Wednesday, February 20, 2013

Defamation - Part V: Defaming He Who Shall Not Be Named

Defamation is actionable only when it identifies a specific person.  So I'll just be really smart and not use anyone's name.

I'll write:  "A boy scout leader who teaches fifth grade at a local school, who I will refer to as "Jim,"  is a child molester."

That will keep me safe, right?


Everybody at Hogwarts (except Harry) always referred to "He who shall not be named."  But everyone knew the reference was to Voldemort, the Dark Lord.

The same principle applies to defamation.  You don't actually have to use someone's name to defame him or her.  If reasonable people can figure out who you are talking about, a defamatory is still actionable even if you don't use the person's name.

If a writer's description of the subject is sufficiently specific that a reasonable person knows about whom the statement is made, it is actionable and the subject can sue.

There is a fundamental principal that so many people seem not to understand. Despite all the intricacies and complexities of the law, those who make the law are not stupid.  Most contrivances to avoid the impact of the law ("I just won't use his name", for example) do not actually work.  So you can't avoid liability for defamation by simply failing to name the subject. 

photo credit: <a href="">alles-schlumpf</a> via <a href="">photopin</a> <a href="">cc</a>

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