Libel, blogs and interactive books: Should you sue a malicious liar if he won’t back off, despite the clear-cut facts?

Here’s a libel-related question for bloggers and those of us looking ahead to e-books with bloglike features and forums run without constant babysitting by lawyers. The twist is that it’s from the perspective of a potential plaintiff.

What if you’re up against a gung-ho liar whose nose, by Pinocchio standards, would be twelve feet long. Should you sue? I’d welcome thoughts from members of the TeleBlog community. I hate the idea of the Internet becoming a libel battleground; you know how I feel about governments and the Net. But even by Internet standards, can a liar go too far in his campaign to transmute falsehood into “fact”? Are there very rare times when we should use libel law to protect our online reputations? To entice you to read on, I’ll tip you off that a Sony Reader figures in this little story; in fact, you might pay special attention if you saw our July 4 post about the Reader on sale at $99.99. Now, here’s some background.

A business guy’s smear campaign against a blogger

Again and again the slime oozes out. in the Big Lie tradition of Hitler and the Nazi propagandist Joseph Goebbels, despite ample proof to the contrary. Third Reich parallels aren’t fashionable online in these days of Godwin’s Law, but Mr. Pinocchio-Goebbels is just begging for some comparisons, given the flagrance of his lies. To what extent does the normal wisdom about interactivity apply—namely that the Internet is “self-healing,” that truth in the end will tromp lies?

Mind you, Mr. Pinocchio-Goebbels isn’t the Nazi in the photo to the left. Rather he is merely a Goebbels-level liar, an eagerly obnoxious braggart who in another context has boasted about the thousands of dollars he’s spending to promote his site. He might not be rich. But financially he can outgun you. You’re just an independent blogger with a semi-invalid wife you help between your posts and other work-related activities. Your budget for search engine ads is $0, so money just might triumph in the end over the facts. The man appears to be out to destroy your credibility. You lack ESP but believe that he sees your advocacy of e-book standards as a threat to his business, which is built on the supplying of e-books in many formats. In fact, standards could ultimately make his own life much easier, with less format-jockeying to do. But tell that to Mr. Pinocchio-Goebbels, who again and again insults you. Yes, mere opinions do and should enjoy First Amendment protections; however, in this case we’re not talking viewpoints alone, but also about pure facts ignored or distorted in most malicious of ways, one of the criteria used to determine the validity of libel suits here in the United States and elsewhere.

A Sony Reader and the not-so-hypothetical specifics

This case isn’t so hypothetical, as you may have guessed; and upon reading the background, many readers of the TeleBlog will know instantly know how risible the lies are. On July 4, 2007, a poster over at MobileRead shared a neat little scoop—word that the Sony Reader was on sale at TigerDirect for $99.99. I followed through with my own order, #I8822670, at 8:00:44 a.m., with $8.49 added on for shipping, and shared the news with my collaborator Robert Nagle, who bought his own Sony. The UPS tracking number later on would be IZW7X2360386395533. I published the inevitable news item in the TeleBlog (via a post begun at 8:15 a.m. and later updated at around 2 p.m.) before the reader sold out. My Sony item drew time-stamped comments not just from Robert but also from Marcus Sandman, Rob Preece of BooksForABuck, Ben, Jon Morgan, Flametoad and  Gerry Manacsa, the Wowio blogger. Marcus’s comments were the first, coming from Finland at 8:56 a.m. Eastern Daylight. No ifs or buts. I bought a Sony PRS-500, promptly told TeleBlog readers about the TigerDirect deal, and owned the Sony until I sold it a short time later to a man in France in order to help pay for a PRS-505. You can see the original post and the comments not only in the TeleBlog but also in Google’s cache.

Given the abundance of proof to the contrary online, just how could anyone write the following about me and the good-hearted Robert Nagle? “…why did you lie to your traffic about buying a Sony Reader on July 4th? Do you just think they’re stupid? The cover-up on that one, whoo. Throwing Nagle under the bus…” And yet this is exactly the accusation that a businessman named David Leach, aka David Moynihan of Blackmask fame and notoriety, made in in the comment area of his Technosnarl blog, having earlier come up with a similar claim.

Ridiculous, no? Who should care? But The Leach’s actions jibed perfectly with the Nazis’ Big Lie technique and his  love of attention whoring, as he calls it. I asked The Leach for an apology and cited unassailable facts in the paragraph above. Instead he kept insisting that I backdated the post and tried to conceal this. The Leach may or may not be right about
the time period for the Google cache, but that still can’t eradicate the memories of Marcus, Rob and the others.

Over the summer the TeleBlog did have database problems, but whether or not the page shows up soon with a verified July 4 date in the Wayback Machine at the Internet Archive, human witnesses are around to vouch that I didn’t change the time stamps to cover up a false claim. They saw the post when it appeared! As for the actual purchase date, TigerDirect can back me up in a flash. Because of identify-theft risks, I’d prefer not to reproduce the actual invoice, but in the courtroom, I’d be most accommodating.

A lie repeated

After spreading the Sony-purchase canard and refusing to accept the facts, The Leach has repeated his lies in a January 22 post that, as I see it, libelously reflects on my professional integrity. Quote:

“What’s he so upset about? Oh, not much. Just that Rothman would have had us believe that he–a grown man, mind you-bought a Sony Reader, online for $100 at Tiger Direct–then didn’t tell anybody on his site, the way Mobileread and others did–but Rothman, in the original, didn’t mention the sale ’til long after Tiger Direct ran out of devices.”

The question: Should I sue?

Now here’s the issue. Is my situation a rare exception to the commonsensical belief that government and the courts should keep their hands of the Internet? Should I sue The Leach over the Sony-related lie or perhaps over some of his other gems, which may or may not be as actionable? Remember. Calling someone an idiot is one thing—I’ll return the compliment to The Leach and add “liar” in the bargain—but backing up the argument with false “facts” is another.

My current thinking is an emphatic, “No lawsuit!,” and not just because I can’t afford a lawyer and court fees. The Leach isn’t Wagner in talent and in fact is a mediocre writer of fiction designated as such, but with his useful pursuits in mind, such as his postings of public domain books, the same concept might apply here. Love the music. Hate the darker regions of the mind behind it. The Leach just happens to have a knack for finding quirky, entertaining old masterpieces, and I can see the benefits of his Munseys site even if it’s far from the glories of his easier-to-use Blackmask. Unless I can definitively prove that The Leach ripped off a writer—that’s actually the assertion from a crippled, cash-strapped woman in Louisiana, who believes he spread around her writing without authorization, an accusation he denies—I’ll try to cut him some slack on all fronts. But what if The Leach keeps up the malicious lies against me, a very real possibility? Just what should I do? Attempt to line up pro-bono legal help? Set up a legal offense fund? Your thoughts, readers? I’ll not play lawyer with specific laws, but, accurately described or not in Wikipedia, here are some defenses against libel suits–as well as evidence that The Leach might not fare too well with them in court if I slapped him with a defamation suit or other legal action:

—Truth. Sorry, Leach. You’re nuked. The TigerDirect information doesn’t jibe very well with your assertions that I lied “about buying a Sony Reader on July 4th” and tried to cover up my tracks. Nor would the comment time stamps and the witnesses support your assertion that I withheld the information from TeleBlog readers until after the sale. Allow me a little hyperbole so I can quote Mary McCarthy on the topic of Lillian Hellman: “‘Every word she writes is a lie, including ‘and’ and ‘the.’ ”

—Statements made in good faith, assuming they were true. Wiped out again. Leach, you wrote your Jan. 22 post while aware that I not only had the time stamps on my side but also witnesses, my commenters.

—Privilege, as in quoting court statements. Not good for The Leach. This is a possible future court case, not an existing one.

—Opinion. Out of luck, pal. The invoice and the times of the comments are absolute truth, not “I believe.” Stupid opinions are defensible, but not when mixed with brazen falsehoods.

—Fair comment on a matter of public interest. I suppose I should be flattered that The Leach considers me worthy of such intensive attention, clinging to me like—well, you know. Newspapers are media, blogs are media, and media criticism is okay. But how “fair” is fair, given The Leach’s persistent malice, as indicated by his latest post in reckless disregard of the facts?

—Consent. Nope, I didn’t give The Leach permission to smear me or spread his libel

—Innocent dissemination. I can’t sue The Leach’s ISP for helping him spread his bilge if it doesn’t know what’s happening, and besides, I’d not enchanted with the idea of ISPs being editors or censors. The Leach himself is another case, however, with his knowing dissemination of lies.

–A reputation tarnished to the point where there’s nothing to be lost. Unfortunately for The Leach, I’m not Al Capone. Not everyone loves the TeleBlog, but it is blogrolled at places like the Wired Campus blog of the Chronicle of Higher Education, the MacArthur-funded Institute for the Future of the Book and blogs for Simon and Schuster and Oxford University Press. I’ve been on the Net almost 15 years. My reputation is worth something to me in terms of my cause, well-stocked national digital libraries, and in the dollars and cents I need to keep the TeleBlog going. No one pays Robert or me. We’re going after advertising these days, not to get rich but to keep the blog sustainable. The money I receive from related postings to Publishers Weekly—yet another indication of a reputation to lose—is hardly major.

So how much damage has The Leach done to me? Hard to say. Among people who don’t know me and just happen across his blog, there could be some instances where The Leach will hurt me financially. I’d like to think, however, that one of the main arguments against filing a suit is this: The Leach is regarded by many as a rogue, not just by his enemies at Conde Nast, which means he isn’t exactly brimming with the credibility needed to make the Sony-related canard stick. I loved the old Blackmask. But I’ll not confuse the site with the character of the man behind it, and I’m not alone. Significantly, to my knowledge, The Leach failed to get major help from the public domain community when Conde sued him for violating the copyrights of the Shadow and Doc Savage series. The general consensus was that his legal position were shaky and that he chose the wrong fight, given the current laws. Obviously the judge agreed.

Meanwhile I hope that this post will mitigate the damages from The Leach’s lies, since it will give regular TeleBlog readers a chance to dispute my statement that the July 4 post happened as I described. Will someone do that? Hardly likely. If you read the TeleBlog on July 4 after I first reported the TigerDirect offer, I don’t have to tell you that The Leach is lying even with his ands and t
hes.

A few more words on the “why”

Besides business reasons and attention whoring, other explanations could exist for The Leach’s jihad against me. I won’t get into them all, but note his natural proclivities as a bully who just might love the darker side of anarchism because it frees him from the rules against beating up people. He’s depicted himself as a body builder and former bartender, and given all his bellicose words, I can imagine him actually relishing brawls. In my head I see The Leach shaking his fist, itching for a fight, in a dark, smoky beer joint with a buckling linoleum floor and neon-lit jukebox. Real life is staider. He simply sends insulting e-mails, including one with hectoring, ageist rhetoric, and he lies about me in public. I’ll not be silenced. The Leach is beyond the “Don’t feed the trolls” countermeasures, given the intensity of his attacks and his brazen flouting of the truth. And that is why some might suggest a libel suit against The Leach. I’m not ready for one now, and I suspect that most TeleBlog readers would agree. But—-despite my lack of resources and the feelings of many of us against lawyerish meddling with the Net—should we say that a libel lawsuit is absolutely impossible no matter how surrealistic and defamatory are The Leach’s accusations? How do you feel?

Detail: I was going to post this below the PDF-related story, but the more I thought about it, the more I realized it deserved better play than that.