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Comment by cordite | Hacker News Reader

Could VirnetX sue for defamation if Apple specifically said that?

> Could VirnetX sue for defamation if Apple specifically said that?

Probably not with any reasonable chance of success. At least in the U.S. legal system, if you can convince the jury that your allegation was in fact true, then that's an absolute defense to a defamation action. (There would also be other obstacles, which I won't address here.)

You can sue for anything, so yes, but in this thought experiment they would lose the lawsuit. In order for a defamation/libel lawsuit to be successful, the statement must be untrue.

Further, if it was found that they were executing this suit vexactiously, they might be liable for anti-SLAPP damages.

"This feature is unavailable due to a lawsuit filed by VirnetX, Inc."

A necessary element for a defamation claim is that the statement be false. As this statement is 100% provably true, it is not defamation. They'd be thrown out in an instant.

VirnetX would claim it isn't because of the lawsuit they filed, but because Apple infringed on their patents.

I think I would side with that. Do you get sent to jail because someone saw you, or because you were stealing stuff?

> Do you get sent to jail because someone saw you, or because you were stealing stuff?

You're sent to jail because you were caught, tried, and convicted of stealing things. The act of stealing alone does not send you to jail. Same with patent infringement. The act of infringement alone does not force Apple to shut down iMessage. VirnetX is required to actually file the lawsuit, and then win, for Apple to be required to shut it down.

You can always sue but by my understanding they would have to show that statement to be false. I think that would prove to be rather difficult.

There are four responses here correctly agreeing that the lawsuit would fail, but they disagree on the reason. Do you have to prove that the statement is untrue for it to be possible libel, or do you have to prove it's true to defend yourself from the accusation? Who wins in the middle?

In the U.S. the burden is on the plaintiff (the person allegedly defamed) to prove that the defamatory statement was false IF the plaintiff is a public figure OR if the statement involved a matter of public concern; otherwise the burden is on the defendant to prove the truth of the defamatory statement. [0]

[0] http://www.rcfp.org/first-amendment-handbook/introduction-de... (scroll down to "Falsity")

It'd be factually accurate so I don't think so (IANAL).

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