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Bloggers Beware: Defamation

 In Blog, Litigation and Dispute Resolution

Defamation has been around for a long time but the methods in which someone can defame another seem to be multiplying daily.  Courts consistently have held that the method, i.e. blogs, twitter, Facebook, etc. is inconsequential and therefore, traditional, decades-old, defamation case law still applies.  This month the Tennessee Court of Appeals addressed a case of defamation in the blog context, appropriately issuing the opinion right in the middle of this already contentious election season.  In Robert Byrge v. Stacy Campfield, the Court did not change the law of defamation in Tennessee, but rather reaffirmed the basic principles as well as the use of summary judgment as a powerful tool in this context.

Here are the basic facts.  In 2008, Stacey Campfield ran for state representative and on his blog “camp4u” posted allegations that another candidate for office, Roger Byrge, had a drug-related arrest record.  Byrge had no such record and after losing the election, sued Campfield for defamation as well as other claims, including false light invasion of privacy.  Campfield claimed that he got the information from the Chairman of the House Republican Caucus, Glen Casada, and just took his word for it without doing any independent investigating or even verification.  The trial court granted Campfield’s Motion for Summary Judgment.  The Court of Appeals opinion published the entire blogpost which can be found at this link.

In reversing the holding, the Court first outlined defamation law in Tennessee, stating that “the basis for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.”  The Court also stated that summary judgment was particularly suited for defamation cases because the determination of whether a plaintiff is a public figure is a matter of law as is the determination of whether a public figure has proven by clear and convincing evidence that the defendant was acting with actual malice (knowledge of falsity or reckless disregard as to truth or falsity).

The Court focused on testimony which showed that Casada gave Mr. Campfield this information but did so by qualifying his statements and indicating that the findings were preliminary.  The Court found that a jury could consider the use of this preliminary information without any type of verification “reckless,” at the very least.  The Court reversed summary judgment.

Politics may be a rough and tumble endeavor, but, contrary to the vintage Cole Porter song, ‘anything goes’ will not suffice when it comes to publishing factual falsehoods about political rivals.

Again, the opinion doesn’t really change defamation law in Tennessee, although it notably holds blogs to the same standard as other forms of publication even though the blogosphere is often criticized for its unverified, quick to the punch, not necessarily reliable nature (this blog excluded, of course).  Perhaps the most compelling opinion was the court’s firm stance at the end of the opinion: “This Court recognizes and values the robust, free exchanges in politics that are so central to democracy and our constitutional republic. However, here we have a case not about differences of ideology or opinion, but rather about factually false allegations made against a candidate for public office. Politics may be a rough and tumble endeavor, but, contrary to the vintage Cole Porter song, “anything goes” will not suffice when it comes to publishing factual falsehoods about political rivals. A public figure, even a politician, is neither totally immune from nor totally unprotected by the law of defamation.”

Will this opinion change the course of this November’s election?  Highly doubtful.  And, although the court found that actual malice standard could have been met, or could not be negated, in this case, it’s a difficult standard to meet.  If anything, it gives us something to think about and maybe this November, the theme will be “almost anything goes.”

photo credit:  patpitchaya at freedigitalphotos.net

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