I recognize that there is all kinds of relevant context, and I really don’t mean this as some kind of cheap “gotcha” or whatever, and think there are a bunch of ways in which this is reasonable, but Nonlinear did sound like they were claiming that this was a slam-dunk case in their email to us:
Given the irreversible damage that would occur by publishing, it simply is inexcusable to not give us a bit of time to correct the libelous falsehoods in this document, and if published as is we intend to pursue legal action for libel against Ben Pace personally and Lightcone for the maximum damages permitted by law. The legal case is unambiguous and publishing it now would both be unethical and gross negligence, causing irreversible damage.
I do think this mattered quite a bit for at least my reaction (though it’s more that Ben’s reaction here mattered).
Again, I do think there are ways in which saying this kind of thing is understandable, especially under time pressure, and also I am not an expert in libel law, but Nonlinear claiming that the legal case was unambiguous, despite me being reasonably confident that it wasn’t, was one of the things that made me interpret this as more of a bluff and an intimidation tactic than a serious attempt to fairly use the legal tools available to achieve a just outcome.
I’m not sure how this would contradict my point. You don’t think the threat was reasonable because you don’t think the case was a slam dunk. If you thought they actually had a slam dunk case against you and were virtually guaranteed to win via summary judgment, do you think a libel suit would be a reasonable threat?
If they actually had a slam dunk case, I would react somewhat differently, though still perceive a libel suit in that context as a very aggressive thing to do.
If Nonlinear had accurately represented their chances of winning, then I would have perceived it as less of an intimidation attempt (like, if the Nonlinear email said “we aren’t confident we would win a libel suit, but given the stakes for us we have no choice”, I do think that would have caused me to perceive the email pretty differently).
Relatedly, if I thought that the case was obviously a slam dunk, and they had said so, that also would have felt less like intimidation to me. It would have still been a kind of risky threat, but as @Jason pointed out in another comment on this post, one of the most pernicious problems with libel suits is invoking the threat of them, without actually ever having to pay up on the cost of going through with them, and overstating your chances of success is correlated with that.
I do also think that a lawsuit that was very likely to succeed would be correlated with having more of an ethical case (not strongly, but at least somewhat).
I recognize that there is all kinds of relevant context, and I really don’t mean this as some kind of cheap “gotcha” or whatever, and think there are a bunch of ways in which this is reasonable, but Nonlinear did sound like they were claiming that this was a slam-dunk case in their email to us:
I do think this mattered quite a bit for at least my reaction (though it’s more that Ben’s reaction here mattered).
Again, I do think there are ways in which saying this kind of thing is understandable, especially under time pressure, and also I am not an expert in libel law, but Nonlinear claiming that the legal case was unambiguous, despite me being reasonably confident that it wasn’t, was one of the things that made me interpret this as more of a bluff and an intimidation tactic than a serious attempt to fairly use the legal tools available to achieve a just outcome.
I’m not sure how this would contradict my point. You don’t think the threat was reasonable because you don’t think the case was a slam dunk. If you thought they actually had a slam dunk case against you and were virtually guaranteed to win via summary judgment, do you think a libel suit would be a reasonable threat?
If they actually had a slam dunk case, I would react somewhat differently, though still perceive a libel suit in that context as a very aggressive thing to do.
If Nonlinear had accurately represented their chances of winning, then I would have perceived it as less of an intimidation attempt (like, if the Nonlinear email said “we aren’t confident we would win a libel suit, but given the stakes for us we have no choice”, I do think that would have caused me to perceive the email pretty differently).
Relatedly, if I thought that the case was obviously a slam dunk, and they had said so, that also would have felt less like intimidation to me. It would have still been a kind of risky threat, but as @Jason pointed out in another comment on this post, one of the most pernicious problems with libel suits is invoking the threat of them, without actually ever having to pay up on the cost of going through with them, and overstating your chances of success is correlated with that.
I do also think that a lawsuit that was very likely to succeed would be correlated with having more of an ethical case (not strongly, but at least somewhat).