Oh Yeah? If You Don’t Like it, Sue Me!
Written by John Erianne on April 2, 2008 – 5:34 pm -Okay, it’s not really newsworthy at this point, as I am sure many of you are already aware that David Kuzminski of Preditors & Editors fame is defending himself against not one, but two separate libel suits. The first lawsuit was filed on September 20, 2007 in a New Jersey District Court by literary agent, Barbara Bauer, a woman who has been the bane of many literary sites over the last few years. The second lawsuit was filed on Valentine’s Day in Virginia by Maryland attorney, Victor E. Cretella III, who is employed by PublishAmerica.
I can’t really speak about the second lawsuit, since I don’t know any of the details. Although, I would offer that Cretella’s reputation isn’t being damaged by any perceived libel so much as by his own association with PublishAmerica. The way I hear it, the man had a pretty solid reputation as a litigator prior to his association with that company, so he might want to rethink his employment situation if he’s interested in protecting his reputation.
The first lawsuit is much more interesting to me as it goes to the heart of something I’ve been preaching about for as long as I’ve been involved in the literary life: that there are too many dumbshits out there who know nothing about the publishing business. Inexperienced writers who get taken-in by so-called literary agents because they are ignorant of how the publishing industry works. So-called literary people who file frivolous lawsuits because they don’t understand anything about publishing law.
This lawsuit is a culmination of events which have transpired over the last few years. Discussions and postings about Bauer’s business practices. Cease and Desist letters. Taunting. Threats. The substance of the matter is this: Bauer is alleged to charge upfront fees of varying amounts for services ranging from reading manuscripts to “marketing” them to publishers — something no legitimate literary agency does. It is also alleged that she has a less than stellar track record selling manuscripts to publishers and that she submits manuscripts in less than satisfactory form. This has been widely posted on many literary sites. It is a fact that the watchdog site Writer’s Beware lists Bauer as one of the 20 worst literary agents. I’m not the one alleging this — I have no idea whether or not it’s true. However, many others have made these claims. Certainly, these claims should be easy enough to prove or disprove. Obviously, if these allegations are true, Ms. Bauer cannot argue libel.
Libel is a form of defamation in a fixed medium (usually in print, but also, through video broadcast, visual representation or sculpture) in which a person or organization makes a false claim which causes verifiable injury to a person’s reputation.
There are several defenses for libel — the most obvious being the truth. The truth of the matter is an absolute defense in the common law of the United States and Canada.
Other defenses include:
Privilege: statements made in a court of law or on the floor of a government legislature. or comments made between spouses.
Opinion: Anything presented as opinion rather than fact is generally recognized in most jurisdictions as not being libelous.
Fair comment: statements made with an honest belief in their truthfulness in a matter of public interest are protected.
Good Faith: Statements made in the good faith and reasonable belief that they are true are usually treated as true statements. However, the standards of proof in such cases vary depending on the nature of the defendant.
Consent: The plaintiff gave consent for the defamatory statement to be used.
Innocent Dissemination: when the defendant had no knowledge that the statement was defamatory. i.e. you can’t sue a postal worker for delivering a newsletter containing a defamatory statement or an ISP for delivering a defamatory email message.
Although, not a common defense, if the plaintiff can be proven to have such a low-standing in the community (in Bauer’s case, this would refer to her standing within the publishing industry) prior to the alleged defamation, to the extent that the individual’s reputation could not possibly be hurt any further, one can argue that it’s no longer possible to libel the plaintiff.
If I were one of the seventeen defendants in the Bauer lawsuit (and given that she seems to go after anyone who even mentions her name, that might yet happen), the first thing I’d do is file a counter-suit for Abuse of Process, Malicious Prosecution, and for interfering with my rights under the First Amendment (note that most courts are pretty friendly to bloggers in matters of free speech — I refer you to a 2003 decision by the 9th Circuit Court of Appeals which stated that “bloggers, website operators, and e-mail list editors cannot be held for libel for information they republish”). The second thing I’d do is track down as many allegedly wronged clients of the Bauer Agency and get them to make sworn affidavits detailing their experiences with the agency. If there is sufficient evidence of fraudulent behavior I would persuade those (again, allegedly) disgruntled clients to file their own class-action lawsuit against the Bauer Agency. That’s just for starters. if I had to go bankrupt defending myself anyway, I’d do just as well burying the plaintiff in so much trouble that even if the plaintiff could manage a victory (not possible if the allegations are true), they’d have to destroy themselves to achieve it. Indeed, if any of the allegations against Bauer are even remotely true, she’s exposing her skeletons to the light of day. If I were Bauer and I knew that the allegations were true, I’d have to think twice about pursuing legal action. Sometimes it’s better to let sleeping dogs lie.
