In 1378, the Statute of Scandalum Magnatum granted judges and church officials in England a legal right to compensation if they had been insulted or defamed. The first Common Law defamation action on record was filed in England in 1507. Back then, however, the cause of action only applied to false utterances regarding criminality, incompetence, and disease. The law evolved dramatically in the United States. Indeed, Supreme Court Justice Stewart once wrote that the tort of defamation “reflects no more than our basic concept of the essential dignity and worth of every human being.1”
Defamation law has been somewhat static since the seminal Supreme Court case of New York Times Co. v. Sullivan in 1964. But consider what has changed in the 50 years since that ruling. Let me cite just a few examples of developments that have completely transformed the impact of damages caused by defamatory conduct:
- An erosion of society's perception of what is a private matter;
- 24-hour news cycles;
- The relative decline of more thorough print media; and
- The internet (and the explosion of linked high-speed outlets for the dissemination of falsehoods.)
As the old saying goes, “A lie makes its way around the world before the truth has time to get its pants on.”
I will blog again shortly about the intersection of defamation and U-5 FINRA defamation claims. The lesson for now is as follows: brokers that have suffered from U-5 defamation need to do much more than simply file an arbitration claim. Reputation management is critical.