Posted by Janet Jannusch a/k/a Midwest Diver on February 12, 2002 at 12:59:46:
In Reply to: Re: Wrong questions asked. posted by Kendall Raine on February 11, 2002 at 16:16:07:
I'm a lawyer licensed to practice in Illinois and Indiana. Although libel (written comments) and slander (verbal comments) law differs from state to state, I'll take a crack at providing a generic answer to the questions you raise.( Maybe there is a California lawyer who can enlighten us at to the specifics of California law) In the interest of full disclosure, I'm also a PADI instructor (flame away).
The crux of an action for defamation is damage to a plaintiff's reputation in the eyes of others. A publication to third persons is essential, and so is malice, either in fact or implied by law. Words which expose a person or business to public hatred, ridicule or contempt are considered libelous per se and damages are assumed and malice implied. In Illinois, statments which are prejudicial to a plaintiff's business or profession are considered libel per se.
Erroneous, or false information published by an internet web site represented as, or implied to constitute, fact could well be libelous. The host of an internet bulletin board or chat room probably wouldn't be held liable (never say never) for opinions expressed by board participants. (But that isn't the issue in the PADI lawsuit)
As Ken pointed out, truth of the statements would be a defense. However, in most states the burden is on the defendant to prove the truth of each and every one of the challenged statements.
A defendant can recover any actual damages he can prove he suffered,which can include lost business, as well as punitive damages if malice is implied or can be proven.
I don't believe that diverlink will be able to defend itself simply by asserting that it got its information from PADI instructors unless it could also prove that it thoroughly and independently verified the accuracy of what they were told.
I will keep my opinions (both legal and personal) about the validity of the lawsuit to myself...
Hope this helps.
Janet