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Our legal system utilizes “Terms of Art” to eliminate ambiguity in speech. For example, you seem to imply if a conversation is “invite only”, it was not “publis

Our legal system utilizes “Terms of Art” to eliminate ambiguity in speech. For example, you seem to imply if a conversation is “invite only”, it was not “published”. A quick look at a Term of Art dictionary indicates that in a defamation case, disclosure to a single party may constitute publication. So the scope of the defamation cause of action is not necessarily limited to a single participant. Anyone who put forth false information may also be liable. It’s like the article says, one of the questions is, what defines publication. https://dictionary.findlaw.com/definition/publish.html https://dictionary.findlaw.com/definition/publish.html

larkeith 8y ago
I did not know this. I guess this is much more relevant in the era of the internet, where conversations are both permanent and third-party hosted - previously, any similar discussion would take place either in person (and be infeasible to publish, given it would be only an account of a talk) or via mail, which, while I suppose would have the same risks, I imagine would still be difficult to sue for - before the advent of copying machines any letters would be a handmade copy of the original, very disposable, document.
- CodeWriter23 8y ago
  "NOTE: For purposes of defamation, a defamatory communication made to only one third party may be considered published." That doesn't really get into what kind of medium is used or if any buttons that say "Publish" were pushed in the process.
Retric 8y ago
may is a very critical caveat to that definition.
- CodeWriter23 8y ago
  Right. And that’s going to turn based on how published cases (aka citeable) on publication and defamation have been decided and are argued by the attorneys. It probably all hinges on the potential damage to the plaintiff, and how the subpoena would help the plaintiff pursue their case. If there’s an audit trail that can pin down who typed which line in the spreadsheet, the subpoena would likely be limited to the persons saying things that allegedly defame the plaintiff. But if not, I can see the argument that everyone who participated needs to be deposed to discover who made the statements about the plaintiff. There is some nuance to how the doc was shared (link vs. invitation vs. login required). It’s likely the discovery will be filed under seal to protect those disclosing truthful statements. It may also turn out a special master is appointed to decide who gets to see what portions of the discovery. Or the subpoena could be quashed.

larkeith 8y ago

I did not know this. I guess this is much more relevant in the era of the internet, where conversations are both permanent and third-party hosted - previously, any similar discussion would take place either in person (and be infeasible to publish, given it would be only an account of a talk) or via mail, which, while I suppose would have the same risks, I imagine would still be difficult to sue for - before the advent of copying machines any letters would be a handmade copy of the original, very disposable, document.

CodeWriter23 8y ago
"NOTE: For purposes of defamation, a defamatory communication made to only one third party may be considered published." That doesn't really get into what kind of medium is used or if any buttons that say "Publish" were pushed in the process.

Retric 8y ago

may is a very critical caveat to that definition.

CodeWriter23 8y ago
Right. And that’s going to turn based on how published cases (aka citeable) on publication and defamation have been decided and are argued by the attorneys. It probably all hinges on the potential damage to the plaintiff, and how the subpoena would help the plaintiff pursue their case. If there’s an audit trail that can pin down who typed which line in the spreadsheet, the subpoena would likely be limited to the persons saying things that allegedly defame the plaintiff. But if not, I can see the argument that everyone who participated needs to be deposed to discover who made the statements about the plaintiff. There is some nuance to how the doc was shared (link vs. invitation vs. login required). It’s likely the discovery will be filed under seal to protect those disclosing truthful statements. It may also turn out a special master is appointed to decide who gets to see what portions of the discovery. Or the subpoena could be quashed.