Defame

Defame (pronounced dih-feym)

(1) To attack the good name or reputation of, as by uttering or publishing maliciously or falsely anything injurious; still in some jurisdictions classified as slander (in speech or by gesture) or libel (something permanent in some sense including writing, images & broadcasting); calumniate.

(2) To disgrace; to bring dishonor upon (dating from the fifteenth century and now archaic).

(3) To indict or accuse (dating from the fourteenth century and long obsolete).

1275–1325: From the Middle English defamen, from the Old French & Anglo-French defamer (verb) & defame (noun) or directly from the Medieval Latin dēfāmāre, a variant of the Medieval & Classical Latin diffāmāre (related to the Classical Latin dēfāmātus (infamous)) (to spread the news of; to spread by unfavorable report; to slander), the construct being dif- (an alternative form of dis- (the prefix form dif- appearing only when the prefix dis- was added to a word beginning with f, as in difficilis (difficult) from facilis (easy), or diffiteor (deny) from fateor (acknowledge)) + -fāmāre (verbal derivative of fāma (news, rumor, slander)),  It replaced the Middle English diffamen, from the Anglo-French & Old French diffamer or directly from Medieval Latin, source the Latin diffāmō, from fāma (fame; rumor; reputation).  The verb defame (speak evil of, maliciously speak or write what injures the reputation of) dates from circa 1300, from the Old French defamer (which in the thirteenth century became the Modern French diffamer).

The construct in English is de- + fame.  The de- prefix was from the Latin dē-, from the preposition dē (of, from (the Old English æf- was a similar prefix).  It imparted the sense of (1) reversal, undoing, removing, (2) intensification and (3) from, off.  Fame was from the Middle English fame, from the Old French fame (celebrity, renown), from the Latin fāma (talk, rumor, report, reputation), from the primitive Indo-European beh-meh from beh (to speak, say, tell).  It was cognate with the Ancient Greek φήμη (phḗmē) (talk) and related to the Old English bōian (to boast), bēn (prayer, request) & bannan (to summon, command, proclaim).  It displaced the Old English hlīsa.  Defame and its derivatives are defined in law but in general use the vaguely synonymous terms include backbite, besmirch, denigrate, derogate, discredit, disgrace, disparage, malign, revile, scandalize, smear, vilify, asperse, belie, blacken, blister, calumniate, detract, dishonor, knock, pan, roast & scorch.  Defame is a noun and verb, defaming is a verbs, defamer & defamation are nouns, defamingly is an adverb, defamed is a verb & adjective and defamatory is an adjective.

Google LLC v Defteros, Case # M86/2021 on appeal from Supreme Court of Victoria (Court of Appeal) (17 June 2021, VSCA 167).

The High Court of Australia (HCA) recently ruled that in certain circumstances, Google (and presumably every other search engine) is not a publisher, the critical point in this case being that a hyperlink generated in an organic search is “merely a tool which enables a person to navigate to another webpage”.  The case before the country’s highest court was an appeal from Victoria’s court of appeal which in 2021 declined to overturn a defamation finding in favor of a lawyer known for representing underworld figures and others associated with organized crime.  The state courts had found Google was the publisher of a defamatory 2004 newspaper article on the basis its search results were instrumental in communicating the content to readers.  Google had argued providing a hyperlink to content did not constitute publication and therefore it could not be liable for any defamatory material in the piece.  Apart from a discussion of the legal principles, counsel for Google also informed the HCA that were the decision of the lower court to be confirmed, it would have a “devastating” impact on the way the internet operates because it would compel search engines individually to see legal opinion on the billions of results to which hyperlinks are daily generated.  Google maintained it acted on the internet only as a navigator responding to users’ requests for directions and it was (and given the volumes had to be) wholly disinterested in the content of that to which its hyperlinks referenced, the operator of the hyperlinked link being the one which communicates (and thus publishes) the content to the user.

The facts of the case were also interesting in that they played out on a time-scale very different to that of most defamation matters.  Google was notified of the article in February 2016, some eleven years after it was published in the newspaper but it was not until December that year that the link was removed from search.  Interestingly, the “removal request form” submitted in 2016 had alleged the original article was defamatory and that proceedings brought against the newspaper in 2007 had resulted in a settlement at mediation which included the deletion of the article.  There was however no such settlement and proceedings against the newspaper had never commenced.  In 2020, the Supreme Count on Victoria (VSC) ruled the article implied the lawyer’s relationship with certain figures in organized crime had gone beyond a professional relationship to the point of being a confidant and friend and he had thus been defamed.  He was awarded damages of Aus$40,000.

In a 5-2 judgment, the HCA ruled in Google’s favor, finding that search engine’s results “merely facilitated access” to the material and that did not reach the threshold required to amount to publication in a legal sense, the point being that Google “…had not participated in the writing or disseminating of the defamatory matter”.  The other side of the HCA’s judgment was that it rejected the claim that search results “enticed” the person searching to open the provided hyperlink and thus proceed to the material on the basis that the person would already be looking for particular information before the result was received.  That was interesting but a wrinkle was added by one judge who differentiated between an organic hyperlink and a sponsored link in which each click generated advertising revenue which accrued to Google.  That matter however did not come before the lower courts and is thus not considered part of the substantive judgment (the ratio decidendi (reason (or rationale) for the decision) but is a piece of obiter dictum (by the way) which, left hanging in the legal air, might in the future be re-visited and, because it involves the core component of the search engines’ business model, interest will be greater still.  There certainly may be more to explore because the court, having found there was no basis for finding publication because Google had not participated in the writing or disseminating of the defamatory matter, noted that "…there being no publication”, the majority found it unnecessary to consider the defenses raised by the appellant.  That was a shame because it might have been an interesting discussion given Google filed, inter alia, defenses of innocent dissemination and qualified privilege.

There were however dissenting opinions, the most interesting of which at length discussed the actual mechanics of Google’s search engine, the succession of algorithms which interact with its indexes to generate the results seen by users.  In the view of one judge, what these components did constituted an “active and voluntary participation in the process that is in fact directed to making matter available for comprehension by a third party” and was thus an act of publication and that moreover neither the defense of innocent dissemination and qualified privilege, nor the defense of statutory qualified privilege available under Victoria’s Defamation Act 2005 were sustained.  The judge also hinted that a distinction between the results generated by organic search and those of sponsored content was not of necessity clear because of the commercial benefits which Google anyway gained through the operation of the search engine.  The other dissenting judge substantially agreed, adding that the matter of publication before the court would have been impossible without the operation of Google’s algorithms which “intentionally assisted in the process of conveying the words bearing defamatory meaning to a third party” and that publication would not have occurred but for Google’s facilitation.

So, the HCA has issued what is (for now) a definitive ruling on a search engine’s liability for third-party publications to which it has directed users, finding there is none, rejecting even the analogy cited by the lower court of a librarian handing someone a book with a certain page marked, preferring the example of someone in the street being asked for direction to a bookshop which turned out to have on its shelves a book containing a defamatory passage.  It seems inevitable that at least some of the matters raised in Google LLC v Defteros will again be litigated and analogies similes and metaphors will return to the battle.  Whether long-established legal principles can be reconciled with a public policy which would seem to suggest the algorithms of the search engines are acknowledged now to be an essential part of modern life, remains to be seen.

Meet our spokesperson.  With experience in civil litigation and other legal matters, Lindsay Lohan was a good choice to be lawyer.com's spokesperson.

Noted litigant Lindsay Lohan hasn’t enjoyed great success in her defamation suits, even when pursued on the basis of commercial rights.  In 2015, a defamation case against Fox News was dismissed, the judge ruling (perhaps unfairly given the nature of the evidence), "truth is a defense" (and in the US it is an absolute defense).  The case concerned Ms Lohan and her mother and according to their filing, Fox News “falsely, inappropriately, and shockingly” stated, unequivocally and as a “matter of fact” stated “Lindsay Lohan’s mother is doing cocaine with her”.  The judge noted Ms Lohan’s mother is a public figure and that the statements made on Fox News were not made maliciously (in US law two vital points used to determine whether or not something is at law, considered defamatory).  Interestingly Fox News had formally apologized for what they called an “oversight” in airing the piece, noting the evidence later introduced couldn’t verify the claim and that the material had been removed from their archives.

Just a little removed from defamation law was a writ she filed in 2010 against E-Trade in 2010 for using her name in one of their television advertisements without her permission. The commercial, which was played during the Super Bowl, featured a "milkaholic" baby named Lindsay and the basis for the suit was the claim E-Trade as mocking her drug and alcohol-related problems.  In response to the US$100 million claim, E-Trade responded with little more than an explanation that there are in the world, many Lindsays.  After some six months, the lawsuit was withdrawn, the terms of the settlement subject to a non-disclosure agreement (NDA).

Lindsay Lohan returned to court in 2011, suing hip hop artist Pitbull over the lyrics in his song Give Me Everything, which included the line: So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.  Ms Lohan cited the lyric as a violation of her publicity and publicity rights which caused her emotional distress, claiming the lyrics “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to her physical and mental character.”  The judge dismissed on technical grounds the claim made under New York Civil Rights law, adding that the First Amendment anyway affords full protection.  What was more interesting was the discussion of the argument the song was commercial rather than expressive in nature, the judge ruling that even if the work was created for the purpose of “making a profit”, that does not mean her name was “used for advertising or purposes of trade within the meaning of the New York law“ and that, on the facts of this case, even if that were proved, the “isolated nature of the use of her name” (just one line in the song) would “prove fatal” to the claims.  Putbull’s counsel indicated they wished to have the court sanction Ms Lohan for filing a frivolous lawsuit (an abuse of process) but the judge, noting the paucity of case law in this field, said the lack of precedent meant there was no clear indication the case would be doomed and the claim was therefore not so frivolous as to warrant the imposition of a sanction.  Lindsay Lohan thus remained free to litigate, which she did.