Note: None of us here at AAR is a legal expert on defamation, and we’re not going to pretend to be for purposes of this blog. Nothing on here is intended to serve as legal advice. Laws changes, and they vary from jurisdiction to jurisdiction, so no blog can substitute for speaking to your own attorney.
We think by now everyone who isn’t living under a rock (or at least everyone who follows romance blogs and/or the publishing industry) is aware that Ellora’s Cave Publishing, Inc. and Jasmine-Jade Enterprises, LLC (collectively “EC” from here on out) has sued Dear Author Media Network, LLC(“DA”) and has also sued individually the blogger known online as Jane Litte(“Litte”), alleging that they have defamed EC and harmed the business. The plaintiffs seek an injunction, money damages, and also have asked the court to require DA to provide the identities of anonymous online commenters to one of its blog pieces concerning EC. However, as with many big lawsuits, the story doesn’t start with the court filing. If you want a history of EC and its ups and downs, Litte gives plenty of that, together with citations, in her allegedly defamatory blog piece. And you can find plenty more stories even with a cursory search on Google.
For some time before Litte ran her piece earlier this month, rumors about practices at EC had been percolating around Twitter, Facebook and blogland in general. Writer Beware has a summary of recent coverage here. Jane’s piece ran on September 14, 2014 and EC filed suit last Friday, September 26, 2014. Rather than summarize here(It could go for pages), I’ll just link to the news story. There are many, many summaries of these events all over the internet, and the lawsuit itself is also readily available on the Summit County, Ohio Clerk of Court’s website.
Along with the lawsuit, EC filed a motion for temporary injunction. DA reports that this has already been heard, at least preliminarily. Litte has reported that the court has not granted the temporary injunction at this point, but has asked the parties to come back to court for a more detailed hearing at which evidence will be presented. Presumably, there may be witnesses present to testify at this hearing, whenever it occurs, and Litte has also made mention of the possible filing of sworn written statements. As of September 30, 2014, the only affidavit showing in the court record is that of Patricia Marks, one of EC’s co-owners. Not surprisingly, her statement agrees with allegations made in EC’s complaint.
At this point, DA and Litte are looking for witnesses to present evidence at the upcoming evidentiary hearing. On her blog, Litte states, “Truth is an absolute defense to defamation,” and then asks for information from editors, authors, and cover artists. We have not personally seen an EC contract, but we have heard from at least one person regarding a possible confidentiality clause in the contracts EC uses. It also appears claims are being made that authors are afraid to come forward due to confidentiality clauses in EC contracts. We cannot give legal advice on here, but it’s common sense to remind anyone concerned about a possible contract or about their legal interests in general to seek out a lawyer. Obviously Jane’s attorney represents her interests, which may not be 100% in line with those of possible witnesses, even if said witnesses sympathize with her and DA’s position.
Courtney Milan has already spoken out urging people to come forward regarding the EC lawsuit and has discussed the possibility of helping witnesses get a lawyer to come to court. If you would like to contact an attorney before deciding whether to give out your name/come forward at all and you do not already have an attorney to contact or you have concerns about the cost, please be aware that many state and local bars have lawyer referral services which for a modest fee (usually $30-50 in my experience) will at least get you a consultation meeting with an attorney who specializes in the field of law you seek. The list of referral services for the state of Ohio, where the EC suit is pending, is here. If you would like contact information for lawyer referral services in other areas, please shoot Lynn an email at lspenceraar AT hotmail DOT com.
So, what does this all mean? Well, as many bloggers and authors noticed from the day the suit was filed, it means that in the short term, Litte and DA will have to pay for legal representation regardless of the strength of EC’s claim. Not surprisingly, this has any of us who express our views online thinking hard and talking about the case. The knowledge that a suit like this could be filed has a definite chilling effect on speech. We can see that in the earnest conversations now being held in blog comment sections, on social media, and in email loops. And our revulsion at the idea that someone could ever act with the notion that bloggers and authors can be bullied into silence is seen in the #notchilled hashtag started by Milan on Twitter.
We at AAR are deeply uncomfortable with the idea of using court action to silence internet reporting and commentary. EC’s request to reveal the identities of anonymous commenters is disturbing as the anonymous commenting community is a vital part of the spread of ideas and makes the work of bloggers and reviewers a much richer experience. This is not just a spat between EC and DA/Litte; this is a suit that could have implications for anyone who wants to express opinions in a blog, write a heartfelt review that may not be of the “I give everything 5 stars” variety, or even just contribute to a comments discussion pseudonymously. And perhaps that’s why the sometimes dysfunctional world of Romlandia has started to band together this week.
– Lynn Spencer, Blythe Barnhill, and Dabney Grinnan
Special Note to commenters: To the extent legally possible, we will protect anyone who wishes to comment anonymously. This is always our policy, but we wanted to emphasize it for this post.
And another note (10/2/2014) – I just saw that Tina Engler of Ellora’s Cave has commented publicly on The Passive Voice blog. If you scroll down the comments, you can see it here.
And yet another note (10/14/2014) In the interests of honoring the spirit behind our editorial, I am editing any comments that call out any bloggers by any name other than the one they choose. All comments using anyone’s “real” name will be edited to reflect this policy. Thanks. Dabney