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Unexpectedly large response

Well what can I say? There has been a a massive reaction to my posts concerning my recent email from California. I have been trying to digest the volume of input, but needless to say I have been watching my referral logs, email and comments very closely.

First I am going to link back to all the blogs that have raised issues, or just mentioned my post in passing. If I missed anyone let me know.

Dan Gillmor, here and here.
Boing Boing
Kevin Drum
Eric Hancock
Bernie Goldbach
Dave Weeden
Doug Kenline
You’ve got mail
Dave Winer
Alt tag
Questions and Observations
Dick O’Brien
Karlin Lillington
JB Howard
Charles Eicher
Kieran Healy and here too.
Dann Sheridan
James Robertson
Outside the Beltway
Gary Manca
Blog Herald
Anthony Trumbo

Responses to the John Gray situation

Firstly thanks to the people who left comments, I like any input at all. And to the people who emailed with a advice and help, thank you too. Roger has helpfully pointed out the following.

The only complete and unconditional defense to a libel claim is proof that the statement is true. Quoting a source accurately isn’t enough; the defendant must convince a jury that his statements or the material in the statements he or she quoted are substantially correct.

Libel suits usually result from stories that allege crime, fraud, dishonesty, immoral or dishonorable conduct, or stories which defame the subject professionally, causing loss of reputation or financial strength to an individual or business.

In most states, public officials or figures as plaintiffs are required to prove negligence or actual malice on the part of the publisher. To prove actual malice, a person needs to show that at the time of publication or broadcast, those responsible for the story either knew it was not true or had a reckless disregarded for the truth.

It would appear that, prima facia, I have no proof that the statement made is true. Whether or not I have damaged John Gray financially, or caused loss of his reputation, is questionable. It is in the final quote that I am most interested. As a public figure, could it be proven by Gray that my intent was actual malice, that I “knew it was not true” or had “reckless disregard for the truth”.

I would think not. My intent was not malice, and I did believe the story as read to be true, and by responding to the article I read I do not think I had a reckless disregard.

It is noted however, that in the letter sent to me, all of these claims are made directly.

Another link from Roger is a list of libel/defamation precedents. He also points out the award of a $3 million award to a University Professor, after having been defamed on a student’s website, and also this little snippet of quotes from John Gray himself.

To the comments:

Chris Gulker has blogged about the post, and makes some interesting remarks:

Gray’s PhD is from Columbia Pacific University, which has been called a “degree mill” by the State Attorney and which was shut down by the State of California in 1999. His MA and BA come from Maharishi European Research University. Personally, I think Gavin’s characterization is reasonable. Given is a lecturer at Berkeley’s Boalt Hall: you don’t usually associate Cal profs with stifling free speech…

Frank thinks I should treat myself as a newspaper and just publish a retraction and correction. John sees the lighter side, and his thinking appears to be along the same lines as I have been thinking so far. Well maybe similar anyway. Raptor feels that a campaign might be in order, and spots the subtle difference between mine and Deborah’s post. Jmc thinks I should ask for all the relevant information relating to John Gray’s Phd – I just think this might be a non-starter.

Karlin spots exactly the crux of the letter sent to me. Gray is arguing that his qualifications are legitimate because, at the time, one of the Institutions in question was recognised. Karlin continues:

Having read through your post, and the lawyer’s letter, I think the issue here is not so much the repetition of information on Deborah’s weblog, which is fact, but the use of the word “fraud”.

What the lawyers say is technically correct. He did get the degree from what was a recognised university. He isn’t making up the degree, although one can draw plenty of implications about the rigours of getting such a degree and that way in which the state of CA viewed the institution. Notably, they do not dispute the later closure of the university etc.

But Gray’s listing the degree as a degree he has earned isn’t fraudulent (though saying he had one when he didn’t, would be). Using that word has very specific implications — an intention to deceive by stating as truth that which is not — and would almost surely be construed as libellous in the context in which it is used. This would be the likely interpretation of California libel law (which I had to study in high school/university for publications I worked for in Calif), and under Irish law it would be the same.

The wise thing to do IMHO is print a retraction. Newspapers do this all the time. You can within the context of the clarification state that he has a degree etc etc and go ahead and add the other context for the nature of the institution as described by Deborah as that is further factual information. This is just not worth contesting as it would be seen by the courts here or there as pretty cut and dried. It is just unfortunate that this single entry came to their attention.

As a blog publisher, every blogger becomes liable under international libel laws for statements made on a blog, because it is public publication, so to speak, designed to be read by an audience at large. Pursuing a blogger so far seems pretty rare. Unfortunately for personal publishing, bloggers carry the legal responsibilities of large publishers but rarely have the same legal resources. Before notifying press etc about this I would very much advise consulting with a lawyer as to whether publishing a retraction would curtail their ability to go ahead and sue for libel anyway. If you could be pursued, there’s no point in stinging them into actually suing as they would almost certainly win and the California and Irish courts are prone to awarding very large damages plus costs.

Karlin raises all the central points. A quick look for a definition of “fraud” gets this:

1. fraud — (intentional deception resulting in injury to another person)
2. imposter, impostor, pretender, fake, faker, fraud, sham, shammer, pseudo, pseud, role player — (a person who makes deceitful pretenses)
3. fraud, fraudulence, dupery, hoax, humbug, put-on — (something intended to deceive; deliberate trickery intended to gain an advantage)

Here lies the issue, some people believe that Gray’s claim to a Phd could be defined as “deliberate trickery intended to gain an advantage”. And in referring back to an article we find this:

But, Dr. John Bear, an author and top expert on correspondence schools, tells Inside Edition that Gray’s doctorate degree is from an unaccredited school, which is problematic. “It holds a lot less weight.” He believes that the Ph.D. almost certainly helped Gray sell his books. “People look for respectability,” Bear explains. “Would he reach 18 billion in sales with the non-Ph.D.? I would guess not.

Does that constitute “deliberate trickery intended to gain an advantage”? Only if it was deliberate on the part of John Gray. And of course it has already been argued that he has no need to trick anyone, his Phd is, apparently, legitimate.

My blog has been threatened with legal action by author John Gray

I received an email last week that looked like spam. So I ignored it, but I left in my inbox and said to myself that I would look at it later – most spams don’t ask for receipts.

A few days later I opened the email, and seen that it was addressed to me but with a PDF attachment, I tried to open the attachment. No luck. “OE removed access to the following unsafe attachments in your mail” it said. So I was left with what looked like a legitimate email, but not able to open it. I then dutifully emailed back, saying that I was unable to open the attachment.

A friend offered to take a look, and asked me to forward to him, by clicking forward it gave me access to the attachment. So I opened it.

To my surprise it was a formal letter from a firm, Phillips, Erlewine & Given LLP, Attorneys at Law, with a subject “Cal. Civ. Code 48a Demand for Correction”. I was being told in the letter that I must retract a remark made on my blog last November, and to publish an apology, within three weeks. The remark is considered it said “false, unprivileged, and defamatory”.

My reaction? I think a little shock mixed with surprise that my little blog could be the subject of such an action. And not even from my own jurisdiction, or continent, not even from a US Federal law as such, but from California. From San Francisco.

A copy of the letter is now available on my blog. In PDF format, so get your Adobe reader ready.

The letter refers to this entry. This entry in turn links to Deborah Branscum’s blog, where she talks about the same issue. I have been in touch with Deborah and she has not received any demand for retraction in relation to her blog entry.

The email was sent on the 10th of March so the deadline by which I have to comply with the demands set out in the letter is the 31st of March. Unfortunately I will not be in my own jurisdiction on that day, I will instead be in Canada. So what to do?

I better ask my friends in the blogging community for advice. I am not seeking a campaign for vindication, but I will attempt over the next number of days to detail the story, the ins and outs of internationl legal jurisdiction, the possibility of being sued from another country – and what exactly constitutes defamatory remarks.

What does this mean for blogging? What does this mean for the future of online publishing? And can anyone point to examples where bloggers have been successfully sued, or have been issued with letters such as the one I have received. Answers on a postcard please to this address : gavin at gavinsblog dot com.

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