The standard defense against any statement accused of being defamation, libel or slander, is the truth of the statement. Some even define libel as “An untruthful statement about a person, published in writing or through broadcast media, that injures the person’s reputation or standing in the community.”
However, a new ruling, reported in several places, is raising eyebrows throughout the publishing community because it suggests that if you’re saying bad things about someone, you could be successfully sued, even if what you wrote is absolutely true. Not that I’m in the habit of writing bad things about people, but if you ever needed another reason to follow the old adage “if you don’t have something nice to say, don’t say anything at all” this would be it. But it also got me thinking about the consequences of saying nothing at all.
Since a 1964 judgment that statements are not libelous if they are true statements of fact, journalists (and bloggers) have been protected against libel suits as long as the negative statements that they published were provably false. However, in Noonan vs Staples, the prosecution convinced a 1st circuit judge to rely on an old 1902 statue that says that truthful statements are not libelous “unless actual malice is proved.” Never mind that a Superior Court ruled that statue unconstitutional just over a decade ago.
This seems like the sort of ruling that it likely to get decisively and authoritatively overturned at the next stage of the game, but it is pretty interesting to think about the consequences of what you say/write about people are.
People have so much riding on their reputations. HR departments and Professors are counseled to release very little useful information about employees/students because those statements, if found to be negative or to cost someone a job/college spot could lead to a lawsuit. But that also means that you also can’t praise a top-performer because if you have good things to say about some people, and nothing to say about others, well that really says something about those others, doesn’t it?
On the other hand, can not saying something about someone also cause harm? If someone does a brilliant job, and all you say is “Yes. They worked for me. I’ve got nothing else to say.” well that is both false, because you could say a lot, and it hurts that person compared to the glowing review you could have given them. Isn’t that some kind of passive defamation? What kind of harm do you bring into the world by not giving someone a compliment, by not praising something that is praiseworthy?