In comments, I saw someone say DeSmogBlog has been served but I don’t see any announcement at their blog yet. It seems Greg Laden got a letter too; Laden’s post is dated February 19, 2012 10:50 AM.
This appears at Heartland’s site
Heartland Institute Sends Legal Notices
FEBRUARY 19 — The Heartland Institute has sent legal notices to numerous Web sites, blogs, and publications asking them to take down the stolen and forged documents and what it views as malicious and false commentary based on them.
The following statement by Heartland Institute President Joseph L. Bast may be used for attribution. For more information, contact Director of Communications Jim Lakely at jlakely@heartland.org or 312-377-4000. (NOTE: The Heartland Institute’s first response to the posting of stolen and faked documents can be found here.)
“We realize this will be portrayed by some as a heavy-handed threat to free speech. But the First Amendment doesn’t protect Internet fraud, and there is no right to defamatory speech.
“For 28 years, The Heartland Institute has engaged in fierce debates over a wide range of public policies – school reform, health care, telecommunications policy, corporate subsidies, and government waste and fraud, as well as environmental policy. We frequently and happily engage in vigorous, robust debate with those who disagree with our views.
“We have resorted in the past to legal means only in a very few cases involving outright fraud and defamation. The current situation clearly fits that description, and our legal counsel has advised that the first step in defending ourselves should be to ask the blogs to take down the stolen and forged documents.â€
Joseph L. Bast
President
The Heartland Institute
jbast@heartland.org
312-377-4000The Heartland Institute is a 28-year-old national nonprofit organization with offices in Chicago, Illinois and Washington, DC. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site or call 312/377-4000.
My impression is that it’s legal to quote from stolen documents with some caveats See Remember when Sarah Palin’s email was hacked?. One of the caveats is “…assuming that [the entity posting] was not involved in the hack.”
But there are some tweeks in this case that did not exist in either the Palin or Climategate case. Orin Kerr’s article at Volokh was silent on the issue of what happens if the documents posted turn out to be fraudulent. I’m not sure what Heartland’s lawyers are contemplating. The civil and criminal liabilities may not be for posting but for something else.
Notwithstanding all the commenters at Laden’s blog telling him he hasn’t violated copyright, as far as I can tell, Heartland isn’t complaining about a copyright violation. What tort or crime Heartland is contemplating alleging I don’t know; I certainly can’t tell from the letter.
I suppose what remedy they might pursue depends on what the evidence trail Heartland has followed has shown up and we’ll see what Heartland does in due time.
http://www.crikey.com.au/2012/02/20/heartland-launches-legal-action-against-climate-change-bloggers-journos/
Heartland’s communications spokesperson Jim Lakely told Crikey that so far five media organisations have been sent legal letters: Brendan de Melle from DeSmog Blog, Brad Johnson from ThinkProgress, Arianna Huffington from The Huffington Post, John H. Harris from Politico and Greg Laden, a blogger at ScienceBlogs. However at least one other climate blog received a legal notice notice.
—
And some comments from Laden & Desmog – doesn’t like they’re planning to back down from their comments.
Copner–
I agree the comments at Laden seem to be telling him to stand firm against Heartland. More importantly: It’s been about 12 hours and Laden hasn’t (as far as I can tell)* taken anything down. I guess we’ll see something…
(I don’t know why he doesn’t consider the option of taking down while he consults with his attorney and then put it back up if his attorney advises leaving it up is safe. I guess he’s got a strong stomach.)*
*Not use of parentheses.
Read Laden’s comments in the crikey article, or Littlemore’s on desmog.
————————————————————————————
Laden in the crikey article:
“As far as I can tell, looking at it no one I know who is a lawyer would retain staff who are as incompetent as those who wrote this letter,†said Laden.
How can Heartland seek action against a document it says is a fake? “They can’t take down a document they have nothing to do with,†said Laden. “If it’s made up and has nothing to do with Heartland, it would be difficult for them to argue that I should take it down off my website.â€
But he sees the legal letter as a threat from Heartland against those who write about climate change and climate science. “It’s obvious to me Heartland is interested in making people who argue against their point of view quiet,†said Larden. “They want people to shut up.â€
————————————————————————————
Littlemore – for some reason this link doesn’t appear on the desmog frontpage when I view it. — note quite a few typos, like “dmanding” (in the quoted extract below) and “inlcude” (near the bottom) – did he write this quickly? Anyway: http://www.desmogblog.com/heartland-demands-desmogblog-remove-climate-strategy-document
Heartland Demands DeSmogBlog Remove ”Climate Strategy” Document
DeSmogBlog will leave them in place – in the public interest
Heartland Institute general counsel Maureen Martin has sent letters to the DeSmogBlog and several other publications dmanding that we remove all Heartland-related documents that we posted on February 14, as well as all related commentary.
After due consideration, we could see no basis in fact or law for Heartland’s demand that we remove these documents.
Copner–
I’m mystified why Laden thinks Heartland can’t take legal action for a fraudulent document. I know they can’t pursue any action under copyright but copyright isn’t the only statute in the books.
Now… I’ll click the link you left.
Littlemore: “DeSmogBlog: Heartland has never identified the alleged “obvious and gross misstatements” in the “climate strategy” document. We have not identified any. Neither does Heartland specify anything “unlawful” about publication of the “climate strategy” document.”
Is he really saying his defense is going to be “fake but true”? Or have I completely misunderstood what he’s saying?
“In comments, I saw someone say DeSmogBlog has been served…”
I think being served is when a marshall knocks on your door and hands you a subpoena with a court date. That letter reads more like an initial shot across the bough.
I think this article may shed a little light on the possible repercussions for those who do not comply with the C&D request:
Blogger not eligible for media shield law, hit with $2.5M judgment
http://arstechnica.com/tech-policy/news/2011/12/judge-blogger-not-eligible-for-oregon-media-shield-law.ars
Now this is strictly based on Oregon shield laws, so we’ll see how it impacts any future litigation though I’m sure any competent attorney will cite this particular case in their filing.
You may remember that Mr. Laden tried to hang tough in his commentary on The Raid At Tallbloke Towers.
IANL, but it seems to me that a minimum, Desmog and some of the others could be skirting quite close to the edge of libel. They have posted a forged document and originally purported that it was authored by Heartland. It is also quite clear that their intention has been to adversely affect Heartland’s reputation. Now, as to the original posting, you could say they didn’t knowingly publish a false statement, but since there was apparently no effort to verify the authenticity of the document, it could be argued they acted with reckless disregard for whether or not it was a authentic document. By refusing to take it down, they may be liable under the knowingly publishing a fake document. Under civil law (which is where I think libel lies), the burden of proof is less than in a criminal situation.
I don’t know- Mann used legal intimidation over a parody song that used a university owned image of him. If I recall, it was a cute song called “Hide the Decline”.
http://www.breitbart.tv/youtube-yanks-all-versions-of-hide-the-decline-climategate-song/
So some internet intimidation is more easily carried out than others.
I’m not sure ‘fraudulent’ is the word you are looking for. The allegdely faked document doesn’t seem to be an attempt to defraud HI. Arguably it is defamatory but that would be a different issue again. The ‘fraud’ from HI’s point of view was how the documents were obtained (and presumably therefore wouldn’t include a fake document).
I suppose ‘false trading’ might apply – and that is a species of fraud – if somebody was selling on the document as being a genuine HI document.
I am pleased to see that Michael Mann’s bluster was as real as his other claims and threats:
http://www.youtube.com/watch?v=nfVwEBkuqts
The original video is back up, and it is still great.
I doubt if HI is going to get anywhere getting extremist websites to stop broadcasting forged and fabricated falsehoods about what HI does. So the believers have something that is less real than a screen door with an image of the Virgin Mary in it to give them comfort for their faith. Meanwhile, we have climategate v1.0 & v 2.0, with v3.0 eventually to be released, hopefully. I say let Romm, desmog, etc. continue to make certain that people associate them with forgery.
Nyq Only,
You mean the person who counterfeited that memo did not intend harm to HI?
Do you mean that desmog, et al did not broadcast this counterfeit memo as a means to silence HI and to at the least damage its credibility in the public square?
hunter–
I think he only means that “fraud” is a specific legal act. One can harm and intend to harm without committing fraud. So, phoning, mis-representing yourself and getting documents could be fraud.
But writing the memo, communicating to others that it was obtained from HI when it was not could be libel. Of course that depends on whats in the document. Both cause harm.
Heartland has a case for defamation and libel not fraud.
The biggest hurdle they have is overcoming the “[substantial] truth of the defamatory communication†defense that the Secret 15 would but up.
Here are the general criteria for substantially true defense
1. whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
2. than a truthful statement would have been, and
3. [w]e look at the ‘gist’ of the publication to determine whether it is substantially true.â€
Lot of cases like this already in system most notably Shirley Sherrod’s suit against blogger Andrew Breitbart
I suppose then one could construct a fake climategate mail, and post it along with other real climategate mails, and this would be ok. Lucia, lets have a competition to see who can construct the most acurrate but most damning fake climategate mail..
hunter (Comment #90709) February 19th, 2012 at 10:54 pm
What Lucia said. 🙂
steven mosher (Comment #90725) February 20th, 2012 at 12:39 am
I love competititons!
From: gavin
To: Michael
Hi Mike,
Just recieved a shed load of cash from the Heartland Institute. Looks like the plan is all coming together. Is Watts on board? If everything goes to plan we should all be able to keep this thing going for a couple of years. That way nobody will notice what CRU, WUWT, Real Climate, Climate Audit, Monaro, Gore, Saul Alinksy, and Sarah Palin are REALLY up to.
Seriously? Did nobody notice that Mauna Loa is a volcano and that we built a base on it? Don’t they even watch movies?
Yours
gav
LOL – Let me try my hand at writing a completely ficticious e-mail meant entirely for amusement and not meant to cast aspersions or suspicion upon anyone.
From: Fhil Jones
To: David Falmer
David,
Regarding those USB flash drives that I was showing you at lunch today, the ones with all those e-mails and files that I successfully removed from my desktop after receiving those FOI requests last week, did you happen to pick them up afterwards or should I ring the restaurant?
Cheers Fhil
haha jeff. nice. Nq, also nice
It’s a stupid game. There are to much climategate emails still undercover. Even if a fake is sterilized, it does not prove that a fake climategate email is not a real climategate email. I need proof before believing it’s a true fake.
More seriously but still in the paranoid mode – I find this action from Heartland a little odd. Now when I say “odd” I should clarify:
1. I don’t think it odd that a company/organisation/etc would feel wronged by the release of these documents and hence seek legal redress
2. I don’t think it necessarily immoral that they do so
So when I say “odd” I don’t mean morally, legally or outside social norms.
However Heartland is an organisation within the field of promoting ideas and ideas within a political framework. They are organisation with some knowledge of PR and spin.
The legal threats will achieve little in limiting the damage to their reputation. The allegations of fakery were doing a better job of casting HI as the victim and their detractors as ethically dubious. Legal threats like these usually play badly in the arena of the Internet. Further HI would surely be aware of how accusations of criminality did not help UEA:CRU recover from the damage of “Climategate” and surely must have noticed how police involvement such as the confiscation of Tallbloke’s computers were counterproductive PR.
….. but it is the interest of skeptics for the warmists to tough it out.
In defending the indefensible, by dealing in tricks and fakery, and arguing that wrong is somehow right undermines climate science more than anything a skeptic can say or argue. When public trust evaporates, as is happening, due to the behaviour of proponents of AGW then ordinary people are more than willing to listen to smaller, quieter and constrained voices.
Laden says in that post:
“I just got this email. I have no way of telling if it is authentic”
He had no way of telling whether the supposed Heartland documents were authentic either. He’s skating on very thin ice.
The HI have stated that they were subjected to a Phishing attack; there was criminal deception and a criminal conspiracy to mislead someone at HI as to the identity of the holder of an email account.
‘I am board member ‘X’ and this is my new email account, please send me documents ‘A, B, C’ to my new account. The CAN-SPAM Act of 2003 makes it an offence.
Nyq
The situations have some important material differences that might make public reaction differ.
1) In this case, there is an allegation of a fake document. Nearly all — in fact possibly all–the quotables quotes are from the fake. People understand that out and out fakery is not right.
2) Heartland is very specific about how those bits a that are real were obtained — it was Phishing. Presumably, they know when the email was sent out and whose email address it went to. This suggests that Heartlandinsider was outside Heartland, and so cuts the legs out from under claims that it was an internal whistleblower. People understand that phishing is bad.
3) Other than personnel data or brand new not yet announced information like salary levels, reasons why people were fired, promoted, changed jobs or picky details like precisely how much Singer’s outfit is paid, or the the fact that January Heartland had started funding two new projects (Watts’s temperature and Wojcik’s educational packets) there wasn’t anything remotely new or ‘secret’ in the material. When people claim that something “new” was divulged, it’s perfectly easy to show all this stuff was in the open. (For example the “schocking” revelation that the new documents “revealed” Heartland funded the NIPCC document is easily countered by showing the frontmatter of the document which has Heartland’s logo all over it and lists Joe and Carol Bast as editors!)
4) The existence of the “Dear Friends (15 of you)”, and the identifies of the bloggers who got it pinpoints the number of people who Heartland or if legal authorities are persuaded this is a criminal matter the police might want to encourage to volunteer information in this matter. (Police might question people. Lots of people got questioned in the CRU matter. I think Jeff Id, SteveMc etc. All this long before the Tallbloke incident. It’s only the Tallbloke incident involving a nighttime visit with a ridiculous number of police that really got bad press.)
5) Heartland is acting fast and it’s intuitively clear what they are seeking. a) Who phished, b) Who wrote the fake memo, c) why the bloggers who posted information did not check to see the fake was real, d) evidence of some sort of collusion in the phishing/authoring/blogging. (What case they might ultimately make to a court would depend on what evidence the ultimately accumulate. )
6) Mashey is going around muddying up the waters by circulating the 213 page nearly unreadable and as far as I can tell unquoteable opus discussing everything he hates about Heartland, SEPP and whoever. But that discussion in there doesn’t seem to really blend well with those documents that are not-fake, and don’t even mesh well with the fake document!
7) Importantly: PR for Heartland works differently from PR for a tax payer supported institution or taxpayer supported government workers. Heartland is a think tank supported by donors. By definition nearly all think tanks are always hated by people whose position they counter. Also, because of their function, think tanks are always supported by donors who represent a tiny fraction of the Electorate. So, for Heartland, the fact that the group containing Mashey who already hates them will continue to dislike them is not a problem. This will only make their donors like them better, and help Heartland. So while Heartland gets the benefit of a preferred tax status, it doesn’t need to worry that legislators will cut its support. In contrast, an entity that receives direct taxpayer funds does have to worry about it.
So, I think Heartland has less to worry about PR fall out in this than CRU or NASA or the scientists had in the CRU situation.
(I know someone is going to jump in and say Mashey’s thing-gummy is all organized and cross-indexed. I know he seems to want to inspire the tax hounds to go after Heartland and Friends-of-Heartland. I know he has allegations of some tax violations. When reading, I thought: I’ll try to make this tractable by picking one rule they supposedly violated. So, I picked lobbying. I read the IRS definition of lobbying, tried to find a place where Mashey shows actual lobbying was done. In one instance I found “If this somehow stays within the letter of the 501(c)(3) law, it violates the spirit. IRS-5L”. It violates the spirit of the taxcode?! The IRS doesn’t and can’t go after anyone for violating “the spirit” of the tax code. I don’t know if any of the other “IRS-XX” have equally bad ‘evidence’ for a violation. I’ll wait for someone who thinks Mashey has created a convincing document to list each rule and tell me the specific action that results in a earthly– not spiritual– violation and explains in a concrete way how that violates. But in the meantime, that discussion is going to be so diffuse and confusing it’s going to take away focus from any reaction to police arriving to arrest someone for phishing.)
I believe Mashey’s document is really unhelpful to desmog.
I can’t make sense of it either. It lots of generalized “you’re bad and I hate you stuff”, which of course I’d expect him to say. The problem is that he’s going round suggesting it proves that HI broke the law, but nobody seems to know what quite law, or can find the proof in his doc. (Maybe, I’m wrong and he has all the proof of illegality, but I’m yet to find it).
Anyway, his allegation that HI is breaking the law may itself be defamatory if he can’t really prove it. And even if his allegation is not defamatory, it could be used by HI to help show malice – Desmog really is out to get them.
One other noteworthy different from the CRU emails (I already posted this at wattsup):-
Aside from any real vs fake, and publicly-owned vs privately owned issues relating to Heartland vs Climate, there’s another important difference: The content.
While the climategate emails contain stuff that the team would prefer to keep private, I’m not aware of any really confidential personal & financial information in them. If there is, it hasn’t been widely published or discussed/ For example, I don’t think the climategate details contain something like Phil Jones’s credit card number, or personal bank transactions details, or a list of every paid project he’s done in the past few years.
On the other hand, putting aside the obviously faked strategy memo, the supposedly authentic budgets and so forth do contains lots of personal details of Heartland, it’s employees, and it’s donors. And people are already making use of that information, not only merely by publishing, but for example, by contacting organizations that Heartland has interacted with and demanding they stop.
So what you have is documents obtained by fraud, containing very sensitive information, and then people using that sensitive information – in conjunction with fraudulent information from the faked document – for purposes that are best harassment, but may well fall under torts like tortuous interference and/or interference with contract.
The civil and criminal liabilities may not be for posting but for something else.
For a libel case to stick against a public figure ‘malice’ needs to be present.
Either –
The story was published with the knowledge that it was false.
or
The story was published with reckless disregard of whether or not it was false.
As Heartland has stated the memo was false those who posted it are riding the ‘reckless disregard’ line unless they can explain how publishing a memo that the supposed author”Heartland’ claims is false isn’t ‘reckless disregard’
I’m no lawyer, just an ordinary internet idiot, but it would seem to me, it might or might not be reckless disregard not to check in the first place.
The answer however would start to become clearer, once somebody had become aware that the document was allegedly false, but continued to publish, and even wrote follow-ups, anyway.
And the answer would be seem to clearer, maybe crossing into malice-land, if somebody continues to publish, and writes follow-ups, stating we’ve been notified it’s fake, but we can’t identify the specific lies and feel the document has an inherent truthiness in it.
I think HI will have trouble proving damage in any legal action. Given that people like Joanne Nova (and I assume others) are explicitly calling for donations to HI, the opposite of damage is occurring, financially. Arguments that their reputation was hurt are going to be hard to prove.
But even a one dollar judgement would be enough to distract from how little science supports the stated positions of skeptical orgs like Heartland. So I think lawsuits are go.
harryw2–
Possibly the C&D notices serve to support the ‘reckless disregard’ claim. I’ve said before that I don’t know why after Heartland says the are fake, and McCardle thinks they sure as heck look fake, DeSmogBlog and Laden don’t take down at least temporarily. They can continue an investigation and if they discover HI was lying — or using legalese of the sort thingsbreak suggests- write a blog post discussing how they were bullied into taking it down by the lies, lies, lies, but now have new evidence that proves to their satisfaction that the claim it was fake was a lie, lie, lie and they are willing to let Heartland sue.
Some might suggest that they can’t get this info. But that’s not entirely true. Even if Heartlandinsider deleted their gmail account, I would think they could figure out how to create a new email or use FedEx to communicate with their “Dear Friends (15 or you)”, and provide them proof that the material was authentic.
Maybe print out the headers on the email they phished out of Heartland, scan those headers, show that all the attachments were from Heartland. Or provide other details.
Of course, for all I know DeSmogBlog has info that satisfies them this stuff is real based on their sources. In which case, we’ll learn what everyone has when we get to Discovery!
> In which case, we’ll learn what everyone has when we get to Discovery!
A comment about discovery.
A few of Laden’s backers are urging him onward to court, looking forward to discovery. They seem to be under the impression that discovery means that they (i.e. blog readers) will get to look at every document that Heartland has, and publish them online.
Does anybody here have that misapprehension?
My prediction is that if this does get to court, the defendant’s (or defendants’!) lawyers may get to see a lot of Heartland’s documents, but we in the peanut-gallery will see very few, if any, of them. A handful might be used in open court, but things like donors and other confidential information will probably be redacted.
Copner
Not me!!!
CEI is has been going through materials from UVA. Not a peep coming out of Horner or appearing on blogs.
Boris
Oddly, the case that HI’s reputation was damaged will be made by quoting all the people who insisted (and still insist) the attachments and fake memo contained shocking new revelations and the material did or should harm Heartland’s reputation.
In constrast, the bloggers defense would be that there is really nothing new in the leaked/phished material, everyone already knew everything in the real documents and that no one would think less of HI even if it turned out that HI thinks of itself as intentionally trying to spread misinformation.
Because I the reputational harm in the “fake-memo” is communicating the notion that HI itself believes that the material it writes is mis-information. That’s much lower than HI creating materials it things are valuable and truthful views but which others think is distorted or mis-informed.
Very likely. Probability of Heartland filing a lawsuit against someone exceeds 90%.
While we are speculating about legal causes of action, why are we limiting ourselves to discussing defamation.
Assume, for the sake of argument, that some of the info in the other documents (other than the faked strategy memo) is genuine, I would think there could be torts arising from using material improperly obtained.
Let’s suppose I somehow nefariously obtained private information of Lucia’s. Let’s say I got her credit card number or other financial information, and also a list of paid projects she’s planning in future… then I published it all online, at least in part with the intent of (or knowledge that it would be) wrecking her financial future and stopping her proceding with perfectly lawful projects & contracts… what causes of action could she come after me for? Any lawyers (armchair or real) in house?
Copner:
Based on my limited knowledge, it seems like there would be an opportunity of the lawyers to look at court sealed documents to determine the veracity of the memo contents.
Fake but accurate may even be a legitimate legal defense in that case:
AFAIK you can’t defame somebody for making claims about them which are true, even if you use fake documents to bolster your argument…I think the only problem for you here is if your Carnac abilities are more limited than you originally thought (this almost always is the case), and the things you really believed and claimed to be true turned out to be false.
In such an even, I’m pretty sure you’ve libeled them, and have dug a really big hole that you’re now stuck in. Using false and misleading documents would been seen by the court as a malicious act, and it could substantially add to the judgment against you.
I do not know how defamation works in US law but, in the UK, if I
1/were to publish a document that shows a person in a bad light (even a public figure),
2/and make derogatory comments about him
3/and continue to do so with the explicit purpose of destroying him,
4/after I had received a polite request to desist from doing so and to take down the document on the basis that the document were a fake,
then the courts would take a dim view of this. The only defence would be to prove the document genuine. Which is far from easy for the defendants. I wonder if Soros is already trying to cut his ties with DeSmog. Unless Laden wakes up, he might find himself in a whole pile olf trouble.
lucia (Comment #90764)
February 20th, 2012 at 9:47 am
In constrast, the bloggers defense would be that there is really nothing new in the leaked/phished material, everyone already knew everything in the real documents
Unfortunately, Microsoft had to issue a press release in regards to their ‘donation’ of free software to Heartland. Microsoft gives free software to any 501(c) that requests it.
So at least one donor had to go to the expense of issuing a press release.
Then we have possible commercial damage to Heartlands various ‘contractors’. Maybe Anthony’s web guy gave Anthony a ‘deal’..but is hosing some other client for 10x what he is charging Anthony for a similar project.
The same goes for the various people who are paid to write articles for Heartland. The fact that their other clients now know how much Heartland is paying them for an article may make it more difficult for them to charge whatever they were charging their other clients.
There is plenty of room in this debacle for various lawyers to help themselves to copious sums of cash.
diogenes–
Defamation is harder to prove in the US than the UK. The US may well be the country where it is hardest to prove defamation. In the US:
1) The standard for proving defamation against a public figure is much higher than for a private figure.
2) Truth is always a defense.
3) To get damages you have to prove that someones reputation was actually damaged.
4) It’s really hard to prove something if the matter is one of public interest where to some extent public discussion is necessary for purposes of maintaining democracy. (This actually is interlaced with (1). It would be nearly impossible for the sitting president of the US to prove defamation against himself!)
But the take down request will likely play an important role if a suit is filed because if with respect to (1), if it’s a public figure (or even a limited public figure) defamation requires the person who presented the untrue defamatory statements to either know they were untrue or to state them with reckless disregard for the truth. Once Heartland tells DeSmog blog the stuff in that memo is fake, it’s difficult for them to continue to disseminate them and simultaneously maintain what they wrote was not reckless disregard for the truth. (Of course, this assumes the stuff in the memo is fake. But it does look fake.)
I can see that Laden is getting a whole stack of free legal advice…. I just hope he knows what might potentially be coming his way. DeSmog are big boys. Just compare the way that Laden reacts to the legal letter with the way that McIntyre responded to the IPCC, asking for clarification of the legal points.
The Klimazwiebel blog (Hans von Storch) still has the fake memo up, and furthermore they have not even amended the blog entry to say that Heartland have stated it’s a fake.
I just put a comment on their blog.
any chances of a successful defence against defamation are surely starting to recede now, even in the US:
http://junkscience.com/2012/02/20/latimes-cites-mein-kampf-to-attack-heartland/
My IANAL sense is that the HI sent their “desist” letter to deSmog, Laden, et al as quickly as possible. This was in order to establish an early time, from which point on the bloggers’ actions could be considered actionable.
In this view, Heartland’s counsel might have thought they had a weak case against deSmog et al’s original actions, given the bloggers’ likely defense of “as far as we knew, the leaked documents that we published were genuine.” (Thus, the claims of no ill intent and no reckless disregard for the truth.)
Once notified of HI’s assertion of forgery, these defenses become much harder to sustain, ISTM.
If so, deSmog and Laden’s sticking to their guns may be seen in hindsight to have been a tactical error.
Ha…that’s a good point.
Yeah, I don’t know what they’re thinking keeping the stuff up. At this point, I think any reasonable person should have doubts about the memo’s authenticity.
As far as I know, ‘we thought it was true’ is not a defense to libel charges. ‘It is true’ is a very different kettle of fish.
For all their big talk, I think Laden and DeSmog have failed to realise just how monumentally screwed they are. If they don’t at some stage make a grovelling apology, HI will take every penny they own.
A lawyer could not wish for an easier case to win if the idiots actually fight it. There’s no question but that a reckless disregard for the truth was shown, since it’s already emerged that Desmog only had the ‘leak’ for an hour before publication: clearly not enough time to make any reasonable attempt at verification.
Any defence against the case will require Desmog and co to submit to discovery, so they’d better be bloody sure there’s no evidence linking them with the forgery itself.
As far as I can see, one key effect of these early shots is to prevent the offending parties destroying evidence. As I understand it, spoliation of evidence is prohibited as soon as there’s any reasonable possibility of legal proceedings taking place which will require that evidence.
On the criminal side of things, someone is guilty of wire fraud, which is a federal offence. Probably won’t get taken seriously, but it’s a possibility.
More intriguing is the possibility that some of the involved are guilty of criminal defamation. That very much depends on which jurisdiction it’s in, though, since it’s not a federal offence.
I have no idea if these people have families, how dedicated they are, how much they want to be martyrs – but if they have any vaguely normal motivations, we’re going to see a grovelling apology before long because they haven’t a snowball’s chance in hell of winning.
For legal definitions:
defamation
n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.
See also: fair comment libel public figure slander
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libel
1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for general damages for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages. Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune to actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct. The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U.S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or publish a written defamatory statement.
See also: defamation libel per se public figure slander
As far as the reckless disregard angle, for traditional media outlets (e.g., NYT) failure to attempt to verify the veracity of the documents might be considered reckless disregard. That is why major news organizations have factotums. Whether this would necessarily apply to blogs, I am not sure. Nonetheless, once the blogs were notified it was fake and their response to-date has been “Nyah, nyah, nyah, nyah, nyah…we see no evidence that it’s fake because it contains some apparently true facts” would likely open them up to the reckless disregard line.
Lucia/Copner – I am glad I am not the only one has a hard time making heads or tails out of any of John Mashey’s “meticulously-documented” expose’s. Who knows, there may be something there but it is so poorly organized and seems to jump randomly from one thing to the next that I just can’t get any grip on the underlying allegations. Someone in his camp should help him organize the information in a coherent manner. Admittedly, I didn’t go through the whole thing, but the only thing I saw from what I did look at was that Singer erroneously list Fred Seitz as a board member of SEPP on at least one Form 990 after Seitz had died. Mashey seems to think this is a high crime, but my guess is it wouldn’t get much more than a “please file an amended return” and possibly a small penalty from the IRS.
“HI will take every penny they own.”
No, they would have to prove damages. They aren’t damaged by getting MORE donations than they did before.
Boris…that is one and only view of harm. It is about a wider set of damages to reputation. For example, a politically extreme organisation could suffer abuse…which would lead to aligned supporters contributing money for their defence. However, this might still not counter-balance the harm to the organisation’s reputation in the wider polity, in the view of a jury.
In the US when a public figure sues for defamation, the defendant’s defense can be “We thought it was true and had good reason to do so at the time we reported it.” This defense would not be permitted if you report something untrue about a private figure. In those cases, “It is true” is a defense.
This is why high profile defamation suits are often very hard to pursue in the US.
Boris–
I think losing the ear of the broader public could be a very real very big harm for a think tank. I don’t know how courts translate that sort of thing into damages though.
Perhaps Laden and deSmog have lawyers lined up who will defend them pro bono. If not, they’re playing with fire. If they are sued, they will have to hire counsel or risk a declaratory verdict and even if they are found not guilty, they’ll be out substantial bucks in legal fees. The discovery process isn’t free either. HI likely has lawyers on retainer and will probably only face significant legal fees if the case actually goes to trial. It seems unlikely that the defendants would be able to recoup their expenses by claiming the suit was frivolous or malicious.
Just throwing out another possible cause of action.
Trade libel.
“Trade libel is defined as the publication of a false statement of fact that is an intentional disparagement of the quality of the services or products of the plaintiff’s business and that result in pecuniary damages to the plaintiff. It constitutes a business tort and allows the injured party to seek both compensatory damages and punitive damages.”
See for example http://www.stimmel-law.com/articles/Trade_Libel_%20Elements_of_the_Cause_of_Action_and_Defenses_Available.html
I am not sure if you could squeeze this into being about Heartlands services – but maybe?
Gleick just admitted on Huffington Post that he leaked the documents. And that the fake document was sent to him anonymously. And that in an effort to verify it, he posed as a Heartland Director to try and verify the content of the fake document.
Revkin is also reporting it.