Wednesday, 21 July 2010 08:18


Written by  © Kenneth C. Sandoe, Attorney-at-Law
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“For from within, out of men’s hearts, come evil thoughts … deceit, envy, slander, arrogance and folly. All these evils come from inside and make a man unclean.”

—Mark 7:21-23 (New International Version of The Holy Bible)

Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

The horse world is small and rumors spread throughout like wildfire. The draft horse world is even smaller, much smaller, and it takes little or no time for a rumor to spread from coast to coast. However, I have always felt that draft horse people are made of “sterner stuff” and although gossip is human nature, defamation lawsuits in the draft horse world have been pretty much non-existent. Many reasons account for this fact, not the least of which is economic.

A fine line exists between one’s “opinion,” which is protected by the First Amendment to the United States Constitution, commonly referred to as free speech, and knowingly false statements designed to injure one’s reputation or financially hurt a business, which is defamation.

Before traveling down this road we need to know what defamation is. To defame someone is to injure their reputation and/or business by disseminating into the public knowingly false information. Defamation comes in two types, slander and libel. Both are legal words of art, subject to a legal definition. Slander is an untrue oral statement communicated to a third person where the utterer of the statement knew or should have known the statement was false. Libel is the same definition as slander; only it is in writing or some form of electronic print.

For example, if a horse trainer brings a horse to an auction to sell and a competitor starts a rumor that the horse is unsound and heavily medicated to get through the auction, and the competitor knows the statement is false, he has committed slander. If the competitor e-mailed a prospective buyer with the same information, it would be libel.

Four factors must be established in order to recover in a defamation lawsuit. First, it must be proved that the message was false; secondly, that the message was orally communicated to a third person or put in print; third, that it is clear the plaintiff could be identified as the person subject to the defamation; and fourth, that the plaintiff suffered some injury to his reputation or economic well-being. If the above factors are established, it is then up to the defendant to present a defense.

There are various defenses to a libel and slander lawsuit. The first defense is that of truth. If the alleged defamatory communication is true, the case is over as truth is always an absolute defense. Another defense is consent. If the plaintiff consented to the publication of the defamatory material there is no case. Privilege is also a defense. Privilege grants immunity to certain individuals who are involved with the business of the public as attorneys, judges, jurors, and witnesses whose statements, concerning legal matters in a case, are protected on public policy grounds. Finally, if no proof of injury to reputation and/or business is presented, there is no case.

The law of defamation was changed in 1964 by the Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct 710, (1964), where the Court held some libelist speech was protected by the First Amendment in order to protect the free flow of ideas in the political arena. The Supreme Court decision changed the law of libel as it relates to public officials who must now prove actual malice in order to recover damages. This is a difficult standard to meet and it is very difficult for public individuals to win a defamation case. However, private individuals are not subject to the actual malice standard. Most individuals in the draft horse world would not be considered public figures and would be subject to the lesser standard in order to prove a defamation case.

With the explosion of electronic media, including Internet chat rooms and the like, it is now possible to communicate libelist statements to thousands of people in the blink of an eye. Who is responsible for a libelist statement committed on the Internet? Are on-line chat rooms and information providers considered publishers or are they protected by the First Amendment?

Popular web sites have published accusations against certain trainers and horse owners. For example, consider the case of western pleasure horse trainer Cleve Wells. Accusations concerning Mr. Wells’ treatment of a horse under his care were published on numerous equine web sites. The accusations involved infected spur wounds and fractured bones in the bars of a horse’s mouth under his training.

As a result of numerous people reading the Internet accounts, Mr. Wells has suffered negative public opinion. Mr. Wells does not appear to be a public figure, as he may be well known in the horse industry, but not the public at large. Thus, Mr. Wells may pursue an action for defamation if the facts alleged are not true.

So who does Mr. Wells sue? Web site managers, chat room managers, individuals who have communicated in the chat room (and how do we identify them?) and other individuals who have identified themselves as criticizing Mr. Wells. Do web sites and publishers have an obligation to verify facts which are being published? Further, if web sites begin making decisions about what to publish and not publish, such as in the case of chat rooms, can that exercise of discretion lead to liability?

In Cubby, Inc. v. CompuServe, 776 F.Supp 135 (S.D.N.Y. 1991), the plaintiff sued an online Internet service for libel for statements which appeared in a newsletter written by an independent company transmitted through CompuServe’s network. The Federal District Court held that CompuServe had no editorial control over the contents of the newsletter and that it was merely a distributor. CompuServe could not be held liable for the newsletter's contents unless it knew or should have known that the newsletter contained defamatory statements. However, in Stratton Oakmont v. Prodigy Services Co., 63 U.S.L.W. 2765, 1995 WL 323710 (NY Sup.Ct. 1995), the Court found that Prodigy, another online provider similar to CompuServe, was a publisher rather than a distributor and that it was liable for the defamatory material because it exercised editorial control over what appeared on its site.

So are publishers, commercial web site owners and individuals who post on various web sites at risk for a defamation suit if false information is spread? It appears if all the elements of the case are established, including damages, all of the above could potentially be liable. Would these libelist statements be covered under your insurance? Probably not. Most commercial liability policies exclude coverage for defamation or severely restrict the amount of coverage for defamation cases. I would suggest that every commercial publisher, web site, etc. review their insurance policy to determine whether or not coverage for defamation is provided. Commercial businesses must learn to exercise due diligence before publishing anything, especially in this day and age.

Finally, we should all be careful about disseminating negative information. Only if the information can be verified as true should such statements be made.

Enough legal talk–it’s time to hitch horses.

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six horse hitch for the past few years at most major shows in the East.

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