John A. Neuenschwander is professor emeritus of history at Carthage College and the municipal judge for the City of Kenosha, Wisconsin. He lectures nationwide on the legal aspects of oral history. His new book, A Guide to Oral History and the Law, explains all the critical legal issues, including legal release agreements; copyright; privacy; screening, editing, and sealing procedures to protect against defamation; the protection of sealed and anonymous interviews from courtroom disclosure; the role of Institutional Review Boards (IRBs); teaching considerations; and the new issues raised by the use of interviews on the Internet. In the article below he looks at defamation cases that involve professional responsibility. Check out his other OUPblog posts here.
In 2007 the California Supreme Court decided the case of Hebrew Academy v. Goldman, 42 Cal. 4th 883 (2007). The case is noteworthy because it arose from the publication of an oral history transcript by the Regional Oral History Office at the University of California, Berkeley. What is also noteworthy is that the alleged defamation involved the professional reputation of the founder of a school. While the media always plays up defamation cases that involve claims of criminal activity or immorality, there are numerous lawsuits filed each year by individuals who believe that their standing in the workplace was damaged by false statements about their professional skills or decision making.
Since oral historians on all levels regularly undertake interviews with business leaders, professionals, and workers; it is important that these interviews be carefully audited for potentially defamatory statements. In other words, just because an interviewee is not accusing someone of criminal activity or immoral conduct, statements that undermine a person’s reputation in the workplace can be just as harmful.
In 2009 a number of cases involving professional reputation were heard in courts across the nation. The following three cases have been selected to spotlight the types of statements that can lead someone to file a lawsuit for defamation. In Ma’Ayergi and Associates LLC v. Pro Search Inc., 115 Conn. App. 662 (Conn. App. 2009), a recently acquired business partner quietly spread the word to the plaintiff’s clients that he and his employees were incompetent to handle many of key problems because they lacked the necessary qualifications. In Ferguson v. Williams & Hunt Inc. 2009 WL23461635 Utah (unpublished), a partner in a law firm who was terminated for overbilling the firm’s major client sued for defamation based on a communication by the other partners to the client that the former partner’s billing statements could not be trusted for their accuracy. The final case, Richards v. Construction and General Bldg. Laborers Local 79, 2009 WL3224157 New York (unreported), involved a claim of defamation emanating from a small billboard at a construction site and leaflets that were handed out by union members. The plaintiff, the head of a corporation which was helping to finance the building project, was accused of allowing contractors to pay substandard wages which in turn resulted in worker exploitation and cheated taxpayers out of millions of dollars. The billboard and leaflets, some of which contained his photo, also claimed that the use of cheap labor promoted an unsafe workplace and shoddy work.
While all three of these cases involved very contemporaneous events, it is not inconceivable that the publication of an interviewee’s highly critical statements about a manager, associate, or competitor might be close enough in time to lead a person or company to feel that their professional reputation had been besmirched. It is thus especially important that oral historians do not simply view claims of incompetence, mismanagement, or unethical business practices by interviewees as just harmless workplace grousing.