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Subject:  Re: Another expose on the credit reporting indus Date:  2/14/2013  3:02 PM
Author:  joelcorley Number:  306821 of 313032


You wrote, Thanks for your easy-to-understand analysis. I just don't think there is a "basic right" to avoid being defamed. I can defame you, and you can seek justifiable damages. Just like you say that rights to privacy are only those provided by law, any right against defamation is also only provided by law.

Well as far as I'm aware, there are no "basic rights" outside of law. The right to life and freedom of speech are both legal notions. For instance, without human law (or human intervention), there would be nothing except my conscience preventing me from taking a life.

With that said, if you have a right to free speech, one of its limits is my right to not be defamed. The right to defend yourself against defamation has actually been an accepted concept for centuries - much longer than the right to free speech. The concept of free speech is actually in response to the crown suppressing opposition through the courts with criminal charges such as seditious libel.

BTW, the decriminalization of defamation is actually fairly recent - something still not accepted in every country.

Also, Of course it is libelous to knowingly make false written statements that cause injury to another party. I'm not arguing the following points; simply saying that arguments could be made around them: 1. The word knowingly creates problems trying to blame the CRAs of libel. 2. Subjectively, being turned down for credit might be considered good for the claimant; not injurious.

Well ... not arguing, I would point out that the courts have repeatedly said that FCRA claims are rooted in libel law. So stating that a violation of the FCRA is libel is just me parroting court verdicts I've read. And inflammatory or not, I'm just stating the truth as I understand it.

As for the second item, you are quite correct.

This actually is one of the reasons filing a libel claim against a CRA without the FCRA was problematic. That's because for a normal libel claim to succeed, the plaintiff must prove they were damaged. However this is where the FCRA comes down the side of consumers - if the consumer can show the CRA failed to follow dispute resolution procedures outlined in the FCRA, the court can assume a minimum statutory damage. Without statutory damages and an award for legal costs, most violations wouldn't be worth pursuing even if you could prove damages. But just because something isn't worth pursuing financially for an individual doesn't mean it is right, defensible, acceptable in toto or in the nation's best interests.

Finally, Any comment on my "it's not your data" position? Or were you okay with that part?

What am I to say about that? Data wants to be free! (Paraphrasing Stewart Brand ;-) Actually the courts have routinely said that taken individually, facts cannot be copyrighted. That implies they also cannot be owned, even if they are about you.

With that said, the law does routinely restrict under what circumstances and to whom sensitive personal information can and cannot be disclosed to third parties. If an individual is damaged by such a disclosure, they may have a basis for a claim. However, this doesn't mean they actually have ownership rights in the disclosed information - they simply have a right to a reasonable expectation that the information will be guarded.

I would also point out the CRAs and creditors do not technically own the information either. From what I've read the courts have ruled that a unique compilation of facts can be copyrighted, so if you get something like a credit report the report itself may be "owned" as presented by the CRA; but the individual facts contained within are definitely not.

BTW, disclosure of facts can be constrained by trade secret and non-disclosure agreements (contract). Those agreements can be buried in other contracts and be far from obvious...

- Joel
Who's an engineer - not a lawyer...
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