Getting Slapped: Defamation and Your Blog

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I'm sure everyone's mother, Like mine, at some point paraphrased Bambi's advice to Thumper and said, "If you can't say something nice, don't say anything at all." No doubt this is sound advice when you are 12, but as an adult and an information professional, it takes on a whole new meaning. Where does saying things that aren't all that nice intersect with freedom of speech?

Those who blog, tweet, and otherwise comment on critical issues affecting their work and workplace communities do so to offer constructive criticism. You have opinions, and potentially concerns, about issues that you want to share with others who might be dealing with similar issues. Sometimes as part of those commentaries, you can't restrict yourself to remaining "nice" in order to communicate your thoughts, beliefs, and perspectives about the practices or actions of others. But then you run the risk of a SLAPP (Strategic Lawsuit Against Public Participation).

PERILS OF NOT WRITING NICE

Two Librarians who blog about publisher issues recently Learned about the costs potentially associated with not being "nice." Dale Askey, a Librarian at McMaster University in Ontario, Canada, was sued by the Edwin Mellen Press and its founder, Herbert Richardson, for a 2010 blog entry that was critical of the press. (Askey was working at Kansas State University, Manhattan, Kan., as its content development and electronic publishing Librarian when he wrote the post. His blog is bibliobrary.net.)

The suits included both Askey and McMaster University and claimed that the blog entry defamed the press and its founder. The lawsuits sought damages of more than $4 million for the defamation.

In the second instance, Jeffrey Beall, a librarian at the Auraria Library at the University of Colorado-Denver, received a letter from lawyers representing the Canadian Center for Science and Education claiming that a series of posts by Beall on his blog (scholarlyoa.com) defamed the center and some of its related publications. The letter demanded that Beall "immediately remove" the offending posts and demanded an immediate payment of $10,000 for "attorneys fees and damages." Failing to comply, the letter implied, would result in a lawsuit.

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Of course, the blogosphere's response is that it is actually the publishers that are not playing "nice." Other commentators and bloggers have risen to the defense of Askey and Beall in support of their original posts, as well as their right to post criticisms on critical issues of the day. The response has had some success in that the Edwin Mellen Press has dropped its suit against Askey and the University. As of this writing, however, Richardson has not dropped his suit. It is not known whether the lawyers for the Canadian Center for Science and Education have made good on their threat to sue Beall. A review of Beall's website, however, shows that all of the blog entries mentioned by the center's lawyers are still posted.

While these current confrontations may be ending in a draw, it does not diminish the challenge of criticizing businesses and individuals without crossing over the line to defamation. They shed little light on how to respond to litigation, or threats of litigation, arising from criticisms that may or may not reach the level of defamation. The threat of litigation alone can have a significant "chilling effect" on the person who criticizes, dissuading him or her from engaging in the criticism. In many cases, this may be the primary goal behind the threat of litigation, much more so than an expectation of damages.

DEFAMATION LAW

Defamation law is particularly challenging, as it concerns the intersection between the free speech rights of people who comment on and criticize the actions of others and the equally legitimate interest of those others in maintaining their good reputations. The great legal scholars William Lloyd Prosser and W. …