Check before you say Cheat
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The seemingly quiet world of chess has been in uproar following a year-long dispute over allegations of cheating in competitive tournaments.
In September 2022, Magnus Carlsen, a chess world champion and Grandmaster, accused Hans Nieman, also a Grandmaster, of cheating in matches between the two players. Nieman was 19 at the time the allegations were made and considered to be something of a chess prodigy. Chess.com published a report which suggested that Nieman may have cheated in more than 100 games hosted on the website. In response to the accusations, Nieman admitted to having cheated in matches when he was 12 and 16 years’ old but denied cheating in the matches with Carlsen. He subsequently began a $100 million defamation claim against Carlsen, Chess.com and Hikaru Nakamura, another Grandmaster who had supported Carlsen’s claims.
Defamation
So, what is defamation and what sort of statements can be defamatory? The modern law in Scotland is now contained in the Defamation and Malicious Publication (Scotland) Act 2021. A statement about a person is defamatory if “if it causes harm to the person’s reputation (that is, if it tends to lower the person's reputation in the estimation of ordinary persons)”. There must be serious reputational damage. Injury to feelings alone is not enough. Non-natural persons, such as companies, can be defamed and would need to show that the statement has or will cause them financial loss.
Accusing someone of cheating in a chess match, especially a chess Grandmaster, would seriously harm their reputation and be defamatory. Suggestions that a person is guilty of a crime or has attempted to commit a crime are also defamatory as are claims that they are dishonest, insolvent, immoral, drunken or which disparage their professional or business character. What is considered defamatory can change over time. Previously a claim that a person was gay would have met the requirements but probably not now, whereas, a claim that a person is homophobic would be defamatory.
Publication
A statement must be “published” to a third party before a claim for defamation can be made. “Publish” can mean printing in traditional newspapers but can also include social media, blogs, television documentaries, magazine articles, in a speech or standing on a soap box on a street corner and shouting loudly! Essentially, if a third party can see or hear the statement being complained about, it has been “published”!
A court will look at the specific statement but will also consider the wider context in which it was made. For example, for a newspaper story, it will consider the headline and the whole article or report. For a spoken statement, the whole text of a speech or the circumstances in which it was made will be taken into account. If the statement was on X (formerly Twitter) then the court may look to see if the post was part of a longer thread. Liking or sharing a posts on social media will probably not give rise to a defamation claim unless it can be shown that it has materially increased the harm caused.
Defences
There are a range of defences open to a person accused of defamation:
• It wasn’t me – the person accused of defamation didn’t actually make the statement.
• It wasn’t you – the statement did not refer to the person now complaining.
• You don’t understand – the words used don’t have the defamatory meaning being suggested.
• It’s true – the law of defamation only protects a person against untrue statements.
• It’s in the public interest – a defence for responsible journalism (defining what in in the public interest, as opposed to interesting to the public, remains a challenge!).
• It’s an honest opinion – a comment, inference or observation, along with the evidence on which it was based, will be protected if it was honestly held.
• It’s privileged – statements made in the UK or Scottish parliaments, together with most statements in judicial proceedings are protected from being the source of a defamation claim as are fair and accurate reports of those proceedings.
Stalemate
But back to the chess kerfuffle. On 29 August 2023, it was announced that, as a result of out of court discussions, Carlsen, Neiman, Nakamura and Chess.com had settled their dispute. Neiman would be allowed to play at future Chess.com events and Carlsen would be willing to play against him. Nakamura was glad that he could now “move forward” and Neiman was pleased that matters had “resolved in a mutually acceptable manner.”
Risk, worry and expense are often features of litigation and resolving disputes without the need for a court decision will frequently offer the best opportunity for parties to get on with their lives. But do check before you say “cheat”…