Defending Against Ashley Madison Claims
By Henry E. Lagman
What a man would to be true, that he more readily believes.
—— Francis Bacon (1561-1620)
Ashley Madison claims of adultery are probably one of the most insidious claims to arise from the Internet age. People will believe them if they want. They are the equivalent to having your name written on the bathroom wall. This article addresses some of the reasons why they should not be believed on face value and why we should pause before having confidence in them. One should attempt to avoid “An Uncontrolled Landing on the Sun” by believing them or prepare to obtain a divorce because of them. As always consult an attorney skilled and tenacious in your defense if accused and if victimized by them one cautious in the preparation of your marital dissolution.
There are already reports of suicides, divorces, careers being destroyed. Other misfortunes will arise out of this breach of privacy. These legal and moral issues will have far ranging affects on government and personal lives. A permanent change in living arrangements based purely on rumor and innuendo could be wildly damaging to the affected couples, children and financial fortunes of all concerned. Caution should be exercised in acting on them.
Why the Ashley Madison Publications should not be believed on face value:
1. The Problem of Republication. Most published lists of names upon the “Ashley Madison” site are republished from other sites. There are multiple publications. There are some publications that contain viruses, trojans and other electronic traps and devices. If these lists can contain those “additions” then it reasonable to assume that additions to lists and names could be supplied. As journalism they therefore rate as nothing more than rumor and unverified speculation. They are the repetitions of previous publications and not first hand information. Most creditable news organizations have not reported the lists, but merely the consequences of publication. They know the law regarding libel and slander and are not easily trapped into their own quagmire of litigation.
2. The List Can’t be Verified. The published lists of names and information are not subject to easy verification. In order for information on the internet to be admissible in court it must be authenticated. That means can we trust the information as proof? Does it mean what it purports to mean? Is it trust worthy? We have the tendency in the internet age to belief everything published. We see it in print and we take the information as true. Most of what is published on the internet is commentary- not primary proof. Many a journalist has lost his career due to unfounded claims and subjected themselves and their organizations to liability for libel. Repetition by sound is slander and the publication of the same over the airwaves will also have legal consequences similar to libel but arise from a different legal standing. True journalist are cautious about republication.
3. Light Weight Journalism. Reposting of the “Ashley Madison List” should be dealt with by actions against publisher and their internet domains by legal action. First a letter of withdrawal and then suits for injunctive relief should be entertained. A challenge should be mounted against the publisher to “legally authenticate” the information published or withdraw it. Those “journalists” that can not authenticate the information would be liable for damages. Authentication is a legal concept which poses the question, “Who prepared the information?” “How do we know that the information is true and what weight should we give it?” Most courts will probably prohibit the publish information as legal evidence without legal proof. This means can the information be collaborated? Are there credit card statements, admissions against interests, and other proof of an affair?
4. Identity theft We know that identity theft is a wide spread problem in our society. Actual proof that an individual made a post should be considered. If one’s identity could be stolen, posting on a site could also be accomplished. Again, a first reading of the list should be done with that in mind. Collaboration is the key. What other evidence exists to verify the postings? Is there an email trail or electronic evidence? Can third parties to a marriage, (the general public) obtain that information? No.
5. Limited Admissibility Most courts strictly will probably deny the admission of the list and its allegations; other courts may admit the “list” but give it little weight; still others might only view it through the legal lens as evidence of incompatibility. Lastly, most courts may see these allegations as a distraction to the real issues involved in a divorce. In Alabama there are nine (9) grounds for divorce. Other states may have different grounds, but if they follow common law concepts, they probably track the same nine. By far the biggest ground for divorce is still evidence of incompatibility. Incompatibility as grounds for divorce can be as wide ranging as financial irresponsibility, verbal in fighting, to snoring or leaving the toilet seat up or down. Those that seek to make the most of the Ashley Madison publication and republication should remember the limits of the claims.
6. Chain of Evidence Problems The initial data breach of Ashley Madison and the publication by persons unknown bring huge legal problems to the admission of the Ashley Madison list. Those legal issues still remain to be sorted out, and are beyond the scope of this posting. But “Chain of the evidence” refers to the handling of evidence and is a real concept of admissibility. Has the evidence been tampered with? Is it in the original form from its creation? Who created the evidence, Ashley Madison or some intervening party? Unless one can present the proper predicate or foundation for the admission of evidence it will be denied admission. Lack of the Chain of Evidence is one defense to its admission and would support its suppression in court. Those issues related to “Lack of the Chain of Evidence” support a finding of un-trust worthiness. This means the list would not be admitted in any legal forum. So caution about believing the truth of the Ashley Madison posting would be a wise decision. Again, if one is predisposed to belief the allegations are true one will believe them.
7. Collaborating Evidence Finding collaborating evidence of infidelity is probably more important than the appearance of a name on the list. That may be more difficult than may be appear at first blush. This is not to say that those accused should destroy the evidence. Spoliation of the evidence (the destruction of evidence) may give rise to additional claims outside of a divorce court. In Alabama, spoilation of evidence, is a separate tort claim. It is similar to a civil assault. It a cause of action or “right to sue” based upon the destruction of evidence. In Alabama before a claim for spoliation can arise a legal action must be pending or alternatively the party against who the action may be filed must be placed on notice to preserve the evidence. Destruction of evidence in those circumstances can result in damages. Other states may have similar or different approaches to destruction of evidence, but by and large the claim exists in all states. The fact remains that an appearance of a name on the “Ashley Madison List” in and of itself is still just a claim not legal proof.
8. The Devaluing of Adultery as a Ground for Divorce Adultery as a ground for divorce is not as potent as it once was. Though still a crime in Alabama criminal prosecution for adultery is rare in most states. Most courts still weigh the dissolution of the marriage against the best interest of the children, the financial resources of the parties and the earning potential of the separate parties. In an era where women have sought their “rights and independence”, economic dependence upon the resources of only one spouse in the form of alimony may not be what one would expect. Likewise alimony as been extended to men. I would advise a more reason approach to the dissolution of your marriage. In effect one may need to “Be careful for what you may ask for- you may get it.” This is not to say the I condone extra marital affairs, but relying only on published or rumored reports of infidelity would be sketchy at best. Other issues such as custody, parenting ability, earning capacity and ability appear to be more important than merely pointing a finger and saying, “There he or she is an adulterer.” Affairs of the heart may not be penalized as harshly as actual acts. You must have an overt act. That is to say you must have proof an act has occurred.
9. Open Your Pocket Book Be prepared to spend a great deal of money for computer forensics. The costs and competency of so called “computer forensic specialists” vary widely. Their results can also be questioned by other computer forensic specialists in the courts, so again, you pay your money and take your choice.
10. Go to Counseling Lastly, if you have an otherwise good marriage, do you what to jeopardize the success you have had? No marriage is easy. Divorce is permanent and is more akin to an expensive “An Uncontrolled Landing on the Sun”. Divorce should be the last resort. This divorce lawyer would advise caution before you file to dissolve your marriage. Seek counseling instead. So be careful to reacting to the Ashley Madison scandal when you find someone you know on the list.
Landing on the sun only results in the crew becoming ashes.