5 ms·

I don't have anywhere near the background expertise that you do, but surely there's some kind of "reasonable person" standard at some point, right? Or is that

by mbg721 4y ago

I don't have anywhere near the background expertise that you do, but surely there's some kind of "reasonable person" standard at some point, right? Or is that just for juries in criminal trials?

tptacek 4y ago
Danger, Will Robbins. I have zero expertise; I'm an annoying nerd like most of the rest of us. I just read lots of law blogs. :) The post touches on this: In determining whether the audience is likely to interpret a statement as one of fact or one of opinion or hyperbole, courts consider a viewpoint of an audience familiar with the speaker, the forum, and the circumstances. The interesting thing here --- and this is useful for HN, which sometimes has very weird ideas of what constitutes defamation --- is that opinions can't be defamatory. You need to be able to trace a defamation claim back to a damaging revelation of a false fact. Here, the root of the damaging claim is a Tarot reading, which is what makes this case spicy.
- mbg721 4y ago
  (It's Will Robinson.) This sounds like a Perry Mason episode...either the tarot reading has some kind of observable truth, in which case it is treated as a fact, or it's just made-up nonsense, in which case it is opinion.
  - ummonk 4y ago
    Even if it's treated as fact, it has to be false. Has she lied about what cards she saw in the tarot reading?
    - 082349872349872 4y ago
      But that's tptacek's original point: what if she saw a "3 of Cups", and said "3 of Cups means that Professor X did Y (in the Conservatory)". Is that an opinion (her interpretation of what the card means) or a lie (because it's highly unlikely there's any system in which that card could possibly lead to that interpretation)?
      - ArmandTanzarian 4y ago
        That isnt how the cards work, nor could anyone with the most rudimentary understanding of the cards interpret such a thing from any set of cards. I don't know if "liar" is the word i'd use, but anyone making such concrete statements based on a reading is not doing any research whatsoever on card meanings. I am in the camp that the cards are an excellent tool at helping the user examine their situation/self/ethics in an abstract way that ultimately help us better understand our feelings and address issues that we may be ignoring. It does seem rather uncanny reflecting on previous readings and how they consistently seem to accurately reflect situations and courses of action, but surely this is what i projected onto the cards?
  - benj111 4y ago
    If I said God showed me a list of all the arseholes in the world, and your name was on it. Is that defamation? If you believe in God, you could reasonably believe that God came down and showed me the list. If you don't believe, then this is obviously made up. My personal opinion is that a 'fact' depends upon what the audience and/or speaker believes. So a tarot reading on a tarot reading channel could be construed as a fact. As could trump stating at a trump rally that the election was stolen.
- thaumasiotes 4y ago
  But tarot reading is an appeal to a supernatural force; your religious beliefs do not need to conform to what is commonly believed by other people in order to be fully protected.
  - tptacek 4y ago
    The idea here is that it is at least conceivable, if not especially likely, that you could generate some evidence that the Tarot reader just made things up on the fly, claiming to have read something in Tarot cards completely inconsistent with normal Tarot interpretation or their own previous readings; there might just be evidence that they deliberately made it up (we know they made it up, but you might find evidence in the cards, which is aneurystically ironic).
    - thaumasiotes 4y ago
      You could generate evidence that they came to a conclusion most other Tarot readers wouldn't have come to, though even that would be very difficult. But that would be irrelevant against the defense "I have a superior understanding of how to read the messages in the cards than other people do". Which seems like a pretty likely defense. If you can prosecute "the cards told me X is the murderer", you can also prosecute "God told me X is the murderer"; they are identical claims.
      - bawolff 4y ago
        > If you can prosecute "the cards told me X is the murderer", you can also prosecute "God told me X is the murderer"; they are identical claims. Can't you prosecute the latter though? Its not like freedom of religion is a get out of jail free card. Like you can't murder someone and then say $deity made me do it.
        thaumasiotes 4y ago
        > Can't you prosecute the latter though? No, you can't; it might be true.
gnicholas 4y ago
From what I recall of law school, the reasonable person standard is most common in tort law, and specifically in negligence cases. These involve car accidents, trip and fall, etc. There is no general overarching rule that applies a reasonable person standard to all areas of law.
- tptacek 4y ago
  Defamation is a tort. :P
  - gnicholas 4y ago
    Indeed, but not one of negligence!
gnopgnip 4y ago
Yes in some cases this is a factor. In CA, from the 1703 Defamation per quod civil jury instruction notes, That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff] And “If [a] defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
- TeMPOraL 4y ago
  Interesting. So imagine I combine some niche industry terms to call you something nasty - say, "init forker" - and make it a statement of fact, though one that's hard to discern even for insiders, much less for the general audience. But it so happens that you're an influencer on the side. You make an angry Tiktok video whining about me. Then someone in your audience makes a YouTube commentary about it. Then someone else makes a counter-commentary. Fast forward one week, half the population in the country knows what "init forker" means. Would this give you grounds for an effective libel suit? Even if it only became "matters of common knowledge rationally attributable to all reasonable persons" after the fact, thanks to third parties making the story viral on the Internet?
  - noduerme 4y ago
    I don't know, but it's a great reason not to expand libel law. Especially in an age where everything is permanently recorded but the sequence of events is increasingly elided.
  - gnopgnip 4y ago
    Yes the legal system in CA requires that at least one person other than the person being insulted here understands it is a defamatory statement made in writing for a a libel per quod case. It doesn't require the general public or a theoretical reasonable person would understand it, but then as a practical matter unless many who received the message understand it the damages would be minimal and it wouldn't be worth a civil case. And it still needs to meet all the other requirements, the statement needs to be provably false. Not just an opinion, not a substantially true statement, that the statements were made(in writing) to someone other than who they were about, there were actual damages and they damages were substantially caused by the libelous writing. Showing actual damages in a defamation case is hard
noduerme 4y ago
>> surely there's some kind of "reasonable person" standard at some point, right? Are you referring to whether a reasonable listener would believe the defamatory claims? Or whether the person doing the defaming could reasonably be expected to know better than to believe what they're saying? Normally, we think of situations where the defamer is a crazy person and no reasonable listener would believe them. But the distinction seems pertinent to the potential prosecution against Trump based on the Jan 6th committee hearings, because in that case the normal "reasonable person" standard would be inverted. A reasonable listener could easily believe that the President of the United States was describing reality when he claimed he knew the election was stolen and that the Vice President could legally overturn the results. His defense may well rest on whether he himself could have reasonably believed that what he was saying was true.

by mbg721 4y ago

I don't have anywhere near the background expertise that you do, but surely there's some kind of "reasonable person" standard at some point, right? Or is that just for juries in criminal trials?

tptacek 4y ago

Danger, Will Robbins. I have zero expertise; I'm an annoying nerd like most of the rest of us. I just read lots of law blogs. :) The post touches on this: In determining whether the audience is likely to interpret a statement as one of fact or one of opinion or hyperbole, courts consider a viewpoint of an audience familiar with the speaker, the forum, and the circumstances. The interesting thing here --- and this is useful for HN, which sometimes has very weird ideas of what constitutes defamation --- is that opinions can't be defamatory. You need to be able to trace a defamation claim back to a damaging revelation of a false fact. Here, the root of the damaging claim is a Tarot reading, which is what makes this case spicy.

mbg721 4y ago
(It's Will Robinson.) This sounds like a Perry Mason episode...either the tarot reading has some kind of observable truth, in which case it is treated as a fact, or it's just made-up nonsense, in which case it is opinion.
- ummonk 4y ago
  Even if it's treated as fact, it has to be false. Has she lied about what cards she saw in the tarot reading?
  - 082349872349872 4y ago
    But that's tptacek's original point: what if she saw a "3 of Cups", and said "3 of Cups means that Professor X did Y (in the Conservatory)". Is that an opinion (her interpretation of what the card means) or a lie (because it's highly unlikely there's any system in which that card could possibly lead to that interpretation)?
    - ArmandTanzarian 4y ago
      That isnt how the cards work, nor could anyone with the most rudimentary understanding of the cards interpret such a thing from any set of cards. I don't know if "liar" is the word i'd use, but anyone making such concrete statements based on a reading is not doing any research whatsoever on card meanings. I am in the camp that the cards are an excellent tool at helping the user examine their situation/self/ethics in an abstract way that ultimately help us better understand our feelings and address issues that we may be ignoring. It does seem rather uncanny reflecting on previous readings and how they consistently seem to accurately reflect situations and courses of action, but surely this is what i projected onto the cards?
- benj111 4y ago
  If I said God showed me a list of all the arseholes in the world, and your name was on it. Is that defamation? If you believe in God, you could reasonably believe that God came down and showed me the list. If you don't believe, then this is obviously made up. My personal opinion is that a 'fact' depends upon what the audience and/or speaker believes. So a tarot reading on a tarot reading channel could be construed as a fact. As could trump stating at a trump rally that the election was stolen.
thaumasiotes 4y ago
But tarot reading is an appeal to a supernatural force; your religious beliefs do not need to conform to what is commonly believed by other people in order to be fully protected.
- tptacek 4y ago
  The idea here is that it is at least conceivable, if not especially likely, that you could generate some evidence that the Tarot reader just made things up on the fly, claiming to have read something in Tarot cards completely inconsistent with normal Tarot interpretation or their own previous readings; there might just be evidence that they deliberately made it up (we know they made it up, but you might find evidence in the cards, which is aneurystically ironic).
  - thaumasiotes 4y ago
    You could generate evidence that they came to a conclusion most other Tarot readers wouldn't have come to, though even that would be very difficult. But that would be irrelevant against the defense "I have a superior understanding of how to read the messages in the cards than other people do". Which seems like a pretty likely defense. If you can prosecute "the cards told me X is the murderer", you can also prosecute "God told me X is the murderer"; they are identical claims.
    - bawolff 4y ago
      > If you can prosecute "the cards told me X is the murderer", you can also prosecute "God told me X is the murderer"; they are identical claims. Can't you prosecute the latter though? Its not like freedom of religion is a get out of jail free card. Like you can't murder someone and then say $deity made me do it.
      - thaumasiotes 4y ago
        > Can't you prosecute the latter though? No, you can't; it might be true.

gnicholas 4y ago

From what I recall of law school, the reasonable person standard is most common in tort law, and specifically in negligence cases. These involve car accidents, trip and fall, etc. There is no general overarching rule that applies a reasonable person standard to all areas of law.

tptacek 4y ago
Defamation is a tort. :P
- gnicholas 4y ago
  Indeed, but not one of negligence!

gnopgnip 4y ago

Yes in some cases this is a factor. In CA, from the 1703 Defamation per quod civil jury instruction notes, That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff] And “If [a] defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)

TeMPOraL 4y ago
Interesting. So imagine I combine some niche industry terms to call you something nasty - say, "init forker" - and make it a statement of fact, though one that's hard to discern even for insiders, much less for the general audience. But it so happens that you're an influencer on the side. You make an angry Tiktok video whining about me. Then someone in your audience makes a YouTube commentary about it. Then someone else makes a counter-commentary. Fast forward one week, half the population in the country knows what "init forker" means. Would this give you grounds for an effective libel suit? Even if it only became "matters of common knowledge rationally attributable to all reasonable persons" after the fact, thanks to third parties making the story viral on the Internet?
- noduerme 4y ago
  I don't know, but it's a great reason not to expand libel law. Especially in an age where everything is permanently recorded but the sequence of events is increasingly elided.
- gnopgnip 4y ago
  Yes the legal system in CA requires that at least one person other than the person being insulted here understands it is a defamatory statement made in writing for a a libel per quod case. It doesn't require the general public or a theoretical reasonable person would understand it, but then as a practical matter unless many who received the message understand it the damages would be minimal and it wouldn't be worth a civil case. And it still needs to meet all the other requirements, the statement needs to be provably false. Not just an opinion, not a substantially true statement, that the statements were made(in writing) to someone other than who they were about, there were actual damages and they damages were substantially caused by the libelous writing. Showing actual damages in a defamation case is hard

noduerme 4y ago

>> surely there's some kind of "reasonable person" standard at some point, right? Are you referring to whether a reasonable listener would believe the defamatory claims? Or whether the person doing the defaming could reasonably be expected to know better than to believe what they're saying? Normally, we think of situations where the defamer is a crazy person and no reasonable listener would believe them. But the distinction seems pertinent to the potential prosecution against Trump based on the Jan 6th committee hearings, because in that case the normal "reasonable person" standard would be inverted. A reasonable listener could easily believe that the President of the United States was describing reality when he claimed he knew the election was stolen and that the Vice President could legally overturn the results. His defense may well rest on whether he himself could have reasonably believed that what he was saying was true.