Friday, August 24, 2012

Defamation, Employment Contracts and the Case of "El Naschie vs Nature Publishing"

How lucky we are today to have our first legal judgment on Global Wahrman !

In this case, we have the case of El Naschie vs Nature Publishing regarding an article published in Nature which El Naschie claims/claimed was defamation.

Apparently El Naschie, if I read this correctly, started his own academic journal, and then set himself up to review his own papers,  which he had submitted to his journal.   It certainly makes sense to me that one would like one's own papers, don't you agree?    This is a peer-reviewed journal and by definition the author of a paper is his own peer.  This principle was definitively established by von Strindberg and Broadway  in their 1948 paper in Transactions on Publishing entitled "On Self-Peering".   [Editors note: this is Michael's idea of a joke, he is being sarcastic, just in case you didn't notice.] So what is the problem?    It just seems like a very efficient way to get a lot of papers published.   Anyway, these picky academics: always complaining about something. Nature published an essay about the situation and was quite clear and opinionated about the ethics of starting a "peer-reviewed journal", then personally writing most of the articles, and acting as his own peer-reviewer for those articles before publication.  As a result,  El Naschie sued Nature for defamation.

Defamation has been on my mind recently because of various contracts for employment that I have reviewed and which have "strong", or at least strongly-worded,  anti-defamation clauses.  Defamation, though, is a legal term that has a meaning slightly different from its use in the vernacular.  To the courts, "defamation" refers to the act of saying something about somebody that hurts their reputation, as you would expect.  But to be defamation, these statements also need to be  (a) not true and (b) intended to cause harm.   If the nasty thing you say about someone or some thing turns out to be true then it isn't defamation by definition.

It is also not defamation when you express your opinion as opposed to asserting something as being a statement of fact.   So for example, if I say that "such-and-such company has, in my opinion, a ridiculous employment contract that will cause them trouble in the long run because I think it will discourage people from working with them", that is not defamation.  That is just me expressing my opinion, as I am legally entitled to do.

If however I say that "so-and-so is wanted for felony assault in the State of NY and is a well-known pederast who got booted out of his home town because of his sexual proclivities," and if  that was not true, then that would almost certainly be defamation.

Why do these employment contracts have such odd and apparently unnecessary anti-defamation clauses?  I am told by my Oxford / Harvard Business School friend that it is to scare immature 23 year olds and keep them from spraying their self-righteous phlegm all over some social media web page when they get pissed off about something the company has done (e.g. for laying them off or something).   Such clauses should be unnecessary of course because defamation is illegal.   Contracts do not need to contain clauses that say "the employee promises not to have kinky sex with underage women," because sleeping with underage women is illegal in this country, whether kinky or not.  It even has its own well-defined term in the vernacular, jailbait, which is really a wonderful word when you think about it.   (And what a good example of a Germanic languages' process of creating a new word by concatenating existing words together.)    Thus no such clause is necessary in any contract, and if it were, it might be covered by a boilerplate that might say something such as "all parties agree to obey the law".  I mean really, that seems like an unnecessary thing to say, but I guess it might be worth reminding people of that general guideline in the fast-paced world of internet startups.

Now that I think about it, isn't there some large software company in Redmond, Wa. that routinely used to violate anti-trust law ?   Maybe we should have a clause in the contracts of corporate executives requiring them to obey the law in the execution of their duties.   Its just a thought.

Anyway, this case is full of juicy charges and counter-charges, nasty emails from mysterious people, and a lot of biped mammals acting very immaturely, if you ask me.   I think it is worth a look.

Here is the first page of the judgment.

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