Yes, John, libel is an interesting and important subject. It’s also a serious matter to accuse posters on internet forums of libel.
First, we need to narrow the scope of the discussion. It’s not feasible to have a meaningful discussion of libel in the case of the posts you mentioned when the discussion veers into a discussion of libel laws around the globe that have no apparent applicability to the matter. Mark Dubovoy, you and I, I believe, are all residents of the U.S., so perhaps we can limit our discussion to U.S. law. Since you made the accusation of libel, however, you must have had a jurisdiction in mind, so if your accusation was based on the law of a different jurisdiction, we can discuss it. For now, I’ll proceed on the assumption that your accusation was based on U.S. law.
Correct me if I’m wrong, but it appears that these are the posts you claim are libelous:
"Let's stay on topic. There is enough charlatanism in this article on the photographic side without having to dive into the trivial targets he's provided in the audio and wine tasting categories." Quote by kwalsh. http://www.luminous-landscape.com/forum/index.php?topic=61421.20
"Not so much hyperbole as deception, IMO - passing off an iPhone shot as something else, even by omission, is intellectually dishonest in my book." Quote from jeremyrh. http://www.luminous-landscape.com/forum/index.php?topic=61421.60
(Also the post by hjulenissen, to which he has already responded, so I’ll not discuss it further.)
There at least two reasons why these comments are not libelous.
1. These comments are about the content of a published article. Surely, John, as a journalist, you must recognize that such comments about a published work, be it an article, a book, or a film, are protected speech and not libelous.
2. At worst, these comments might be considered name-calling or hyperbole, which are not libelous.
Consider what it would be like if these types of comments were instead libelous. Reviews or critiques of articles, books, and films would likely be boring and bland lest any comment be construed as a libelous comment about authors or directors. The phrase “intellectually dishonest” is in common usage and used countless times every day. If usage of this phrase was libelous, our courts would be jammed with libel lawsuits. Fortunately, we don’t live in such a world.
We really probably need a libel lawyer to comment at this point. All of my comments are derived from reading (several times) the Associated Press Libel Handbook back when I was a reporter.
Those clips you have above are indeed where I got those phrases from.
One thing that handbook emphasizes is that if you get to court, defenses based on word play (or hair splitting) are not effective. That is, in your examples above, to say that the charge of "charlatanism" would apply to an article or book, but not to its author, would be, in my mind, severely stretching things. How can a book, which is made up of paper, or a web posting, which is made up of pixels, be a charlatan? Or "intellectually dishonest?" Both of those phrases, of course, refer directly to the author. It'd be absurd to go to court and try to defend yourself by saying, "Well, the article is a charlatan, but the author is fine upright guy, and I never thought differently."
When you say, "comments about a published work, be it an article, a book, or a film, are protected speech and not libelous," you are mostly, but not entirely correct. You are usually free to say that an openly published article is incorrect, or misleading, or incomplete, or whatever, but not that the author is an idiot or a charlatan, or intellectually dishonest.
I don't know where the idea came from that name-calling or hyperbole aren't libelous, but they certainly are. I can't quote the line exactly, but the late Hunter Thompson said something to the effect, "If you call somebody a pig-fucker, you better be able to produce the pig." Name calling (fighting words) aren't libelous when they precede a fight, for example, and the exchange is mutual, but "name-calling" and hyperbole certainly can be libelous. Call a lawyer a "shyster," or a doctor a "quack," and you will be in court next week, and you will have no defense other than the most rigorous proof, and since those charges are quite amorphous, they'd be very hard to prove -- these two particular cases are very well-supported in case law.
You say, "Reviews or critiques of articles, books, and films would likely be boring and bland lest any comment be construed as a libelous comment about authors or directors. The phrase “intellectually dishonest” is in common usage and used countless times every day. If usage of this phrase was libelous, our courts would be jammed with libel lawsuits."
The thing you apparently don't understand is that libel is a legal and technical term, and means a fairly specific thing, which (to sloppily summarize) means to publish something that holds another person in disrepute. "Slander" is to do the same thing, but in speech. Doesn't even have to be inaccurate, in all cases. For example, you could do a restaurant review that says that Joe Schmoe's restaurant isn't very good, and by the way, he's a pig-fucker, and even if you produced the pig, a court could hold that it was non-relevant to the review in question and you could be found to have committed libel.
So, if thousands of libels are published every day -- and they are -- why aren't the courts overwhelmed? Because filing a lawsuit is extremely expensive, the rewards for actual damages are very difficult to prove, there are usually extenuating circumstances, the defendant often apologizes which helps remove the charge that the libel was done with malice, the plaintiff may do more damage to himself with the suit and he would be letting the libel go, and, importantly, many, many people are judgment proof. Suppose somebody posted an article on a photo forum, it was severely criticized, and the author decided he wanted to sue for libel. He hires a lawyer, the lawyer does a little research and comes back and tell him, "Look, the guy who libeled you has posted a lot, and in several of them, he says he doesn't have the money to buy an f2.8 zoom lens. If you sue, it'll cost you $100,000 up front, and if you win, we'll probably get a used D30 with a scratched lens and a broken Gameboy console." Many lawsuits aren't filed for the simple reason that the the person who sues can win, and lose his shirt at the same time.
Also, in many lawsuits, the insult is considered trivial, and though it IS libelous, you'll get nothing in actual damages and $1 in punitive damages. It's like spitting on the sidewalk -- it may be illegal, but cops have better things to do that to arrest people.
But, some examples to think about. The National Enquirer tabloid newspaper, which is an American newspaper, published a story a few years back that said Kate Hudson, an American actress, suffered from an eating disorder. Hudson sued in England (not the US, where the comment would not have been libelous), won, and the paper was forced to pay damages. You can find this case on Wiki.
Back in the early 60s, there was a critical American libel case called New York Times v. Sullivan (also on Wiki) which held (and this is another sloppy characterization) that people who actively sought publicity about themselves and their personal character could not sue for libel for negative comments, absent "malice." This applied more directly to politicians and celebrities (like Kate Hudson, which is why she couldn't sue here.) But, just a couple of years later, Barry Goldwater, who had been the 1964 Republican candidate for President, sued a magazine which, during the presidential campaign, had "surveyed" a bunch of psychiatrists asking if Goldwater was mentally suited to be President. Something less than half of those who responded said he was mentally unfit. Goldwater sued, said that the story was published with malice, and he won -- $1 in actual damages, and $75,000 in punitive damages, a considerable sum at the time. So, no, you can't say anything you want, even about politicians.
Another thing that until recently affected Americans who made libelous comments was "libel tourism." It got bad enough that the US passed a law making some foreign libel judgments (particularly those from England) unenforceable. See the Wiki entry on "libel tourism.
@Rob C -- Ah, yes. They have made you look like a fool, but they didn't call you one. See the point above, about libel being a technical matter.
@Kikashl -- You said, "Drivel. A civil judgment entered against you in an English court orders you to pay damages. If you don't, civil enforcement proceedings can be taken against you by a variety of methods. None involves any possibilty of arrest."
How do you take civil enforcement proceedings against a foreigner who refuses to subject himself to your court? If I've been ordered by an English court to pay £100,000 in damages, and refuse to do so, and the US government says that the order in unenforceable here (and Obama has recently signed a law to that effect) and if I nevertheless take the next Delta flight to Heathrow, what happens? Does the English court simply say, "Screw it, this won't work?"
I don't think so, but I don't know for sure. As I understood it, the offender could be detained until he/she makes arrangements to pay. Is that incorrect? This controversy erupted between the US and England on libel judgments -- Americans who didn't subject themselves to the suit, and therefore had a judgment entered against them, claimed that they could no longer go to the UK without facing the possibility of being detained there. Perhaps detained isn't the same as being arrested? Maybe you're put in a nicer lockup, with cable TV? Could you explain why this is drivel?
