Former journalist here. I spent lots of time in college learning about libel law, and then applying it in my professional life as an editor.
One thing about libel that many people don't understand is that retraction and editing of the content isn't a defense. So where it says "note the libel-friendly phrasing" and "now edited to avoid any possible threats of libel" and "[editor’s note: removed a possibly incorrect claim]" he could still be found guilty of libel if previously published assertions contained non "libel-friendly" phrasing. As long as a defamatory assertion was published at some point, you can still be found guilty of libel.
It probably goes without saying, but it is also not a defense to libel to say that you asserted something to be true merely because there was no evidence to the contrary. Absent a contractual or legal obligation, Lumina had no duty to engage with him and answer his questions. So if Lumina can provide evidence that Trevor asserted things that are demonstrably false, and they damaged Lumina's business, then Trevor can't argue as a defense that he merely had no way of knowing that they were false.
Finally, Trevor seems to be saying in his update that he was merely asking questions -- but it's possible for a court to find that merely phrasing false, defamatory assertions in the form of a question is not an absolute protection against a libel claim.
Libel is tricky, especially with public companies. A libel suit opens you up to discovery, which is pretty much never good in the court of public opinion. There's also a (relatively) high bar, even when the author is an SME (Trevor seems like an SME).
The only thing that rubs me the wrong way about Trevor's post is only giving 48 hours to respond. I've had serious nonfactual information published about me because I didn't respond to an email in a timely fashion, and then when I asked for corrections (kindly), was met with a hostile reporter.
In my mind, if Lumina was in the right (and had good lawyers), they would have not responded to Trevor, mic-dropped his claims, and moved on with their lives. Trying to wrestle with something like this is not generally a good idea, and the CEO's approach seems unwise at best.
To wit, I now know about this where before I had no idea, and it leaves enough of a stink that I wouldn't touch their product with a ten foot pole. Especially the whole idea that they wouldn't answer any questions over email, which is a red flag for me about them not wanting a record of a discussion about this. You do that when you think there might be controversy or you're not totally certain about your claims and don't want that uncertainty reflected in a back-and-forth.
• You assumed we'd never gene sequenced the bacteria, even though I posted the sequence publicly.
I assumed you did not regularly sequence the bacteria because you did not say that you did and you did not report anything about following manufacturing regulations. I’m glad that you did and do. Sequencing the bacteria regularly is critical to make sure what people are putting in their mouths is what they think is putting in their mouths. And by “post the sequence publicly”, you mean on Manifold, rather than on your company’s website, for whatever reason. Sorry I didn’t check all of Manifold.
really doesn't paint Trevor Klee favorably to me. I'm not sure how you go from "they didn't say anything about it" to "I can assert they aren't doing it". Even if you ask a question directly and don't get an answer, all you should feel comfortable asserting without evidence otherwise is "they did not address this when asked directly". In this case it's unclear whether they didn't address a question asked or the question wasn't really asked at all.
Especially the whole idea that they wouldn't answer any questions over email, which is a red flag for me about them not wanting a record of a discussion about this.
Or it could just be that they wanted to make sure their statements were taken in context and they got a chance to explain if they thought the other person was misinterpreting the question. I'm not sure it's a *good( idea then, but I can at least imagine scenarios where they think it might be, especially if they've had prior experience with reporters misreporting because of that problem. Sometimes over-corrections happen and cause their own problems.
Doesn't defamation of a public figure require "actual malice"? If so, doesn't the CEO's admission in writing that "I believe your post was made in good faith" severely undermine any claims of defamation?
That depends on whether every startup CEO is considered a public figure by default. Does this guy have much name recognition outside of his niche? I would wager not.
Even if he is found to be a public figure, I believe the "actual malice" standard would be determined by the defendant's knowledge and regard/disregard for the truth at the time of writing -- meaning it doesn't matter whether the CEO later believed the defamatory statements were made in good faith.
In some jurisdictions, there is the concept of a limited purpose public figure. Libeling a CEO for his work as CEO might fall therein, while libeling him in the context of pro wrestling might not.
Agreed. As a lawyer who occasionally works in this area, my primary reaction to the post was: he should have gotten advice from a lawyer and not just "fellow bloggers." The "wink wink" going on in this post would really not work to his advantage if he is sued for defamation and any of his statements turn out to be false.
Can someone avoid all accusations of libel or defamation (not sure what the difference is) by just posting a generic disclaimer on every post they make that this is their opinion, and includes speculation, and stuff like that?
You can't even get around it with negation, like "John Doe -- who is surely not a child molester, even though many people think he is."
The simple way to think about libel (which is the written form of slander, which are both types of defamation) is that if you publish false information about a person or business, and that false information causes actual damages, then it is potentially libelous, and you can't disclaim it away or edit it away or do verbal gymnastics to try to wriggle out of that liability.
Comments
Former journalist here. I spent lots of time in college learning about libel law, and then applying it in my professional life as an editor.
One thing about libel that many people don't understand is that retraction and editing of the content isn't a defense. So where it says "note the libel-friendly phrasing" and "now edited to avoid any possible threats of libel" and "[editor’s note: removed a possibly incorrect claim]" he could still be found guilty of libel if previously published assertions contained non "libel-friendly" phrasing. As long as a defamatory assertion was published at some point, you can still be found guilty of libel.
It probably goes without saying, but it is also not a defense to libel to say that you asserted something to be true merely because there was no evidence to the contrary. Absent a contractual or legal obligation, Lumina had no duty to engage with him and answer his questions. So if Lumina can provide evidence that Trevor asserted things that are demonstrably false, and they damaged Lumina's business, then Trevor can't argue as a defense that he merely had no way of knowing that they were false.
Finally, Trevor seems to be saying in his update that he was merely asking questions -- but it's possible for a court to find that merely phrasing false, defamatory assertions in the form of a question is not an absolute protection against a libel claim.
Libel is tricky, especially with public companies. A libel suit opens you up to discovery, which is pretty much never good in the court of public opinion. There's also a (relatively) high bar, even when the author is an SME (Trevor seems like an SME).
The only thing that rubs me the wrong way about Trevor's post is only giving 48 hours to respond. I've had serious nonfactual information published about me because I didn't respond to an email in a timely fashion, and then when I asked for corrections (kindly), was met with a hostile reporter.
In my mind, if Lumina was in the right (and had good lawyers), they would have not responded to Trevor, mic-dropped his claims, and moved on with their lives. Trying to wrestle with something like this is not generally a good idea, and the CEO's approach seems unwise at best.
To wit, I now know about this where before I had no idea, and it leaves enough of a stink that I wouldn't touch their product with a ten foot pole. Especially the whole idea that they wouldn't answer any questions over email, which is a red flag for me about them not wanting a record of a discussion about this. You do that when you think there might be controversy or you're not totally certain about your claims and don't want that uncertainty reflected in a back-and-forth.
Although this part (as noted above):
• You assumed we'd never gene sequenced the bacteria, even though I posted the sequence publicly.
I assumed you did not regularly sequence the bacteria because you did not say that you did and you did not report anything about following manufacturing regulations. I’m glad that you did and do. Sequencing the bacteria regularly is critical to make sure what people are putting in their mouths is what they think is putting in their mouths. And by “post the sequence publicly”, you mean on Manifold, rather than on your company’s website, for whatever reason. Sorry I didn’t check all of Manifold.
really doesn't paint Trevor Klee favorably to me. I'm not sure how you go from "they didn't say anything about it" to "I can assert they aren't doing it". Even if you ask a question directly and don't get an answer, all you should feel comfortable asserting without evidence otherwise is "they did not address this when asked directly". In this case it's unclear whether they didn't address a question asked or the question wasn't really asked at all.
Or it could just be that they wanted to make sure their statements were taken in context and they got a chance to explain if they thought the other person was misinterpreting the question. I'm not sure it's a *good( idea then, but I can at least imagine scenarios where they think it might be, especially if they've had prior experience with reporters misreporting because of that problem. Sometimes over-corrections happen and cause their own problems.
Doesn't defamation of a public figure require "actual malice"? If so, doesn't the CEO's admission in writing that "I believe your post was made in good faith" severely undermine any claims of defamation?
That depends on whether every startup CEO is considered a public figure by default. Does this guy have much name recognition outside of his niche? I would wager not.
Even if he is found to be a public figure, I believe the "actual malice" standard would be determined by the defendant's knowledge and regard/disregard for the truth at the time of writing -- meaning it doesn't matter whether the CEO later believed the defamatory statements were made in good faith.
In some jurisdictions, there is the concept of a limited purpose public figure. Libeling a CEO for his work as CEO might fall therein, while libeling him in the context of pro wrestling might not.
Agreed. As a lawyer who occasionally works in this area, my primary reaction to the post was: he should have gotten advice from a lawyer and not just "fellow bloggers." The "wink wink" going on in this post would really not work to his advantage if he is sued for defamation and any of his statements turn out to be false.
Just a nit pick, but it's "found liable", not "found guilty", as he's talking about a civil matter.
Thank you, you are correct.
Although in some cases, libel can rise to the level of a criminal offense: https://firstamendment.mtsu.edu/article/criminal-libel/
Can someone avoid all accusations of libel or defamation (not sure what the difference is) by just posting a generic disclaimer on every post they make that this is their opinion, and includes speculation, and stuff like that?
No. Courts see through that.
You can't even get around it with negation, like "John Doe -- who is surely not a child molester, even though many people think he is."
The simple way to think about libel (which is the written form of slander, which are both types of defamation) is that if you publish false information about a person or business, and that false information causes actual damages, then it is potentially libelous, and you can't disclaim it away or edit it away or do verbal gymnastics to try to wriggle out of that liability.
Defamation is false speech published to others without requisite care for the truth.
Libel is written defamation. Slander is spoken defamation.