The Libel Law
DAKTARI!
http://ballmer.uoregon.edu/tgleason/j385/
Libel
Libel occurs when a false and defamatory statement about an identifiable
person is published to a third party, causing injury to the subject's
reputation.
A defamatory communication exposes a person to hatred, ridicule, or
contempt, lowers him in the esteem of his fellows, causes him to be shunned,
or injures him in his business or calling. Defamation can take the form of
libel - published or broadcast communication - or slander - oral
communication.
There is no uniform law for libel. Each state decides what the plaintiff in
a libel suit must prove and what defenses are available for the media.
However, constitutional law requires that plaintiffs prove fault before a
news organization can be held liable for defamatory communications. 1 When
the media are sued, it is the court's duty to balance protection of a
person's reputation against the First Amendment values of freedom of the
press.
Thirteen states have enacted statutes aimed specifically at restricting the
"disparagement" of food products. 2 The statutes generally authorize food
producers to sue anyone who disparages a food product with information
unsupported by reliable scientific data. 3
Endnotes:
1. Gertz v. Robert Welch Inc., 418 U.S. 323 (1974)
2. The states with product disparagement statutes are Alabama, Arizona,
Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota,
Ohio, Oklahoma, South Dakota and Texas.
3. See Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (N.D. Tex. 1998);
Agricultural General Co. v. Ohio Public Interest Research Group, No. 97
CVC07-7367 (Ohio Ct. of C.P., filed July 31, 1997); and Burleson Enters.
Inc. v. American Honda Motor Co. Inc., No. 2:97-CV-98-J (N.D. Tex., filed
Oct. 22, 1997).
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Publication
Publication occurs when information is negligently or intentionally
communicated by newspapers, magazines, books, radio or television
broadcasts - whether by traditional or electronic means - to someone other
than the person defamed. 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. 4
The full context of a publication is generally considered when determining
liability, but a headline, drawing, cutline or photograph taken alone can be
libelous. 5
The media can be liable for the republication of a libelous statement made
by another person or entity. 6 An altered or inaccurate quote that damages
the reputation of the person quoted can be actionable. 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 ab out 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 to explicitly
attribute the information to the official source.
Endnotes:
4. See Zeran v. America OnLine, 129 F. 3d 327 (4th Cir. 1997), cert. denied,
118 S.Ct. 2341 (1998).
5. See, e.g., Kaelin v. Globe Communications, 162 F.3d 1036 (9th Cir. 1998).
6. See, e.g., Khawar v. Globe Int'l, Inc., 19 Cal. 4th 254 (Cal. 1998),
modified, No. S054868 (Cal. Dec. 12, 1998).
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Falsity
It has often been said that truth is an absolute defense to libel. 7
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.
8 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 must also prove the statement
was false if it involved a matter of public concern. 9
Endnotes:
7. However, in at least one state, Rhode Island, truth is not a defense when
the statement was made with malicious motives. R.I. Const. Art. 1, § 20;
R.I. Gen. Laws § 9-6-9 (1998).
8. New York Times v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v.
Butts, 388 U.S. 130 (1967)
9. Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986)
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Identification
Plaintiffs must prove that the alleged defamatory publication refers to
them.
Governmental entities cannot bring libel claims, nor can members of large
groups (usually 25 or more). However, if the statement 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.
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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. Damage to the plaintiff's reputation is presumed.
For example, accusations of fraud, incompetence or improper behavior by
business or professional people would be considered to be libelous on their
face in most states. However, in some jurisdictions, a professional charged
with ignorance or lack of skill on only a single occasion cannot claim
defamation. This is known as the single instance rule.
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.
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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 are usually 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 are public officials.
But determining if other people are private or public figures is not always
easy. In some instances, there may be overlapping in the private and public
category. For example, a businessperson who has high visibility because of
fundraising efforts in a community may not be a public figure for all
purposes.
A plaintiff who is considered a public figure or official must prove that
the publisher or broadcaster acted with "actual malice" in reporting
derogatory information. "Actual malice" 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.
Courts may examine reporting procedures in determining whether actual malice
exists. Although carelessness is not usually considered reckless disregard,
ignoring obvious ways of substantiating allegations could be considered
reckless.
In Harte-Hanks Communications, Inc. v. Connaughton, 10 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,
11 the 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.
12
Endnotes:
10. Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657 (1989)
11. Masson v. The New Yorker Magazine, 501 U.S. 496 (1991)
12. Those states are Alaska, Colorado, Indiana, Louisiana and New Jersey.
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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 are
often 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.
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. 13 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 the media defend against 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. 14
Endnotes:
13. Milkovich v. Lorain Journal, 497 U.S. 1 (1990)
14. See Lafayette Morehouse, Inc. v. The Chronicle Publishing Co., 44 Cal.
Rptr. 2d 46 (Cal. Ct. App. 1995) (holding anti-SLAPP statute protects
newspaper from meritless libel suit) and Briggs v. Eden Council for Hope and
Opportunity, 969 P.2d 564 (Cal. 1999) (holding speech made in connection
with an "official proceeding" is made in connection with a "public issue"
for purposes of anti-SLAPP statute).
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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, 15 the U.S. 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.
Endnotes:
15. Hustler Magazine v. Falwell, 485 U.S. 46 (1988)
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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 marginal
comments in 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.
Paul Gifford
read. Everyone wants sound bites...er, flame bites. However, your cut and
paste skills are exemplary Spook...
I spoke to a lawyer about this topic today (I was in her office on another
matter, and made sure we were off the clock :) ). Now this is all based on
my opinion and her explanation of the law based on what information I could
provide her. It appears the key thing will be if PhDS can be considered a
public figure.
The truth is not an absolute defense in these cases (though as Spookie
adeptly pointed out through wicked use of the clipboard libel stuff varies
from state to state). For example, if I discover a deacon in my church, a
private citizen, is having an affair, then go around publicizing that fact
so his reputation is ruined, he loses his job, etc etc, I can be
successfully sued even though he was actually an adulterer. (That amazed
me).
Now, if said deacon had his own TV show (The Deacon Bob Golightly Miracle
Hour!), it would be a different ball of wax because he is then a public
figure. Apparently to the law, a public figure should expect extra
scrutiny, so Deacon Bob, philanderer, would be unsuccessful in his suit.
This is true even if he is not an adulterer! Say I notice the good Deacon
takes a lot of trips with his secretary Kiki Vavoom, an 18 yr old
ex-cheerleader, yet leaves his wife behind. I start saying, writing,
posting, whatever, that it appears the Deac is up to no good, his marriage
is doomed, stuff like that. Such speculation is not outside the realm of
what a public figure can expect. That doesn't mean I can make up baseless
accusations (Deacon Bob took 3 sheep with him to a Motel 6), but I can
speculate on what can be observed.
So is PhDS a public figure? I'd say yes. He has done interviews and has
one coming out in a major non-gaming magazine (according to him). He is
clearly not trying to remain a private citizen. He seeks the limelight like
a moth seeks a flame(war).
My money is on Huffman. PhDS is a public figure, and none of the
information he provided can be verified. Huffman has gone beyond that and
done his own independent research and still was unable to locate anything.
Can't wait for the outcome. Of course, I don't expect it will happen any
time soon and I'll probably be long gone from this group by the time this is
all settled. Last we heard, Master Rotbard was awaiting word from the
Registrar at LIT (Lunar Institute of Technology? Maybe their rocket ship
broke down). Or maybe this...from the LIT alumni newsletter: "In a tragic
early morning fire, student records were destroyed. Affected by this
catastrophe are current and past students from 'Smarsh' to 'Smarz'..."
p
ps. Ed Bane, GALCOM automated posting device, don't reply with the "put on
notice" stuff again. Get a good night's sleep, then think about why
everyone is responding to your argument the same way. And no, it's not
because they all belong to the evil detractor cabal. If I claim I invented
a time machine, and you post websites saying I didn't, you aren't "put on
notice" as you like to say just because I tell you "oh yes I did!". The
newspapers would never have any news to print, or it would be all
retractions: "Yesterday, the Daily News reported Bill Smith was convicted
in the First National Bank robbery. From his cell, he called us and said he
didn't rob the bank. We retract our early statements and regret printing
that he did it, since obviously he didn't do it because he told us he didn't
do it". You know, that's almost as sucky as one of your analogies...the
conviction part is where it breaks down and I am aware of this but you get
the point I'm trying to make.
Ed Bain
in msg <379e...@news1.us.ibm.net>,
"Paul Gifford" <paul.g...@ibm.take.me.outta.here.net> said :
>ps. Ed Bane, GALCOM automated posting device, don't reply with the "put on
>notice" stuff again. Get a good night's sleep, then think about why
>everyone is responding to your argument the same way. And no, it's not
>because they all belong to the evil detractor cabal. If I claim I invented
>a time machine, and you post websites saying I didn't, you aren't "put on
>notice" as you like to say just because I tell you "oh yes I did!". The
>newspapers would never have any news to print, or it would be all
>retractions: "Yesterday, the Daily News reported Bill Smith was convicted
>in the First National Bank robbery. From his cell, he called us and said he
>didn't rob the bank. We retract our early statements and regret printing
>that he did it, since obviously he didn't do it because he told us he didn't
>do it". You know, that's almost as sucky as one of your analogies...the
>conviction part is where it breaks down and I am aware of this but you get
>the point I'm trying to make.
I see that, for some reason, you still don't (?won't?)
understand the very simple point I made in numerous
posts. I can't be bothered to type it again.
[yawn]
--
* rrevved at mindspring dot com
* post in haste, repent at your leisure.
WLambrukos
>contempt, lowers him in the esteem of his fellows, causes him to be shunned,
>or injures him in his business or calling. <<
I guess Huffman is safe. Derwood has already lowered the opinion people have
of him so low all by himself that it simply is not possible for anyone else to
make someone view Derwood worse then Derwood already has accomplished !
Bill