I’d like to throw out a question to the OMAAT community, for any attorneys who might be interested in chiming in. If I were taking this theoretical situation seriously, I’d directly consult an attorney, but this is all such a joke that I figure it makes for good blog fodder…
In this post:
I have a theoretical legal question
Let me share a theoretical scenario, for no reason whatsoever:
- You’re a blogger, and you wrote a post about a dispute that an international airline is having with an aviation regulator in a certain country
- You simply published a post sharing both sides, including quoting the airline and the government
- The airline then wants to accuse the government of publishing false and defamatory statements (with questionable merit), so this is part of a dispute between those parties; let’s ignore that this is an airline run by a person who may be known for making some rather questionable statements
- Then the law firm accuses you of republishing false and defamatory statements (again, just quoting the government)
- The law firm then demands that you preserve all information you have about this matter (whatever that means), and disclose the full details of the number of individuals who accessed the story you wrote
- The law firm then claims that if you don’t do this within seven days, they will force you to provide this information through whatever means necessary, and you’ll be on the hook for the cost
How would you handle this situation?
Let’s assume, theoretically, that the letter is also just kind of ridiculous, and you want to share it, to expose the lengths some airlines go to bully people. Would you publish it on your blog? Let’s assume the only mention of anything being confidential is the signature line stating that the email is confidential, just as is a standard signature for many.
Would you feel comfortable publishing the letter on your blog, before deciding whether you’re going to provide that information or not? And how does the international aspect of this come into play, given that I’m based in the US, and this airline has subsidiaries in multiple countries?
Let’s also assume, theoretically, that you’re not worried about any action the airline might try to take against you in terms of banning you (because, theoretically, you’re not worried if you don’t have access to £9 fares).
Now if you’ll excuse me, I need to update my list of best airline CEOs, because if you’re gonna go all Egypt on me…
Bottom line
Theoretical situations are always fun, so if anyone have any insights, let’s have some fun!
I would run it through chat gtp or gemini just to get an idea what it says,get a feel for opinions. I'm shocked how detailed responses are.
Then I would hire a real lawyer.
I wouldn't even do that given that several actual lawyers have tried to use ChatGPT as a jumping off point to build their cases and just gotten completely false information from it and then got called on it in actual court. ChatGPT is not a search engine, nor should it be trusted for advice on anything that you yourself don't have the knowledge to tell if it's feeding you BS or not.
They can always sue on a merit less claim, but defending it is often the cost prohibitive part. Some may go broke before they are vindicated. You have free speech on your side, though the same free speech might not get really far abroad. Either way, I imagine the travel provider probably doesn't want the negative press considering many bloggers and news will pickup the story.
Lawyer specializing in complex civil and business litigation here. I am also vice chair of the business torts section of the leading Plaintiff's bar association in the country.
First, sending an anti-spoliation letter (i.e., telling you to preserve all records) is a routine pre-litigation exercise that many good lawyers will use. That in and of itself shouldn't cause any alarm. But understand that because you have received such a letter, to the extent that you...
Lawyer specializing in complex civil and business litigation here. I am also vice chair of the business torts section of the leading Plaintiff's bar association in the country.
First, sending an anti-spoliation letter (i.e., telling you to preserve all records) is a routine pre-litigation exercise that many good lawyers will use. That in and of itself shouldn't cause any alarm. But understand that because you have received such a letter, to the extent that you do "spoil" or get rid of any records - whether intentionally or just in due course of business - if there is ever litigation, there is a possibility that a negative inference will be permitted.
The previous poster who discussed anti-SLAPP laws is on to something very important. However, anti-SLAPP laws are strictly state law defenses. While you can file an anti-SLAPP in federal court, it can only be as to state causes of action, not federal causes of action. There is a whole body of case law indicating that you cannot file an anti-SLAPP against a federal law cause of action.
As to the posters who are telling you to ignore this, I would say that you do so at your own peril. While the right cause of action may be to not respond directly to the airline's representative/lawyer who sent you the letter, when you receive a threat like this, you should not ignore it. At a bare minimum, you should consult with a lawyer who specializes this area and who is licensed in your jurisdiction. I would suspect that if the airline were to instigate or initiate a lawsuit against you, it would be filed in the Southern District of Florida (the same court where the less-than-competent Eileen Cannon sits). And if your company is incorporated in another jurisdiction, it is also possible for the airline to file there as well. (I see you often listing a Tampa address, which is in the Middle District of Florida.)
It is possible that the airline could try to file against you in their home jurisdiction as well. You would then need a lawyer/barrister/solicitor licensed in that jurisdiction to handle the case for you. (In most common law countries like the UK, a barrister generally represents people in court, while a solicitor handles transactional matters). Your US lawyer may be able to be part of the proceedings, but the locally licensed lawyer will most certainly be the lead. (I am based in California and when I handled a case in the State of Queensland, AU, my local counsel in Brisbane was the face of the case to the Court.)
Might this just be a scare tactic or a hollow threat to see if it gets you to back down, hoping that you won't call their bluff? Sure. Very possible. But it is also possible that these folks are deadly serious.
The one piece of solid advice that I can give you without knowing the answer to any of my questions and without knowing whether these folks are serious about pursuing a case, is that you should not be talking about the case publicly. For the most part, judges - especially federal (Article III) judges who are appointed for life - abhor it when people try their cases in the media. And any public statements that you make can certainly become admissible in a case (and often taken out of context). While I understand the desire to express your outrage at the ridiculous threat you received, the best way to express your outrage is to defeat the folks coming after you. Indeed, if you were my client, I would actually insist that not only do you stop talking about the case with anyone except your lawyers (and your husband and business partners), but that you take down this post as well.
As I said, I am not licensed in Florida (although I could probably get admitted pro hac vice to handle a case), but if you have any questions, feel free to reach out. And if need be, I'm sure that I could refer you to someone who is actually licensed in Florida (or wherever the case is likely to be filed). You have my e-mail address
I’d go with this advice, by far the best IMO
Another attorney here. I generally agree with what Neal Z said. Here's how I would proceed. First, take down this post. Nothing good comes from talking about this publicly.
Second, preserve all evidence as directed in the letter.
You can stop here if you'd like. You're under no obligation to respond and can just sit tight if you'd like.
But if you want to proceed, step three would be to contact counsel licensed in your...
Another attorney here. I generally agree with what Neal Z said. Here's how I would proceed. First, take down this post. Nothing good comes from talking about this publicly.
Second, preserve all evidence as directed in the letter.
You can stop here if you'd like. You're under no obligation to respond and can just sit tight if you'd like.
But if you want to proceed, step three would be to contact counsel licensed in your jurisdiction. I probably only would engage counsel (hello legal fees!) if you're contacted again. As others have said, this could be a bluff, so no reason at this juncture to spend money on lawyers unless you know it's not a bluff or unless you want additional peace of mind.
Finally, do NOT ignore this entirely. You at least should preserve the evidence.
I've been reading your blog for a long time, and you do good work. If I can assist, please feel free to reach out. Good luck . . . and take this post down NOW! :-)
Different jurisdictions have different rules. If you continue to travel, you might enter a jurisdiction in which the claimant is eligible to file. If the claimant somehow knows your whereabouts, you might be served. In certain jurisdictions, defamation can go beyond just civil consequences. For example, defamation of government symbols (which might include a government owned airline or facility) can carry criminal penalties in certain jurisdictions. If it goes to this level, that government might...
Different jurisdictions have different rules. If you continue to travel, you might enter a jurisdiction in which the claimant is eligible to file. If the claimant somehow knows your whereabouts, you might be served. In certain jurisdictions, defamation can go beyond just civil consequences. For example, defamation of government symbols (which might include a government owned airline or facility) can carry criminal penalties in certain jurisdictions. If it goes to this level, that government might seek extradition from sympathetic countries. I'm giving you an eyes-wide-open view that is in contrast to the ignore-them view. Better safe than sorry.
Your state's Anti-Slapp law may well apply. In reality I think your likely exposure would be extremely small to nill. The problem would be an aggressive opponent can easily make you spend $10-20k in legal fees to get the matter tossed. Money you may well not be able to recover.
As for posting the letter, sure why not? You didn't agree to keep it confidential. You aren't under a court order to keep it confidential.
This sounds accurate. This is the kind of junk Anti-SLAPP laws were meant to stop. But a lot of individuals aren't going to front the money for an attorney to fight this sort of thing (while facing what is always a non-zero risk of losing), so this kind of bullshit persists.
Your state's Anti-Slapp law may well apply. In reality I think your likely exposure would be extremely small to nill. The problem would be an aggressive opponent can easily make you spend $10-20k in legal fees to get the matter tossed. Money you may well not be able to recover.
Ben - based on how you describe the letter, it sounds like it’s a threat from an English law firm. (I am a litigation partner in the London office of a very large US law firm, and I have defended a number of English defamation claims for US clients).
As a matter of English law, a publisher (including a blogger) can in theory be liable for re-publishing defamatory statements; and it is certainly conceptually...
Ben - based on how you describe the letter, it sounds like it’s a threat from an English law firm. (I am a litigation partner in the London office of a very large US law firm, and I have defended a number of English defamation claims for US clients).
As a matter of English law, a publisher (including a blogger) can in theory be liable for re-publishing defamatory statements; and it is certainly conceptually possible to obtain disclosure of the sort they are threatening. We also have an “adverse costs” regime which means that the losing party in litigation generally has to pay the legal fees of the winner.
HOWEVER, the chances of the claimant being able to enforce any of that against you in the US are very slim indeed. It is hard to think of an area of civil law which is more different between the US and the UK. UK defamation law is VERY claimant friendly; whereas in the US, the first amendment makes it very hard to bring claims. (And, as a result, it is very hard to enforce an English defamation judgment in the US).
TLDR: don’t be too stressed about it. Without seeing exactly what they have said it’s hard to form a view on whether or not you should publish the letter, but I reckon it’s probably worth a shot.
PS - there is a pretty high profile campaign against SLAPPs (which I think this sounds like) in the UK at the moment - Dan Neidle (former Clifford Chance partner, now runs a sort of think tank) has been very vocal about it and might well be interested in this sort of thing. Just a thought. Happy to try to answer any other questions if helpful (assuming I am right about the context).
Hey Ben, late-degree Law Student here. Not from the US but I believe these principles are relatively common.
You're fine, provided you've made it clear that it isn't your opinion and you've essentially just said "so-and-so claims this." You can't get sued for reporting the direct claims of a literal government source as-is. Ignore the letter.
Where's the Arps Skadden Davis Polk Paul Weiss guy, when Ben is asking a legal question?
this matter would be outside my practice area
Due respect Ben is not asking for detailed case law just an executive brief and an overview of his options, surly bread & butter learning scenarios before taking the bar.
I'd be curious what power they have to actually subpoena your (or BoardingArea's) proprietary site data. An acquaintance of mine ran a true crime message board for years and the FBI served him with a subpoena because apparently Dennis Rader was posting on there while he was still active and unapprehended. He complied to help the prosecution.
It’s Global Airways. Ben said they’d never fly. They did today. Lawyers ahoy!!
Obama signed a law that Congress passed prohibiting U.S. courts from enforcing legal actions for defamation or libel from other countries.
Indeed but any hearing could be done in absentia within the country bringing the action and any consequences sitting in perpetuate making it risky for the named individual to enter the country or countries if EU, but I doubt it gets that far, Ben you just need to get some legal advice and put this thing to rest.
Unless the EU allows arrests to force compliance with civil judgments (which would shock me), what exactly is the risk? Just don't hold any assets in the E.U. and even a theoretical judgment in absentia wouldn't have any value.
More as a peace of mind exercise for Ben which can be achieved by getting specific legal council, some EU nations classify defamation as criminal and not civil. I wouldn’t be overly worried about the outcome but knowing the company it would be in his best interests not to ignore the requests.
Put me in the “just ignore them” category— I get threatening nonsense all the time :)
I also have a lawyer I’d recommend if you end up wanting one
To supplement my previous comment,
"The law firm then demands that you preserve all information you have about this matter (whatever that means), and disclose the full details of the number of individuals who accessed the story you wrote"
Definitely preserve "records". I remember when records were on paper. Today is means everything electronic which related to the matter. Spoliation, particularly Oliver North style destroying records rather than passively letting them get deleted is...
To supplement my previous comment,
"The law firm then demands that you preserve all information you have about this matter (whatever that means), and disclose the full details of the number of individuals who accessed the story you wrote"
Definitely preserve "records". I remember when records were on paper. Today is means everything electronic which related to the matter. Spoliation, particularly Oliver North style destroying records rather than passively letting them get deleted is not a good look.
As far as telling them how many views you got, you have the option to inform them that such is proprietary and you will not respond without a subpoena. The fact that their client has butthurt entitles them to nothing.
As a U.S. based journalist, you have massive protection in publishing stories. Much more than if they sent a letter to a private business.
Any lawyer worth their salt should know and expect anything sent to a journalist to be published unless the journalist had already agreed to make it private. It actually does sound like they are trying to scare you into silence as one poster mentioned, one of the reasons 1st amendment freedom...
As a U.S. based journalist, you have massive protection in publishing stories. Much more than if they sent a letter to a private business.
Any lawyer worth their salt should know and expect anything sent to a journalist to be published unless the journalist had already agreed to make it private. It actually does sound like they are trying to scare you into silence as one poster mentioned, one of the reasons 1st amendment freedom of the press protections are so strong.
Put another way: In the landmark case New York Times v. U.S they defended the press’ ability to publish classified military documents. Anything less is good as well, and them threatening you is part of the story.
Of course they're trying to intimidate him! This situation requires a "blow it out your ass" letter, which is best written by a suitably experienced lawyer.
Reminds me of that old joke that nobody ever asks "Is there a lawyer on board?!" Finally, I have my chance!
This is not legal advice and should not be construed as such. Consult a licensed attorney in your state. With all that being said, and very generally speaking, a few key points that stand out:
- On the merits alone, republishing libel *could* subject one to suit. I think if someone is quoting a...
Reminds me of that old joke that nobody ever asks "Is there a lawyer on board?!" Finally, I have my chance!
This is not legal advice and should not be construed as such. Consult a licensed attorney in your state. With all that being said, and very generally speaking, a few key points that stand out:
- On the merits alone, republishing libel *could* subject one to suit. I think if someone is quoting a government/official source, that's going to be a hard bar to clear. The law varies state to state and of course country to country. A definitive answer on the risk potential here is going to require some pretty deep legal research far beyond what a Google search or anyone on here can provide.
- Sending out a demand to preserve evidence is a very cursory action. I do it fairly regularly in my practice and the language is often boilerplate. Even if the merits of the case are still up for debate, it's simply good practice to send it. It sounds to me like the letter here has a tone that's slightly more aggressive and threatening than necessary, but I wouldn't take that to mean that a suit is imminent if their demands are not fully complied with. Most states would require evidence be preserved, but would not require you to turn anything over to them, but this can vary by jurisdiction.
- Most importantly, if this hypothetical individual or company has an insurance carrier that covers any sort of media liability, notify them or your insurance broker of what's going on. Cyber liability insurance policies often include this type of coverage. Consult your broker if you are unsure if you have this coverage. The insurer should promptly assign specialized counsel to you. Failing to timely notify insurance can be bar to coverage, especially if it prejudices the insurer in the defense of any claim.
Happy to chat more and can refer you to someone more specialized and in your area!
Some of the best advice on the page: republishing something that turns out to be libelous can make the person who republishes libel liable as well. Now, there are a host of exceptions and conditions, but let that information be sufficient to cause you to take care in what you republish.
IAAL
I think your friend Gary knows Mr. Volokh who says:
https://reason.com/volokh/2018/11/07/is-accurately-repeating-a-defamatory-all/
Ryanair is happy to troll others on their social media so you should not be worried about your reporting about them.
Ben,
Sent you an email to the site. Hope it helps.
The TL;DR is of course to "have a qualified lawyer if things progress," but also some other details that you may wish to be aware of.
Now I want to know which airline.
Ryanair. I would publish the letter. Ben did not sign a confidentiality agreement so is not bound by any. He can share what he received unless it is classified (by law) information.
If they shared anything with Ben that's classified by law, then they've got their own problems for violating that law in sharing it with Ben.
Now I want to know what Ryanair is after Lucky. Did I miss something?
Assuming that you (and OMAAT, to the extent it is a seperate legal entity) are in the United States, you may want to check your state's SLAPP (Strategic Lawsuits Against Public Participation) law. These laws are designed to counter those who bring lawsuits to silence discussions of public matters. Without diving into the nitty gritty, this may qualify.
Best advice: Simply don't respond. Don't say or do anything. They are not going to waste money, time or other resources to go after you. It's not 100% certain, but (well) over 50%.
If it is a foreign airline and the issue is not based in USA. Then the laws of the USA apply to you not the laws or feelings of an airline based in another country. Press Freedom and all that. They could get a court ruling in their own country but that would only apply to that country so you won’t be going back their again. Why would you supply them with information that would be used against you ? Still legal advice is always cheaper at the start.
In the US you have very strong first amendment protections and would be totally in the clear.
in the UK protections are much weaker, but since you don't have any meaningful locus in the UK it'd be tough to impossible to sue you there.
First amendment protections don't come into play here, since it isn't the government coming after him for his speech. That being said, my understanding is that under US libel and defamation law the plaintiff not only has the burden of proof but must also prove malicious intent on the part of the defendant, not just that they were harmed by it. Whereas in the UK the defendant must prove the statements made were factually correct...
First amendment protections don't come into play here, since it isn't the government coming after him for his speech. That being said, my understanding is that under US libel and defamation law the plaintiff not only has the burden of proof but must also prove malicious intent on the part of the defendant, not just that they were harmed by it. Whereas in the UK the defendant must prove the statements made were factually correct and there's no requirement for the statements to have been made with malicious intent.
I'm sure you and Ford already have a lawyer to help manage your business and estate, so I'd be getting their advice. They'll know which specialists to consult if the problem is above their pay-grade. Get professional legal advice, then; and this is a really important part; do exactly what your lawyers advise you to do.
Free advice from this lawyer: ignore the letter. It is all huff and puff. Lots of letters threatening defamation lawsuits get sent (to please hot-to-trot rich big ego clients) but very few defamation lawsuits get filed since they are exceptionally hard to win, and even harder to win against members of the press (you) who is reporting about things of public interest by quoting things others have said publicly.
What’s the situation with previous posts that are still readable on OMAAT for this hypothetical airline and they are mostly negative in nature, does that help or hinder a potential defamation action?
Step 1: Engage trustworthy counsel so you don't need to engage directly.
Step 2: Listen to trustworthy counsel's advice.
Step 3: Continue to work with trustworthy counsel so you don't need to engage directly.
Terrible advice: That's giving into the bullying, given counsel's extreme expense. Ben leveraging his blog for free is a much better course of action.
Depending on details, publishing the letter generally forces a bully to retreat.
I hope you have business insurance (including errors and omissions). If you do, you should notify your carrier immediately as a preservation letter could be considered a notice of a potential claim.
Insufficient details to make a conclusion. Details are important, like what the demand letter said, what country involved, what the blog said.
Punishment could range from nothing to death.
Without details about everything, cannot advise you to ignore.
I kid you not about death. Look at Otto Warmbier, the kid that died. There is also extra judicial killing, like James Bond or certain special forces.
@ derek -- Well, the airline isn't Air Koryo, so I have that going for me...
And that was BEFORE we had a president that is essentially a mafia boss.
DICK,You need medication for your TDS !!!
DEE, you need your medication for you only rebuttel to criticism of Trump being tonuse TDS !!!
Can you vs should you. That's what it comes down to I think. I regularly advise my clients as follows: just because you can doesn't mean you should.
I love your content and would absolutely hate for you to ever get in any sort of trouble or even have to deal with annoyances such as judicial subpoenas. So for that reason I'd err on the side of taking the high road and just stepping...
Can you vs should you. That's what it comes down to I think. I regularly advise my clients as follows: just because you can doesn't mean you should.
I love your content and would absolutely hate for you to ever get in any sort of trouble or even have to deal with annoyances such as judicial subpoenas. So for that reason I'd err on the side of taking the high road and just stepping back here, even if you've done nothing wrong or illegal. Can they demand your emails and sources? Yes. Would they win if this went to court? Probably not. But at that point you've already lost.
The absolute defense to a claim of libel is the truth. All you've done (in your hypothetical) is recite facts. But even if you're innocent of any wrongdoing, do you want to deal with the noise and headaches of having to go through a defense?
Only you can decide for yourself. Sometimes just being the bigger person is victory enough.
Just be cool, yeah?
NAL, but I think this is good advice. Assuming that this legal group is actually the airline's official representative, the last thing you want to deal with is a SLAPP suit.
Dear Mr. Schlappig,
Before I can provide you an Initial legal assessment: Is the European branch or the UK branch of this hypothetical airline writing you?
I am a proud graduate of the Yada Yada law school and happy to assist you here.
Regards
Klaus
I prefer your AerLingus reviews anyway :)
*Orders more popcorn and dons comfy lounge wear*
Hello Ben. This is your attorney. I hereby tell you that posting the letter would be both Very Legal and Very Cool.
Sincerely,
Cameron (your lawyer)
You just can't stay out of trouble Ben, can you....
@ JB -- First I share my opinion on an airport, then I quote a government... ugh, someone needs to rein me in!
If I were you, I would consult an attorney so they have all the information and can offer you accurate legal advice. I would also try not to further damage your relationship with said airline, because there are many routes they fly nonstop which are not served by other carriers, and you never know when you might need to fly them. Ben, we love you, and we want you to be able to do your...
If I were you, I would consult an attorney so they have all the information and can offer you accurate legal advice. I would also try not to further damage your relationship with said airline, because there are many routes they fly nonstop which are not served by other carriers, and you never know when you might need to fly them. Ben, we love you, and we want you to be able to do your job and to be able to write on this blog about our collective hobby. You can't do that if you keep getting yourself banned from countries and airlines around the world.
All jokes aside, you have not done anything wrong in this or the Egypt issue. Unfortunately, if a company wants to go after you, they can, and you want to be prepared. Not everything in this world is fair, and a big company can do damage to you to make a point. That is why I think its best for you to see a legal professional about this prior to making any more moves, just to be safe. I'm saying this despite wanting so badly to see you publish that letter on the blog. But first, see a lawyer. And make sure to ask him when it is appropriate for you to publish that letter for all of us :)
In White Nights, a weather event forced a landing in a country where the passenger was wanted. Passenger manifest lead to his arrest. Suggest that you do not fly over North Korea.