I did notice she used the words "libelous" and "defamatory".
Defamation is an extremely high bar in the US because of the 1st Amendment.
Truth is nearly always a defence to defamation (not applicable here). You must show damages consequent to a false utterance (loss of future income can be presumptive damages), and you have to show negligence (ought to have known it was untrue) or, depending on who the allegedly defamed party is, 'actual malice' (actually did know it was untrue or acted wrecklessly).
There's a good chance that Cassie would be considered a limited-purpose public figure in connection with her film, so the latter would apply. Defamation law in the US is hideously complex, and I doubt what USU said meets the bar. But IANAL and all that, but since many elements would have to be tried in court, even qualified lawyers probably couldn't say for sure.
'Commercial disparagement' is similar and probably more appropriate because it's not so much Cassie's reputation that's being harmed here so much as that of her product. But the bar is still quite high: the statement must be false, there must be damages and there must be malice and the intention to cause financial losses.
u/EricAllonde, it seems that Australian companies can prevail under the Uniform Defamation Legislation under certain circumstances (eg non-profit or company with < 10 employees).
There's another tort, 'injurious falsehood'. The bar for that is high, but she might be able to meet it in the circumstances. Ditto defamation.
Of course, it's pointless in her doing so. The attention is worth much more than the amount of money she could recover from a students' union.
She has been harmed. The show was cancelled and the people that would have seen her work missed it because someone told big fibs about it.
The law interprets words like 'harm' differently from the common vernacular meaning (c.f. 'rape'. The law has a very clear idea about what rape is, but the word gets widely abused and overused to refer to things that the law would just laugh at).
All that matters, from the pov of litigation, is whether Cassie has been harmed sufficiently and in the right way to qualify for defamation, disparagement or trade libel.
Just to give a micro-vignette of how difficult the argument could get: on the need to prove damages, the plaintiff's counsel might argue that the falsehoods uttered by the defendants resulted in lost revenue. Even if strictly true, the plaintiff would have to prove that by way of contracts and licences etc. We know that university screening licences are just US$100, which is low enough that the court might dismiss the damages claim as de minimis.
On the other hand, the defendant might argue that Cassie suffered no material loss because anybody who was denied viewing at U. Syd. could have rented it online (and that she might, in fact, have made more money that way).
Either way, the damages claim is looking shaky, on those grounds, at least.
But the argument isn't really about the showing, it's about the falsehoods that cause the showing to be cancelled — and those falsehoods extend beyond just the U. Sydney showing. Those falsehoods, having been published, might affect future sales.
Again, IANAL so I don't know the ins and outs of this but I gather that future income is considered presumptive damages. But unlike a salary, which is a fixed and predictable sum, it may be difficult to estimate what the future revenues lost directly due to the defamatory description of the film might be.
Nothing's easy in law, especially not in defamation.
I do hope that the curious will see it online and start having doubt about the veracity of feminist complaints.
So do I, but the ones most likely to do so are the ones who most likely already regard feminists with either suspicion or contempt, so the lie will come as no surprise to them.
Uh, maybe, but I think it's more likely that they've just been lucky.
These are not the sort of people who're accustomed to being told 'no' and anyone capable of researching the law well enough to know what they can get away with would also be smart enough to realise that making a fuss only draws attention to a thing, that forbidden fruit tastes sweeter and the best thing to do is just to shut up and let it 'die in ignominy'.
Instead, they're doing a bang-up job on the advertising front. After all, it's not like they can stop those determined to see the film. All they can really accomplish is to keep debate away from their campus, but that's ultimately self-defeating because eventually, one way or the other, enough people will be 'WTF?' and start talking about the subject anyway.
I realise that, but Cassie (who was the one to first use those specific terms) is an American with, presumably, an American understanding of defamation. You'd think that, as a journalist and documentarian, she'd have at least some idea of what US law has to say about the subject.
My point was that it would be difficult to prevail in a USU-like situation in the US, that if she knows what she's about wrt defamation in the US it's surprising that she should use such terminology and, in any case, and it serves her cause no useful purpose to do so.
It's possible she's researched Australian defamation law, but IMO that's unlikely for two reasons: first, she's too busy and second, if she had consulted a real lawyer, she would not tip her hand in public if she had any actual intention to sue.
If she has no intention to sue, throwing such terms around is unlikely to win the coöperation of the other party (so no wonder USU wouldn't publish her comment) because they're immediately on the back foot, wondering whether she might sue.
I can tell you first hand, having dealt with occasional complains of defamation on behalf of my organisation, my reaction is completely different depending on the attitude and demeanour of the complainant (and also depending on the subject material in dispute).
If they have a genuine issue and simply want to work it through, I'm only too happy to oblige (having first taken certain precautions). If there's something that is actually incorrect, it should be easy enough to prove it and since we've no interest in publishing untrue statements, it's a fairly straight forward matter of getting it corrected.
But if you come to me accusing us of one thing or the other and demand that I remove this and that or you'll sue, I have to take your word for it that you might. That sets up an arms-length resolution environment that is far less productive than the alternative. At that point, you're likely to get told to go consult your attorney and come back with a formal demand written by them, complete with specific citations of the allegedly offending text and relevant statutory and case law.
I've dealt with examples of both types of complaint.
Defamation laws in Oz are much more extensive than in the US, so that politicians can easily sue.
According to this guidance, Australian High Court rulings have established from common-law principles something roughly equivalent to the US standard of actual malice when the defendant is a politician or public official, so perhaps politicians can't sue all that easily.
But that doesn't help USU. I agree that Cassie would have a much better chance of prevailing in Australia, but I think things would still get messy and therefore very expensive very quickly.
Layman's guess, but a lot of the argument would probably revolve around whether USU's statement constituted, in the eyes of the law, assertion as fact rather than honest opinion (which is never defamatory; notice their wording, "We believe that there is ... the possibility ...") and what is actually true.
That latter point can prove much more complicated in matters of this kind that you might think. To the extent that they state anything as fact, nothing (in my reading of it) is obviously false. The film could quite reasonably be construed anti-feminist. Paul Elam did indeed write the things quoted, even though they are quoted out of context. Whether it is anti-woman is a matter of opinion as is patriarchy etc, and studies are subject to interpretation however reputable they are. Opinions are neither true nor false.
The assertion that the film is rooted in any particular ideology might be on thinner ground, but I fancy that the court would conclude that this, too, is a matter of opinion because there's no good way for a reasonable person to conclude that such a claim is either true or false without the ability to read Cassie's mind. To find that such an assertion is a statement of fact could have far reaching consequences and judges, especially at appellate level and higher, are often loathed to create precedents that could be misused or pose significant risk of unintended consequences.
To complicate matters, the USU Board has a legal obligation to uphold their constitution to the best of their ability and they have a fiduciary duty of care toward their members. Their statement cites a constitutional rule which, in their opinion, likely precludes the showing of the film at their properties. Since application of their constitution is contingent on their interpretation of the film, an explanation of that interpretation is probably in order and not obviously defamatory.
u/real-boethius's link contains an interesting comment about ambiguous statements. It is for the court to decide whether a reasonable person would impute defamation of Cassie Jaye herself from what USU wrote, and their conclusion is not obvious.
I've already pointed this out, but I'll say it again:
There's a difference between defamation of a person's character or reputation and injurious falsehood about a person's product or commercial enterprises. USU's statement says very little that could be defamatory of character. Most of it is directed at the film itself, in which case the tort would more likely be injurious falsehood which, as I've already pointed out, has a high bar, approximating that of US defamation of public figures.
She might well win, but it's by no means guaranteed. And like I said earlier, even if she did, she would not recover her costs.
She'd be suing in Australia, as the suit usually happens where the offence took place.
Of course. Even if you could persuade a US court to hear the case (and I've seen occasional cases of US courts hearing extraterritorial cases, but now can't find reference to them again), it seems unlikely that there'd be any way to enforce the judgement if it went Cassie's way.
I actually think she does have a case for injurious falsehood.
Injurious falsehood perhaps, but not defamation. Even then, I think she'd probably struggle with the malice element (deliberate intent to inflict harm on the complainant, according to this definition), and she might also struggle to prove direct, consequential damages beyond the $100 licence fee as a direct result of the USU statement. As I've said elsewhere in this thread, a court may dismiss that as de minimis.
Malice is not difficult to prove in this case--not only was the statement made recklessly (without having seen the film)
Recklessness is a kind of negligence, and the Australian definition of malice appears to be different from the US definition. (IIRC, the definition of 'actual malice' varies even in the US, depending on context.) This definition of malice reads:
A desire to cause harm to someone intentionally, particularly in relation to an action for defamation
I don't see any scope for either recklessness or negligence in the element of malice in the Australian context. But I know little of Australian law, so maybe there is. Perhaps there's some relevant case law that could help.
It's also not obvious whether they've seen the film or not. They don't comment either way, but the 6th para of their statement reads as if they have. Obviously, they would be obliged to confirm under oath that they had seen the film, if that is their contention, but that doesn't help in deciding whether to litigate.
it can be reasonably argued that it was made with malicious intent (to negatively affect future attempts to screen it).
By the colloquial definition, yes, and certainly in our subjective opinion — but proving that the USU Board acted with malice might be quite difficult. You'd have to establish motive for intent to do harm, and political animus would probably not be sufficient on its own. Even intense dislike proves nothing in terms of action or intent.
USU counsel would probably argue that their only consideration was the USU constitution, which they're lawfully obliged to uphold, together with other fiduciary duties and that, in their understanding of harassment and discrimination in conjunction with the content of the film, they were obliged by both USU rules and by law to act as they did.
As for it being pointless, there are a few different ways to look at that. It might well cost more to pursue the case than she'd get back in damages. However, from a long-game point of view, it might be worth pursuing.
Politically yes, financially no — and I suspect she's got a long way to go to make up for her investment prior to the KS fundraiser. And having spoken with Cassie and Nikita, I didn't get any real sense of an appetite to fight the cause or push any agenda, only to get her film out there. She does, after all, have a reputation of neutrality to try to defend.
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Defamation is an extremely high bar in the US because of the 1st Amendment.
Truth is nearly always a defence to defamation (not applicable here). You must show damages consequent to a false utterance (loss of future income can be presumptive damages), and you have to show negligence (ought to have known it was untrue) or, depending on who the allegedly defamed party is, 'actual malice' (actually did know it was untrue or acted wrecklessly).
There's a good chance that Cassie would be considered a limited-purpose public figure in connection with her film, so the latter would apply. Defamation law in the US is hideously complex, and I doubt what USU said meets the bar. But IANAL and all that, but since many elements would have to be tried in court, even qualified lawyers probably couldn't say for sure.
'Commercial disparagement' is similar and probably more appropriate because it's not so much Cassie's reputation that's being harmed here so much as that of her product. But the bar is still quite high: the statement must be false, there must be damages and there must be malice and the intention to cause financial losses.
u/EricAllonde, it seems that Australian companies can prevail under the Uniform Defamation Legislation under certain circumstances (eg non-profit or company with < 10 employees).
There's another tort, 'injurious falsehood'. The bar for that is high, but she might be able to meet it in the circumstances. Ditto defamation.
Of course, it's pointless in her doing so. The attention is worth much more than the amount of money she could recover from a students' union.
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The law interprets words like 'harm' differently from the common vernacular meaning (c.f. 'rape'. The law has a very clear idea about what rape is, but the word gets widely abused and overused to refer to things that the law would just laugh at).
All that matters, from the pov of litigation, is whether Cassie has been harmed sufficiently and in the right way to qualify for defamation, disparagement or trade libel.
Just to give a micro-vignette of how difficult the argument could get: on the need to prove damages, the plaintiff's counsel might argue that the falsehoods uttered by the defendants resulted in lost revenue. Even if strictly true, the plaintiff would have to prove that by way of contracts and licences etc. We know that university screening licences are just US$100, which is low enough that the court might dismiss the damages claim as de minimis.
On the other hand, the defendant might argue that Cassie suffered no material loss because anybody who was denied viewing at U. Syd. could have rented it online (and that she might, in fact, have made more money that way).
Either way, the damages claim is looking shaky, on those grounds, at least.
But the argument isn't really about the showing, it's about the falsehoods that cause the showing to be cancelled — and those falsehoods extend beyond just the U. Sydney showing. Those falsehoods, having been published, might affect future sales.
Again, IANAL so I don't know the ins and outs of this but I gather that future income is considered presumptive damages. But unlike a salary, which is a fixed and predictable sum, it may be difficult to estimate what the future revenues lost directly due to the defamatory description of the film might be.
Nothing's easy in law, especially not in defamation.
So do I, but the ones most likely to do so are the ones who most likely already regard feminists with either suspicion or contempt, so the lie will come as no surprise to them.
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Uh, maybe, but I think it's more likely that they've just been lucky.
These are not the sort of people who're accustomed to being told 'no' and anyone capable of researching the law well enough to know what they can get away with would also be smart enough to realise that making a fuss only draws attention to a thing, that forbidden fruit tastes sweeter and the best thing to do is just to shut up and let it 'die in ignominy'.
Instead, they're doing a bang-up job on the advertising front. After all, it's not like they can stop those determined to see the film. All they can really accomplish is to keep debate away from their campus, but that's ultimately self-defeating because eventually, one way or the other, enough people will be 'WTF?' and start talking about the subject anyway.
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I realise that, but Cassie (who was the one to first use those specific terms) is an American with, presumably, an American understanding of defamation. You'd think that, as a journalist and documentarian, she'd have at least some idea of what US law has to say about the subject.
My point was that it would be difficult to prevail in a USU-like situation in the US, that if she knows what she's about wrt defamation in the US it's surprising that she should use such terminology and, in any case, and it serves her cause no useful purpose to do so.
It's possible she's researched Australian defamation law, but IMO that's unlikely for two reasons: first, she's too busy and second, if she had consulted a real lawyer, she would not tip her hand in public if she had any actual intention to sue.
If she has no intention to sue, throwing such terms around is unlikely to win the coöperation of the other party (so no wonder USU wouldn't publish her comment) because they're immediately on the back foot, wondering whether she might sue.
I can tell you first hand, having dealt with occasional complains of defamation on behalf of my organisation, my reaction is completely different depending on the attitude and demeanour of the complainant (and also depending on the subject material in dispute).
If they have a genuine issue and simply want to work it through, I'm only too happy to oblige (having first taken certain precautions). If there's something that is actually incorrect, it should be easy enough to prove it and since we've no interest in publishing untrue statements, it's a fairly straight forward matter of getting it corrected.
But if you come to me accusing us of one thing or the other and demand that I remove this and that or you'll sue, I have to take your word for it that you might. That sets up an arms-length resolution environment that is far less productive than the alternative. At that point, you're likely to get told to go consult your attorney and come back with a formal demand written by them, complete with specific citations of the allegedly offending text and relevant statutory and case law.
I've dealt with examples of both types of complaint.
According to this guidance, Australian High Court rulings have established from common-law principles something roughly equivalent to the US standard of actual malice when the defendant is a politician or public official, so perhaps politicians can't sue all that easily.
But that doesn't help USU. I agree that Cassie would have a much better chance of prevailing in Australia, but I think things would still get messy and therefore very expensive very quickly.
Layman's guess, but a lot of the argument would probably revolve around whether USU's statement constituted, in the eyes of the law, assertion as fact rather than honest opinion (which is never defamatory; notice their wording, "We believe that there is ... the possibility ...") and what is actually true.
That latter point can prove much more complicated in matters of this kind that you might think. To the extent that they state anything as fact, nothing (in my reading of it) is obviously false. The film could quite reasonably be construed anti-feminist. Paul Elam did indeed write the things quoted, even though they are quoted out of context. Whether it is anti-woman is a matter of opinion as is patriarchy etc, and studies are subject to interpretation however reputable they are. Opinions are neither true nor false.
The assertion that the film is rooted in any particular ideology might be on thinner ground, but I fancy that the court would conclude that this, too, is a matter of opinion because there's no good way for a reasonable person to conclude that such a claim is either true or false without the ability to read Cassie's mind. To find that such an assertion is a statement of fact could have far reaching consequences and judges, especially at appellate level and higher, are often loathed to create precedents that could be misused or pose significant risk of unintended consequences.
To complicate matters, the USU Board has a legal obligation to uphold their constitution to the best of their ability and they have a fiduciary duty of care toward their members. Their statement cites a constitutional rule which, in their opinion, likely precludes the showing of the film at their properties. Since application of their constitution is contingent on their interpretation of the film, an explanation of that interpretation is probably in order and not obviously defamatory.
u/real-boethius's link contains an interesting comment about ambiguous statements. It is for the court to decide whether a reasonable person would impute defamation of Cassie Jaye herself from what USU wrote, and their conclusion is not obvious.
I've already pointed this out, but I'll say it again:
There's a difference between defamation of a person's character or reputation and injurious falsehood about a person's product or commercial enterprises. USU's statement says very little that could be defamatory of character. Most of it is directed at the film itself, in which case the tort would more likely be injurious falsehood which, as I've already pointed out, has a high bar, approximating that of US defamation of public figures.
She might well win, but it's by no means guaranteed. And like I said earlier, even if she did, she would not recover her costs.
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Of course. Even if you could persuade a US court to hear the case (and I've seen occasional cases of US courts hearing extraterritorial cases, but now can't find reference to them again), it seems unlikely that there'd be any way to enforce the judgement if it went Cassie's way.
Injurious falsehood perhaps, but not defamation. Even then, I think she'd probably struggle with the malice element (deliberate intent to inflict harm on the complainant, according to this definition), and she might also struggle to prove direct, consequential damages beyond the $100 licence fee as a direct result of the USU statement. As I've said elsewhere in this thread, a court may dismiss that as de minimis.
Recklessness is a kind of negligence, and the Australian definition of malice appears to be different from the US definition. (IIRC, the definition of 'actual malice' varies even in the US, depending on context.) This definition of malice reads:
I don't see any scope for either recklessness or negligence in the element of malice in the Australian context. But I know little of Australian law, so maybe there is. Perhaps there's some relevant case law that could help.
It's also not obvious whether they've seen the film or not. They don't comment either way, but the 6th para of their statement reads as if they have. Obviously, they would be obliged to confirm under oath that they had seen the film, if that is their contention, but that doesn't help in deciding whether to litigate.
By the colloquial definition, yes, and certainly in our subjective opinion — but proving that the USU Board acted with malice might be quite difficult. You'd have to establish motive for intent to do harm, and political animus would probably not be sufficient on its own. Even intense dislike proves nothing in terms of action or intent.
USU counsel would probably argue that their only consideration was the USU constitution, which they're lawfully obliged to uphold, together with other fiduciary duties and that, in their understanding of harassment and discrimination in conjunction with the content of the film, they were obliged by both USU rules and by law to act as they did.
Politically yes, financially no — and I suspect she's got a long way to go to make up for her investment prior to the KS fundraiser. And having spoken with Cassie and Nikita, I didn't get any real sense of an appetite to fight the cause or push any agenda, only to get her film out there. She does, after all, have a reputation of neutrality to try to defend.
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