JAYEE INSTITUTE
MEDIA LAW - J3 – Lecture Notes
Alfred Massaquoi-C, Ph.D.
Defamation, Libel and Slander Law, Proof of Fault and Defenses
Defamation
Public figures
Publication
Identification
Harm
Falsity
Faulty
Prof of fault
Public officials
All-purpose Public figure
Limited-purpose Public figure
The Meaning of Fault
Intentional Infliction of emotional Distress
Truth
Neural Report
Opinion
Consent
Anti-SLAPP
Tips on Defenses
Tips to Authors to Prevent Libel
Product Libel
Criminal Libel
Infliction of Emotional Distress
Avoiding Libel Suits
It is not unusual for attorneys to receive inquiries about defamation actions from people who are in conflicts with neighbors or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".
What Are Defamation, Libel and Slander?
Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm.
Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.
Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the elements of a cause of action for defamation include: A false and defamatory statement concerning another; The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and Damage to the plaintiff. In the context of defamation law, a statement is "published" when it is made to the third party.
That term does not mean that the statement has to be in print. Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se: Attacks on a person's professional character or standing; Allegations that an unmarried person is unchaste; Allegations that a person is infected with a sexually transmitted disease; Allegations that the person has committed a crime of moral turpitude; While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law.
They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.
What Defenses Are Available To People Accused of Defamation?
The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation. Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation.
Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met.
Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.
A defendant who transmitted a message without awareness of its content may raise the defense of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter. An uncommon defense is that the plaintiff consented to the dissemination of the statement.
Under the First Amendment of the United States Constitution, as set forth by the U.S. Supreme Court in the 1964 Case,
New York Times v Sullivan, where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice".
In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.
For example, Ariel Sharon sued Time Magazine over allegations of his conduct relating to the massacres at the Sabra and Shatila refugee camps. Although the jury concluded that the Time story included false allegations, they found that Time had not acted with "actual malice" and did not award any damages.
The concept of the "public figure" is broader than celebrities and politicians. A person can become an "involuntary public figure" as the result of publicity, even though that person did not want or invite the public attention.
For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established, on the basis that the notoriety associated with the case and the accusations against them turned them into involuntary public figures.
A person can also become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. For example, a woman named Terry Rakolta was offended by the Fox Television show, Married With Children, and wrote letters to the show's advertisers to try to get them to stop their support for the show. As a result of her actions, Ms. Rakolta became the target of jokes in a wide variety of settings.
As these jokes remained within the confines of her public conduct, typically making fun of her as being prudish or censorious, they were protected by Ms. Rakolta's status as a "limited public figure".
Why Commencing Defamation Action Is Not Always a Good Idea
While people who are targeted by lies may well be angry enough to file a lawsuit, there are some very good reasons why actions for defamation may not be a good idea. The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.
For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world.
As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved.
Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery.
Another significant concern is that, even where the statements made by the defendant are entirely false, it may not be possible for a plaintiff to prove all of the elements of defamation.
Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true. In other words, the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true.
While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted.
Libel: Publication
For purposes of a libel lawsuit, publication occurs when information is negligently or intentionally communicated by newspapers, magazines, books, radio or television broadcasts to someone other than the person defamed. Publication may occur through traditional or electronic means.
Internet service providers, however, are not responsible for libelous information posted by their customers unless they exercise editorial control over it. The U.S. Supreme Court refused in June 1998 to review the decision of a federal court of appeals that held the Communications Decency Act of 1996 insulates service providers from liability based on the actions of their users.3
The media can be liable for the republication of a libelous statement made by another person or entity.4 Letters to the editor containing unsupported derogatory accusations, or containing false statements, can also be the basis of a libel suit.
However, under the "fair report" doctrine, certain public and official statements can be disclosed by the media without fear of liability. In most states, accurate reports of arrests, civil and criminal trials and official statements made to, by and about law enforcement officials are privileged. Reports of this nature must be accurate and fair in order for the reporter to invoke the fair report privilege, and it is advisable that the reporter explicitly attribute the information to the official source.
A few jurisdictions also recognize a "neutral report" doctrine, which allows reporters to publish defamatory statements made by one public figure about another public figure as long as the news report does not take sides. Again, neutrality and attribution are required.
Libel: Identification
Plaintiffs must prove that the alleged defamatory publication refers to them. This element of a libel lawsuit often is referred to as the "of and concerning" principle: there can be no liability if the statement at issue is not proven to be "of and concerning" the plaintiff. Governmental entities cannot bring libel claims, nor can members of large groups (usually 25 or more).
However, if the statement at issue can be interpreted as referring to a particular person in a group, that person can sue. Also, if the offending information pertains to a majority of the members of a small group, any member of the group has standing to sue. A corporation may bring a libel claim if the alleged defamatory statement raises doubts about the honesty, credit, efficiency or prestige of that business. However, if the statements refer only to corporate officers, the corporation cannot litigate on their behalf.
Libel: Harm
The heart of a libel suit is the claim that the plaintiff's reputation was injured. In some states, harm does not need to be shown if the statements in question concern a criminal offense, a loathsome disease, a female's unchastity, or matters harming a person's business, trade, profession or office.
When any of these types of statements is involved, damage to the plaintiff's reputation is presumed. In most states, damage to reputation also is presumed when accusations of fraud, incompetence or improper behavior are made about business or professional people.
If the defamatory nature of the statements can be proven only by introducing facts that were not published as part of the original statements, a plaintiff usually must prove a monetary loss as a result of the publication to recover damages.
Libel: Falsity
It often has been said that truth is an absolute defense to libel.5 Absolute accuracy is not the appropriate criterion. Rather, the general standard is that the information must be substantially true.
Under the common law, the media defendant had the burden of proving that the statements challenged by the plaintiff were true.
The Supreme Court changed that standard for libel suits involving public officials and public figures.6 These plaintiffs are required to prove that the statements of fact were false. As a result of the Supreme Court's decision in Philadelphia Newspapers Inc. v. Hepps, private individuals suing for libel also must prove the statement was false if it involved a matter of public concern.7 An altered or inaccurate quote that damages the reputation of the person quoted can be actionable.
Libel: Fault
All plaintiffs must demonstrate that the news organization was at fault in some way. The Supreme Court has recognized different standards for different types of libel plaintiffs, with public officials and public figures required to show the highest degree of fault. Celebrities and others with power in a community usually are considered public figures.
Politicians and high-ranking government personnel are public officials, as are public employees who have substantial responsibility for or control over the conduct of governmental affairs. Some courts have found that public school teachers and police officers also are public officials.
But determining if other people are private or public figures are not always easy. In some instances, private and public categories may overlap. For example, a businessperson who has high visibility because of fundraising efforts in a community may not be a public figure for purposes other than the individual's community activity, but not necessarily for all purposes.
A plaintiff who is considered a public figure or official has a higher standard of proof in a libel case than a private plaintiff. The public figure or official must prove that the publisher or broadcaster acted with "actual malice" in reporting derogatory information. "Actual malice," in libel parlance, does not mean ill will or intent to harm.
Instead, it means the defendant knew that the challenged statements were false or acted with reckless disregard for the truth. In determining whether actual malice exists, a court may examine a reporter's newsgathering techniques. Although carelessness is not usually considered reckless disregard, ignoring obvious methods of substantiating allegations could be considered reckless.
In Harte-Hanks Communications, Inc. v. Connaughton,9 the Supreme Court held that even an extreme deviation from professional standards, or the publication of a story to increase circulation, do not in themselves prove actual malice. The Court also said that while failure to investigate facts does not necessarily prove actual malice, a "purposeful avoidance of the truth" may.
Edited quotations that are not verbatim will not necessarily demonstrate actual malice as long as the alterations do not materially change the meaning of the words the speaker used. In Masson v. The New Yorker Magazine, 10 the U.S. Supreme Court acknowledged that some editing of quotations is often necessary, but refused to grant blanket protection to all edits that are "rational" interpretations of what the speaker said.
If the plaintiff is a private litigant, he or she must at least prove that the publisher or broadcaster was negligent in failing to ascertain that the statement was false and defamatory. Some states may impose a higher burden on private-figure litigants, especially if the story in question concerns a matter of public importance.11
Proof of Fault
Under the fault requirement all persons who sue a mass medium for libel must prove that the defendant was somehow at fault in publishing the defamatory material, that the publication (or broadcast) did not result from an innocent error. Private persons generally need prove only negligence. What the courts call a “public person” must normally prove that the defendant acted with actual malice in publishing the libel; that is, the defendant knew the material was false but still published it or exhibited reckless disregard for the truth. What the courts define as “private persons” must prove at least that the defendant acted negligently, that is, in such a way as to create an unreasonable risk of harm. The courts have ruled that there are three kinds of “public persons:”
Public officials: Persons who work for a government in a position of authority, who have substantial control over the conduct of governmental affairs, and whose position in government invites independent public scrutiny beyond the general public interest in the qualifications and performance of all government employees. Libelous comments must focus on the plaintiff’s official conduct (the manner in which the plaintiff conducts his or her job) or on the plaintiff’s general fitness to hold public office.
All-purpose public figures: Persons who occupy persuasive power and influence in the nation or in a community, persons who are usually exposed to constant media attention.
Limited-purpose public figures: Persons who voluntarily inject themselves into an important public controversy in order to influence public opinion regarding the resolution of that controversy. The key elements are:
Public controversy, the resolution of which must affect more persons than simply the participants. The outcome must have an impact on people in a community.
Plaintiffs who voluntarily thrust themselves into this controversy. An individual who has been drawn involuntarily into a controversy created by someone else (such as the press) is not a limited-purpose public figure.
Plaintiffs who attempt to influence the out come of the controversy, to shape public opinion on the subject. This implies that a plaintiff has some access to the mass media to participate in the public discussion surrounding the controversy.
Using a variety of criteria, courts have ruled that businesses can be deemed public figures in a libel suit. Persons who become public persons remain public persons throughout their lives with regard to stories published or broadcast that relate to incidents or events that occurred while they were public persons.
The Meaning of Fault
In a lawsuit against a mass medium, a private person must prove that the defendant was at least negligent in publishing the defamatory matter. Negligence has been defined as the failure to exercise reasonable care or as acting in such a way as to create a substantial risk of harm. In some states, in certain cases private persons will be required to prove more than simple negligence. They may be required to prove gross negligence, which is a standard that implies a greater degree of carelessness on the part of the defendant. An individual who has been declared to be a public person for the purpose of a libel suit must prove actual malice. Actual malice is defined as knowledge of falsity or reckless disregard of the truth. Transmitting a story with the knowledge of its falsity means that the publishers or the story knew it was not true but still communicated it to the public. To prove reckless disregard for the truth, the plaintiff must show that the publisher of the defamation had a “high degree of awareness of the probable falsity of the material” when it was published or that the publisher in fact “entertained serious doubts about the truth of the material” before it was published. The courts have established a set of three criteria to help determine whether material was published with reckless disregard for the truth. The jurists tend to look at these factors:
· Whether there was time to investigate the story or whether the material had to be published quickly
· Whether the source of the information appeared to be reliable and trustworthy
· Whether the story itself sounded probable or farfetched
If the item was hot news, if the source was a trained journalist, and if the information in the story sounded probable, there can be no finding of reckless disregard. However, if there was plenty of time to investigate, if the source of the material was questionable, or if the information in the story sounded completely improbable, courts are more likely to permit a finding of reckless disregard of the truth.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
· The defendant’s conduct was intentional or reckless.
· The defendant’s conduct was extreme and outrageous
· The defendant’s conduct caused the plaintiff emotional distress.
· The emotional distress was severe.
The intentional infliction of emotional distress is a new tort and punishes a wide range of conduct, including the publication or broadcast of material that is outrageous and causes severe emotional distress. Courts have made it extremely difficult for plaintiffs to win such suits by placing a substantial burden of proof on the injured party. The Supreme Court added to this burden in 1988 when ruled that public-person plaintiffs would have to show actual malice as well to win their lawsuits.
Libel: Defenses
Truth is generally a complete bar to recovery by any plaintiff who sues for libel. Making sure that any potentially libelous material can be proven true can avoid needless litigation.
Fair report. Libelous statements made by others in certain settings often are conditionally privileged if the reporter, in good faith, accurately reports information of public interest. This privilege usually applies to official meetings such as judicial proceedings, legislative hearings and grand jury deliberations.
Neutral report. Although less broadly recognized, this privilege can protect the publication of defamatory statements made by one public figure about another public figure. The report must be presented in a neutral manner.
Opinion is still protected speech under the First Amendment, although the Supreme Court limited the formerly broad reach of opinion protection in Milkovich v. Lorain Journal.12 The court ruled that there is no separate opinion privilege, but because factual truth is a defense to a libel claim, an opinion with no "provably false factual connotation" is still protected. As a result of this decision, courts will examine statements of opinion to see if they are based on or presume underlying facts. If these facts are false or defamatory, the "opinion" statements will not be protected.
Consent. If a person gives permission for the publication of the information, that person cannot later sue for libel. However, denial, refusal to answer or silence concerning the statement do not constitute consent.
The statute of limitations for bringing libel suits varies from state to state. Generally the time limit for filing a libel lawsuit starts at the time of the first publication of the alleged defamation. If the plaintiff does not sue within the statutory time period, the litigation can be barred.
Although a retraction is not usually considered an absolute defense to a libel claim, it may reduce the damages a defendant must pay if found liable for defamation. Before agreeing to publish a retraction, consult an attorney.
Anti-SLAPP statutes, which permit early dismissal of lawsuits that chill the exercise of free-speech rights, may help news organizations defend some libel suits. SLAPP stands for "strategic lawsuit against public participation," and anti-SLAPP statutes protect those engaged in debate about controversial matters from lawsuits that would deter the exercise of their constitutional rights.13
Tips on Defenses
Libel suits usually result from stories that allege crime, fraud, dishonesty, immoral or dishonorable conduct, or stories which defame the subject professionally, causing loss of reputation or financial strength to an individual or business.
The only complete and unconditional defense to a libel claim is proof that the statement is true. Quoting a source accurately isn't enough; the defendant must convince a jury that his statements or the material in the statements he or she quoted are substantially correct.
A defendant can protect the alleged defamatory statement if the statement came from privileged sources; that is, from public records or statements at meetings of public bodies.
The Neutral Reportage Defense allows news organizations to report false accusations made by non-governmental organizations and/or individuals which have a history of responsible behavior.
A plaintiff may not recover damages for a defamatory publication to which he or she consented, or which he or she authorized, procured or invited.
In most states, public officials or figures as plaintiffs are required to prove negligence or actual malice on the part of the publisher. To prove actual malice, a person needs to show that at the time of publication or broadcast, those responsible for the story either knew it was not true or had a reckless disregarded for the truth.
Tips to Authors to Prevent Libel
It is not enough to remove a person's name from a story; if the description you use identifies that person to others in his or her immediate area, you have effectively named the person.
Anyone being questioned regarding a crime is not necessarily a suspect.
Balanced comments can help prevent libel, but the comments should be related to the original charges. Irrelevant counter charges can lead to additional libel actions.
Use "acquitted" or "innocent", rather than "not guilty" because "not" could accidentally be dropped or omitted from "not guilty" in the publication.
Libel: Product libel
Journalists who write about consumer products should be aware that their reports may be subject to product disparagement laws. In June 2002, a federal appeals court allowed a product disparagement lawsuit brought by Suzuki Motor Corporation to proceed against the publisher of Consumer Reports magazine.14
The court found that there was sufficient evidence for a jury to find that the magazine rigged the results of automobile tests to give the Suzuki Samurai a "not acceptable" rating. A dissenting judge said the ruling created a standard for consumer reporting that intrudes on free expression.
Thirteen states have enacted statutes aimed specifically at restricting the "disparagement" of food products.15 The statutes generally authorize food producers to sue anyone who disparages a food product with information unsupported by reliable scientific data. Texas's food disparagement law was used in a highly publicized case brought against "The Oprah Winfrey Show" in 1998.
The plaintiffs in the case, Texas feed yard owners; claimed Winfrey caused a decrease in beef sales when she said she would never eat a hamburger again for fear of mad cow disease. Winfrey won the suit.16
Libel: Criminal libel
Fewer than half of the states have criminal defamation statutes. Some of those laws, though still on the books, have been invalidated by court decision.
Even in states where criminal libel laws exist, prosecution under those statutes is rare. Nevertheless, criminal libel laws are used against journalists from time to time, particularly when their reports are politically charged, and the person allegedly defamed has influence with a prosecutor's office.
Criminal libel laws are subject to the same constitutional requirements as civil libel law. Thus, a person charged with criminal libel of a public figure can be found guilty only if the allegedly defamatory statement is false and was made with actual malice.17
Libel: Infliction of emotional distress
Individuals sometimes sue the news media for emotional distress caused by the publication of embarrassing, truthful facts. However, in Hustler Magazine v. Falwell,18 the Supreme Court ruled that public figures and public officials may not recover for intentional infliction of emotional distress without demonstrating that the material in question contained a false statement of fact that was made with actual malice.
The high court noted that editorial cartoonists and other satirists must be protected not only from libel suits, but also from suits claiming emotional distress, when caricaturing public figures or commenting on matters of public concern.
Libel: Avoiding libel suits
Check sources thoroughly. Get independent corroboration whenever possible. A source could have a vendetta against the subject and willfully or unintentionally misrepresent the facts for his or her own purposes. Confidential sources, such as government employees, may disappear or recant in the face of a lawsuit. Don't rely on someone else to be accurate.
Do not let your opinion about whether someone is a public figure or official color your decision to verify the accuracy of a story. Juries do not respond favorably to reporters who fail to confront their subjects with defamatory information and to provide them with an opportunity to comment.
If you cover the police or courthouse beat, make certain you understand criminal and civil procedure and terminology. Be especially careful to restate accurately any information obtained about arrests, investigations and judicial proceedings. Be cautious when editing.
Make sure the story does not convey the wrong information because of a hasty rewrite. Watch for headlines and cutlines that might be defamatory even though the text explains the story. Make sure news promos or teasers used to stir audience interest are not misleading or defamatory.
Do not use generic film footage or file photos when reporting on an activity that might be considered questionable. Just because someone else said it does not mean that a news organization cannot be sued for republishing it.
This includes letters to the editor. Check out any factual allegations contained in them as carefully as you would statements in a news story. Be sensitive about using words that connote dishonest behavior, immorality or other undesirable traits, whether in your published story or in comments in the margins of your notes.
Remember that a judge may order a news organization to produce reporters' notes, drafts and internal memoranda at a libel trial. If contacted by someone threatening a libel suit, be polite, but do not admit error or fault. Talk the case over with your editor, supervisor or attorney immediately, and follow procedures established by your news organization.
References:
Mass Media Law, 13/e, Don R. Pember, University of Washington, Libel: Proof of Fault - highered.mcgraw-ill.com/sites/0072492171/student_view0/chapter5/chapter_overview.html
First Amendment Handbook-www.rcfp.org/handbook/c01p07.html -
