of the customer service issues and offer the APD membership a 5% discount.

He could have made out great.

Very poor business and legal choice on his part reflecting back.


----------



## Robert Hudson

I don't know how Tom managed to get out of the whole Novak case so unscathed... and I really do not want to re live that whole horror story again, so don't bother explaining it, but Tom you are no longer the struggling student. You make big bucks now right? 200k a year? That makes you a nice big target now.

The Novak case was unique because of the characters and circumstances involved, but it is not an isolated case. There have been many, many cases on the internet of businesses suing internet users successfully for deformation, liblel, whatever. Most pay a settlemant before going to trial. People do not need to get paranoid, but just need to use common sense. There were many lessons learned from that experience on all sides. It had a definite affect on forums that had any relation to aquariums all over the internet. It is nearly impossible to find any type of interactive forum that is not moderated now a days. I can remember in the mid nineties when most forums were not moderated. Jaws, Aquaria central, AFM... it was massive flame wars that brought those forums to their knees. Now JAWs is called Fish Geeks and long with all the rest of the forums are strictly moderated.


----------



## random_alias

Robert Hudson said:


> I don't know how Tom managed to get out of the whole Novak case so unscathed... and I really do not want to re live that whole horror story again, so don't bother explaining it, but Tom you are no longer the struggling student. You make big bucks now right? 200k a year? That makes you a nice big target now.


Especially after you *paint it on him*. :faint:

I mean, seriously, why would you post something like that on the net in a thread like this? It could only possibly be meant to serve one purpose. There is no other reasonable function for writing such a thing.

:focus:

I think the last statement ought to be deleted or edited. If ever anything needed a mod's hand...

P.S. If you do edit/delete it I guess there'd be no point to leaving my post either.


----------



## standoyo

Hi All,

Quite enlightening i must say. Thanks for the heads up. Makes me wanna go thru all my posts and put an IMHO in there!

This incident happen quite awhile back, did something new happen or almost happened?[smilie=r:


----------



## Robert Hudson

Oh give me a break.. talk about paranoid. Tom is very cavalier about the whole experience. It overshadowed my life for four years. Things are a little different now for Tom than four years ago. He is now in a professional career. Anybody can see that. I would be a little more cautious now. Right Tom? Now you have a lot more to loose. That is all I am saying. That is not putting a target on anyone.


----------



## newellcr

Hello Tom,

Thanks for the links. I'm still baffled by the whole thing. The shipment that I did get from PSW was great. I have a picture of the order that sometimes makes it into my presentations when I do a plant program for a local club. It's an example of what a plant order should look like when it arrives. Each species is bagged separately, it's properly labeled, and the plants are healthy. 

I suppose for some it's easier to bully customers than to provide good customer service. You'd hope that a plant forum would be the best place to share info about vendors who didn't meet your expectations. 

Kind Regards,

Chris


----------



## Robert Hudson

I will just give you folks a little more food for thought that you wll not hear from Tom. The suit named what... a couple dozen people including myself. People of all different backgrounds. College kids, professionals, lawyers, housewifes, middle class, lower class... you name it. And although everyone ralled together, most of us had sleepless nights for the first two years. Many of us were scaird to death of losing out house, our savings, our kids college funds, our property, our lives. One of the defendants had cancer and was afraid because of the lawsuit she would loose the dignity and peace of mind she had for her remaining days. Many of us ended up paying something to him, and even if the actual monetary cost was minimal, the emotional cost was not. It made me more cynical, bitter, and defensive over the people I care about. It was not an experience I would wish upon anyone. Sometimes being right does not matter. It is not worth the price. There is also consequences, a re action for every action. So a business wrongs you. That does not mean you have a right for revenge. Before you jump on a bandwagon, think about what it might cost you. That is what happened in this case. It all started from one person voicing his self righteous indignation and everybody else chiming in, one after the other until everyone forgot what the original complaint was. And the really ironic thing is the person who started the whole mess was not even sued. Even Novak forgot who it was.

Chris, let me explain how it works with them. All their listed plants are from an old Oriental Aquarium catalog. They take all the orders, put them together, and order them from Oriental Aquarium in Singapore. When the plants arrive, each plant is bagged and labled with a number to match each individual order. They then send you the plants still in their original packaging, never taken out of the bag. A lot of the time they would arrive to you in good condition. Sometimes they would not. Sometimes you would get all you ordered, sometimes Oriental Aquarium would substitute without notification. Sometimes plants were simply taken off the order. This is what people were complaining about. It was never explained to them what the process was or who's fault it was. 

I have bought plants from other importers who do it exactly the same way. There used to be another company in New York called The Source that did the same thing. But he told people straight out, the plants come straight from Singapore to me and then to you. I do not touch the plants. I am simply the broker that does the importing. You get the plants at really low prices, but you take all the risk. So nobody was usually upset because they knew what to expect if something went wrong.


----------



## gnatster

This entire bit is taking a turn in a direction that it doesn't need to go in. By no means do I intend on trivializing events of the past, but they are just that, in the past. Collectively we have learned from these events and we all need to move on, keeping history in mind. 

A bit of common sense goes a long way. Issues with vendors will always happen. We all want to know about the good as well as the bad but we tend to discuss the bad. If you feel you need to discuss issues in a public forum try to do so with no emotion and state facts. Also try the 5 minute rule. 


The 5 Minute Rule - Walk away and do something else for at least 5 min after writing before submitting a post. Reread it, ask yourself, does it add to the conversation, does it make sense, do you really want to say what you said in that manner? If so, post it.


----------



## random_alias

*edited*

nevermind.

Not worth it.


----------



## plantbrain

Robert Hudson said:


> Oh give me a break.. talk about paranoid. Tom is very cavalier about the whole experience. It overshadowed my life for four years. Things are a little different now for Tom than four years ago. He is now in a professional career. Anybody can see that. I would be a little more cautious now. Right Tom? Now you have a lot more to loose. That is all I am saying. That is not putting a target on anyone.


How do you know I'm "very cavalier"?
Why am I even brought up in this context?

I provided some historical links to the case so folks could see. We all got messed with to different degrees and handled it differently. How you handled it *is you, I handled it differently*. You are in no position to judge me there Robert. Nor my success in business, academics or career wise. I worked hard for it.

I can deal with things pro se or hire a lawyer, so the issue of $ is not really an issue, if anything, it'll make it harder to sue, not easier. I can defend myself to the full extent of the law pro se or otherwise. I evicted a tenet successfully recently pro se. That's not an easy process to get forcible evictions.

You seem to enjoy personal barbs and have made numerous disparging comments about my business as well as other vendors. You also have something to lose yourself.

As I recall, when Art started this APC forum........what did you say about that and likeyhood of success in reference to AB? Same thing you said about the BarrReport or the other plant vendors here. Or do we need some historical links on those post?

History has proven quite ironic I'd say.

Regards, 
Tom Barr


----------



## newellcr

Hello Robert,

I followed the goings-on for quite some time. The defendants were not the only ones who lost sleep, I assure you. The case was discussed and followed very closely by aquarium clubs across the country and individuals in the hobby. The case had a chilling effect on many discussions. Thanks for sharing your experiences with us.

Thanks for sharing how AO does their shipping. I figured as much because I've never seen anyone use the same type of bags for shipping in the US. I think most folks were complaining about poor communication and a perceived lack of customer care. In my experience, that is an issue that can really make blood boil. Being reasonable is the best way. Good communication is part of that, IMO. 

Kind Regards,

Chris


----------



## MiamiAG

OK folks. 

We appreciate all the feedback but this post is straying from it's intended purpose. Therefore, it is now closed.


----------

