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Wayne K
06-02-2009, 05:52 AM
I'm getting conflicting answers from lawyers on this one.

Can you be sued for defaming someone who went into witness protection?

Can you defame a person who no longer exists?

Not your ordinary AW questions, I know. But I really do need a straight answer. Getting two opposing answers from lawyers has me wondering.

ORION
06-02-2009, 05:57 AM
um...if the person who went into witness protection sued you they would 'out' themselves and someone ELSE can't sue for defamation of another person so um I guess probably not...

Momento Mori
06-02-2009, 12:59 PM
Wayne K:
Can you be sued for defaming someone who went into witness protection?

Can you defame a person who no longer exists?

Interesting. I can't speak from a US perspective, but in the UK (which has some of the toughest defamation laws in the world) I would argue that you can. Even though someone has gone into witness protection, they still exist as a person and their previous identity and therefore reputation remains in existence and is therefore capable of suffering damage through defamation.

Of course, much depends on why the person went into witness protection in the first place and the nature of the alleged defamatory statement. If (for example) they were a supergrass who had committed bank robberies or murders and then testified against others for a plea bargain, and the defamatory statement was that they were a no-good thief and killer, then the defence would be (a) that the statement was true and (b) that the plaintiff does not have a good reputation to damage.

If however the person was an innocent witness to a murder or other crime and you made the same statement, then you'd be on a much stickier wicket.

Whether someone in witness protection would want to stick their head over the parapet and sue is another debatable point. In the UK, I suppose that it could be possible to apply for proceedings to be held in camera on the basis that it's a question of protecting the plaintiff's safety.

But it's definitely an interesting connundrum.

MM

Stijn Hommes
06-02-2009, 01:06 PM
Can you be sued for defaming someone who went into witness protection?

Can you defame a person who no longer exists?
You apparently can't defame someone who is dead. I've always found that odd since damaging someone's good name can still hurt their surviving relatives. Someone who is in the witness protection program still exists, so if they choose to, they can still sue. Whether they want to is another matter.

Wayne K
06-02-2009, 01:20 PM
Anything I say has already been reported in newspapers and television.

Wayne K
06-02-2009, 01:28 PM
It would be an interesting lawsuit though. It would save the price of advertising.

MarkEsq
06-02-2009, 07:30 PM
Not sure I understand your scenario exactly. Bob Smith has gone into the WPP and is now ALan Jones. You are saying mean things about Bob Smith, who no longer officially exists. Is that right?

If so, you could be liable for defamation if what you write is both defamatory AND if a judge/jury finds that Alan Jones is identifiable from your writing. The issue is less about what someone's name is, more about whether you have harmed their reputation.

Of course, truth is an (almost) absolute defense to libel, so if you're telling true facts you are okay. Okay in the sense that you will win a lawsuit, not avoid one. :)

Also remember that some states have libel-related statutes that allow for invasion of privacy, so that even if you are telling the truth, you could get into trouble for explosing someone's "private facts." I'm guessing that is true in a WPP case.

Also, the fact that someone else has reported the information will not, by itself, protect you from liability. Repeating harmful lies is no better in the eyes of the law than starting them.

If I have misunderstood the facts here, let me know and I'll try again.

CheshireCat
06-02-2009, 10:05 PM
Given the US court system, you can sue anybody about anything, more or less.

Whether you could win -- or even get a case into an actual courtroom -- is another thing entirely.

Though, if I understand your question, I wonder who would potentially be bringing suit. The family of the person in Witness Protection?

Amarie
06-02-2009, 10:16 PM
I heard an editor at a conference once speak on defaming the dead (or now non-existent in your case). She said her company stayed away from anything that might affect surviving relatives, things like paternity issues or inherited diseases. I don't know if she was speaking from a legal perspective or just a company policy to avoid potential lawsuits.

ChristineR
06-02-2009, 10:53 PM
This is an article discussing the possibilities, specifically the possibility of the heirs of Walter Sickert suing Patricia Cornwell for defaming him when she claimed he was Jack the Ripper.

http://writ.news.findlaw.com/dean/20021122.html

The short answer is that it's at least possible, but far from straightforward.

Wayne K
06-02-2009, 11:26 PM
I thought the lawsuits were about lost money. If the person who changed identities makes no money from the old identity, why would they be allowed to sue?

Gatita
06-03-2009, 02:05 AM
Libel is not about money, it's about reputation.

A libel lawsuit can prevail if the plaintiff shows you have harmed his/her reputation. (Now of course if you're calling a convicted gangster a gangster, they probably have little ground.)

Being in witness protection is not always a permanent condition. I know of several people who have outed themselves for various reasons, so you can't assume they'll stay with their new name forever.

Also, our newspaper's media lawyers have always told me you can't defame the dead -- under U.S libel law anyway. I guess in England you can.

Momento Mori
06-03-2009, 03:06 AM
Gatita:
I guess in England you can.

Not so far as I am aware. I think I'm right in saying that under common law the defamatory statement must refer to the plaintiff, so if the plaintiff is dead, then no action can be brought in their name because it is not the relatives who have suffered the damage to their public esteem and they lack the capacity to step into the plaintiff's shoes.

MM

MarkEsq
06-03-2009, 05:22 PM
Libel is not about money, it's about reputation.

A libel lawsuit can prevail if the plaintiff shows you have harmed his/her reputation. (Now of course if you're calling a convicted gangster a gangster, they probably have little ground.)


You are mostly right, but in fact it is about money. The idea is that if someone damages your reputation then you are harmed financially because you might lose your job and not be able to find a new one, or lose your house etc. So while reputation is what is talked about, the reason a dead person can't be defamed is that it doesn't "matter" if their reputation is maligned because they are no longer earners anyway.

Momento Mori
06-03-2009, 06:24 PM
MarkEsq:
The idea is that if someone damages your reputation then you are harmed financially because you might lose your job and not be able to find a new one, or lose your house etc.

I'm not doubting that this is the case in the US but in the UK, the purpose of defamation (according to Halsbury's Laws of England) is two-fold:

1. to vindicate the plaintiff's reputation; and

2. to provide reparations for the private injury done by the wrongful publication to a third person or persons of defamatory statements concerning the plaintiff.

Reparations may lie in loss of earnings but equally in emotional distress caused by such statements. This is why there have sometimes been defamation cases where the plaintiff has won but the damages have been nominal, i.e. because it was decided that they did not require the reparations claimed because they did not suffer sufficient loss.

Interestingly (and one to stack in the "learn something new every day" pile) apparently the only circumstance in England where the relatives of a deceased can sue for defamatory statements made against the deceased is where such statements were "published with the intention, or, possibly, with a tendency, to injure the reputation of his surviving relatives so that they may be excited to revenge and to a breach of the peace".

MM

CoriSCapnSkip
06-09-2009, 01:22 PM
Can you defame a person who no longer exists?

Do you mean a deceased person? I seem to remember years ago an adult magazine being sued by the heir of some famous wild west character for their fictional portrayal of the actions of a person who had to have been dead 70 years or more, so I'm not sure how dead or even how recently dead the defamed person has to be. If it's fiction, there could be trouble; with parody, you can get away with anything even if the subject is still living.

Momento Mori
06-09-2009, 01:26 PM
CoriSCapnSkip:
If it's fiction, there could be trouble; with parody, you can get away with anything even if the subject is still living.

Parody isn't a defence to defamation if the intention of the parody is to subject the object to ridicule or public humiliation.

MM

Wayne K
06-09-2009, 03:53 PM
It's going to be a creative memoir. The truth is documented with all the people involved. The agent who is interested says he'll look at it this week and get back to me--I hope he has a few suggestions.

Gatita
06-09-2009, 06:17 PM
You are mostly right, but in fact it is about money. The idea is that if someone damages your reputation then you are harmed financially because you might lose your job and not be able to find a new one, or lose your house etc. So while reputation is what is talked about, the reason a dead person can't be defamed is that it doesn't "matter" if their reputation is maligned because they are no longer earners anyway.

Ah, thanks for the clarification... I learned something today! I always wondered why you can't defame the dead.

CoriSCapnSkip
06-11-2009, 02:17 PM
Parody isn't a defence to defamation if the intention of the parody is to subject the object to ridicule or public humiliation.

MM

Enough people have gotten away with it but no doubt it helps if the subject is well-known.

Momento Mori
06-12-2009, 02:37 AM
CoriSCapnSkip:
Enough people have gotten away with it but no doubt it helps if the subject is well-known.

I'm not doubting that this is so in the US, but England has some of the toughest defamation laws in the world - celebrities like to sue here because they're more likely to win.

MM