When does name-calling become slanderous? Usually, the difference between ordinary insults/name-calling and actionable slander is taken to be that non-actionable insults are either subjective statements that can't unambiguously be determined to be true or false (for instance, &quot;Ronald is an asshole&quot;) or else statements that, while objectively false, are obviously hyperbolic or sarcastic (for instance, &quot;Donald is a brain-dead puppy-eating lizard from Cygnus X-1&quot;), whereas actionable slander consists of objectively-false statements that can plausibly be taken literally, due to not being obviously hyperbolic or sarcastic (for instance, &quot;Donald is a convicted child molester&quot;). However, a number of common, run-of-the-mill insults appear, going by the above rule of thumb, like they would be slanderous, due to (seemingly) making plausible, objective claims about the target: For instance, if Ronald calls Donald a &quot;retarded bastard son of a senile crackwhore&quot;, he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally. If Donald then retaliates by calling Ronald a &quot;pigfucking cretin cocksucker&quot;, and we take this string of insults literally, he's making the claim that Ronald suffers from congenital hypothyroidism, has sex with pigs, and practices fellatio, all of which, again, could plausibly be true. When insulting someone else using one or more insults that could appear to be making plausible, objective claims (such as the examples above), when does run-of-the-mill name-calling cross the line into actionable slander? Looking specifically for united-states answers here, due to the unusual characteristics of U.S. defamation law (and also because I live in the States).
An insult can be slanderous when it is reasonably understood to constitute a statement of an actual, presently existing fact about a person, as opposed to being purely figurative or clearly hyperbole in the context in which it is used. A purely literal reading isn't sufficient, even when it would be remotely possible that the literal sense of the word could be true. And, the same string of words in an insult could be slanderous when directed at one person in one setting, and not when directed at another person in another setting. The intended meaning, as the audience when it is uttered would understand it, is what matters. In close calls, we let the trier of fact decide if the statement was or implied a literal statement of a presently existing fact, or if it was not meant in that sense, following a trial if necessary. For instance, if Ronald calls Donald a &quot;retarded bastard son of a senile crackwhore&quot;, he's (going by the literal meaning of the individual members of this string of insults) claiming that Donald is intellectually-disabled and was born out of wedlock to a crack-cocaine-addicted prostitute suffering from dementia, all of which are things that could potentially be true, even if taken literally. If Donald is a U.S. Senator or a school teacher, this probably isn't going to be taken literally by a reasonable person hearing it. If Ronald is a guidance counselor at a school who would have reason to know the real facts and Donald is a janitor who was a former student at the school and these things aren't true, it might be slanderous. The retaliatory insults would almost surely not be slanderous no matter who said them and if the retaliation were stated in that way it would also tend to make the original statement less likely to be taken as a genuine statement of fact as opposed to a generalized insult, because Donald is not treating the insult as if it was true or might be true. Unlike the U.S., in Germany, insults of these sorts would often be actionable because under German law, gross rudeness, in and of itself, is actionable even in the absence of the fraud element required in U.S. law. This was historically the case in some circumstances in the U.S. but that basis for imposing liability, at least under the label of slander or defamation, is pretty much dead in U.S. law.
Is it legal to publish a cease and desist letter that I have received? Generally speaking, yes. My interpretation of your post is that you published your opinion about a business or businessperson, and the businessperson now is trying to intimidate you or deter you from sharing with others your opinion. The phrase &quot;the actionable statements listed are clearly statements of my opinion&quot; is otherwise unclear. Under defamation law, only false statements of fact are actionable whereas statements of opinion are not. The businessperson is not entitled to your silence. If your criticism is about the business, the cease and desist letter sounds in unfair and misleading practices to the extent that the business is trying to conceal from the public some inconvenient information that you as actual or potential customer possess. Even if you published as a competitor, your statements would have to be untrue and misleading for these to constitute disparagement. See the Black's Law Dictionary definition of disparagement [of Goods]. For the reasons stated in the other answer, copyright issues are not a matter of concern. It is preferable to publish the letter as is. Transparency preempts confusion as to &quot;I said, he said&quot;. By contrast, paraphrasing the letter for the purpose of avoiding an imaginary violation of copyright creates a risk of you inadvertently giving him grounds for a claim of defamation.
This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in &quot;things&quot; you obtain called &quot;fitness for purpose&quot;, so if you download open-source software like a registry cleaner, and it deletes your entire registry, the &quot;WTFPL&quot; doesn't absolve the authors of liability. Explicitly denying any kind of &quot;fitness for purpose&quot; or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's &quot;use at your own risk&quot;, which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the &quot;hammer producer&quot; that you would sue... If you buy &quot;Registry Cleaner XL&quot; from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary).
If a factual statement is implied, rather than explicit, it can still constitute defamation. &quot;T looks like a thief&quot; may be an expression of opinion (&quot;I think that T might be a thief&quot;) or it might be a slightly oblique way of saying &quot;T is a thief&quot;. That would ultimately be a matter for the finder of fact, often a jury in the united-states, to determine. See HG.org,s page on &quot;Defamation by Implication&quot; The article &quot;Libel and Slander 101: Defamation By Implication&quot; by Daniel R. Warner of RM Warner, a lawyer specializing in Internet defamation, among other kinds of cases, cites and discusses as cases where US coiurts have upheld defamation by implication: Kendall v. Virgin Island Daily News in March 2013. (3rd Circuit) Plaintiff was a public figure and had to show actual malice, defendants were a reporter and a newspaper; Woods v. Evansville Press Co: (7th Circuit). The Court held that &quot;an implied statement, just as a statement made in direct language, can be defamatory.&quot; Newton v. National Broadcasting, Co.:
No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States: There's no liability for defamation. The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially. As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone. There's potential liability for "misappropriation of likeness." One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed. Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question. If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction.
Impersonation Giving a false name, or impersonating someone, is not in all cases illegal. However, doing so in order to obtain a financial or other benefit, or in order to unfairly deprive someone else of advantages might well constitute fraud. This is usually grounds for a civil lawsuit, but in some cases may be a criminal offense, depending on the jurisdiction and the detailed facts. Trademark The names of businesses, products, and services are often protected as trademarks. Using a trademark, or a confusingly similar word, phrase, or graphic, in order to create confusion or induce a consumer to falsely believe that ones is affiliated with or endorsed by the trademark holder is normally trademark infringement, and can subject the infringer to a lawsuit. However if such unauthorized use of a trademark is not done &quot;in commerce&quot;, that is not identifying or promoting a product or service, it may not be trademark infringement. In any case, trademark infringement is a tort, not a crime. This means that the trademark holder may sue an infringer if the holder so chooses. But the police will not normally arrest someone for trademark infringement, nor does a third party who is not the holder have a right to bring a legal action for trademark infringement. Crime If the impersonation is part of a scam intended to gain financial benefits improperly, that may well be a crime. As such it can be reported to law enforcement. It is generally up to the law enforcement agencies or government prosecutors which crimes to prosecute, and which ones to leave alone. There authorities have limited resources of money and personnel. Attempted scams where no money or value was gained by the scammers are often not of high priority. The victim cannot force the authorities to take action in most jurisdictions.
what would be the threshold for a lie to be actionable where you could claim a damage? There is no award for &quot;lies&quot; which clearly are inconsequential. A customer will never make decisions based on whether &quot;menu options have changed&quot; or whether the business is honest on the statement &quot;your call is important to us&quot;. The impact that the duration of these statements have on the customer is negligible at best, since omitting these statements does not improve the company's response time anyway. The statement &quot;your call is important to us&quot; might not even be a lie. Many companies know that it is in their best interest to gather information from their customers on what to improve, lest customers switch to a competitor or file suit. The lack of objective standards renders statements such as &quot;best pizza in town&quot; unascertainable. Accordingly, it would be unreasonable for a customer to rely on criteria that are subjective, undefined, unclear, and/or palpably fictitious. Only statements like &quot;scientifically proven&quot; and &quot;lose x pounds in y hours&quot; might be within scope of consumer protection laws (see also unfair and misleading practices). The assessment of those scenarios requires more detail, including disclaimers and other &quot;small letters&quot; that are --or ought to be-- disclosed no later than the formation of the contract.
The spectrum of &quot;illegal&quot; is broad. One way in which racial epithets are (indirectly) illegal is via anti-discrimination laws, indeed labeled &quot;harassment&quot; by the EEOC Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws. If an employer tolerates racial epithets, they are likely to be the target of a harassment lawsuit. There is no limit on who utters the epithet, thus a customer can be the trigger for a suit. In cases not involving supervisory employees, liability arises if the employer &quot;knew, or should have known about the harassment and failed to take prompt and appropriate corrective action&quot;. Analogously, racial epithets in educational institutions are actionable. Framed in terms of a random epithet by a non-employee or campus visitor (where the institution has minimal leverage over the offender), the institution must act, when it becomes aware of such circumstances arising, and cannot just say &quot;What can we do??&quot;. A second (remote) possibility is through the fighting words doctrine, that the government can limit speech that is &quot;likely to incite immediate violence or retaliation by the recipients of the words&quot;. This arose initially in Chaplinsky v. New Hampshire – one of the holdings was that The Court notices judicially that the appellations &quot;damned racketeer&quot; and &quot;damned Fascist&quot; are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. There have been numerous refinements of the doctrine over the decades, so the mere utterance of a racial epithet would not run afoul of properly-restrained &quot;breach of peace&quot; laws. One of the two most-relevant current opinions is Brandenburg v. Ohio, 395 U.S. 444, where the court held that the government cannot forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action but uttering an epithet is not advocacy of force or law violation. The second is R.A.V. v. City of St. Paul, 505 US 377 where defendant was charged with violating an ordinance that prohibits the display of a symbol which one knows or has reason to know &quot;arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender&quot; SCOTUS ruled that &quot;the First Amendment does not permit a state to use content discrimination to achieve a compelling interest if it is not necessary to achieve that interest&quot; (emphasis added), holding that A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of &quot;fighting words&quot; may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. A further holding is that the law is is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of &quot;race, color, creed, religion or gender.&quot; At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. The court has not clearly identified a context in which a law against a racial epithet would be constitutional, they have simply identified other bars that would have to be cleared for such a law to be permissible. No utterance, devoid of context, is illegal, so to discover where such an utterance could be part of a prosecutions, we would need a lot of specific context in the hypothetical.