IMO this is the one place our forefathers dropped the ball. The onus should always be on the publisher to prove they didn’t act maliciously, rather than the person who was harmed having to prove they did.
Mostly because trying to prove intent is extremely difficult, almost like proving a negative, and without a confession or secret recording it’s almost impossible to prove they acted maliciously just to harm you. “It’s just an opinion, man” is the common defense.
The Hulk Hogan case was easy, they had a court order and Gawker still refused to remove the video. That’s obvious malicious conduct to cause harm. That shouldn’t be the bar that has to be reached for redress, especially if you’re fighting against false allegations, because you’re forced to revictimize yourself in the court of public opinion to seek justice.
Yeah, it's already hard enough to prove that someone was negligent in publishing a falsehood, because when there's a lot of facts and hearsay out there it can be easy to overlook critical information. Proving malice is nearly impossible.
"People reached out to you and you ignored them / refused to publish a retraction" should be enough evidence if it can be shown that 1) the correct information could have been confirmed and 2) a reasonable amount of time passed since the demand for retraction and filing the lawsuit.
Several years ago, I had a blog post accuse me of being behind an Internet personality. While the personality was not criminal in actions, the blog did bring unwarranted and uncomfortable attention toward me.
I was not the person they posted. I spoke with my attorneys and they advised me to contact the author and explain they needed to publicly retract the statement as a first and cheaper tactic. The author caved. They were just guessing and had no proof. I guess I had written some things in a public sphere that reminded them of that person and attributed it to me.
IMO this is the one place our forefathers dropped the ball. The onus should always be on the publisher to prove they didn’t act maliciously, rather than the person who was harmed having to prove they did.
Mostly because trying to prove intent is extremely difficult, almost like proving a negative, and without a confession or secret recording it’s almost impossible to prove they acted maliciously just to harm you. “It’s just an opinion, man” is the common defense.
The Hulk Hogan case was easy, they had a court order and Gawker still refused to remove the video. That’s obvious malicious conduct to cause harm. That shouldn’t be the bar that has to be reached for redress, especially if you’re fighting against false allegations, because you’re forced to revictimize yourself in the court of public opinion to seek justice.
Yeah, it's already hard enough to prove that someone was negligent in publishing a falsehood, because when there's a lot of facts and hearsay out there it can be easy to overlook critical information. Proving malice is nearly impossible.
"People reached out to you and you ignored them / refused to publish a retraction" should be enough evidence if it can be shown that 1) the correct information could have been confirmed and 2) a reasonable amount of time passed since the demand for retraction and filing the lawsuit.
Several years ago, I had a blog post accuse me of being behind an Internet personality. While the personality was not criminal in actions, the blog did bring unwarranted and uncomfortable attention toward me.
I was not the person they posted. I spoke with my attorneys and they advised me to contact the author and explain they needed to publicly retract the statement as a first and cheaper tactic. The author caved. They were just guessing and had no proof. I guess I had written some things in a public sphere that reminded them of that person and attributed it to me.
Amen