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Laws on defamation: could they affect environmental health professionals? (Legal Briefs).

Environmental health professionals generally have a wealth of information, suspicions, and opinions about businesses in a community. For example, a health inspector would know about the sanitary conditions of various establishments--that occasionally some kitchens do not wash or pluck their chickens, that a septic-tank installer may cut corners and use inferior-grade materials, that a hotel's kiddie pool sometimes lacks adequate chlorine and that its guests may urinate in the pool, or that the department receives many complaints about certain apartments having rats or roaches. Although such conditions and actions may not be illegal, the information, suspicions, and opinions could be embarrassing or financially harmful to some person or some business.

As a matter of human nature, sometimes that information is shared with co-workers, family, friends, neighbors, or acquaintances. This kind of dialogue raises several questions. One issue is department policy about the confidentiality of the information it has gathered and the propriety of disseminating the information. Another issue is whether the dissemination may constitute defamation (slander or libel). The latter issue is the subject of this column.

Defamation is the unprivileged intentional dissemination to a third person of false information about another that causes damage:

A statement is defamatory when it tends to expose a person to contempt, hatred, ridicule or obloquy; or which causes a person to be shunned or avoided; or which has a tendency to deprive him of the benefits of public confidence or injure him in his occupation.... (1)

Slander is oral defamation. Libel is written defamation. Actual and factual truth of the information is an absolute defense. Slander often has a short statute of limitations, and libel has a longer limitations period. Newspapers and public media have special protections against defamation lawsuits as a result of the First Amendment. (2)

Generally, special damages (direct economic loss) must be proven unless the defamation is "on its face." This means the words or images, by themselves, defame an identifiable person's character. There are typically four types of defamations against someone that are actionable on their face: (1) an accusation of criminal behavior or of conviction of a crime; (2) an accusation that a person had, has, or carries a loathsome disease; (3) disparagement of a person's profession or business; and (4) accusing a woman of being unchaste. (3)

Environmental health professionals employed by state or local governments generally feel secure from liability suits because of government immunity statutes. The typical immunity statute, however, provides no employee protection for intentional torts committed outside the employee's scope of employment. (4) It would be hard to imagine that slandering a business would be within an employee's scope of employment. Therefore, willful or malicious slander or libel, or defamation performed for personal financial gain by an environmental health official may not be covered or protected. Because of the expense and uncertainties of slander litigation, few lawsuits are actually filed. Yet, as business reputations become more valuable, as catastrophic losses makes owners desperate, and as the technological ability to track disparaging statements continues to improve, a slander lawsuit against an environmental health official is not just an imaginary danger.

The recent case of Catfish Cabin of Monroe, Inc. v. State Farm Fire and Casualty Co. (1) concerned libel against a local restaurant. Though no health department employees were sued, the case demonstrates the ease and unconsciousness of information dissemination--and the seriousness of the effects.

One day, several employees from an insurance company ate at the Catfish Cabin, a seafood restaurant in Louisiana. A few hours later, several of the employees became sick. One of the employees sent the following email message:

Hey guys,

Got word today that a particular unit from State Farm went to the "Catfish Cabin" on Louisville for a unit lunch. By the time they got back to work they were all vomiting and one passed out. An ambulance had to come pick up several of them and take them to the ER.

A manager of one of the divisions told us that it takes at the very least two to three hours for the very worst food poisoning to take that kind of effect.

They think someone intentionally poisoned the food. Just wanted to make you guys aware. if you've heard anything else let me know!! [emphasis added]

The local health department was alerted, inspected the restaurant on two consecutive days, and found no contaminants. The business and its owners sued State Farm Insurance and the employee who sent the email for defamation.

The trial court and the Louisiana Court of Appeals dismissed the lawsuit by the individual owners but allowed the lawsuit by the business corporation to continue to trial, The reason the owners were dismissed was that a corporation is a separate person from its individual owners, even if only a few shareholders own the corporation.

According to the e-mail, "someone" supposedly caused the alleged food poisoning. No individual was identified. Since there were up to 38 employees of Catfish Cabin, it was not possible to identify the one who actually or supposedly caused the alleged food poisoning. Therefore, no individual had a personal reflection cast upon him, and no one was defamed.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at <sikora@etsu.edu>.

References

(1.) Catfish Cabin of Monroe, Inc., v. State Farm Fire and Casualty Co., No. 35,710 (Louis, Ct. App. 2002).

(2.) Clarence Jones. (2001). Winning with the News Media. http://www.winning-newsmedia.com/bookordr.htm. (15 Mar. 2002); see also Steven Pressman. (1994). Libel law in the United States. An Unfettered Press. http://usinfo.state.gov/usa/infousa/media/u nfetter/press08.htm. (15 Mar. 2002).

(3.) George D. Pozgar, Legal Aspects of Health Care Administration (8th ed.), Aspen Pub., 2002, at 33.

(4.) Tenn. Code Ann. [section][section] 29-20-205 and 310. (no date). http://www.loislaw.com (15 Mar. 2002); see also Utah Code Ann. [section][section] 63-30-4 and 10. (no date). http://www.loislaw.com (15. Mar. 2002).
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Article Details
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Author:Sikora, Vincent A.
Publication:Journal of Environmental Health
Geographic Code:1USA
Date:Jun 1, 2002
Words:1000
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