Hello, are you there?
Ok....I'll try and help. Can you tell me a little more about this clause, and what this person is doing?
I'm a ghostwriter and this client wasn't happy after I gave her three versions of the chapters I agreed to write. After having significant difficulty with her, I asked her if she'd be happiest if I released her from her contract. (She owed me $20,000.) She said she would like that, so I drew up a final contract that released her from owing funds and held me harmless. There was a clear statement in the contract that stated neither of us would defame the other. She has been talking to other ghostwriters, saying I cheated her.
Ok....this is a difficult issue. First of all, since technically each of you is already under a legal obligation not to defame the other, there is really no consideration for these matching promises. You both had a preexisting duty to avoid this kind of behavior.
I agree, and she violated that contract.
If your contract to release her from paying you $20K was, in at lease part, based on the promise not to defame you, then she is arguably in breach (as you indicate).
The second part of this question is what type of fees can I expect to charge her with libel?
In that case, the analysis has to turn then to the defenses to defamation. The most common of these are truth, and the fact that the statement represents an opinion and cannot be proved true or false.
Put another way, it would have to be determined whether or not the statements themselves are defamatory.
Am I correct in assuming that you're saying I need to prove that she is stating an opinion . . . or are you saying that she's entitled to an opinion and can't be held liable for saying negative things about me to others in my profession?
If you had this agreement, and then resolved it the way you did, whether or not this person was "cheated" is arguably an opinion. It would seem, at least in my opinion, represent an opinion as to dissatisfaction as to the ultimate resoloution of the matter and in that case could likely not easily be proven true or false.
So, not a case worth pursuing?
Lets say instead of using the word "cheated" this person said they had dealings with you and in the end they got screwed. This is an opinon and would not support a charge of defamation.
In addition, to support a defamation charge, you are going to have to prove damages. Even if this constitutes defamation, how are you going to prove damages? Thats the problem with these types of things.
Lastly, by making and issue out of it, you call attention to what others are probably trying to ignore. That attention to one dissatisfied customer is the last thing you want.
How about filing something along the lines of "cease and desist"?
Frankly, I would take the high road and be seen to ignore one obvious dissatisfied customer. If anyone asks, tell them you are sorry this person felt this way, that you did your best, XXXXX XXXXX wish there was more you could do to help them feel better. This will likely then be seen as sour grapes and quickly forgotten.
Okay, that's good advice. I've never had anyone unhappy with my work in 30 years, so I guess I need to get over it. Thank you.
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