Anti-defamation provisions

I’ve criticized the critics of phone companies who banded together to promote the dubious cause of network neutrality, so it’s only fair for me to criticize the phone companies when they get out of line. The recent flap over AT&T and Verizon’s AUPs might be such an occasion. AT&T tells its customers not to smack-talk them:

AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes … tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.”

Now what’s up with that? Critics charge that this provision is activated by any negative opinion expressed against the phone company, to wit:

This effectively means that if you are an AT&T customer and the company believes that you have spoken negatively about them in, oh let’s say a blog post, they can cut off your service and you have no recourse. Apparently AT&T’s attitude is “either like it or lump it”.

Unfortunately, my criticism of the phone company will have to come on some other day, because it appears to me that the critics are way out of line once again. Remember this provision was drafted by a lawyer, and therefore its content has to be understood in terms of the legal meaning of its language, not the common-sense meaning. This AUP is, apparently, legal boilerplate that says you can’t use the AT&T network to slander or defame AT&T. Simple criticism, if it happens to be factual or the result of honest error, isn’t covered by this provision. Go check on the legal meaning of “damage to name or reputation” for some insight.

Words which on the face of them must injure the reputation of the person to whom they refer, are clearly defamatory, and, if false, are actionable without proof that any particular damage has followed from their use. Words, on the other hand which merely might tend to injure the reputation of another are prima facie not defamatory, and even though false are not actionable, unless as a matter of fact some appreciable injury has followed from their use…

If in any given case the words employed by the defendant have appreciably injured the plaintiff’s reputation, the plaintiff has suffered an injury which is actionable without proof of any other damage. Every man has an absolute right to have his person, his property, and his reputation preserved inviolate.

The way I read this is that you can’t damage a man’s or a company’s reputation simply by criticizing them; if you’re truthful, the issue is the deeds you’re describing, not the description. If you’re not truthful you still have to cause some damage to the target’s reputation to be afoul of the law. So I can talk smack about AT&T all day long so long as I don’t invent facts about them, and I can even make up facts about them as long as nobody pays any attention to me. And so can you.

AT&T is simply invoking slander and defamation law to its benefit and short-cutting the legal process. If this provision were removed from their AUP, they would still be protected by the law, but they would have to sue to assert the right. Is that what we want?

So once again we learn that we can’t believe everything we read on-line, a lesson that never seems to sink in.

See Seth for more on the subject.