My question involves defamation in the state of: Any
These days, it's the independent developers that are hit hardest by antivirus companies claiming that a website or software is malicious in some way. It can be detrimental to a developer if a customer's (potential or established) antivirus pops up saying that the developer's produce is malware. This notification has a ripple effect especially in this social-media age and can render a business "tainted" for a long time.
I have read another thread about the very same subject on this forum but the thread was closed prematurely as I feel it deserves more discussion. In the previous thread, it was asked how one would prove that the statements from an antivirus program caused revenue loss.
Defamation according to FindLaw:
First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff - I think this first one is easily proven - either the software is malware or it's not. I think in a court, the defendant would be given the opportunity to prove that it IS (if possible).
Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.
I don't know what this second part means - maybe someone could help with that.
Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication.
I think this could be easily proven if the software is not malicious - the defendant would have to prove that it acted in good faith and with some kind of proof that the software was dangerous in some way.
Fourth, in some cases, the plaintiff must prove special damages.
Easily proven with convincing sales statistics.
Defamatory Statement examples according to FindLaw:
1. A communication that suggests the plaintiff was involved in a serious crime involving moral turpitude or a felony
2. A communication that exposes a plaintiff to ridicule
3. A communication that reflects negatively on the plaintiff's character, morality, or integrity
4. A communication that impairs the plaintiff's financial well-being
5. A communication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff
I would focus on number 4 (and possibly 3)
I believe that it may be possible to successfully litigate a case like this if the business were to use sales statistics for proof. The statistics would need to show sales trends from years before the event and show a sharp decline in sales after.
What do you think?