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jacktsai wrote:
Okay, my xoops2 site is up for 1 week and I already have someone threatening us with legal action if a particular post is not removed -- because it casts their organization in an unfavourable light. (you can read more details below)
First, my disclaimer: I am a law student, but I am NOT an attorney. I'm not offering legal advice. I'm merely tellin you how I understand the law based on the information I have encountered thus far.
It sounds like you are in Canada. If you were in the States, I'd probably be able to provide you more accurate information. It sounds like what they are suggesting is that this is libel, in which case they would have a hard case to prove (at least in US courts). In the States (and Canadian common law may have adopted this, as well) a business organization is typically considered to be a public figure, meaning that if the company wants to sue for libel, they have to prove that (a) the statement was true, (b) the statement was defamatory (injurious to reputation), (c) the statement was published (a given here), (d) the statement specifically identified the plaintiff, and (e) either (1) the statement was known by the publisher to be false or (2) the publisher disseminated the information with a reckless disregard for the truth.
You would have three defenses in this case: truth (the plaintiff would have to prove that the statements were false), lack of actual malice (the "known to be false" issue), and the defamation issue (is the statement really injurious to reputation?).
Unless there are some really outrageous facts here that you haven't shared, they've got holes you could drive a truck through. I doubt that they could prove any of these factors. (Again, this is an American standard, but since Canada courts use common law, it could well have been adopted in the Canada, as well.)
Incidentally, if you're an American and your site is hosted in the states, Canada probably doesn't have personal jurisdiction over you, anyway, unless you do a lot of business in Canada.
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WHAT I NEED TO KNOW IS...
(1) Will a simple disclaimer normally do the trick? If so, are there any disclaimers you would recommend (or have worked to ward-off the lawyers for your site)?
Typically, yes and no, but yes more than no. Something along the lines of "All opinions expressed are those of the author and do not reflect the views, beliefs, or positions of this site, its management, or owners" will go quite a ways. It's not dispositive, but it doesn't hurt.
Most of the time, a website such as this one is considered a "secondary publisher" if it is open to the public for posting. (The "primary publisher"--the author--would be totally liable.) The owner's liability is typically limited that of, say, someone who owns a physical bulletin board in a public space where members of the public post signs. You
may have a responsibility to remove information posted by others that is libelous
per se, but you are typically not held liable if you do not know or have no reason to know the information is libelous.
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(2) If so, how to incorporat it into our site? (xoops2 has a built in disclaimer at registration, but it's not visible to a visitor until they register)
Put it on the front page (like most porn sites do....or so I've heard...) and/or in a pop-up window, and make very visible links to it on every page. It might also help to make sure your terms of service for users who post includes an indemnity clause: "User agrees to indemnify and hold harmless [owner] for any damages (including but not limited to legal fines, fees, and awards) that result from information I post on this site. I understand that I am responsible for the content of my posts and for their legal consequences, including liability for defamation, blah blah blah..." That way, if you do get sued, you can file a third-party claim against the author of the post. More importantly, it makes people think twice about posting potentially libelous information.
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We run a free membership website where we try to post news/info/discussions that is relevant and helpful to our members. I posted an article today that pointed out this organization's much higher prices in Canada (for certain products) when compared to the prices charged by their USA parent organization -- even after the exchange rate has been taken into consideration.
The Canadian office claims that our article makes it look like they are gouging our Canadian members -- when the additional prices simply reflected the additional cost they've incurred to import certain items into Canada.
My contention is that historically these product-types have been offered by this organization (as well as other in the same industry) at a price that is merely reflective of our US/CAN exchange rate, and no more.
See, this is where I think they have a proof problem. They would have to prove that your math is wrong, and that the prices are not higher. If they can't prove that, they're SOL.
What I would probably do is make their behaviour in dealing with you an issue by posting copies of all of their correspondence on the site. Suddenly you become little David and they are big Goliath, and they look like they're simply picking on someone to be a bully. This is what the owner of the website that parodied the Bush campaign did when they started trying to cause him legal trouble. It became such an embarassment for them that they backed off and left the guy alone. I think they even agreed to pay his legal bills in lieu of being hit with a Rule 11 sanction.
BTW, there's a very good article on this on FindLaw at
http://library.lp.findlaw.com/articles/file/00009/005576/title/Subject/topic/Injury%20%20Tort%20Law_Defamation/Libel/Slander/filename/injurytortlaw_1_213Good luck.
