Legal Question in Business Law in California

Re: Slander, puffery, and personal exchanges

Technically, this would be libel and not slander. Libel is defamation in written form and slander is defamation in verbal form. The two torts are otherwise very similar.

And yes, a statement you make in a private email can be deemed libelous. Libel is, by definition, a false statement made to a third party which tends to damage the reputation of the subject. You made a statement to a third party which your competitor claims was false, so they can bring a lawsuit against you.

Your question does not state whether your competitor is an individual or a business. Ordinarily, businesses can't sue for defamation. I will presume, though, that the competitor is an individual.

In order to win, the plaintiff would have to prove that your statement was, indeed, false. Truth is an absolute defense to a libel action, so if you can back up your claim you should prevail.

Merely showing that you believed the statement to be true may not help much, since knowledge of falsity is not ordinarily an element of defamation. If the plaintiff is a public figure (and someone who runs a large newsletter could qualify for this status), then he would have to prove actual malice on your part in order to win.

If the plaintiff is not a public figure (which is likely) and if your statement is deemed to be about an issue of public concern, then he would have to prove that you were negligent in making the statement. Whether a newsletter inflates its numbers to attract higher advertising rates might well be deemed an issue of public concern. However, if the issue is deemed to be one of private concern then he would need only to prove falsity and would not have to show malice or negligence on your part.

In real terms, though, it seems unlikely that your competitor would bother suing. A single statement made to one individual probably didn't do much damage to his reputation, and any damage it might have caused was likely repaired when your reader and your competitor discussed your statement. It is therefor hard to imagine such a lawsuit being cost-justified. Since you say only that the competitor accused you of libel but not that they threatened to sue you, there may not be much reason for concern.

Re: Slander, puffery, and personal exchanges

Slander and libel are two forms of defamation. Usually it's slander if only spoken, and libel if put into a fixed form such as print. The transmission of defamatory material via the Internet is considered libel rather than slander.

The elements of defamation which must ordinarily be present in order to create legal liability are (a) a statement concerning another, (b) which is false, and (c) harms the reputation of the other so as to lower him in the estimation of the community or to deter third persons from dealing with him, coupled with (d) actual communication of the statement(s) to third parties without so-called "privilege" to do so and, finally (e) either actual proven harm done, or, in the case of certain very injurious kinds of statements, harm is assumed and needn't be proven.

This is a bit of an oversimplification.

I would say that what you did meets most of the requirements for actionable defamation EXCEPT the complaining party in this case probably can't show that he was harmed sufficiently to make his case one for which a court would award damages.

Hence, I think it is unlikely that you would be sued, and if you were, it's unlikely he'd win any significant judgment.

You probably also have a defense based upon privilege. "Privilege" means, among other things, that for public-policy and/or free-speech reasons the law allows citizens to make otherwise defamatory comments about public figures, public issues, persons seeking jobs or engaging in advertising, e.g. the restaurant critic or the former employer may have a qualified privilege to say bad things that aren't true if done without malice and for a proper, society-serving purpose.

It's only necessary to "publish" the defamatory comments to one other person in order for possible liability to result. Nevertheless, in your case while the definition of defamation may fit, in the real world the chance of a successful suit against you is very low and I wouldn't lose any sleep over it -- nor would I do it again.

Re: Slander, puffery, and personal exchanges

The bad news is yes, even in my limited practice regarding defamation over the years, this is slender. While not intended for the world to read it didn't reach their eyes and ears. The good news is truth is an ultimate defense. My advice to get to any real attorney not on the Internet who can advise you on how to stop a firestorm and pray that everything you sent is true.