Tuesday, October 23, 2007

Slander, Libel, Oh My!

Today Gawker did a piece on a blogger who has create her blog in order to publicize the picture of the man she believes gave her herpes. On her blog she also documents that she flyered the neighborhood they live in with a picture of him that says, "I have herpes" across it.

I'm not going to link to the blog for two reasons. First (which will be the substance of this post), I don't want to participate in spreading a rumor and secondly, I'm pretty sure she's mostly doing this because she's blinded by anger and wants attention. (Note to everyone out there [including me], nothing lastingly good ever comes from actions motivated by feelings of anger or wanting revenge.)

Please check out the American Social Health website for information about herpes. The blogger found information that theusual incubation period is about 2 to 20 days, which is how she calculated who (she claims) knowingly infected her. Here are two things that cast doubt on her claim that come from the same website linked above: (1) Although the first reaction usually appears within 2 to 12 days, the symptoms can be so mild that the carrier does not realize that they have herpes until a subsequent outbreak, which can be years later as herpes remains in your system for life. Based on what she's posted on her blog, she cannot be sure that this is her first outbreak and she may have actually contracted herpes years ago. (2) It's estimated that 90% of people who have herpes don't know that they have it. It's likely, therefore, that this guy was not aware that he had herpes.

From a legal standpoint, setting up a blog like this is a ridiculously stupid thing to do. As Gregory A. Abbott, Esq. explains

Defamation consists of the following:
(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.

In order for a statement to be defamatory the plaintiff must prove that the statement is damaging to his reputation, but accusing someone of having an STD is defamation per se, meaning the plaintiff is not required to proved damages.

The blogger in this case is not left without legal recourse, however. People have successfully sued others for knowingly transmitting an STD (though it is rare).

I also wonder what is really being criticized in this blogger's posts; the failure to disclose STD status or just having an STD at all. The former is certainly reprehensible. But I often find that just hearing that someone has an STD is enough to get people and their criticisms going. And if you're a sexually active adult, how hypocritical is that? First, chances are high that you have an STD and just don't know. Secondly, if you don't have an STD and you are sexual active, that is a combination of practicing safe sex and luck, but luck
is a factor.

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