Dear Info Doc: I've read with some interest your article on defamation.
I recently served on a jury, and I'm wondering how people get away with
saying such awful things about each other in court, without being sued
all the time for slander and the like.
--Just Curious
Dear J. Curious:
Witnesses are generally accorded absolute privilege and immunity for
statements made on the witness stand. That is, statements made by a
witness in those circumstances can never be challenged by a defamation
suit. This applies even if the speaker knew the statements to be false
and made the statements for the purpose of maliciously injuring the
subject of the statement.
Such an extreme degree of protection is intended to preserve the
integrity of the judicial system. This isn't to say that lying in court
is without consequences. Remember that witnesses are subject to criminal
prosecution for perjury (lying while under oath), and a judge has the
power to hold a witness in contempt. Also, the statements made by a
witness must generally be related to the subject matter of the trial
before the privilege applies; taking the stand is not a general license
to lie--without incurring the regular civil consequences of slander--
about every topic under the sun. Similar privileges extend to the other
participants in the judicial process (mainly judges and attorneys).
The law generally affords these kinds of privileges against defamation
claims to certain classes of statements that are considered socially
useful. The threat of a defamation suit quite naturally tends to cause
speakers to keep quiet even if the lawsuit would be thrown out of court;
the law simply wants to encourage people to talk more freely in certain
circumstances. (Compare this to the policy of the Good Samaritan laws,
which confer privileges against negligence lawsuits in favor of those
who stop to help a stranger in distress; potential do-gooders are less
inclined to stop if a lawsuit is their reward--even a lawsuit the do-
gooder will ultimately win at trial.)
A similar privilege against defamation also shields debate in
legislative proceedings. The thought is that legislators should feel
free to say anything they want without feeling inhibited by the threat
of a defamation suit (even a bogus one). Anyway, with all the important
work the Congress does for "our own good," it would be a terrible shame
if our valiant lawmakers had to take time out from their important tasks
to defend themselves in court.
Some privileges are less than absolute; such so-called qualified
privileges are available only if the speaker acted in good faith and had
some reasonable basis for the statement. For instance, such a qualified
privilege might be made available to a company that was asked to give a
recommendation concerning a former employee who had been discharged for
embezzlement. But most companies in that circumstance probably do not
welcome the opportunity for a lawsuit, and consequently are well advised
to keep mum, even though they may enjoy a qualified privilege.
Some of these qualified privileges may also apply in Cyberspace. For
instance, one who is maligned or attacked by cheap shots on a bulletin
board may have the privilege of posting corrective material in one's own
defense. If one maligns an attacker in return, one's statements may be
privileged if made in good faith and with reasonable support.
Dear Info Doc:
You seem to be saying that as long as I am truthful in what I say about
others, I can't be sued! So, if I verify my gossip before spreading it,
will I generally be safe?
--Big Mouth
Dear B. Mouth:
You really must be careful how much you read into the Info Doctor's
answers! First of all, remember that anyone can be sued for anything;
the question is, Who will win?
Second, all I've ever said is that a person speaking the truth cannot
properly be held liable for defamation. That's not to say that truthful
statements are never liability creating.
A person who publicizes another's private affairs about which the public
has no legitimate concern may be liable for invasion of privacy.
Liability exists even if the material published is true. Remember that
the harm caused by defamation is the diminished reputation of the
subject in the eyes of the audience. The personal feelings of the
slandered person are not strictly in issue. In privacy cases, the
primary damage has to do with the distress the subject feels from
exposure of a private matter to public view. The two legal theories
protect different personal interests.
Dear Info Doc:
I am getting huge amounts of junk e-mail. Most of it is unsolicited and
some of it is downright annoying and even offensive. Do I have to put up
with this? P.S. I also detest salespeople who call me at home during
dinnertime.
--Cybernetically Overwhelmed
Dear C.O.:
The Info Doctor confesses that he shares your frustrations. He notes
that some persons (wholly unsympathetic to the plight of the poor
telephone solicitor) have reportedly relieved their frustrations by
blowing a very loud police whistle into the mouthpiece of the phone when
solicited to buy the latest variety of widget or the newest issue of
stock. Although the Info Doc would never endorse, recommend, authorize,
sanction, or otherwise give support to (that ought to cover it) such a
counterattack, he understands the motivation.
For those more inclined to consider a legal remedy instead of
retaliatory self-help, the Info Doctor cannot offer much solace. The
cases generally find no liability, especially when the defendant
intrudes only a bit. For instance, if a telephone solicitor calls only
once, or only a few times, there is no liability. On the other hand, an
overabundance of calls from a zealous salesperson, bill collector, or
ex-spouse may be legally actionable. The same rule may apply to e-mail.
In one rather interesting case, an employee sued her employer for
invasion of privacy for placing calls to her hospital room. The employee
was recuperating from gallbladder surgery, and the employer called to
inform her about the company's voluntary retirement program. (It does
sound as if a subtle hint were being dropped, doesn't it?) The court
ruled a person too ill to accept calls should not have a phone in the
room. The employer wasn't trying to agitate the patient and didn't
foresee that she would take it so hard.
It may be different when a party keeps sending e-mail to you after
you've repeatedly objected. There is little social utility in continuing
communications once the recipient has cried, "Hold, enough!" After all,
the counterpart of the right of free speech is the freedom to not
listen, and the freedom of expression should not include a license to
harass.
Dear Info Doc:
I think my company is eavesdropping on my e-mail. My supervisor has made
some tacky comments about some personal matters, which I'm too
embarrassed to reveal even to the kindly Info Doc and which she couldn't
possibly have gotten wind of in any other way. Can I find out if this is
going on, and if so, can I put a stop to it?
--Pauline (not my real name)
Dear Pauline (N.M.R.N.):
Unfortunately, the Info Doc is out of time for this month but promises
to get right to your question first thing next time!
This column provides only generalized and anecdotal discussion of legal
issues and should not in any way be construed as legal advice. Legal
problems are inherently complex and require specific attention to and
analysis of the particular facts. Never rely on a general article for
guidance in a particular case.
Edmund B. (Peter) Burke is an attorney in the Corporate and Technology
Practice Group at Powell, Goldstein, Frazer & Murphy, a law firm with
offices in Atlanta and Washington, D.C.