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Thread: Defamation?

  1. #1
    zimbra33 is offline Junior Member
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    Defamation?

    What is the name of your state? Maine

    OK, I work for a city in the state of Maine, and there have been allegations that the mayor has stolen money. (He has since resigned, since his term was up). So they hired a firm to do a thorough audit. The audit will be made public in 3 days. I was shown a paragraph that says "the mayor and MY-NAME decided to disable security protocols on the accounting server, thereby making a true audit of transactions on the accounting server impossible". I was horrified when I saw this. I would never do such a thing and am not even sure such a thing could be done! Upon further discussion, it turns out the we did not renew software support on the accounting software, and this makes the auditing firm think that the software no longer works. Of course the software still works, it's just that we don't get any support or new features. So I am guilty of nothing.

    But this doesn't matter I guess. I am being told that the report will be made public in 3 days anyways! I don't even get a chance to read the full report (and anything else I might be accused of) before the media gets it. This can't be right!! I haven't slept much since seeing this part of the report.

    Anyone?
  2. #2
    quincy is offline Senior Member
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    When the report is made public, if corrections to the report are not made prior to publication, you can potentially sue for defamation. If the report falsely accuses you of a crime or falsely implies there was some complicity between you and the mayor to commit a crime, that is libel.

    There are five necessary conditions that must be met to bring a successful defamation action. The material must be published. You must be identified. The published material must be defamatory in that there is damage to your reputation (such as is assumed with a false accusation of a crime).

    If you are a public official yourself, you must prove that the defamatory material was published with actual malice (with knowledge that the material was false or with reckless disregard of its falsity). If you are not a public official, you must prove that the defamatory material was published without the "due care" that would be used by an "average person of ordinary sensibilities" - in other words, negligence.

    Finally, you must demonstrate that the defamatory material resulted in a monetary loss or reputational injury of some kind. Actual injury could be demonstrated by showing out-of-pocket money loss, personal humiliation, mental anguish, and an impairment of your standing in the community.

    In three days, if the report is published, I would seek out an attorney in Maine to discuss the matter, to see if pursuing a defamation suit is the wise course of action.
  3. #3
    JETX is offline Senior Member
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    The KEY here is how the report is presented. If issued as an opinion, then it is not defamation. If it is listed as 'fact', it MAY be defamation.
    They, as well as you, have the right to their OPINION.
  4. #4
    quincy is offline Senior Member
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    Yup. As long as the opinion doesn't imply false fact. And in this case, from the quoted portion zimbra33 provided, it sure sounds like the auditors stated it as fact and not opinion.
  5. #5
    JETX is offline Senior Member
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    HOWEVER, there are lots of potential problems with a defamation claim... based on the statement made:

    "the mayor and MY-NAME decided to disable security protocols on the accounting server, thereby making a true audit of transactions on the accounting server impossible."

    Was 'my name' involved in the decision to 'disable'??
    Did the decision to NOT renew the service agreement, essentially 'disable'??
    Did the decision actually make a "true audit" impossible??

    Simply, there are a lot of possible scenarios that might affect the validity of a defamation claim.
    One huge question... how did the investigators get this 'assumption'??
    If someone else told them this version, the defamation claim against the 'firm' would be invalid.
  6. #6
    quincy is offline Senior Member
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    No, JetX, the defamation claim against the firm would not necessarily be invalid.

    Anyone who repeats a libelous statement can be guilty of defamation, even if they were not the originators of the libelous statement. Therefore, even if the firm was told by someone else that "the mayor and zimbra disabled the security protocols", if the statement is false it is still false. A defamation action could be brought against the originator of the libelous statement as well as against the firm who wrote it up in their report without verification of its veracity, and also against the media outlets who pick up the report and are careless about what they publish.

    For instance, as a newspaper, I could print that "the auditor's report said such-and-such", but I would be remiss if I also did not get comments from both the mayor and zimbra prior to printing, to balance the report. It would definitely be foolish and risky to take a statement from the report and print that "the mayor and zimbra decided to disable security protocols...." if I was not certain it was true, and definitely libelous for me to print that "the mayor and zimbra decided to disable security protocols..." if it were proved to be false. The mayor, of course, would have to prove that the newspaper published the statement with reckless disregard for the truth or published it with knowledge that it was false, while zimbra would be held to a lesser, easier standard of proof - that it was negligently published. But the material should be handled very carefully if the newspaper wants to avoid a libel suit.

    Fault is a tricky area in defamation suits, and the news media is certainly given more protection than, say, an auditor's firm would have. However, a newspaper's mantra is "Accuracy always." Failure to check more than one source prior to publishing a story has led to many libel actions against newspapers.

    You are right that the entire report would have to be reviewed, and the reasons for the auditor's conclusions examined, before the potential success of a defamation claim could be determined. Without all of the facts, it would be impossible to say if what is reported is defamatory. One statement that seems defamatory when taken out of context can certainly be fine when taken in context. Hence my advice to zimbra to seek out a Maine attorney.
  7. #7
    zimbra33 is offline Junior Member
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    So help me out here (and yes, I have already contacted an attorney on this, but we can't do much as the city has not released the report, I am not sure if my attorney can 'force' them to give him the report before it is made public).

    You say as long as it is stated as an opinion, there is not much you can do. I find this incredulous (though most of law is a mystery to me anyways!) . Are you saying that the report could say "it is our opinion MYNAME disabled the security protocols on the server" and I have no recourse? Prior to this going public? Even if it is an opinion, it would be incredibly damaging to my reputation. Even though I have told the new mayor and governing body that the statement is untrue, I can prove it is untrue, and no one has ever interviewed me for my side of the story.
  8. #8
    zimbra33 is offline Junior Member
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    Quote Originally Posted by JETX View Post
    HOWEVER, there are lots of potential problems with a defamation claim... based on the statement made:

    "the mayor and MY-NAME decided to disable security protocols on the accounting server, thereby making a true audit of transactions on the accounting server impossible."

    Was 'my name' involved in the decision to 'disable'??
    Did the decision to NOT renew the service agreement, essentially 'disable'??
    Did the decision actually make a "true audit" impossible??

    Simply, there are a lot of possible scenarios that might affect the validity of a defamation claim.
    One huge question... how did the investigators get this 'assumption'??
    If someone else told them this version, the defamation claim against the 'firm' would be invalid.
    In answers to your question:
    There was no decision to disable. The auditing firm is confused thinking that not renewing the service contract would disable the audit log on the server. It does not, it merely prevents us from getting the latest and greatest versions of software. Like most companies, we run an older version of Microsoft Office, we don't constantly upgrade. By not upgrading, parts of the software do not cease to function. A simple call to the company that makes the software would clarify this for them.
    If the decision actually makes a true audit impossible, then why not renew the contract right now or when the audit started? Why not point out that 'this decision to not renew is impeding our investigation'? Everyone would then have said 'Let's renew'.
    I believe they got this assumption talking to a reseller of the accounting software, the actual manufacturer of the software would know far more about the software.
  9. #9
    quincy is offline Senior Member
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    There is a very very fine line between opinion and fact and it is sometimes difficult even for courts to distinguish between the two. Opinion falls under state statutes and the common law doctrine of fair comment and criticism.

    The laws on opinion protect even scathing criticism and comments made of public works by people and institutions who offer their work for public judgment, such as with movie reviews, musical performances, sports teams, hospitals, schools, public officials, and drug manufacturers, to give a few examples of many. Under fair comment and criticism (opinion) there is a legal immunity of sorts against defamation actions when these comments and criticisms are given as an honest expression of opinion on public persons and/or matters of public concern. This is, in other words, free speech, which is zealously guarded in our country.

    However, starting a statement off with "In my opinion" does not mean that a statement is strictly opinion, and it does not protect someone from a defamation action. The statement you provided, standing alone, would be defamatory if it was false - no matter how many times the auditor said it was his opinion. He is implying fact. His statement is made with a presumed expert knowledge of the situation. The public accepts his "opinions" as being based on such.

    Courts look at several things when determining whether opinion has crossed the line to defamation. Opinion, fo instance, cannot be proved true or false, while fact is susceptible of proof. In your example, it can be proved true or false. It is only when an assertion cannot be proved true or false can it be truly opinion and free from a successful defamation suit.

    Also looked at is the context in which a statement occurs. The language of an entire report or article may signal that a statement is a statement of opinion, whereas it could very well be viewed as defamatory when standing alone. Another indication of opinion would be where this aritcle or statement appears - in an official report or on the editorial page of a newspaper, for example.

    Only when a statement is made that does not contain a false factual connotation will it be protected by the constitutional guarantee of free speech. There is no constitutional value, or protection, in false statements of fact.

    At any rate, from what you have posted, with the statement you provided, you seem to have good grounds for a defamation action. Your attorney will be able to tell you for sure.
  10. #10
    SnowCajun is offline Member
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    Libel Instead of Defamation?

    Wouldn't this be considered as "Libel" instead ????

    I did a search on Google for "libel" and came up with this,

    An untruthful statement about a person, published in writing or through broadcast media, that injures the person's reputation or standing in the community. Because libel is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. Libel is a form of defamation , as is slander (an untruthful statement that is spoken, but not published in writing or broadcast through the media).

    No lawyer here, so check it out for sure.
    SnowCajun
  11. #11
    quincy is offline Senior Member
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    SnowCajun - Yes, it is libel. Both libel and slander fall under the broader category of Defamation. Libel is written defamation. Slander is spoken defamation.
  12. #12
    zimbra33 is offline Junior Member
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    Well thanks everyone! I will know more when/if I get to see the claim again in hardcopy. I was allowed to view it, but I don't have a photographic memory, so it may not be as bad as I think.

    I am due to meet my attorney tomorrow and the report gets released on Tuesday, unless my attorney tries to stop the release. A week after the release will be a public meeting, whereby everyone will be allowed to comment and criticize. We have a few 'aldermen' on the governing body who have a tendency to shoot their mouths off. The meeting will of course be broadcast and taped for our local access channel.
  13. #13
    quincy is offline Senior Member
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    Aren't politics grand?!

    Good luck at the public meeting.
  14. #14
    zimbra33 is offline Junior Member
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    Here's another wrinkle:

    The auditor has already presented his report (including that statement about me) to the City Aldermen, the Mayor, and my supervisor. This was done in a non-public meeting. However, this now means that these people, some of whom I work with on a daily basis and some of whom I sit on city committees with, now have heard this statement about me. I would hope it would go no further, but we have a saying in the city, 'if you want something to get around quickly, just tell Alerman Smith and tell him not to tell anyone.'

    Ugh. Off to the attorney. Sad, what should have been a nice relaxing three day weekend, had turned into 3 days of no sleep and stomach pains.
  15. #15
    quincy is offline Senior Member
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    zimbra33 -

    Anything defamatory in the auditor's report has now been "published", even if it has not been published for the public to view, so the auditor can still be held liable for any libelous material contained in that report, and potentially sued for defamation.

    Report back, if you have the time, with what the attorney has to say. I am curious.

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