E-mail and defamation

So LegalZoom (which I recommend if you need a will or other basic legal document) sent me an interesting newsletter the other day. Headlined “Can You Be Sued for Sending an Email?”, it covers the case of Sandals Resorts vs Google. Basically, Sandals filed suit to force Google to disclose information about a Gmail user who wrote an e-mail they didn’t like. Google won, Sandals lost, and LegalZoom’s asking a valid question.

(Disclaimer: as though you didn’t know this, I’m not a lawyer, and this is not legal advice.)

The first facile answer that comes to mind is “of course you can be sued for an e-mail you write.” Under the American system of jurisprudence, anyone can sue anyone for anything. I’ve been harassed and threatened with lawsuits by a crazy person who objected to something I wrote on my blog about his business; so could you be. That’s part of the price of admission to a nation where you get the benefits of a stable, well-established judicial system based on adversarial law. It doesn’t mean that such a suit would be valid, just that the potential exists for it to be filed.

A little more nuanced answer requires us to dig into the facts of this particular case: Sandals didn’t sue the person who wrote the e-mail, they asked Google to find out who that person was. Google declined, and the fight was on. Anonymity is often an effective defense against bearing the consequences of what you say in e-mail… but don’t count on it. Some e-mail providers are more, shall we say, flexible than others when asked to provide information about who created an e-mail; they may do so based on a subpoena or merely upon a written request. If you use an e-mail service that you don’t run yourself, it would be worth your time to find out what kind of privacy and disclosure policies your provider follows. In this case, Google did the right thing and resisted the discovery request.

A still more nuanced answer: in this particular case, Sandals claimed that the e-mail in question was libelous, defamed their business, and caused them financial injury. The judge ruled against them on several points. The most interesting ones are these: first, because the plaintiff didn’t prove any actual financial injury, they couldn’t claim that the alleged defamation had actually harmed them. Second, the judge found that the e-mail was clearly an expression of opinion, and would be very likely perceived as such by the recipients. Defamation and libel require that the offender present their claims as fact. It’s OK for me to say “It’s my opinion that Oracle makes crappy software”; couched as an opinion, my statement cannot be construed as libelous or defamatory. If I instead claimed that Larry Ellison eats small children, and presented that claim as fact, that might be defamatory (unless I could prove that it was true, not that I’m planning on trying.)

The New York Law Journal review of the case is worth reading in depth if this sort of thing interests you, in part because it explains what you must do to write e-mails that don’t meet the legal standard for defamation (hint: overblown rhetorical language helps). It’s also fairly entertaining in its own right.

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