Topic Overview:
Libel law is designed
to protect an individual’s reputation, restore defamed reputations and deters
future defamation. The common law of slander and libel is meant to achieve
society’s “pervasive and strong interest in preventing and redressing attacks
upon reputation.”
Historically, laws
against defamation helped to maintain the status quo and to punish criticism of
authority figures. US law stems largely from English common law. The Star
Chamber declared libel a criminal offense as it breached the peace and written
was more serious than spoken defamation. Common law courts distinguished
between libel and slander. The concept of seditious libel is reflected in the
Sedition Act of 1789 that made it a crime to write false, scandalous and malicious
statements against the president and Congress. It did not impose a prior
restraint but expired because laws should not prevent publications but can be
passed to punish them if the need arose. Threat of a libel lawsuit produces a
chilling effect; reluctance to pursue stories and publish freely. Strategic
lawsuits against public participation (SLAPP) suits are meant to silence
critics. In 2010 anti-SLAPP law covered more kinds of speech and allowed judges
to dismiss meritless lawsuits more quickly and award attorney’s fees in
dismissed cases.
The entire initial
burden of proof is on the plaintiff. They must prove that all required elements
apply to the allegedly libelous material with definitions and explanations for
each:
·
Statement
of fact-an expression of opinion cannot be libelous because opinions cannot be
false.
·
Publication-at
least one person in addition to the source and receive of material must have
seen or heard the information in question. The material was made public.
·
Vendors
and distributors-a specific person, group or business responsible for the
publication must be identified. Publishers should be aware of the material they
disseminate. (not bookstores, libraries and newsstands because they do not
control the content of products and cannot be expected to know what they
contain)
ISPs (Internet service
providers) are providers of information, not publishers unless they originated
any part of the information.
When a publisher is
unknown, courts can obtain names from an ISP but the person’s identity is shielded
in the courtroom and kept out of court documents to preserve anonymity. For the
plaintiff, identification has taken place as long as someone other than the
plaintiff and the defendant recognize the content is about the plaintiff. Libel
law allows a member of a group to sue the whole group if the information is “of
and concerning” the individual bringing the lawsuit. The smaller the group, the
more likely it is that individual members have been identified. There is no
limit on how small or big a group can be but cases in which recovery was
allowed were in groups of 25 or fewer. If a particular member of a large group
is identified, that person would have a legitimate complaint. Courts evaluate
each case on its specific facts. Inclusiveness and language becomes a factor. Libel
claims based on works of fiction is legitimate if the work identifies and is
“of and concerning” the plaintiff. The plaintiff must prove that a reasonable
reader would perceive the writing as intending to portray a real person, the
plaintiff.
Defamation can be
defined as words that are false and injurious to another, expose another to
hatred contempt or ridicule, tend to harm the reputation of another, subject a
person to the loss of goodwill or confidence from others, subject a person to
scorn or ridicule, exposed to hatred, contempt or aversion, induce an evil or
unsavory opinion in in the minds of the community, and tend to prejudice
someone in the eyes of a substantial and respectable minority of the community.
Libel and slander can be distinguished as per say and per quod. Business and
trade libel can have legitimate libel claims.
The plaintiff is
responsible for demonstrating the statement at issue is false. As long as the
statement is substantially true, it cannot meet the standard for falsity and
cannot be libelous. Libel by implication and innuendo can occur through the
omission of facts and when read in a particular way, content carries false
implications.
The plaintiff must
show the defendant was at fault in making public the allegedly false and
defamatory statement of fact usually by negligence.
The New York Times Co
v. Sullivan case “constitutionalized” libel law and recognized restriction of
the flow of information is antithetical to the philosophy and spirit of the FA.
Actual malice is knowledge of falsity or
reckless disregard for the truth; publishing information knowing it is false or
careless and irresponsible obtaining and publishing of material. Public
official, public figure, and all-purpose public figure plaintiffs must show
that fault on the part of the defendant is at the level of actual malice. Limited-purpose
public figures can assume public figure status within small publics but may
revert to a private figure in larger spheres. Involuntary public figures do not thrust themselves into
public controversies voluntarily but are drawn into specific issues. A
plaintiff would need to demonstrate that he/she is no longer a subject of
public concern and that libel claim is not connected to public events or
controversies. Private figures to do not have to prove actual malice, only that
the libel defendant acted with negligence. Whether a plaintiff is considered a
public figure in a libel suit depends on the nature of the material being
published—specifically whether it relates to a matter of public concern.
Actual damages
represent the quantity of the harm actually suffered by the plaintiff due to
libel. Special damages are those for which there is an exact monetary figure
specifically related to the material loss suffered. Presumed damages do not
require the plain riff to produce evidence of harm but come with limitations.
Punitive damages are intended to punish libel defendants with a monetary
penalty.
Criminal libel is
subject to the same constitutional requirements as civil law, but burden of
proof is higher than a civil libel suit since to establish guilt the alleged
libel must be proved beyond a reasonable doubt.
CH. 5
The fair report
privilege gives reporters breathing room to report on official government
conduct without having to prove truth and protects media reports of official
government actions regardless of possible defamatory elements; it covers
branches of state, local and federal governments and private individuals
communicating with the government. Absolute privilege occurs within the content
of carrying out the business of government. Conditional or qualified privilege
can be forfeited if the allegedly defamatory material is published with
inaccuracies or is reported unfairly.
Fair comment and
criticism protects critics (anyone who comments on individuals and works) from
lawsuits brought by individuals in the public eye (anyone who enters a public
sphere) and commentary on institutions whose activities are of interest to the
public or where matters of public interest are concerned.
Opinion stems from the
FA and is a constitutional defense. The Ollman test provides a relatively
straightforward way to assess opinion: is the statement verifiable, what is the
common usage or meaning, what is the journalistic context in which it occurs,
and what is the broader social context into which the statement fits? “No such
thing as a false idea” cannot be applied broadly. Opinions can imply knowledge
of hidden facts that led to the opinion. Statements of fact placed in a column
do not make those statements expressions of opinion. Under innocent
construction, as long as words at issue have one non-defamatory meaning, the
defendant wins; only some states use this rule. As long as states are
consistent with the FA, they can structure libel laws as they choose.
Letters to the editor
are viewed as expressions of opinions rather than fact. Letters are not
protected if they combine opinions and facts. Authors of letters that are
published are shielded as the media themselves. The context of hyperbole,
parody or satire in question plays a big role in determining if a reasonable
person would believe it to be a statement of fact. Rhetorical hyperbole is
protected speech and satire or parody meant to be humorous or offer social
commentary is often not libelous.
According to neutral
reportage, news media should not be restrained from merely reporting an
accusation as long as the reporting is fair objective and balanced. The inconsistent
manner in which courts have accepted it makes its application in a case
questionable. The wire service defense provides a defense for republication on
the condition that the reporting meets certain standards and holds that the
accurate republication of a story by a reputable news agency does not
constitute fault as a matter of law. It is available to libel defendants if:
the defendant received material containing the defamatory statements from a
reputable newsgathering agency, the defendant did not know the story was false,
nothing on the face of the story reasonable could have alerted the defendant
that I may have been incorrect and the original wire service story was
republished without substantial change. It has only been accepted in a limited
number of jurisdictions. The single-publication rule states the entire edition
of a newspaper or magazine is a single publication; sales or reissues are not
new publications. A new libel suit is not possible unless content changes in a
way that creates new libel in the republication process.
A libel-proof
plaintiff is one whose reputation is so damaged that additional false
statements cannot cause further harm; not a universal doctrine—one’s reputation
can always be worsened. The
single-mistake rule excuses falsely reporting that a professional person made a
mistake within the context of their profession by reasoning that the public
understands that some professionals occasionally make mistakes; can serve as
libel defense.
Summary judgment is
when a judge promptly decides certain points of a case and grants the motion to
dismiss the case. It can occur at some points in litigation but usually prior to
trial. A judge may issue one when on grounds that there is no genuine dispute
about any material fact; plaintiff is unable to meet at least one element in
burden of proof. When granted, plaintiff’s opportunity to prove a case ends but
if a defendant’s motion for one is denied, the defendant still has an
opportunity to prove their case at trial.
In libel, wherever the
material in question could be seen or heard, a court in any of those locales
would have jurisdiction; any court could claim jurisdiction for Internet cases.
The test to determine the exercise of jurisdiction is: whether the defendant
purposefully conducted activities in the state, whether the plaintiff’s claim
arises out of the defendant’s activities there, and whether the exercise of
jurisdiction would be constitutionally reasonable. Jurisdiction resets where
the publication’s intended audience is located.
In libel the length of
the statute of limitation is one, two or three years depending on the state.
Time starts on the date the material was made available to the public. In
print, it can be prior to the date of publication. The single-publication rule
applies to statutes of limitation and to Internet publications.
Retractions and
corrections published to correct content can help libel defendants mitigate
damages to the plaintiff. A retraction can help reduce the damage to the
plaintiff’s reputation and should be required to pay less in damages.
Retractions can also be an admission of guilt. Retraction statutes are state
laws that limit the damages a plaintiff may receive if the defendant had issued
a retraction of the material at issue; strength and coverage vary and they may
be instructive. They prevent plaintiffs from recovering entire categories of
damages after publication of a retraction.
Libel defendant may
demonstrate to a court that it conducted itself in a responsible way in gathering
and reporting the news. They want to strengthen position by showing as many of
the following as possible: the story was investigated thoroughly, interviews
were conducted with people who had knowledge related to the story including the
subject, previously published material and biased stories were not relied on,
reporting was careful, systematic and painstaking, multiple viewpoints were
sought and included when possible, willingness to retract or correct facts,
demonstrable deadline, no ill will or hatred toward the plaintiff.
Defining Key Terms:
1. Libel- to publish in print
(including pictures), writing or broadcast through radio, television or film,
an untruth about another which will do harm to that person or his/her
reputation, by tending to bring the target into ridicule, hatred, scorn or
contempt of others
http://dictionary.law.com/Default.aspx?selected=1153
2. Slander- oral defamation in which someone tells one or more persons an untruth about another which will harm the reputation of the person defamed
http://legal-dictionary.thefreedictionary.com/slander
3. Libel per so- a statement whose
injurious nature is apparent and requires no further proof.
4. Libel per quod- a statement whose
injurious nature require proof
5. Defamation- the act of making untrue statements about another which damages his/her reputation.
http://dictionary.law.com/Default.aspx?selected=458
Important Cases:
Ch. 4
New York Times Co. v.
Sullivan-FA applied to libel, “breathing space” for error- fear of making minor
errors would result in a chilling effect on the media, unduly restricting press
freedom. Flow of information and political speech (close scrutiny and criticism
of gov) is a core FA value.
Gertz v. Robert Welch,
Inc,-private individuals- court held that as long as defamation claims do not
impose liability without fault, states can establish standards of liability for
defamatory statemnts about private individuals
Ch.
5
Ollman v. Evans- opinion
test – case created test to distinguish statements of fact from expressions of
opinion
Milkovich v. Lorain
Journal Co.- “no such thing as a false idea”- not all opinions are exempt from
defamation charges; expressions of opinion may often imply an assertion of
objective fact
Relevant Doctrine:
Ch. 4
The Plaintiff’s Libel Case:
1. A statement of fact
2. That is published
3. That is “of and concerning” the
plaintiff,
4. That is defamatory
5. That is false and
6. For which the defendant is at fault
Libel Plaintiff’s Case When Publisher Defendant is Unknown
The plaintiff must:
1. Identify the anonymous party with as
much specificity as possible so the court can determine if the defendant is a
real person or an entity that can be sued
2. Demonstrate previous steps taken in
the attempt to identify the anonymous defendant
3. Show that its case is strong enough
to withstand a motion to dismiss
4. File a request for discovery with the
court
Actual Malice:
1. Knowledge of falsity or
2. Reckless disregard for the truth
“Reckless Disregard” Criteria
1. Urgency of the story.
Is there time to check the information?
2. Source reliability. Is the source trustworthy?
3. Story believability. Is further examination necessary?
Limited –Purpose Public Figure
1. A public controversy must exhibit
before the publication of the allegedly libelous statement.
2. The plaintiff must have in some way
participated voluntary in trying to resolve this controversy.
3. The plaintiff’s participation
actively sought to influence public opinion regarding the controversy.
Ch. 5
Fair Report Privilege
1. The information must be obtained from
a record or proceeding recognized as “official”.
2. The news report must fairly and
accurately reflect what is in the public record or what was said during the
official proceeding.
3. The source of the statement should be
clearly noted in the news report.
The Ollman Test for Opinion
1. Verifiability
2. Common meaning
3. Journalistic context
4. Social context
Neutral Reportage
The FA is a defense in
a libel case if
1. The story is newsworthy and relate
dot a public controversy
2. The accusation is made by a
responsible person or group.
3. The charge is about a public
official, public figure or public organization
4. The story is accurate, containing
denials or other views.
5. The reporting is neutral.
The Wire Service Defense
The wire service
defense may be applied as long as
1. The defendant received material
containing the defamatory statements from a reputable newsgathering agency.
2. The defendant did not know the story
was false.
3. Nothing on the face of the story
reasonably could have alerted the defendant that it may have been incorrect.
4. The original wire service story was
republished without substantial change.
Test for Jurisdiction
1. Whether the defendant purposefully
conducted activities in the state
2. Whether the plaintiff’s claim arises
out of the defendant’s activities there and
3. Whether the exercise of jurisdiction
would be constitutionally reasonable
Current Issues or Controversies:
Threat of a libel
lawsuit produces a chilling effect which is seen as an infringement of the FA, but also holds reporters and authors accountable for their published work. Libel law checks the power of the
media through public scrutiny and accountability. Opportunities for libelous speech have increased with the development of new
media. New communicative medium like blogs and social networks increases
communication and opportunity for defamatory statements. The rate of speed,
volume and reach of messages in addition to fixation on celebrities and public
figures increases the potential for libel. Many are unwilling to rely on
corrective speech as a remedy for false and damaging statements to reputation.
Individual reputations are weighed
against the right of others to be heard on issues of importance.
Libel law is not set
in stone and is handled on a case by case basis. Some huge issues with libel
law come with defining and categorizing: fact or opinion, public or private,
privileges, exemptions and rules, and jurisdiction and statute of limitation.
My Questions/ Concerns:
My concerns are mainly
with the amount of defining, categorizing, rules and exemptions that come with
libel law. It seems that there are many loopholes and ways to get out of a
libel lawsuit. Opinions count as free speech and are protected under the constitution, but it is one thing to have an opinion and another to publish it for the public to read, especially when it damages an individual's reputation.
References:
Images: http://scoutmoderation.com/wp-content/uploads/2010/04/Libel-e1272287072824.jpg
