LEGALLY SPEAKING, IT DEPENDS: Rumors

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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Hollywood seems to run on rumors. It’s an inescapable fact that rumors fuel the rise and fall of certain reputations in this industry. Just why this is the case probably stems from the nature of rumors themselves. Their salacious, often too good to be true or so tantalizingly good that you hope they’re true. How are you to protect yourself from their negative side effects or even use them to your own advantage? What pitfalls do you need to be aware of if you dip your toe into the rumor mongers’ domain? That’s what I hear this article is about, the legal, business and ethical impact of rumors.

What have you heard?

rumor-smallFirst off, just what qualifies as a rumor? Here’s my not-a-legal-definition:

A rumor is a so far, unsubstantiated tidbit of informat – on, usually juicy, shared in some way about something or someone that has the potential to influence the receiving audience’s opinion about the subject of the rumor.

We can distinguish rumors from facts. Facts are verified, whole kernels of information. Rumors are nearly always incomplete and always unverified nibbles of supposition, attempting to fill in wholes in the factual domain. Rumors are “heard,” facts are proven. Facts are usually boring and staid. Rumors are most often salacious… At least the “good” ones are.

Rumor mills grind film fodder

Rumors are the tradecraft of gossip columnists. Gossip columnists used to rule stars’ careers. If you look at outlets like TMZ and others, they still do to an arguably much lesser extent than they used to. It doesn’t take a long look back at the history of Hollywood to lose yourself in all the rumors and innuendo spread about the stars and starlets of those bygone days. It’s human nature to be fascinated by a “peek behind the naughty curtains” of certain public figures.

Because the film business is a sensational business that thrives on exciting audiences to come to see its wares, a press wave of intrigue can affect the box office bottom line. Reputations of stars and filmmakers bring people to the movies. Reputations, both good and bad, are affected by rumors. There is a whole sub-industry of PR and “spin-doctors” whose forte is dealing with, quashing or instigating rumors for the benefit or protection of their clients. It is too powerful a tool (or weapon) to ignore, so, we should look closely at all aspects of rumors to truly understand the beast.

The legal aspect of spreading rumors

Because rumors mess with their targets’ reputations, the area of law most often turned to for protection is that of defamation. As my previous column on that area of law points out the details and nuances involved, I won’t go into detail again. Take it that rumors can fall under libel or slander (or their close cousin variations) and the public/private figure status comes into play often in this industry. The key factor is the rumor’s truth value.

If someone spreads a rumor about you, what’s your legal recourse? In most cases, the burden is up to you to prove your case. That mostly entails showing that: the rumor was spread by the defendant (legally called publication); the rumor was actually untrue (libelous); the rumor was or will be demonstrably harmful to you (damages); and that the defendant should have known better (negligent or malicious). If you’re the one spreading the rumor, any of these elements found in your favor could derail your accuser’s attempts.

The automatic harmful categories of yore

Though every state is different, and times have changed tremendously changing the nature of them, there are some categories that are easier to establish harm from. They are defamation per se or defamatory on its face where the standard rational person of the day (changes with the times) would easily see that some amount of reputational harm would come from such an accusation and so you aren’t asked to prove that you’ve been wronged.

There are four traditional categories where if you’re called this, you get to skip a step:

  1.  mobster (accused of illegal activity)
  2.  diseased (with a socially despicable affliction)
  3.  unchaste (whore, yes, playboy, not so much)
  4.  cheats at business (you know, works in Hollywood)

As you can imagine, some of these categories have lost a lot of their shock value and therefore, no longer rate as much damages – if any at all, as they once did. And what qualifies in each category has changed over time as well. Some old standbys are now defunct or nearly so (call someone a leper nowadays and people may stand further away from you than they’ll shy from your accused.) Some sub-categories have simply become (or are on their way to becoming) non-issues: style of dress, homosexuality, church attendance, etc. What specifics still apply to each law varies from state to state and country to country. One commonality in most jurisdictions is that truth is an absolute defense at least to libel or slander, but, even truth has a slippery side (e.g. the legal area of made public private facts.)

I heard it through the grapevine…

Often the start of a rumor is small, maybe even “anonymous” (though not really – someone said it to someone.) But once a juicy morsel is sampled by the public, it spreads like wildfire. If you didn’t start the rumor, what’s the harm in repeating it? As you’ve come to expect if you’re a frequent reader of these columns, it depends. First of all, there is a legal category laid out for just such a circumstance with its own repercussions. Repeating a rumor is legally called republication and the repeater could be held to the same standards as the person originating the rumor in the first place.

For republication, among the important factors that weigh in as to how to treat the offense is the effort the republisher took upon themself to verify what they’d heard. If you take a rumor on faith and make no efforts to verify the truth of what’s being rumored, then you often stand in the same shoes of the originator of a rumor.

Additionally, there is the factor of to whom the republication is made. If the exposure of the scandalous riff is broadly disseminated by the original rumor monger, for example, the fact that you repeated it to your girlfriends at the hair salon might not be a republication if those in your audience were potentially in the initial audience already, whether or not they had actually heard it by then.

Always weighed in by the courts is your reason for the repetition. If you stand to gain directly by bolstering and continuing the spreading of the rumor, say its an embarrassing story about your rival, then you’ll likely stand under much greater scrutiny by the judge whether or not you “started” the rumor.

Motive matters.

Was it something I said?

Starting rumors may seem a tantalizing proposition. It might be fun to see how far you can spread a rumor you created but there are inherent risks in blathering an off the cuff remark or a planned jibe at an enemy. If the rumor is harmless, not by your assessment, but, by the public at large and more importantly by the target of the rumor, then it will blow over with little fanfare. But anything else comes with specific consequences attached.

There are problems that arise with you spreading the “wrong” rumors. If the rumor is especially hurtful, even if later proved to be true, it can cause a tremendous dent in your own reputation defending yourself until your day (or year) in court.

And if they’re false…

If the rumor causes trouble with the subject’s affiliations or projects you could also face charges from those parties under the tortious interference with third party contracts tort. Depending on your motivation even an accurate statement, timed for the most negative impact could cost some companies millions which they might not like to lose.

Which brings us to the next section header.

Clauses of concern

Many companies attempt to protect themselves from the potential actions of the names they attach to their projects by having them agree to ethics clauses in their performance contracts. These clauses essentially attempt to set an expected level of PR handling structure. A performer that goes outside of those defined boundaries not only suffers the consequences of their actions in the legal and public opinion realms, but, also face a breach of contract condition. Holding a person to a company’s “standard of conduct” might not seem fair, but, it is a part of our working world today that you should be aware of. It often extends beyond the boundaries of the working environment into the personal life and lifestyle of the signee. Not only will it guide the actions of those who’ve signed the contract, but, it will redouble their attention to going after rumors and their spreaders that might challenge the standards they’re sworn to live up to.

Then there are also those clauses that limit what you can say – rumor or otherwise. With confidentiality clauses and non-disclosure agreements, contracting parties attempt keep their own secrets (and sometimes yours as well.) These clauses set out specific sets of information that is not to be shared or made public. They must be strictly adhered to (which is easier when they are clear and properly written, which isn’t always the case) by the signatories and can cause significant legal woes if they are not. Best to leave this information, or speculations about this information, out of your rumor mill when it can be avoided.

I can neither confirm or deny…

What about letting rumors you know are false continue? Again, it depends. Courts can judge inaction as equivalent to action, but, the standards are usually different. What is your motivation for not clarifying the rumor? Do you stand to gain significantly at someone else’s loss? Are you legally restricted from telling what you know by contractual or court ordered censure? There might be some social enjoyment or business gain that would let you entertain holding your tongue, but, be careful since that inaction will have consequences as well.

Never ending rumors

If they are so problematic, why do people keep spreading rumors? Simply put, it’s human nature to be intrigued by stories about others, especially the enticing and somewhat illicit ones. Trafficking in rumors is big business because of the apparent power that could be wielded by the monger. Reputation is the name of the rumor game and our industry builds an awful lot on that foundation. You can build a reputation for yourself if you seem to know what’s going on. You can steer a reputation (for good or ill) to change the lay of the land. And the worst reason of all, but, the one most often relied upon, rumors are easier to come by than facts.

So should you feed the rumor mill’s never ending hunger? Rumor has it… It depends.

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