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I've received a cease and desist letter for defamation from a local businessperson that I believe to be without legal basis - the actionable statements listed are clearly statements of my opinion. Would it be legal to publish this letter publicly, or send it to a newspaper, to let people know that this businessperson is throwing their legal weight around and bullying community members to try to protect their reputation?

To clarify this is a completely separate question from "is it legal to perform the actions listed in the letter" - I'm asking if sharing the letter itself is legal or illegal.

feetwet
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Francis
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    At first, I thought this trivial to answer; then the idea of copyright sprung, unbidden, to mind and now I dare not make an attempt. – A. R. Feb 21 '23 at 20:00
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    This is the quintessential (open) response to such a letter: https://news.lettersofnote.com/p/very-truly-yours – Alan Feb 22 '23 at 07:11
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    @Alan I like that, also see the reply given in the case of Arkell v. Pressdram – stuart10 Feb 22 '23 at 09:35
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    And which country it refering to? – convert Feb 22 '23 at 20:21
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    Could you be much more clear, please? The phrase '… the actionable statements listed…' is at best very close to an admission the statements were actionable, because that's exactly what you yourself said.

    That such '… are clearly statements of my opinion' is itself your opinion and, in the circumstances, hardly conclusive.

     – Robbie Goodwin Feb 23 '23 at 00:07
  • @RobbieGoodwin How is that relevant to the question? Would a C&D letter you consider to have merit be somehow more or less publishable than one you would consider to not have merit? – Philipp Feb 23 '23 at 15:22
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    Publishing the letter may well constitute defamation – jwenting Feb 24 '23 at 08:41
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    @jwenting Why is that? – Azor Ahai -him- Feb 24 '23 at 15:01
  • @jwenting: Not in jurisdictions where being true is an absolute defense to defamation – Ben Voigt Feb 24 '23 at 15:53
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    @AzorAhai-him- if the intent is to harm the sender of the letter by presenting the letter as lies, when they're not, that's defamation. As none of us have any way of knowing whether the accusations against OP as presented in the C&D are true, we have to consider that possibility. – jwenting Feb 24 '23 at 18:07
  • It seems to me that if the letter was written in good faith and the receiver chooses to not comply with the terms of the letter (as is the receiver's prerogative) then the letter writer will make a complaint to the court that is substantially the same as the letter. This complaint will be publicly available. So if we assume good faith on the letter writers part there is nothing private about the letter. If we do not assume good faith on the letter writers part then too bad for them. Why would the courts protect an abuse of legal procedure? – emory Feb 24 '23 at 18:16
  • @Philipp Sorry I was talking of 'wise' rather than 'legal'

    Your idea of 'merit' seems like shooting yourself in the foot, and getting caught.

    If you don't see what I said as being at least as relevant to your case as what might - largely irrelevantly - be purely legal, that's your choice and I suggest even more than the original Question, defending yourself against such blind mistakes is another good reason to consult a lawyer.

     – Robbie Goodwin Feb 24 '23 at 20:46
  • @emory What makes you think good faith on the writer's part means there is nothing private about the letter? – Robbie Goodwin Feb 24 '23 at 21:12
  • @RobbieGoodwin It would probably be a good idea for the letter writer to not disseminate private information to those who have not signed a Non Disclosure Agreement. It seems that if publishing the letter was by itself bad then the letter writer made the breach. For example if a former president writes me and inadvertently includes TOP SECRET documents then it is not me that is being careless with CLASSIFIED files but the former president. – emory Feb 25 '23 at 00:49
  • @emory Why are you addressing that to me, please? Since you did, what stops you seeing that while whoever sent you the information is guilty, the question is whether you forward that information.

    If you do, you make yourself at best complicit in that person's offence, if not separately guilty yourself, and in jurisdictions such as here in the UK, quite possibly compound the issue with further charges of conspiracy.

    How is 'But Your Honour, he started it' any kind of defence?

     – Robbie Goodwin Feb 25 '23 at 00:57

2 Answers2

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Is it legal to publish a cease and desist letter that I have received?

Generally speaking, yes.

My interpretation of your post is that you published your opinion about a business or businessperson, and the businessperson now is trying to intimidate you or deter you from sharing with others your opinion. The phrase "the actionable statements listed are clearly statements of my opinion" is otherwise unclear. Under defamation law, only false statements of fact are actionable whereas statements of opinion are not. The businessperson is not entitled to your silence.

If your criticism is about the business, the cease and desist letter sounds in unfair and misleading practices to the extent that the business is trying to conceal from the public some inconvenient information that you as actual or potential customer possess. Even if you published as a competitor, your statements would have to be untrue and misleading for these to constitute disparagement. See the Black's Law Dictionary definition of disparagement [of Goods].

For the reasons stated in the other answer, copyright issues are not a matter of concern. It is preferable to publish the letter as is. Transparency preempts confusion as to "I said, he said". By contrast, paraphrasing the letter for the purpose of avoiding an imaginary violation of copyright creates a risk of you inadvertently giving him grounds for a claim of defamation.

Dale M
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Iñaki Viggers
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – feetwet Feb 23 '23 at 18:12
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You have no statutory or contractual duty to restrict your responses to the attorney. The prospects that the letter contains material of sufficient originality that it is protected by copyright are low, insofar as such letters tend to be formulaic and the original text may have been written a hundred years ago. Your purpose in disseminating the work is commentary, one of the classical motivating factors behind the copyright concept of "fair use".

user6726
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    "Fair use" only applies in some jurisdictions, the OP hasn't specified where this is happening. – Jack Aidley Feb 22 '23 at 07:49
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    "Fair Use" is more likely to succeed as a defence if the letter is published alongside a request for help, rather than something like "look what this asshole is doing:" – MikeB Feb 22 '23 at 08:25
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    Whether or not fair use applies is somewhat irrelevant... It's hard to imagine a case where any letter, let alone a legal one, would have copyright protection. Unless the letter enclosed a snippet of a book or something the author was working on. – ScottishTapWater Feb 23 '23 at 15:56
  • @ScottishTapWater I would be curious if there is an explicit carveout for legal letter. I did a quick search to see if would fall under the carveouts created for jurisprudence but did not turn up anything. – Chuu Feb 23 '23 at 18:58
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    @ScottishTapWater "It's hard to imagine a case where any letter, let alone a legal one, would have copyright protection." I think that this statement is false and dangerously misleading - can you provide some grounding for this? IMHO there is a strong consensus that letters definitely do have copyright protection by default, see https://www.lexology.com/library/detail.aspx?g=110b4af7-80b0-4917-aeca-b72865d24541 or http://www.rightsofwriters.com/2011/02/sixteen-things-writers-should-know.html , and fair use is very relevant as that would be the primary reason permitting publishing. – Peteris Feb 23 '23 at 19:54
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    I worked for a company that sold copyright-protected letter texts. I've seen copyright protected books for sale providing copyrighted letter texts. I frequently see model contracts protected by copyright. It is certainly the case that lawyers assert copyright on some of their boilerplate text, including "letters". – david Feb 24 '23 at 03:26
  • @david agreed. The fact many of that might not be actually enforceable in a court of law is a separate question. Especially if your opponent is a lawyer and you're not particularly affluent. Depending on the situation I would look around for a sympathetic lawyer. There are some who are willing to help with free speech issues pro bono, and depending on the exact situation there might even be something to sue out of the writer if handled appropriately. – DRF Feb 24 '23 at 16:43