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A Selective Review of Defamation Cases in 2009 Involving Professional Reputation

John A. Neuenschwander is professor emeritus of history at Carthage College and the municipal 9780195365962judge 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.

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4 Responses to “A Selective Review of Defamation Cases in 2009 Involving Professional Reputation”
  1. [...] This post was mentioned on Twitter by Rebecca and BelgradeSummerSchool, Lesley W. Brunet. Lesley W. Brunet said: A Selective Review of Defamation Cases in 2009 Involving Professional Reputation – http://shar.es/aSThj [...]

  2. Mark Higbee says:

    The connection between these 3 cases and actual oral history work is slim. Yes, one can imagine that an interviewee may state something that someone else will be offended by, and even bring claims of defamation to a court. So what? What is the oral historian to do? Censor their subjects’ statements? Omit controversy from our subjects of research?

    This post strikes me as an example of hypothetical worries being inflated to such a degree that it suggests conclusions that would be very harmful indeed to the craft and value of oral history. Oral history is valuable in part because interviewees state their honest opinions. We should not censor our subjects’ statements, nor should we avoid controversial topics for fear of legal trouble. Least of all, we should not fear such legal trouble when none is visible on the horizon.

  3. [...] A Guide to Oral History and the Law by John A. Neuenschwander. “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.” [Thanks to Jennifer Campbell of Heritage Memoirs for alerting me to this article.] [...]

  4. [...] is an interesting article at the Oxford University Press blog about the intersection of oral history and defamation claims. It points out the need for oral [...]

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