gj Michelob -> RE: for real.. he did it! (May 27 2014 15:32:48)
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quote:
gj: question for you: recently there was an article on msn about a company suing (sueing?) a reviewer of a product--i believe the interaction took place at amazon. i have heard of other similar types of legal action against people who post opinions on line. how far can we foro members push the legal envelope, so to speak, in writing our opinions of the guy who hawks those hideous looking guitars? we definitely do not want to be defendants given many of us would rather spend our money on guitars rather than legal costs. can we post everywhere possible to avoid him like the plague? thanks. by the way, going forward i think we should not even acknowledge the guy or if we feel we must we should not write his name. why give this guy anymore time and energy. It is a rather complicated subject, Keith. In the past, I scolded some members who posted undocumented, conclusory statements regarding Conde Hermanos guitars. If one writes, "I can't imagine how the two Conde Hermanos (now one) brothers can produce so many instruments out of their small shop. And this suggests the guitars may be made by other luthiers and then labeled Conde Hermanos", this is obviously an opinion. No one can argue with one's difficulty in understanding Conde's ability to produce as they do. What can be contradicted is the inference, that perhaps they are made elsewhere by other luthiers. However, if one writes: "Conde Hermanos does not make their guitars. I have it from a reliable source that other luthiers make them," this is not an opinion but a statement of fact. The defense against a claim sounding in defamation, would be to prove the statement is "true". Of course, merchants' statements may amount also to "false advertising" (under the Lanham Act) as I suppose it is the case between Diaz and Estrada, where both have an interest in guitars allegedly endorsed by the late Paco De Lucia. (The Lanham Act generally prohibits false advertising. In particular, it provides a civil cause of action against "any person" who, in interstate commerce, uses... any ... false or misleading description of fact, or false or misleading representation of fact.) Here is a more official overview: "An opinion, is a statement incapable of being proven false" (ONY, INC. v. Cornerstone Therapeutics, 720 F. 3d 490 - Court of Appeals, 2nd Circuit 2013. The ONY Court, provides a few helpful guidelines: "(at page 496) Generally, statements of pure opinion are protected under the First Amendment. But the line between fact and opinion is not always a clear one. In Milkovich, the Supreme Court declined to carve out an absolute privilege for statements of opinion and reaffirmed that the test for whether a statement is actionable does not simply boil down to whether a statement is falsifiable. To illustrate the difficulty, the Court provided the example of a statement of fact phrased as a statement of opinion: stating that "in my opinion John Jones is a liar" is no different from merely asserting that John Jones is a liar. Thus, the question of whether a statement is actionable admits of few easy distinctions." "(at page 497) In other cases involving "matters of argument" appearing in print, we have been reluctant to recognize causes of action grounded on statements of fact that are best evaluated by an informed reader. Statements made to summarize an argument or opinion within a book are to be accepted or rejected by those who read the book," even when such statements are made in advertisements. Scientific controversies must be settled by the methods of science rather than by the methods of litigation.... More papers, more discussion, better data, and more satisfactory models — not larger awards of damages — mark the path toward superior understanding of the world around us." ONY, INC. v. Cornerstone Therapeutics, Inc., 720 F. 3d 490 - Court of Appeals, 2nd Circuit 2013 Milkovich v. LorainJournal Co., 497 U.S. 1, 19-20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).
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