In response to a posting by a syndicated columnist that the former girlfriend of a person from whom she thinks she acquired an STD should notify him and his new girlfriend, I wrote to the columnist:
Your advice to your reader is obviously morally correct, but, I think you should tell her about the potential legal consequences of following your advice. Since I am a lawyer, and I see this fact pattern over and over, it is a real concern.
If this woman sends the letters as you suggested, her former boyfriend might sue her for libel. So, this woman might want to consider the cost of sending those letters.
That is, if she sends this letter, the old boyfriend or the new female might sue her. It would be a mistake to assume this was a US writer, so we need to consider where this is happening, for a proper choice of laws analysis.
Either or both the new female or the old boyfriend might sue her. Wherever they sue her, that court will apply that court’s own analysis to determine which set of laws to use to decide the issues. And the answer might be different depending on where the case is filed. For example, in the US we have certain (limited) First Amendment privileges that often defeat libel suits. In the UK there is no first amendment. In many states in the US there are common-law privileges, but how these are applied differ from state to state. So the same letter received in Florida might result in a different result than the letter received elsewhere. Consider that truth is not always a complete defense. Florida, for example, requires a good motive to accompany “truth,” for truth to be a defense. I suspect that some version of these common-law privileges would apply in any country that derives its law from the UK – and there are many. But, I have no idea what would happen if the letter were sent in a non-common-law country, like France.
But, let us assume that the letters will be sent and received in the US. The letter to the boyfriend, if it just describes the STD diagnosis is probably not libel, because it does not accuse anyone else of anything. But, if she writes to her former boyfriend that she thinks he gave her the STD, after acquiring it from the new female, she has potentially libeled the new female. If she rights to the new female that she thinks she got the STD from the boyfriend, she has potentially libeled the boyfriend. Worse, this type of claim would be libel per se, and require no proof of damages for our potential plaintiff to win. In some states punitive damages would be an issue. Even if she draws no conclusion as to how she thinks the STD was passed to her, the potential for (non per se, that is per quod) libel claims still exists.
Other than truth, the defenses that immediately come to mind, (for which truth is irrelevant) are the First Amendment, and a common-law privilege based upon the needs of the person to whom the letter is sent. The First Amendment privilege will require the plaintiff to prove negligence in addition to the falsity of the statement to win – that is, if the jury concludes that the statement was false, but the conclusion was reasonable, your writer would win. The common-law privilege will protect your writer if the jury concludes that she really acted out of concern for the former boyfriend or the new female, and not out of bad feelings.
Perhaps your writer would prevail in the end. But, keep in mind that the facts in any lawsuit are what the jury (or judge, if there is no jury) concludes they are. The plaintiff(s) will probably assert that your writer was infected elsewhere, and just wrote the letter(s) out of malice. Also, the cost of defending a case like this will be in the thousands of dollars (pounds, euros, etc).
Or, perhaps the potential plaintiffs will not sue because of the cost of doing so. An important consideration is that most homeowner’s insurance policies issued in the US provide a defense to claims of libel. They would also typically pay any damages (not punitive) up to the policy limits.
Your writer should be informed before she writes the letter(s) of the possible legal consequences of doing so. If she wants to write the letter(s) after being informed, that is her choice.
Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th Street
Vero Beach FL 32960-2464