software freedom-of-speech
What legal trouble could a software developer blogger find themselves in?
<p>There is a plethora of software engineers who blog about technology. They could be discussing Microsoft technology, Oracle, the list goes on...</p>
<p>Is there a line you could cross where you'd go from stating you opinion to defamation? What about incorrectly stating performance benchmarks?</p>
<p>It seems risky to me but SO MANY people do it.</p>
<p>Where should one apply caution?</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p>The rules on what constitutes defamation under US law are fairly straightforward. For a statement to be defamatory, it must be:</p>
<ol>
<li>A statement of fact (not opinion); that is</li>
<li>False; and</li>
<li>Communicated to at least one other person (the law refers to this as &quot;publication&quot; but it does not mean just being in print, any form of communication will do); and</li>
<li>Harmful to someone's reputation, so that people think less of the person because of the statement, or are less inclined to do business with or associate with the person.</li>
</ol>
<p>There are some exceptions to point 4, kinds of statements where harm is assumed. Such statements are called &quot;defamation <em>per se</em>&quot;. But even in such cases evidence of harm is often included in a defamation suit. The exceptions include:  Accusing a person of a crime, particularly a serious crime; accusing a person of dishonest business dealings; accusing a person of incompetence in the person's job, trade, or profession; traditionally, accusing a person of having a sexually transmitted disease (this may no longer apply in some jurisdictions); traditionally, accusing a woman of sexual immorality, that is of having sex before marriage or outside of marriage (this also may no longer apply in some jurisdictions).</p>
<p>The plaintiff (person bringing the suit) must at least allege (claim) points 1-3, and point 4 unless the claim is for defamation <em>per se</em>. The plaintiff must present evidence sufficient to confine the court of all but point 2, falsity.</p>
<p>In addition, (in US law) if the plaintiff is a public official, or a &quot;public figure&quot; then the plaintiff must also allege and prove &quot;actual malice&quot; (an unfortunate term). This means that the plaintiff must show that  the statement was made with knowledge that it was false, or with reckless disregard for its truth or falsity. Actual malice is usually hard to prove. The actual malice standard derives from the case of <a href="https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan" rel="nofollow noreferrer"><em>New York Times Co. v. Sullivan</em>, 376 U.S. 254 (1964)</a>. Prior to that case there was no federal law of defamation, and no constitutional dimension to US defamation cases.</p>
<p>A statement of opinion, such as &quot;I think product A is a better value than product B&quot; can never be defamation in US law. Nor can a provably true statement. Nor can a statement that is essentially true, even if it contains minor errors. (None of these are true in all countries.)</p>
<p>Some states still maintain the traditional split between libel and slander, with libel being written (or in some places broadcast) defamation, and slander being spoken. In other states the two have been merged into a single action of defamation. When they are separate, libel tends to carry larger damages, and slander may not recognize defamation <em>per se</em>, but require proof of damage to reputation.</p>
<p>Some people are said to be &quot;defamation proof&quot; meaning that their reputation is already so bad that nothing can harm it further.</p>
<p>Taking care to research facts, particularly negative statements about people, helps avoid defamation in general, and makes proving actual malice much harder. Keeping written records of such research is also a good practice.  It is good if negative statements are supported by multiple reliable sources.</p>
<p>It is also good practice to make statements of opinion clearly statements of opinion, not statements of fact, and to make statements of fact only when supported by research with citable reliable sources.</p>
<p>Following such practices will make defamation suits less likely, and less likely to succeed if any are brought.</p>
