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Virginia Woman Is Sued For $750,000 After Writing Scathing Yelp Review
First time accepted submitter VegetativeState writes "Jane Perez hired a construction company and was not happy with the work they did and alleged some of her jewelry was stolen. She submitted reviews on Yelp and Angie's List, giving the company all F's. The contractor is now suing her for $750,000. From the article: 'Dietz, the owner of Dietz Development, filed the Internet defamation lawsuit filed last month, stating that "plaintiffs have been harmed by these statements, including lost work opportunities, insult, mental suffering, being placed in fear, anxiety, and harm to their reputations."
Perez's Yelp review accused the company of damaging her home, charging her for work that wasn't done and of losing jewelry. The lawsuit follows an earlier case against Perez, which was filed in July 2011 by Dietz for unpaid invoices. According to the recent filing, the two were high school classmates.'"
If not and there was demonstrable harm to the property, will this even make it to trial?
Doesn't apply to defamation/slander.
I hate sigs.
Unless it's true!
Free speech doesn't mean no consequences. Libel and Slander are two very well known examples of situations where your speech has consequences.
This will hinge on proving that her statements (particularly about the stolen jewelry) were true. If they were, then she's protected by free speech. If they prove to have been false, then she's screwed.
Correct, it has to both be false and malicious.
I hate sigs.
Maybe YOU haven't seen one.
"No consequences" is misleading.
"Free speech" means the government will not bring force against you for your speech. False and malicious speech, however, is a type of fraud: a different crime.
Wonder what the public key field is for?
freedom of speech
Freedom of speech means you are allowed to say it, not that you aren't then responsible for what you said. If you say something slanderous, defame someone you are still liable to be held accountable for your statements, but you can still live in the joy of being able to go out right afterwards, say it all again and start the process over.
Moved to http://soylentnews.org/. You are invited to join us too!
If posting to Yelp is a huge financial risk, the site will quickly die.
So where are:
1. The complaint/lawsuit for restoration of damage to her house?
2. The complaint/lawsuit for the work that was not done (but apparently billed)?
3. The police report/lawsuit detailing the theft of the jewelry?
All of the above are things that should be taken seriously if they actually happened. Complaining on Yelp/Angies List only and not following through in the correct legal channels gives credence to the lawsuit against her.
So WTF is this doing on /. anyway? This just seems like it is here because it's a typical lawsuit but a computer is involved
I am Slashdot. Are you Slashdot as well?
If they were, then she's protected by free speech.
Freedom of Speech has NOTHING to do with this case. Freedom of Speech applies only to the governments ability to restrict speech and doesn't apply to what you can say in an online forum. If what she said is in fact true then libel doesn't apply because truth is an absolute defense against libel and slander.
Do what thou wilt shall be the whole of the Law - Aleister Crowley
Who would have thunk it? On US citizen suing another. Oh the shock of it all!
was the contractor convicted of the crime?
did she win a civil lawsuit for the home damage?
No? then she deserves to be sued. You can't bad mouth people and spread false information about them without being able to prove it
Nothing to see here. Move along.
And if it's not, behold the dreaded Streisand effect.
The lawsuit follows an earlier case against Perez, which was filed in July 2011 by Dietz for unpaid invoices.
The first thing a lawyer will tell you to do when faced with a lawsuit is to keep your big mouth shut.
Don't feed ammunition to the plaintiff's attorneys.
Don't dig yourself in to a deeper hole.
This sounds like a S.L.A.P.P. suit (Strategic Lawsuit Against Public Participation). Basically, if someone fucks you over and you speak out about it, they sometimes retaliate by suing you. The plaintiff gambles on the likelihood that the victim will just slink away rather than go through an emotionally-damaging (and expensive) legal battle and the bad guy basically wins. These lawsuits are weapons... it's not about justice.
"It is a denial of justice not to stretch out a helping hand to the fallen; that is the common right of humanity."
"two were high school classmates."
That's going to make for an awkward High School reunion.
Congress didn't make the laws, the individual states did. Womp womp.
I hate sigs.
There is no such thing.
Now HUSH!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
The first amendment has been interpreted by common and case law to not protect you in cases of slander or libel. If you're arguing for an entirely literal interpretation of the first amendment well then I'm not entirely sure what to tell you.
I hate sigs.
He sued her over unpaid invoices. She hired him again. He accepted work from someone who didn't pay bills before.
I really have no idea why they even WANT to do business with each other anymore. Could it possibly be that the whole crap has NOTHING to do with his work, her jewelry or anything but two kids who somehow crossed each other at high school (e.g. one wanted to go out with the other but got rejected) and who didn't grow out of it, and now they're clogging the courts with their childish bickering?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Fortunately some of our laws were made during the brief time when the government was run by the people.
When was that? Or do you mean run by the people who were white male landowners who didn't pick the losing side in a recent war?
You are also free to kill someone you just have to face the consequences afterwards.
"The lawsuit follows an earlier case against Perez, which was filed in July 2011 by Dietz for unpaid invoices."
Wouldn't that earlier suit have needed to prove that the work was done to satisfy the original contract in order for the court to order her to pay the bills? I want to see what the outcome of that case was - her negative reviews may have been a case of "sour grapes" over being ordered to pay a bill that was legitimately owed, or they could be follow-up to an actually shoddy job.
At this point, none of us have enough information to even speculate as to the eventual outcome of this case.
Fortunately some of our laws were made during the brief time when the government was run by the people.
When was that? Or do you mean run by the people who were white male landowners who didn't pick the losing side in a recent war?
Yep, those are the ones I mean.
I can't wait for this to be on JUDGE JUDY.
oldhack: "Security is a waste of money until shit hits the fan. 5 minutes later, it becomes waste of money again. "
You need to look up the incorporation doctrine. The First Amendment has applied to the states for 65 years now.
It does, but you can still sue for damages.
Either way, sounds like Not News to me. The fact that it's based on a Yelp review rather than a sign tacked up somewhere doesn't change the nature of the case.
How are sites slashdotted when nobody reads TFAs?
Well cool, it still hasn't been found to apply to slander/defamation/libel cases.
I hate sigs.
Contractors are people you don't screw around with. Some states, like Texas, allow contractors (even auto repair shops) to put a lien on your property if you do not pay them. The fine print of some Mortgage Loans require that you notify them immediately if any liens are placed on the property. Failure to comply might allow the mortgage lender to force you to buy absurdly priced insurance (like 3x-4x market rate) from their selected insurer. Then you have all the hassle of clearing up the title and being unable to sell the property until things are properly cleaned up.
I've personally had a case where a contractor vanished but all his sub-contractors continued to work and deliver materials. The contractor didn't pay them so we had to. At least the sub-contractors got paid for the work they did do (which was quite excellent). We had to sue the contractor's company and get a judgement. There's nothing to collect, however, and the owner is now in prison. Not because of his dealings with us but because he decided to pretend to be a cop, lure "models" to a hotel, then sexually assault them while threatening arrest. Had to do a double-take on the evening news when his portrait was on the screen along with his full name.
For fraud it has to be malicious. For defamation it merely has to be false (incompetence counts).
Most people here constantly posts their opinions on people and companies relating to every article that passes through. While alot of us back up our posts with facts (as we know them) and links, but we're all basically doing the exact same thing she is. My opinion is that she falls in the same category as any of us. That being said what she posted I think should be protected by law unless perhaps she knowingly made up some of her claims. As long as she believed her claims to be true (regardless of wether they were or not) I think she should be allowed (by law) to post all she wants.
http://interserver.net/
Calm down I've already been told. I was wrong on the internet.
I hate sigs.
It sounds like the script for a Lifetime movie.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
Ah, but they did.
So, according to the Constitution, what are we supposed to do when Congress violates the Constitution?
I am John Hurt.
This is why the US needs to update its antiquated libel laws to be more like the law in the UK. Over here, if what she says is true then there is simply no way she can lose. In the US system, anyone can say anything - true or untrue - they like about anyone else (yes, even you) and unless you've got much deeper pockets than them there's nothing you can do about it.
In the UK, the person telling the truth wins. In the US, the person with the most money to pay for lawyers wins. I prefer our way.
Yes, but you can easily make the case that objectively false statements (as were made in this case) on a website intended to guide people in choosing a vendor are inherently malicious. It's not a casual conversation; it's going to a place whose sole purpose is to drive business towards or away vendors, and making untruthful statements. The woman didn't just give her opinion, but make non-subjective statements that were false on a website that she knew was a basis for reputation. That meets the standard for malice in my book.
For your security, this post has been encrypted with ROT-13, twice.
Unless it's true!
Truth isn't always a defense against defamation in all jurisdictions. The statement "I think they might have stolen my stuff" is obviously true (she really does think this), as is the statement "I think you are sexually attracted to sheep" (let say for arguments sake that i really do think that). If I posted that somewhere and you were in a job that involved sheep and your job opportunities suffered because of it then it could be deemed to have defamed you without actually lying...
Correct, it has to both be false and malicious.
Close. It would have to be false, malicious, and a provable statement of fact. There are plenty of situations in which someone could express an opinion about you which was both defamatory and completely unprovable.
Funny. Exactly backwards. Truth is not a defense to libel in England. They even make jokes about it on southpark Tom Cruise: 'I'll sue you in England'
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
The plaintiff is asking the government to force her to pay them money as a result of her speech.
And Perez has the burden of proof. So far I'm not on her side.
No, she doesn't. The person bringing the suit (the construction company) has to prove that what she said is false. You know, the whole innocent until proven guilty thing?
Battlemaster--Game with friends in medival realms
False, my wife was sued for libel and lost, despite her statements being completely true. In fact, the court seemed totally uninterested in whether it was true. It was a jury trial, if that matters.
The important part is that the reviewer is being sued. This is the way this stuff is supposed to work. Too often we see stories here on /. where the online service provider is being sued.
Kudos to the plaintiff in this case for not suing Yelp and Angie's List...regardless of who's in the right, the right two parties are in court.
"Don't blame me, I voted for Kodos!"
So tell me - who would engage a contractor who had sued a previous customer because he didn't like their opinion of his work? Essentially, he's reinforced the reason not to do business with him - even if he wins this, he loses. He would have been much smarter to listen to the customer's issues, try to work it out with them in return for an update to their posting (IF he was a good contractor in the first place - who knows).
Correction: The plaintiff is asking the government to force her to pay them money as a result of damage caused to them by her speech. If (I stress "if") her speech was false (thus making the damage unjustifiable), then it is right and proper for the government to force her to compensate them for the damage she did.
Almost. It doesn't have to be malicious unless the person in question is considered a public figure -- I doubt that this contractor would qualify as a public figure. He would, however, have to demonstrate that she knew or should have known it was false (or spoke in reckless disregard of the truthfulness or falsity of the statement). Because she accused him of a crime, it qualifies as defamation per se if it's false. (At least, that's how defamation law works in California -- I assume it's about the same in Virginia, as this isn't one of those torts that tends to work differently from jurisdiction to jurisdiction).
Civil court, its preponderance of evidence.
I'd note that in this case the review went beyond merely "I think they did bad work.". As noted here the contractor's allegations are of false statements of fact, eg. that the review stated that the contractor had invoiced for work not performed. That's not a matter of opinion, that's a statement of fact that's either true or false and if she did falsely claim she was invoiced for work nor performed when either she wasn't invoiced or the work was in fact performed (even if performed badly) it is legitimately actionable. The contractor may or may not be able to prove his case in court, but it's not the usual nebulous "they said bad things about me" lawsuit.
This will hinge on proving that her statements (particularly about the stolen jewelry) were true. If they were, then she's protected by free speech. If they prove to have been false, then she's screwed.
Why would you go shooting off your mouth about the law when you don't have the foggiest idea what you're talking about? The truth of a claim doesn't settle whether it is libelous or slanderous. The plaintiff has to demonstrate that the defendant knowingly made false statements with the intent to cause damage to the plaintiff.
Lawyers in the UK aren't free, and there are plenty of lower-cost lawyers in the US. It is true that court costs have been going up as government funding for the courts goes down, creating barriers to access to justice for plaintiffs and defendants alike -- perhaps somewhat ironically, this is in part because the courts are an easy target due to the blithely-swallowed meme that America is particularly litigious, and/or that civil litigation is some kind of ticket to easy street. And it is certainly also true that big fish sometimes play dirty tricks like burying the other side in paperwork to strong-arm a settlement, but, again, that's not inherent to the US system, and a clever lawyer can find cost-effective ways to protect his or her client's interests.
But perpetuating the meme that there is no real justice in the US is precisely the sort of thing that allows the politicians to get away with undercutting the justice system. The public doesn't trust judges or lawyers, so the politicians have an easy target when it's time for budget negotiations, and the entire civil justice system suffers for it. So funny enough, by disparaging the US court system (without offering any actual facts, statistics, or comparative surveys of US versus UK litigation, naturally), you're perpetuating the ignorant, unfair stereotypes about it that eventually result in actual harm to overall justice. But hey, what do you care -- not like you're an American who's gonna be hurt by it, right?
The fact that it isn't IMPLICATED by defamation laws does not mean it doesn't APPLY. The First Amendment most definitely applies to defamation laws; it's simply that defamation laws that fit within certain guidelines of acceptable restrictions on speech have been held not to run afoul of the First Amendment. Same thing with obscenity laws, laws against incitement or fighting words, etc. The First Amendment applies to everything to do with speech -- it's just that it applies differently to different things, because the First Amendment does not actually protect any and all speech.
Overall: F
Price: F
Quality: F
Responsiveness: F
Punctuality: F
Professionalism: F
Description Of Work: Dietz Development was to perform: painting, refinish floors, electrical, plumbing and handyman work. I was instead left with damage to my home and work that had to be reaccomplished for thousands more than originally estimated.
Member comments: My home was damaged' the "work" had to be re-accomplished; and Dietz tried to sue me for "monies due for his "work." I won in summary judgement (meaning that his case had no merit). Despite his claims, Dietz was/is not licensed to perform work in the state of VA. Further, he invoiced me for work not even performed and also sued me for work not even performed. Today (six months later) he just showed up at my door and '"wanted to talk to me." I said that I "didn't want to talk to him," closed the door , and called the police. (The police said his reason was that he had a "lien on my house"; however this "lien" was made null and void the day I won the case according to the court.) This is after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key. Bottom line do not put yourself through this nightmare of a contractor.
At first I was leaning in favor of the contractor but if what is actually said in this review is accurate (it will be easy to tell in the courts), then this contractor is seriously sleazy. I am curious why she would hire a contractor that isn't even licensed to work in the state though?
(1) First Amendment applies to states, too, so if you're focusing on the word "Congress," you're focusing on the wrong part of the Amendment.
(2) The pertinent part of the Amendment is "abridging the freedom of speech," and when you give a group of academic nerds like the Supremes an excuse to analyze and pick apart a juicy bit of text like that, you wind up with all kinds of interesting and detailed legal opinions delineating VERY SPECIFICALLY just what those five words mean and what their required effect is -- and you STILL wind up with all kinds of nebulous regions and margins where the application is not wholly clear a priori.
Bottom line is, Constitutional law is not simple, it shouldn't be simple, and anyone who claims it is and/or should be has about as much business writing and interpreting law as a three-year-old has voting for president.
Well done, my reply would have been much snarkier.
Let's play a game: name an inspirational figure from history, and lets all find a way to tear them down.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
Since Slashdot launched there have been hundreds of articles dealing with conflicts over speech.
And each article usually has a couple of dozen people explaining what 'freedom of speech' means in the context of law and government.
And yet the same asinine "But it's freedom of speech!" comments pop up every single time.
Do these people read the summary, post, and then never read a single comment therefore remaining ignorant of what it is they're wrong about?
This isn't about the government restricting freedom of speech. This is an individual making a statement, and being sued by they object of that statement. This is speech with consequences, not censorship. The court will then decide whether the plaintiff or the defendant are in the right.
No one has mentioned the DIY channel's "Holmes on Homes" show. He's a licensed contractor who repairs the mistakes and shoddy construction done to peoples homes. This show is based in Canada but American contractors do the same things. They never name the original contractor but in one show the wiring job was so bad the licensed electrician brought in to fix it said he was going to government building codes department and get the other guy's license pulled. Makes me glad I'm skilled enough to do my own home repairs.
And the onus is in the accuser to make his case.
He has to prove the claims about the theft and shoddy work are false.
The courts are part of the government. When you ask a court, i.e., the government, to require someone to pay you money for having said something, you are asking the government to punish someone for having spoken, based on the content of that speech -- in other words, PRECISELY the sort of thing that the First Amendment addresses. So this case actually has a LOT to do with the freedom of speech.
The thing is, even though Americans like to throw around the words "freedom of speech" like they're some kind of talismanic defense to government action, they're not. The First Amendment is not absolute. None of our laws are absolute, including, yes, the part of our laws that comprise the Constitution. There are plenty of kinds of speech that the government can regulate. The meaning of the phrase "abridging the freedom of speech" has been hacked out and analyzed extensively by the federal courts. You could spend an entire career studying First Amendment jurisprudence and still have unexplored permutations. On its face, a successful lawsuit for defamation is the government using its power to inhibit an individual's right to speak, based on the content of that speech. On its face, that's a First Amendment issue. ALL THAT THIS MEANS is that the government must analyze the inhibition of speech within the context of First Amendment jurisprudence to determine whether government action would VIOLATE the First Amendment. That's how this works. A "First Amendment issue" doesn't translate into "free speech, end of story." All it means is that there's an analytical step we need to take to make sure we aren't infringing on important legal rights. Basically, that's how the courts "check" the executive and the legislature.
If they were, then she's protected by free speech. If they prove to have been false, then she's screwed.
That's what I like about this story. I don't know the facts of the case, I don't know which side is in the right. But if they disagree with the review then they're right to sue her frankly, and there will most likely be one of two outcomes. Either she wins, and she gets to change her review to say that her claims have been upheld, or she loses and has to remove the review and face a penalty. At this point, with how little I know about the case, I'm OK with either outcome.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
And Perez has the burden of proof. So far I'm not on her side.
No, she doesn't. The person bringing the suit (the construction company) has to prove that what she said is false. You know, the whole innocent until proven guilty thing?
In civil suits it doesn't always work that way. The burden of proof can shift to the accused and, in this case, I would be surprised if it didn't.
Truth (based on facts, not opinions) is an absolute defense to libel. (I am aware of the ruling in Noonan v. Staples that attempted to limit this.)
The judge should have heard the guilty verdict, then directed a verdict of not guilty to be entered.
In fact, the court seemed totally uninterested in whether it was true.
I'm going to guess that she couldn't prove it.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
True, you can do that with pretty much every great historical figure. See:
Churchill - racist.
Thomas Jefferson - racist.
Hitler - so-so painter.
Instead of addressing the issue and making sure the work was done and that nobody had stolen the jewelry, he instead sues her and then it makes the front page of Slashdot. So is this the Streisand Effect? If he ignored it, or dealt with it better, it wouldn't have gotten so bad? Didn't the contractor just make this worse for him now? Freedom of speech does not apply, it is only protection from the government. He has to prove her statements are false and she knows they are false and that she meant to defame him. If the statements are true, well sucks to be him.
If you print something and make accusations that are either untrue or not been proven as true then you have damaged the other persons reputation and thus open to a lawsuit. If I get on a forum and say someone stole from me after they had been convicted of theft by stealing from me Im in the clear, if I know someone has stolen from me and I post it online without a actual court conviction then I am open to a lawsuit.
I dont know why this is news worthy, this is common and basic fact, it has been for a long time now. Whats next are they going to post a story about how someone broke into a liquor store, shot the clerk, took the cash register and was "shockingly" arrested for it? Or maybe a story about how a lady got a parking ticket for parking in the fire lane?
Hitler - so-so painter.
...and vegetarian.
Momentarily, the need for the construction of new light will no longer exist.
When you ask a court, i.e., the government, to require someone to pay you money for having said something, you are asking the government to punish someone for having spoken, based on the content of that speech -- in other words, PRECISELY the sort of thing that the First Amendment addresses
Not.
The First Amendment guarantees that the government will not limit your speech. It does not guarantee that you won't have to buy airtime or a printing press to make your speech. It does not guarantee that you won't have to pay damages to another entity if you make a fraudulent or damaging statement using your powers of free speech.
If you are not allowed to question your government then the government has answered your question.
If she lost it's because she couldn't show beyond reasonable doubt that it was true.
No, she doesn't. The person bringing the suit (the construction company) has to prove that what she said is false.
You are mistaken as regards libel. If she made an allegation on a matter of fact, she has to be able to show it is true. It's not up to him to show it was false.
You know, the whole innocent until proven guilty thing?
Yes, we all know it. It's for criminal law, not civil law. Libel is civil law.
Also, one ball blank shootin mofo!
Anyone got anything on Ghandi or Mother Teresa? ;)
Unless it's true!
The statement "I think they might have stolen my stuff" is obviously true (she really does think this), as is the statement "I think you are sexually attracted to sheep" ...
I was a little disturbed that they didn't actually quote what she said, at least from what I saw in TFA. IMHO, there's a big difference if she said "They stole my jewelry!" and "I think they stole my jewelry as items were missing afterwards." The first would clearly be libelous without proof, the latter I'm not so sure.
Momentarily, the need for the construction of new light will no longer exist.
Did you read the entirety of my comment? You seem not to have understood it, given that you apparently think I said the First Amendment protects defamation, which is the opposite of what I said. The First Amendment protects against more than just prior restraint -- and it would be pretty ineffective if that's all it protected against. The First Amendment also protects your right not to be persecuted, injured, or otherwise retaliated against by the government for making protected speech. That's why, even though your employer may be able to fire you for making certain political statements (as long as there is no state law granting such statements affirmative protection even from private actors), the government can't fine you for making them, and your employer has no right to sue you for making them. Defamation is an exception to this rule, but that doesn't mean that defamation is an area of the law that First Amendment jurisprudence doesn't touch on. It means that defamation has been found not to be protected by the First Amendment, meaning that the government CAN make laws restricting it -- because the right to free speech is not absolute. The analogy is not to buying airtime, because it's not a question of having to purchase the right to make damaging statements -- it would be a violation of the First Amendment, for instance, if a website could successfully sue you, after the fact, for posting comments without paying a fee to do so (assuming that there was no valid contract between you and the website requiring such payment). In essence, it's the difference between an affirmative charge/fine for making speech versus paying for a particular means of making that speech.
But maybe downmodding is the punishment I deserve for trying to have a thoughtful and analytical discussion about jurisprudence with internet backseat lawyers...
Truth is most certainly an absolute defence against libel in the UK.
Actually, it is not.
That's not entirely true. Truth is a defense in England it's just not a complete defense. If you say something that is false you're screwed, but something true also has to be the intended audience's business, at least as far as I understand it(the law here in Oz is similar). So if you were to post on the internet that you're next door neighbor is a transvestite, you could be sued for libel, even if it's true because it's no one's business that he's a transvestite. Essentially just because something is true doesn't mean you should say it. Libertarians like the creators of South Park tend to see this as a travesty of freedom, and it certainly can be if the court takes it that way, but it does provide some protection for privacy which US law simply does not provide. There are the usual exceptions for public figures and politicians (if your member of parliament cheats on his wife it's considered in the public interest where the same information about Joe Blogs from down the street isn't). It's actually quite a reasonable approach to the law IMHO.
That said of course in this particular case, while IANAL, I would guess that this woman's situation would be the same in the US and the UK as in this context she'd most likely have a right to share this particular information(the performance of a service provider is the business of people interested in hiring said service provider). She'd simply need to prove that her statements were true(most of them anyway, property damage and an incomplete job would probably cover her even if she obviously can't prove the jewelry loss).
Also, one ball blank shootin mofo!
Anyone got anything on Ghandi or Mother Teresa? ;)
Both gay.
THINK! It's patriotic
Funny. Exactly backwards. Truth is not a defense to libel in England. They even make jokes about it on southpark Tom Cruise: 'I'll sue you in England'
I'd like to see how the UK courts (or any court) would rule on this online review. (Scroll down to comment 38...my friend who was taking Champix to quit smoking found this. I don't know if it's a troll or not, if so, it a brilliant one, if not, it's even more so. It won the Internet for me that day.)
I took Champix for 3 weeks and they turned me Gay. I left my wife and kids for another Man with no reasoning involved. I am an ex army fitensss guru and work on building sites and have slept with many women and no way ever a man before. I stopped taking champix and returned to my wife in disgust at myself. Have you had any other cases like this?
Momentarily, the need for the construction of new light will no longer exist.
I expect that this is the reason for the large amount being sued for, and a way they will likely argue that the review has caused "irreparable harm"
File under 'M' for 'Manic ranting'
Reasonable doubt is the level of proof in criminal cases. In civil it's preponderance of evidence.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The courts aren't Congress. So technically, they can abridge your speech without violating the First Amendment, though possibly violating other parts of the Constitution in the process (such as divisions of power). It is worth noting that courts do on occasion order people not to discuss particulars of certain evidence and other things presented in a case and a number of courts have rules against photography in the courtroom.
But slander and libel have additional characteristics beyond being speech. As the grandparent noted, they are fraudulent and/or harmful actions. That is the basis on which defamation law is based.
A more extreme example would be an explosive device that is triggered by a certain phrase. If I intentionally say that phrase in order to kill someone (even if I had nothing to do with the device, either planning, construction, or deployment), then I'm committing murder. The crime is the harm committed (someone getting blown up) not the speech. Hence, I don't believe the First Amendment would apply here.
it would be a violation of the First Amendment, for instance, if a website could successfully sue you, after the fact, for posting comments without paying a fee to do so (assuming that there was no valid contract between you and the website requiring such payment). In essence, it's the difference between an affirmative charge/fine for making speech versus paying for a particular means of making that speech.
The actual part of the Constutition this would violate is the clause against ex post facto law which is in the original Constitution.
Truth is most certainly an absolute defence against libel in the UK.
Actually, it is not.
Prove it.
How on earth was she supposed to prove it? Let me give the context for this. My wife and I met with a certain kind of medical professional after our first son was born. This person said things to us that we found profoundly disturbing. After deliberating about it, my wife decided to file a complaint with the board which certifies people who work in this profession. It wasn't like badmouthing somebody on the Internet or in the newspaper, it was this formal process. Now obviously, when you file a complaint you have to describe what happened, which my wife did.
The board apparently studied our complaint and took some kind of action against this person (something mild, I don't remember exactly, but we got something in the mail about it). A couple of months later my wife was served with the lawsuit.
At the time, we had very little capacity to pay a high-priced lawyer. The person was asking for $150,000! So on a long shot we called our homeowner's insurance company and it turned out they would defend the case under our insurance policy. I have no idea if the attorney sucked, didn't care, or if something else went wrong but the jury found in favor of plaintiff for $5k. Our insurance company paid, but it was a disgusting experience.
I found out later that this woman has a history of serial lawsuits. Not long after our case ended, she sued the board which had sanctioned her. I know this, because she fucking subpoenaed me as a witness in that case. Did I mention she was representing herself? She asked me a bunch of nutty questions for two hours which I had no idea about -- like asking me to tell her what I thought some email meant, which I had never seen before (it had nothing to do with me or my wife).
I don't know what happened after that. What a terrible shitty thing it was. Makes you scared to speak up when somebody is abusive to you. We got slimed.
Honestly, Ghandi slept in the nude with young girls, and had an very intimidate relationship with a woman who was not his wife. http://www.independent.co.uk/arts-entertainment/books/features/thrill-of-the-chaste-the-truth-about-gandhis-sex-life-1937411.html Mother Teresa supposedly squandered the money that people donated to her on various things not related to the orphans. https://en.wikipedia.org/wiki/User:Aplank/Criticisms_of_Mother_Teresa
Best Godwin Evar!
John
But wait: shouldn't it be the charge of the plaintiff to prove beyond a reasonable doubt that the speech was indeed libel (false and malicious)?
#39 is in response to it, seems to take it pretty seriously.
I have to say, thats the first time Ive heard of that one but nothing would surprise me with regard to this weird medication â" it makes some people hate and attack others in a way thatâ(TM)s completely out of character, so why not make someone feel ANYTHING theyve never felt before? It messes with your brain chemistry, anything could happen.
So dont blame or hate yourself, Barry â" blame the drug. Blame Pfizer...
You know what you call the party who hires a "lower-cost" lawyer? The LOSER. You may as well not show up and lose by default, at least then you don't have to pay the lawyer.
It's not just a meme.
Actually, the person accusing slander has to prove the claims made are false. At least, this is how it is supposed to be in the US.
She doesn't have to! She's not the one attempting to use the force of law to get her way. You've got it totally backwards.
. . . if you hate free speech.
This is just a business trying to use its legal muscle to squash criticism.
I will also note that truth is an absolute defense to these sorts of things.
I hope that she doesn't back down, and that they wind up having to prove their case in court.
This, thankfully, is not the UK.
What's on the books and what actually happens in court aren't the same thing.
Don't you know anything about bias, selective prosecution, and all of that jazz?
Would you still wish that if you didn't trust who would be the judge of what qualifies as idiocy?
There's no link to the actual yelp post, but the FA says she accused them of "losing" jewellery. It will come down to whether she said:
1. "they lost it", or
2. "they stole it".
1. is an acusation of incompetence, - possibly libel, hard to prove.
2. is an accusation of a crime. Libel if she can't prove they did steal it.
I'm guessing that wasn't on their radar screen...
Truth is a defense in England it's just not a complete defense.
I don't know why Slashdot seems to think that truth is not a defense for defamation in English common law. It's been quite a few years, but if I remember correctly, when I studied English law (I come from a jurisdiction that inherits it), truth was a "complete" defense -- and particularly there really is no "intended audience business" crap.
Your transvestite example may hit some privacy or antidiscrimination laws or hate crimes or that kind of thing (I have no idea), but as far as English common law of defamation goes, you're clean if you can prove it's true.
Reference: my crappy memory and http://en.wikipedia.org/wiki/English_defamation_law#Justification
Don't quote me on this.
Almost. You will successfully defend a libel case if you can prove that the defamatory statements are substantially true, regardless of whether privacy was breached. What has changed is that it has become somewhat easier to win a claim for breach of privacy: Human rights law in England recognises both the right to freedom of expression and the right to a private and family life and courts have been left to try to balance these competing rights whilst Parliament dodges the issue.
As an example, let's say that you have a hotel room. You go out on the town one day and come back to your laptop, camera, etc, all missing. It isn't a stretch to say the hotel stole them. The only people that should have had access to the room were yourself and the hotel. There's no 'losing them' because no one should have taken them into their possession to begin with. The MOST that should have happened was that they get rearranged within the room so that housekeeping can better clean up the room (like moved off the bed and into the chairs/onto the table).
This isn't even like when the TSA rips off your goods from your bags...because it could have been LOTS of people in the airport, not just the TSA.
Job? I don't have time to get a job! Who will sit around and bitch about being broke and unemployed then?
Citation needed. I saw no evidence in TFA that the homeowner's statements were false.
Contribute to civilization: ari.aynrand.org/donate
Also, one ball blank shootin mofo!
Anyone got anything on Ghandi or Mother Teresa? ;)
Both gay.
Also, one ball blank shootin mofo!
Anyone got anything on Ghandi or Mother Teresa? ;)
Both gay.
With each other, no less.
Momentarily, the need for the construction of new light will no longer exist.
No, she doesn't. The person bringing the suit (the construction company) has to prove that what she said is false.
You are mistaken as regards libel. If she made an allegation on a matter of fact, she has to be able to show it is true. It's not up to him to show it was false.
Yes but it's so wide open it would be very difficult to prove she's lying. She says they damaged her house, he says they didn't. Good luck proving they did zero damage. Unless they have a signed affidavit from her stating everything was perfect and there was no damage then she can say there was damage. Only way they could possibly win against her is if they've never heard of her and they never did work on her house at all.
if this lawsuit worked then car manufactures could sue eveytime someone wrote a review saying a car interior felt "cheap". And how are they going to prove $750,000 in loss sales are directly because of her review? If she counter-sues they're screwed because she'll likely win
my karma will be here long after I'm gone
I read the lawsuit. They have no basis for the $750,000. Doesn't explain how they came to that number at all. Damn attorney for ripping off this developer because he just wasted a lot of money filing this and going to court.
my karma will be here long after I'm gone
How do you decide if someone did a "bad job" or not? That's like arguing over if a game or movie is bad or not, what you think is fine I might think is bad and I might even leave a negative review, would I be sued then for not liking something?
my karma will be here long after I'm gone
Hitchens on Mother Teresa; Mommie Dearest.
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Jesus Christ. Here's how this works: the courts don't have power to issue any orders that are not authorized by law (i.e., the legislature, and as has been pointed out at length in this discussion, the First Amendment applies to state legislatures as well as Congress). If the court is doing something, it's because (1) it's enforcing a law enacted by the legislature (or rule promulgated by an executive agency, subject to the laws enacted by the legislature), or (2) it's overstepping its constitutional authority. Either way, if the court is issuing an order that abridges the freedom of speech, as that term is defined through applicable case law, then the court has violated the First Amendment (and, to be clear, the Supreme Court has consistently held that courts, like legislatures, are bound by the First Amendment). Yes, I used shorthand in my earlier comment. Didn't realize that folks around here needed an explanation of every nitpicky detail of how law works laid out in order to understand broader points. I officially apologize for painting a picture of trees and hoping people would understand that it was a forest.
I'm not even sure what point you're trying to make. Are you saying defamation isn't speech? Why? Acknowledging that it is speech neither means it's protected by the First Amendment nor threatens the First Amendment's effectiveness. Nuance is preferable to absolutism, even though it does result in some measure of imperfection. Clinging to the idea that the Constitution is full of easy-to-understand bright lines is how radical movements are formed. The Constitution is a patchwork of competing ideas and points of view developed primarily by large numbers of rich, straight, Anglo-Saxxon religious white men over the course of a couple hundred years or so. And Constitutional JURISPRUDENCE? The notion that there's something magical about Supreme Court decisions is laughable. Yes, precedent is important, because stability is important. Societies need some basic level of stability to enable growth, which requires calculated risk-taking. But there's nothing magical about the Constitution or its interpretation, and regarding it with the borderline reverence that many do is the path to absurdity and cultural stagnation.
Ex post facto laws are laws that are written to retroactively alter the legal effect of actions that have already occurred -- it's usually used in the criminal context. As you yourself already noted, a court case isn't legislation, so no, a website suing you for not paying an amount you didn't agree to pay isn't an ex post facto issue. The scenario I was discussing was one where the court would have already had the power to order you to pay damages to the website (that's the First Amendment issue -- there's an operation of law that permits you to be sued for having made speech. That's not ex post facto, even though intuitively it might seem that way because we don't live in a society with that law, so it's natural to assume it's a new creation if it happens in a hypothetical world). And I'm not sure what you mean by "original Constitution." There's only one Constitution, unless you're trying to contrast the Articles of Confederation?
This discussion has moved well beyond my interest at this point, but I would like to thank y'all for reminding me that apparently law school had some value, after all. Shit, I wonder if this is how my doctor feels when I self-diagnose on WebMD.
You know what you call the party who hires a "lower-cost" lawyer? The LOSER. You may as well not show up and lose by default, at least then you don't have to pay the lawyer.
Ahhhhhhh, now I get it. Here I thought you were just an ill-informed, disgruntled anti-lawyer type, but now I see that you're actually a big firm lawyer trying to justify your ludicrous rates. I used to work in a big law firm with lots of people like you. Even thought I liked it, didn't want to get laid off when the recession hit. Years later and working for a small firm that charges actually affordable rates, pays me a lot less, and lets me have as much of a life as I want, I realize now how completely fucking miserable I was in biglaw, as were the vast majority of the other lawyers I worked with.
If there's any part of you that can still be gotten through to, please listen, friend: it's never too late to get out. I promise you, it's not as scary out here as you think it is. There is life on the other side of the thousand-pound billable hour, and it's pretty goddamned good.
How do you decide if someone did a "bad job" or not?
That may be open to interpretation, but "billed for work that was not performed" (IIUC he already sued her over those bills and won) and "stole jewelry from my house" is not. Those are statements of fact which she will have to either prove or retract.
Best summary I've read, by someone who is usually opposed to this kind of lawsuit but sees this particular case in a different light:
http://www.popehat.com/2012/12/06/yelping-about-bad-publicity/
Defamation doesn't work the same way, because it is typically quite easy to provide evidence that casts doubt on the truth of the defendant's claims. Once that's been done, the person who made alleged defamatory remarks must prove that they had a factual basis. In case there is little or no evidence jewelry was lost or stolen by the contractors, such support will be very hard to come by.
You are mistaken as regards libel. If she made an allegation on a matter of fact, she has to be able to show it is true. It's not up to him to show it was false.
>
well, no. the plaintiff in a civil suit has the burden of proving his case. that the statements in question are false is one of the elements of defamation, and therefore the plaintiff must, in fact, be able to show that the statements were false. He cant just stand up and say 'Nuh-UH' and mysteriously shift the burden of proof to the defendant.
'allegations on matters of fact' are all that defamation is concerned with. if its not an assertion of fact, its an opinion, and therefore protected as free speech. And as to the great civil versus criminal distinction, well that's not terribly relevant. just replace innocent with not liable and guilty with liable, and you're good. The point is that the person asserting the legal claim (plaintiff in a civil case, the state in a criminal case) has the burden of proving their case, regardless of defenses offered by respondent/defendant. If a plaintiff can't show by a preponderance of the evidence that the supposedly defamatory statements were false, then his case fails, even if the respondent offers no evidence on the subject at all.
Come read my stupid blagablog. Rants and Giggles
Hitler - so-so painter.
...and vegetarian.
Untrue. His doctor occasionally put him on a vegetarian diet in an attempt to cure flatulence, but he was very find of German sausages. Goebbles pushed the vegetarian to make him look saintly.
Consciousness is an illusion caused by an excess of self consciousness.
If the settlement doesn't require your silence, then name the person who wrongfully sued you.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
So he was bisexual.
Let's play a game: name an inspirational figure from history, and lets all find a way to tear them down.
George Jetson!
You know what you call the party who hires a "lower-cost" lawyer? The LOSER.
Not in all jurisdictions. Maybe you are inhabiting somewhere where price-gouging by legal representatives is encouraged, but most places regard that as an abhorrent incentive for lawyers to serve only themselves and not their clients. (In the UK, the handling of who pays legal fees is a grant of the judge in equity, and if the judge feels that one side has not taken reasonable steps to limit the cost of proceedings, they can grant the costs against that side even if they win. Usually, the two sides are best off bringing broadly matching levels of legal power.)
"Little does he know, but there is no 'I' in 'Idiot'!"
Not sure what this has to do with nerd news, but I'm pretty sure the solution to all this is to arm the two parties and face them off at 10 feet rather than utilize my taxes and plug up my courtrooms that have more important issues to deal with than controlling the financial activities of two random submorons.
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
Bad grammar!
Who would think it?
To ask who would have thunk it, is to inquire about the identity of the party responsible for testing ripeness of watermelon.
Just sayin...
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
This is a building contractor we are talking about, the odds of the woman slandering them are pretty slim in my experience. They should probably pay her for not elaborating her complaints in more detail. Hey, this is Earth right? Yup, right planet. Just the way it works out here.
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
Libel starts with the assumption you own "your" reputation. But what is your reputation really? It's what other people think about you. You do not own what other people think about you. If someone writes a bad or even false review of someone you shouldn't be able to sue them. No real damage is done. You have just attempted to change peoples opinions of you or your work. Heck movie reviewers do it all the time. You don't think a bad movie review hurts box office?
The solution to libel is more speech. The contractor gets to tell his side of the story and try to win back his reputation. I see this often on Angie's List. A contractor has overall positive reviews and then there are one or two F's. The contractor follows up with their opinion on what happened and it's up to you to figure out who you believe.
I love Jesus, except for his foreign policy.
Mother Teresa was responsible for many more deaths than lives she helped. Her fanatic opposition to birth control (yeah, I know she was Catholic) combined with her fame, political power, and control over funding meant that she was able to completely block even the most basic birth control use, condoms. The result was spread of disease (esp. HIV) and many unwanted pregnancies, largely causing the overpopulation, poverty, malnutrition, and early childhood death that she was supposed to be so committed to stopping.
The more people I meet, the better I like my dog.
I'm certain we've had internet defamation suits in court before. But if not, the judge would really need to be careful how to handle this. On one hand, the internet does not give anyone the right libel another person or company. But a poor review shouldn't always be taken as libel either, or else you pretty much tell people they can't complain when services rendered were poor. You do that and thousands of lawsuits from companies will come up. As for whether the defendant has the burden of proof or not, they don't in this case. As the case is simply about the review and its affect, the plaintiff has to show that not only was it not true, but that the review itself led to a damaging loss of business. That second part is harder to prove, as he will literally have to find people that will admit in court that they were going to use him but changed their minds directly as a result of that one review alone. And unless every single one of his reviews was stellar, it becomes easy to argue that that one article may not have been the only reason a customer turned away.
$749,999 is to pay the lawyer. The damage was $1.
You are mistaken as regards libel. If she made an allegation on a matter of fact, she has to be able to show it is true. It's not up to him to show it was false.
>
well, no. the plaintiff in a civil suit has the burden of proving his case. that the statements in question are false is one of the elements of defamation, and therefore the plaintiff must, in fact, be able to show that the statements were false. He cant just stand up and say 'Nuh-UH' and mysteriously shift the burden of proof to the defendant.
The problem is that, as the saying goes, you can't prove a negative. If the woman alleges that someone stole her jewelry, how is that person supposed to prove that they didn't?
So, if you read the WaPo story, it mentions that the defendant is from Fairfax and the contractor/plaintiff is from DC itself. Fairfax, for those who don't know, is in the Northern Virginia area agglomeration of "cities" along I-66 where people who work in the District and don't want to deal with the clusterfuck that is DC live. (Then they only have to deal with the clusterfuck that is commuting to DC, but they can at least live in jurisdictions with saner laws and have decent schools to send their kids to.)
I have lived in DC for a year, and a relative has lived here for many years. She recently wanted to have some work done on her house, and caught the contractor shooting speedballs (heroin/cocaine) in her bathroom, then running up and down the stairs and onto the roof while under the effects. This didn't surprise me, really, at all; given how much of *that* goes on, I don't doubt the allegations are true.
This town is a shithole, and it's a shithole full of people who will sue anyone at the drop of a hat for anything, or really take any opportunity to get ahead at someone else's expense, fair or not. "Slit Grandma's throat for a nickel" isn't just an exaggeration around here. The phone books have a "You could sue a doctor and make a pile of money! Call us!" ads on the spine; there are ambulance-chaser billboards all over; etc.
And I'm not sure what you mean by "original Constitution." There's only one Constitution, unless you're trying to contrast the Articles of Confederation?
There are numerous amendments. So the Constitution changes with time. Hence, there is no one Constitution.
In addition, Gandhi was quite racist towards Africans.
I am officially gone from
Notice this isn't a criminal prosecution?
Basically, one need not prove anything, but rather show by a preponderance of the evidence. I know what you're getting at, though. However, because the standard is lower than what the criminal standard of 'beyond a reasonable doubt,' a similar plaintiff would go about demonstrating rather that there is no proof that he stole anything. Particularly with an accusation of theft, this can be done without seeming as wishy-washy as that makes it seem. When something is stolen, something worth smearing it all over the internet, you should probably have gotten the police involved. did defendant report the item stolen to the police? did they pursue the matter? was the item really missing? if not reported, why not? There are also means by which parties in civil cases can execute searches against each other for discovery purposes. The real smoking gun would be finding that the item was never stolen. Or stolen by someone else.
In this case specifically, however, according to Dietz' complaint (linked through the huffpo article), its clear that by her own words, Perez did not think Dietz was involved with the jewelry going missing until the collections proceeding Dietz brought against her when she refused to pay. And that she'd told the police she did not suspect him. And that she had just moved cross country, and later found at least some of the supposedly stolen pieces mixed in amongst other belongings. So, some of the items in question were demonstrably not stolen and there is a suspicious alignment between the collections case and her allegations of theft where before she had informed the police otherwise. Its not beyond a reasonable doubt, but taken with everything else detailed in the complaint, it paints a pretty vivid picture.
Come read my stupid blagablog. Rants and Giggles
I call Godwin ....
Puteulanus fenestra mortis
Unlike writing a review saying a game is "bad", it's often far easier to define "bad work" in construction in any of several categories. In a sense construction is one of the more notorious fields that shysters can lurk in, and this has resulted in some basic protections for both sides. So let's say she wanted a room painted, if anything the construction company did wasn't up to code, BOOM, it's "bad work". Or, presuming they did their contracting process right, it may be valid work, but if they didn't actually use the right grades of materials and tried to save a buck, it's breach of contract.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
it makes some people hate and attack others in a way that's completely out of character
In other words, the typical results of nicotine withdrawal.
upon the advice of my lawyer, i have no sig at this time
Your blog says you went to law school. One can only assume you were kicked out pretty soon. Because you're wrong on this fairly basic element of law.
The plaintiff has several things to prove, but the falsity of the statement isn't one of them.
"the defendant must prove at least one the following elements to avoid liability for libel:
The [substantial] truth of the defamatory communication."
http://www.pa-newspaper.org/legal/legaltopics/defendingagainstlibel
As I said.
She made two statements of fact:
Battlemaster--Game with friends in medival realms
So if you were to post on the internet that you're next door neighbor is a transvestite, you could be sued for libel, even if it's true because it's no one's business that he's a transvestite
No, if your next door neighbour IS a transvestite, s/he can't successfully sue you for saying so.
Remember what happened with Oscar Wilde? He sued the Marquis of Queensberry for libelling him as a "sodomite" and lost. Queensberry's defence was that Wilde was in fact a homosexual, and he produced enough evidence for this to get the case thrown out (after which Wilde was arrested for the crime of homosexuality as it then was).
To have a right to do a thing is not at all the same as to be right in doing it
You're wrong.
"English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defences are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false, unless the defendant can prove its truth."
http://en.wikipedia.org/wiki/English_defamation_law
You're mistaken.
She's not the one attempting to use the force of law to get her way.
That's not a legal argument.
And the onus is in the accuser to make his case.
He has to prove the claims about the theft and shoddy work are false.
That is not true. The defendant can try to justify the words in many ways, but showing they're true is by far the most effective. The accuser has to show that he has incurred damages thanks to the words, the defendant is the one who needs to justify them.
It may be impossible for the accuser to "prove" that the theft didn't take place. If the defendant had said that the accuser enjoyed raping and murdering children, what is the latter supposed to do? Get a parade of non-raped-and-mudered children in the area to testify that he hasn't molested them? That doesn't prove anything.
To have a right to do a thing is not at all the same as to be right in doing it
You got it turned around.
The burden of proof is clearly on the accuser, not defendant. He could remain silent and still win if the accuser does not make his case.
Showing that he suffered damages/loss of business is NOT sufficient to satisfy the burden of proof in a libel case. Otherwise you'd open the door for any and every business to sue over any bad review and could win by simply showing they suffered a loss.
> You're honor, they accused me of discriminating against blacks and I suffered a monetary loss!
>> Do you discriminate?
> Well yes, but I still suffered a loss.
>> I rule in your favor.
Honestly, Ghandi slept in the nude with young girls, and had an very intimidate relationship with a woman who was not his wife.
That's interesting, but I thought we were looking for bad things against him?
To have a right to do a thing is not at all the same as to be right in doing it
Yes but it's so wide open it would be very difficult to prove she's lying. She says they damaged her house, he says they didn't.
That's only one of the statements she made in the review. Others are not a matter of opinion but of fact, and ones that are trivially easy to judge - such as the outcome of a previous court case.
Again, no one has to prove she's lying. She has to show that she told the truth.
this lawsuit worked then car manufactures could sue eveytime someone wrote a review saying a car interior felt "cheap".
Giving opinions in reviews is protected in law, and that would come under this category. Several of the statements the woman made though were not opinions but claimed statements of fact, which are not protected unless true, and unless she can prove them to be true, she's going to lose.
The plaintiff is asking the government to force her to pay them money as a result of her speech.
Whether you call it government, the courts, the legal system or whatever, there obviously has to be some means of enforcing civil damages or else they're totally meaningless.
Same with contract law: you can have the best contract laws in existence, but if someone can just walk away without suffering any consequences, they're equally meaningless.
To have a right to do a thing is not at all the same as to be right in doing it
That's not an excellent way to get sued again.
Assuming all she said is "bad job" then it is hard to define, but if she stated that they built things off-level, or that there were gaps in trim, or that the paint peeled off after a week, or whatever else, then it would be easy enough to check, and would meet the usual definition of "bad job" fairly quickly.
An "allowable defense" is not the same thing as an "absolute defense", nor is it a "barrier to litigation". Also, that's civil--under some circumstances truth is not even an allowable defense for criminal defamation--or it was, if you google you'll quickly find a 2011 article in The Guardian about proposed changes to British defamation law to bring it more in line with the rest of the civilized world, but no follow-up as to whether the changes ever happened.
Truth is most certainly an absolute defence against libel in the UK.
Actually, it is not.
Actually, it depends on which part of the UK. England & Wales has the libel law you are referring to. Scotland does not - libel falls under defamation which has truth as an absolute defence. I don't know about Northern Ireland.
False and malicious speech, however, is a type of fraud...
Fraud is when you use false speech (or other deception) to get something, generally in the context of a contract. It comes down to deliberately undermining the "meeting of the minds" required for a contract to be valid. Not all false and/or malicious speech is fraud.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Mother Teresa refused to give any pain killers to the dying she was 'caring' for. Claimed the pain was good for their souls. When she was dying she took lots of opiates of course.
Ghandi wasn't 'anti violence' after he was the one with power. Look at what he did to the Muslim minority. Not that he shouldn't have, but I bet people that do admire him think he shouldn't have.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
No. True. He proselytized herbivorism and hated hunters. He would have fit right into PETA.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
In the US, it's up to the plaintiff to prove the defendant's guilt, the defendant has merely to cast doubt on the plantiff's case, so yes this is a legal argument, and no, you don't know anything about this. In the US, you are not, nominally, required to prove your innocence in any circumstances. Sensible people can see that an innocent person will not always be able to prove their innocence, so the only way to avoid punishing the innocent is to require proof guilt.
That being the case, in the US it is necessary to prove a persons statement false in order for it to be considered slander or libel.
And Perez has the burden of proof. So far I'm not on her side.
No, she doesn't. The person bringing the suit (the construction company) has to prove that what she said is false. You know, the whole innocent until proven guilty thing?
egamma secretly sodomizes kittens.
Go ahead, prove it false.
Your strange spelling of "defence" reassures me that you're not even British. I've made my point and backed it up. You haven't backed up what you say, and have now tried to muddy the issue with criminal defamation, which no one was talking about.
"the defendant must prove at least one the following elements to avoid liability for libel:
The [substantial] truth of the defamatory communication."
http://www.pa-newspaper.org/legal/legaltopics/defendingagainstlibel
Ditto in Canada (naturally seeing how our laws are based on the UK common law tradition)
If you could prove it, it wouldn't be secretly, so it would be false.
So all you need to do is show that it isn't secret, and you've proven the statement false. I really can't imagine any other way to prove it false. (Proving a negative is always hard.)
However, this is why civil courts operate on "the perponderance of the evidence". If you can't provide any evidence that it's a true statement, and he is normally not considered to behave in that way, then the civil court would find against you. Damages, however, would probably be limited to paying for your lawyers.
In the case in the article, damages, while speculative, are probably more significant. And the prior suit between them may enter into things. So might the precise way in which the statments made to Yelp were made. (Does Yelp edit statements made to them? That could also be significant.)
The requested damages *sound* unreasonable. But I don't know his business, so it's hard to be certain. And the accusations sound plausible. (Enough so that *I* wouldn't be hiring him...of course, all I read is the Slashdot summary, which is often misleading. Perhaps he should sue Slashdot, too.)
In this case, I would currently side with the customer...but it wouldn't surprise me that further investigation of the evidence would show that was unjust.
I think we've pushed this "anyone can grow up to be president" thing too far.
Actually, this is the flip side of something we all currently live with today, your Credit Rating.
Three different businesses act as an Angie's List for businesses. While the data they collect is much more limited, it can have they same devastating affect on an individual as this (Dietz) has experienced.
Also, businesses frequently make mistakes that take a substantial effort to correct and some have deliberately placed false information in a person's file.
Lastly, even if information in the file is correct, it can often mis-characterize your ability to pay your debts, which is the purpose of the credit file in the first place. Suppose you have an unexpected medical expense and you have to pay $1000 for a procedure to avoid seriously medical consequences...like dying. So you make the payment and also skip making your credit card payment or mortgage payment.
Now, it's next month, you can catch up on both, but what's in your file now? A missed payment, which can reduce your score by 50 points and make you ineligible for many things.
Dietz wouldn't hesitate for a second to ding the credit of someone that stiffed him for a payment. So the bottom line for him and any business that believe they are injured by Yelp or Angie's list reviews...Suck it!
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
I've made my point and backed it up.
No, you haven't. You've changed the subject from "absolute defense" to "allowable defense".
Here, try this google search "libel reform site:www.guardian.co.uk"
Actually, it depends on which part of the UK. England & Wales has the libel law you are referring to. Scotland does not - libel falls under defamation which has truth as an absolute defence. I don't know about Northern Ireland.
Yes, I meant England, because that's all I knew about. But like many of us here in the U.S., I am frequently guilty of sloppy usage as thought "Britain", "England" and "the U.K." were all identical. Thanks for the clarification--much more useful than the other respondent who's still arguing with me that truth is an absolute defense, by quoting an excerpt from Wikipedia that says it is an allowable defense ;-)
You were defendants in a jury trial and you weren't even there to see how your case was presented?
Anyway, I sure hope you agreed to bear witness! Man, I would relish that chance. I'd make sure to ring up the other lawyer team ahead of time to chat about what I knew and would be willing to say.
There are numerous amendments. So the Constitution changes with time. Hence, there is no one Constitution.
An amendment CHANGES the Constitution. It doesn't create a whole new one. There's only one Constitution, and even if the words don't change, the interpretation does. There's no "original" Constitution in the sense of some concrete thing that we can point to and say "it used to be that," except, I guess, to the extent that you're literally only talking about the specific words on the page, which... okay? But... that doesn't really get us anywhere. The Constitution is the Constitution, and no one part of it is somehow more important than another just because the words have been there longer. If anything, the newer parts of it could be considered more important, as the newer parts are the result of added learning and experience beyond what we had, collectively as a country, at the time of first drafting.
well, as it turns out, i clearly should have gone to bed rather than try to explain anything. the way that plaintiff's burdens of proof work with defamation, and veracity and fault, have evolved more out of the ways that media reports news than interpersonal relations between two people that spill out to 3rd parties. The burden of the plaintiff as to fault is determined by whether they are a public or private figure. The one requiring actual malice, the other merely a negligence standard. In both cases, the issue is whether or not the defendant knew, or should have known that the statements were false. Actual malice being knowledge that the statements were false, or reckless disregard for whether they were true or false - negligence being whether or not defendant exercised a reasonable level of care in determining that the statements were true before making/publishing them.
This all becomes much more murky when applied to the modern era where statements can be disseminated by a single person wide enough to have a sever impact on someone else's reputation without the intervention of the media. Basically, the requirement that the statements be false and that they be made 'with fault' get sortof commingled. you're right, the burden of proving the truth of the statements is on the defendant. However, in cases such as this, where the defendant made statements concerning matters in which she was a participant, or of which she had firsthand knowledge, the notion of establishing her negligence in failing to check the veracity of her claims (spoken with fault), and establishing that her statements were false are basically the same thing. When the events which are the subject of her statements are events about which she has firsthand knowledge, there is no question of negligence in ascertaining the veracity of her claims. She has actual knowledge that some of the pieces of jewelry were simply misplaced when she moved. she has actual knowledge that his collections action against her was not dismissed for cause, but because he failed to file a timely response to a motion. from reading the complaint, the list could go on for a while. Saying that the plaintiff has the burden of showing that defendant failed to show reasonable care in making sure that statements she made concerning her own actions were true, but not the burden of proof for the veracity of the statements themselves is a meaningless distinction. This is why Virginia is a state where plaintiffs can simply foreclose truth as a positive defense by showing falsehood. 30 years ago, this would have been a word of mouth situation, and would likely never get this far. It would be much harder to have and show damages this great from one lady running her mouth off at the coffee shop, and were it a subject of defamation per se, it would be less likely that the speaker would have first-hand knowledge (and still be talking about it in public anyways) and thus the question of reasonable care in ascertaining veracity makes much more sense.
Now, since you went ahead and made it personal, why dont you just go and fuck right off. I'm hardly the first person to go off on /. half-cocked in the middle of the night. my media law class was several years ago, and that's obviously not my practice area. Also, i'd just point out that if you read the whole sentence you quoted from the PA newspaper thingie, the defendant's burden to prove truth only comes in when the plaintiff has made their case, and truth as an affirmative defense is being asserted.
Come read my stupid blagablog. Rants and Giggles
An amendment CHANGES the Constitution. It doesn't create a whole new one.
Ok, so you understand me even if you don't approve of my viewpoint and I understand you.
The Constitution is the Constitution, and no one part of it is somehow more important than another just because the words have been there longer. If anything, the newer parts of it could be considered more important, as the newer parts are the result of added learning and experience beyond what we had, collectively as a country, at the time of first drafting.
So order of succession for the presidency or the end of Prohibition is more important because they were changed later than say, due process and the First Amendment? Do tell.
I'm surprised Angie's List ever got off the ground. I knew a guy who strted a similar thing locally in the mid '90s.
He posted examples bitching about certain contractors (he was a contractor himself) and immediately got hauled into court.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
I don't know about the US, but I can guaratee you that in Canada libel and slander must meet 3 criteria:
1) It must be false.
2) The accused must have known it was false.
3) It must damage the reputation of the defendant.
Only my wife was a defendant. And it's not like being there would have helped. When the insurance company provides an attorney for you, the attorney is really working for the insurance company, not you. They are going to do whatever the insurance company thinks is best. I tried several times to provide information and influence the lawyer's decision making and was politely ignored.
It sucks, but we would have been more money out of pocket had we hired our own lawyer. As it happened we didn't pay a single dollar for any of this crap.
Ghandi - vegetarian AND wore an adult diaper. Mother Teresa? Short and spoke with a fully accent... See, it can be done for ANYBODY!
Browsing at +1 - no ACs, I ignore their posts. So refreshing!
Yeah. It's probably worth mentioning it's debated to what extent you can prosecute someone when there is no contract (explicit or implied) to uphold. And more often than not it's the libel and slander cases themselves that are fraudulent, if not all the time.
Wonder what the public key field is for?
In the US for civil suits alleging libel the burden of proof is on the plaintiff. In the UK it is actually on the defendant. In general the US is pretty liberal regarding freedom of speech - winning a case of libel is not a trivial matter unless it is pretty blatant.
I'd be hard-pressed to think of examples of civil actions brought by private parties in which the burden of proof lies with the defendant.
There certainly are cases where regulations require a company to maintain certain records for inspection at any time, and violation could result in either a civil or a criminal action. In such a situation the only real burden of proof on the government is for them to say that they asked for the defendant to produce the record and they failed to do so. That gets close to a situation where the burden of proof is on the defendant, but that is really only the case because the laws/regulations are fairly strict to begin with (simply failing to maintain a record is a crime - the government does not need to prove something bad happened as a result).
They would need to prove actual malice per New York Times Co. v. Sullivan. That is, they'd have to prove that she knew the accusation to be false, or that it was made with flagrant disregard for its truthfulness.
If the workers were the only ones with access to the house and it was generally kept locked, and there were no other signs of intrusion, then it would be hard to argue that she had anything other than a reasonable believe that they had stolen it. Sure, that would never be adequate evidence to have them arrested, but in a libel case the burden of proof is on them to show that such a belief was not reasonable.
Actually, they have to both prove that the statements were false, and that she either knew they were false or was reckless about making statements without care for whether they were false.
She doesn't actually have to prove anything, though she can of course provide evidence if she wishes.
The article you linked to says as much. He didn't consider the suit frivolous, but he did state that the burden of proof was on the plaintiff, and that libel cases in the US tend to be an uphill battle unless it is really egregious.
Sounds like the court was a bit out of hand. I suspect that an appeal would have corrected some of the issues in this trial. However, as you pointed out, it isn't like those are free.
As you said insurance companies aren't really in it to prove a point. Their position is whatever is calculated to have the overall best outcome for them. If it is cheaper to pay them off they'll just do it. If it is cheaper in the long run to fight tooth and nail in the face of incredible odds, they'll do that (sometimes just to deter future suits). The legal costs of your one case are completely trivial to them - the decision to settle or appeal is just like you deciding whether to buy or lease a car.
From everything I've seen and experienced, the US court system is incredibly expensive. The one time I had to use the courts it cost thousands of dollars even for a matter that got settled without a trial, and the lawyer really wasn't terribly expensive by most standards I've seen. I'm sure the cost would have been in the $10-20k range if it went into a serious trial, let alone appeals. That's the cost of a car that lasts 20 years for a case that lasts 20 weeks only because everything gets dragged out by latency.
You know, every time two parties go to court having paid "reasonable" legal fees, one party loses. I'm sure they're likely to think that if only they had spent more that they'd have done better. Judging by most investigative journalism I've seen, I'm inclined to agree.
And yes, having a relative who is a lawyer and who once upon a time used to work for a big firm, I tend to agree with your observations regarding those sorts of firms. That said, just the stories of holiday parties alone gives me plenty of contempt for the entire profession. If my employer did half the nonsense the average law firm does around the holidays, they'd be sued out of existence.
You know, every time two parties go to court having paid "reasonable" legal fees, one party loses. I'm sure they're likely to think that if only they had spent more that they'd have done better.
I've no doubt they think that very thing. Regret is one of the most, er, regrettable human emotions we have. It's utterly useless yet stubbornly persistent. It's easy to tell ourselves that having done something differently would have caused a different outcome, and impossible to prove -- and also, unfortunately, to falsify.
Judging by most investigative journalism I've seen, I'm inclined to agree.
Care to give an example of the investigative journalism you're referring to? While it's certainly true that price can act as a proxy of sorts for quality, it's far from a perfect correlation, and testing those sorts of things is heavily subject to confirmation bias.
That said, just the stories of holiday parties alone gives me plenty of contempt for the entire profession. If my employer did half the nonsense the average law firm does around the holidays, they'd be sued out of existence.
I can't tell if you're talking about the unjustifiably lavish expenditures, the excessive drinking, or the sexual harassment. All exist, certainly (though the first far less so in this economy), but the same kinds of charges could easily and quite rightly be leveled at startup culture -- as well as banking and finance, and, hell, pretty much any industry where loads of money get thrown around. Do you hold the same amount of contempt for technology entrepreneurs as a whole, then?
Yup. Precisely. And you can expect court costs to continue to rise as we siphon money away from the judiciary, forcing the civil courts to gradually become self-funding. It's easy to snark about legal fees, and certainly, hiring a lawyer ain't cheap. But, while having a lawyer is a major advantage, it isn't a requirement to enter the court system, whereas things like filing fees are. Every person has the right to seek redress before the court on his or her own behalf, period. But when you de-fund the entire court system such that the courts have to require people to pay higher and higher amounts in order to be heard, you create a situation where the only ones who have access to justice are those who can afford to purchase it.
Except for the ones he helped as a civil rights layer in South Africa I suppose?
Libel differs all over the place so you are both right if you are standing on either side of a border.
I can't tell if you're talking about the unjustifiably lavish expenditures, the excessive drinking, or the sexual harassment. All exist, certainly (though the first far less so in this economy), but the same kinds of charges could easily and quite rightly be leveled at startup culture -- as well as banking and finance, and, hell, pretty much any industry where loads of money get thrown around. Do you hold the same amount of contempt for technology entrepreneurs as a whole, then?
If they do the stuff above, sure. The lavish expenditures don't bother me so much - the latter two do. The drinking only concerns me insofar as it results in senior employees making demands of junior ones to accommodate their irresponsibility. Stuff like driving them around, ignoring assaults, not minding the groping, and so on. But hey, they're team players, right?
If I had mod points I would moderate you at +1 missed the obvious.
Also, one ball blank shootin mofo!
Anyone got anything on Ghandi or Mother Teresa? ;)
Both gay.
With each other, no less.
LOL. I almost posted it that way! :)
THINK! It's patriotic
NYT v. Sullivan was limited to libel suits by public officials regarding press reports detailing their actions within their official capacities, and the actual malice in that case was knowledge that it was a lie or failure to investigate the truth of the claim.
Common law requires the truth to be proven to whatever standard is set by the court. A statement of truth is only an affirmative defense if you can actually prove it is the truth. Making public allegations while not being able to positively prove them isn't protected speech when they are held up as factual and objectively representative of the truth.
How, without combining things from 2 sci-fi shows, is it possible to prove what somebody knew (or didn't) at some point in the past?
And Is being drunk a defence? I've got so rat-arsed that I temporarily didn't know my address and even what my native language is.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
If they do the stuff above, sure. The lavish expenditures don't bother me so much - the latter two do. The drinking only concerns me insofar as it results in senior employees making demands of junior ones to accommodate their irresponsibility. Stuff like driving them around, ignoring assaults, not minding the groping, and so on. But hey, they're team players, right?
I agree with you on all counts (though the lavish expenditures do legitimately make me uncomfortable -- at least insofar as you'll see partners making upwards of a couple million a year who get stingy with staff bonuses but think nothing of throwing money at recruitment and parties, as though a 25-year-old kid from Harvard is worth so much more of your time than the secretary who's saved your ass from a malpractice suit more times than you've ever bothered to thank her for). My point wasn't that they aren't problems; it's that I don't see why it's fair to tar the entire profession for the acts of the bad actors within it. As a female attorney who's been the victim of some pretty disgusting sexual harassment by various bosses, for instance, I don't see why it's fair to say to me "you lawyers suck," when I'm a lawyer and I'm also a victim of the very behavior you (rightly) find so reprehensible. So my only point is that sweeping generalizations are unfair. "Lawyers" aren't the problem; assholes are, and I'd posit that the only reason there is a larger proportion of assholes in my profession than in the general public is because there's so much money in the profession (which is also why these kinds of things happen in Silicon Valley and Wall Street as well). Irresponsible behavior is bad, and the fact that you're a rich bastard doesn't magically change that fact.
It's often quoted here on slashdot that US and the UK (ignoring the Scots, who no doubt do it differently) work the opposite way round. To sum up, in the UK the newspaper (etc) must prove the allegation they printed. In the US, the person who according to the story sucked a donkey's cock must prove he isn't, never has been, and has no intention of becoming an onagrofellatist.
I've never seen a reliable explanation of how, in the US, one proves a negative.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Well, with regards defamation, in the US, while the defendant has no burden to prove that the defamatory statements were true, they do have the burden of proving that they had no actual knowledge they were false, and did not negligently (or recklessly in the case of public figures) publish them without regards to truth. This is a sortof compromise between making the plaintiff carry their case, and not putting a chilling effect on freedom of the press. In practice it basically means that if one has a reasonably trustworthy source for some information, you can publish it without too much fear of being successfully sued for libel.
The 'how do you prove a negative' complaint is often raised on /. but in practice its not the challenge you might think. To use your donkey-fellating example, while it may be difficult to prove that one has never blown a donkey, its less difficult to prove that the story either came unsubstantiated, which would be negligence with regards to truth, or came with specific instances of of donkey-sucking, which could be verified. If not attempt to verify was made, again, negligence with regards to truth. If reporter chooses to guard their source, the court holds them in contempt.
This case, however, is an example of an even less troublesome 'proving a negative' situation. Allegations of theft are pretty easy to disprove. Some, at least, of the jewelry was later found misplaced by the defendant, because she'd done a shoddy job packing. Her statements that plaintiff was under investigation by the bbb were demonstrably untrue. Her statements that the police were investigation him for the theft of the jewelry would be verifiable by asking the police. Her statements that his collections case had been dismissed for cause was demonstrably untrue. Rather, it was dismissed on procedural grounds because he had missed a filing deadline. She made all these statements about things that are readily verifiable independently. So really, the proving a negative thing would be no problem.
Another justification for holding defendants responsible only to a negligence standard for doing their due diligence regarding truth, is that truth has always been an absolute defense against defamation charges. Defendants will always make the strongest case they possibly can, so if an argument can be made that something is true, they will make that case, regardless of whether or not the plaintiff has made the case that the statements are false.
Come read my stupid blagablog. Rants and Giggles
I had to ask ROFLMFAO! In hindsight, I should have put up Cartman as the pinnace of virtue at /. Next time I'll know better.
If you say your boss does crack and he has no record or history of doing so, you're going to have to explain why you thought so (found a crackpipe under his desk, etc).
Yes, but the burden of proof remains on the plaintiff to show they were harmed, and a false statement is only harmful if it actually is false.
I will tend to agree that from what I've heard at the executive levels in big corporations things can get a bit out of hand as well. Perhaps the fact that law firms are much smaller and half the employees report to an "executive" is the reason for the issues being more widespread. Perhaps it is money as you suggest. I think another common feature is that at that level those making hiring decisions tend to be fairly networked so if you sue one of them chances are you'll never get another job at a similar level again.
In practice then, it comes down to the same thing; if the publisher can't substantiate or at least provide good evidence for his statements he loses.
In the UK(AFSWDTD), it's because he can't play the "it's the truth" card because he has no (or not enough) evidence that it is true.
In the US, having no evidence would mean he's guilty by reason of negligence as to the veracity of the staements.
If the publisher, on either side of the Atlantic, had security camera footage of the plaintiff kneeling down under an equoid or even reliable witness statements from farmers or seaside fairground owners he'd be home and dry and the case would be laughed out of court in short order.
tldr: anyone who claims that in the US the plaintiff must prove the statements are false is talking shite.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
As I think about it, there could also be the fact that higher-ups at law firms are counter-intuitively less likely to be called out on their bs than higher-ups in a lot of other fields. Generally speaking, if you work at a law firm, you fall into one of two categories: attorney or support (which is, yes, very broad and covers a lot of different areas). If you're an attorney, the consequences of suing for harassment and the like are, as you note, significantly higher than if you're a low-level clerical worker -- partly because of a combination of higher opportunity cost (losing a career future in the law means turning your back on a lot more money than losing a career future in reception work) and the emotional attachment to sunk cost -- and your job mobility is likewise probably generally going to be better than it is for your average victim of workplace harassment (or, hell, your average employee). Plus, a pretty significant chunk of support staff at a law firm are better-educated and better paid than your average white-collar desk monkey. Yes, there are some receptionists and data-entry types, but there are also paralegals, legal secretaries, forensic data analysts, law librarians, and higher-level tech support -- all of these roles tend to be filled by people who, like lawyers, are better-educated than average, more skilled than average, better-paid than average, etc. In other words, people who have invested in their careers and have a lot to lose by pissing off anyone powerful in their sector.
The net effect is that I think it's probably the case that, at least in the large law firms where such stories tend to be generated (just as at big financial companies and moneyed startups/tech companies), there's paradoxically a disincentive to put up a strong fight against illegal and/or dickish behavior, because (1) you have better access than most to alternatives and (2) you're more "trapped" in your career field than most and also have more to lose by leaving it. Because there's a disincentive, the behavior is given an environment in which to flourish.
No disagreement there.