Posted by Ken Kurtis on February 11, 2002 at 16:18:46:
In Reply to: Re: Expert opinion wanted posted by Kendall Raine on February 11, 2002 at 14:09:20:
Here are some of the things I've been told when I've asked some of my legal friends about libel/slander on the Internet.
"Put another way, are we to infer that Chris could be held liable for remarks made against PADI or anyone else by a third party (e.g. MHK)participating on his BBS?"
Possibly, in the same way that a book publisher could be held responsbile for the libelous statements of an author they publish. Chris, in this specific instance, provides the vehicle/platform/forum for the libel/slander and may also have a responsiblity, within reason (and therein lies the rub), to ferret out potentially libelous/slanderous statements.
It may really boil down to wheher the Internet can be considered "publishing" (which a number of my libel lawyer friends think it can). But as to whether the website owner is responsbile for the actions of a third party, that hasn't been tested in court. But then again, if he had the ability to stop the libelous stamements . . .
"Can you be held to have committed libel if what you say is true?"
No. Truth is ALWAYS a defense. By definition a libelous (printed) or slanderous (spoken) statrement has to be false.
"Who bears the burden of proof as to the truth of the statements?"
If I'm suing you for libel/slander, I would assume that I'd have to show the statements were false, burden of proof being on the accuser rather than the accused. However, it's quite obvious that I'm going to introduce eveidence in that regard so you'll still have to prove that what you said was true. If the statements are false, I'm not sure if I have to prove that you KNEW they were false or not.
And there's a big difference between fact and opion. "I don't think PADI is doing a good job" is a different statement than "PADI ivers left and right."
"Are views articulated as personal opinions actionable?"
This is the catch-22. To a degree, yes. However, if the statements you make, even if they're clearly marked as personal opinion, are so outrageous or if you start staing "facts" that aren't really opion, probably not. In other words, there's a difference between, "I think so-and-so behaves unethically," and "I think so-and-so is a child molester and a member of the Amercian Nazi Party." Once your opinions start to sound like facts, I think the rules change.
"Who bears the burden on damages?"
Whoever's found guyilty.
"If damages can't be proven, can one still establish a case for libel?"
Not totally sure but I don't think you have to show actual damages. I think just showing that people reading it would get an unfavorable/wrong impression may be enough.
"Is there case law on damages arising out of an unedited BBS/chat room where opinions expressed are those of the writers only."
Not that I've ever heard, but the fact that I've unaware of this means nothing.
Ken Kurtis
NAUI Instr. #5936 (not a lawyer, but I've played one on TV)
Co-owner, Reef Seekers Dive Co.
Beverly Hills, CA