For the past three years or more, ever since I (pretty accidentally) got drawn into the vaccine discussion, several of you asked an opinion over the legal aspects of dealing with anti-vaccine harassment. One recurring question is “can I sue for libel over this.”
I want to take advantage of a number of recent and particularly ugly attacks to provide a primer on when you can, in fact, sue for libel over something said online.
I also want to make clear that – as many of you heard from me – I think that almost always suing for libel is the wrong strategy. First, I think tort suits are a bad way to deal with discussion, even ugly discussion. And at least in part, if you step up, you should know the discussion can include ugliness. And sometimes from both sides.
Second, even if you are a private figure, tort suits are hard, expensive, and public. And if the other side is willing to put aside ethical standards – and if you get to the point where you think about suing for libel, you’re usually dealing with someone with, at best, flexible ethics – that’s going to be part of the lawsuit process as well, and you can expect things to get worse before you win. And after you win.
Third, in many cases our law is rigged against those speaking on public matters, intentionally, because we value free speech. That can protect you if you’re sued by an opponent, but it will work against you if you are the one suing.
Further, suing an anti-science attacker can really work for them. You give them publicity they would not otherwise have. If they win, they can really push the slur against you. After all, it’s not libel, you lost, they can claim it’s true even if they won because the law is rigged against the plaintiff. If they lose, it’s because of the conspiracy, and because the system is rigged against them – and they still had the publicity and cost you time you will never get back, grief, and probably resources. It really is a bad deal for you, no matter what.
And finally, it leaves a bit of a bad taste that the tactic has been repeatedly used by anti-vaccine activists.
But I also see the other side. I hear you when you tell me that you should not have to put up with harassment when it crosses a line. I understand that you have not given up your private rights by becoming involved in this discussion. The law values and protects reputation, and harm to your reputation can cause a variety of other harms to your livelihood and your family – and your emotional well-being.
Being a vaccine advocate does not mean you cannot use your legal rights, especially when you are under direct attack to your good name. And if you’re already being sued from your side, a counter-suit, if you have a claim, might make sense.
At any rate, it’s probably worth going over the basics of the law.