The tort of defamation
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The tort of defamation l.jpg

The tort of Defamation

Libel and Slander

Chapter 4-5-6


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Definition of civil libel

Written or printed expression

that tends to damage a person’s standing in the community through words that attack an individual’s character and professional abilities


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Tort of Defamation

  • Libel-published or broadcast defamation

  • Slander-spoken defamation


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Kinds of Libel

  • Civil

  • Criminal


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Kinds of Libel

  • Civil: lawsuits for harming reputation

  • Criminal: laws for criticizing government in times of war (rare these days)


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Elements of Libel

  • Defamation

  • Identification

  • Publication

  • Falsity/fault


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Civil Libel & Slander cases involve:

  • Judge

  • Plaintiff

  • Defendant

  • Jury


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Can the government sue for Libel?

No!

Chicago v. Tribune Co.

1923


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Can the government sue for Libel?

But, individual members of government can but they have a hard time winning!


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Who can be libeled?

  • Person? Yes

  • Charity? Yes

  • The Government? No

  • Corporation? Yes

  • Club or group? Yes


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Definition of criminal libel

An inflammatory or seditious statement about the government or a government official which might incite rebellion.


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Criminal libel

a.k.a. Seditious Libel


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Criminal Libel

  • Judge

  • State

  • Defendant

  • Jury


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Civil libel:Plaintiff’s Burden of Proof

  • Publication

  • Identification

  • Defamation

  • Falsity

  • Fault


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Publication means material was sent in any of the following :

  • The Print Media

  • Broadcast Media

  • Internet

  • Newsletters


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“Publication” presumes: :

  • that a “third party” heard/saw/read the defamatory material


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Identification: :

  • Mistaken Identity is often cause of libel suits against mass media outlets


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Identification: :

  • Person does not have to be identified by “name”...it could be a picture, or they could be identified by a widely known nickname


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Group Identification: :

  • No magic number exists to protect media from claim of “identification” when defaming entire groups of people…but


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Group Identification: :

  • The larger the group the harder it is for them to win a libel suit


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Group Identification: :

  • So, be especially careful with small groups because it is easier to prove “identification”


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Falsity: :

  • “Small errors are usually not actionable” unless…


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Falsity: :

  • they directly relate to the loss of reputation (defamation).


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These can be libelous: :

  • Newspapers

  • Broadcasting

  • Photographs

  • Cartoons

  • Paintings


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These can also be libelous: :

  • Sculpture

  • Graffiti

  • Effigies

  • Advertising

  • Billboards


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Crime: reporting that someone is a murderer when they have only been charged with the crime.

Occupation: “Dr. Jones is a quack.”

Examples of Defamatory Comment


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Business: “Jones Auto Mart is a rip-off.” only been charged with the crime.

Trade libel: “Tobacco companies are murderers.”

Defamatory Comment


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“Fault” is defined differently depending on whether it the plaintiff is a private or public person

The complexities of “Fault”


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All purpose public persons (George Bush) the plaintiff is a private or public person

Limited (President Hoops of USI)

Some kinds of public persons:


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Famous entertainers and Athletes (especially pro athletes) the plaintiff is a private or public person

Other kinds of public persons:


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made it harder for public persons to win a libel suit…read about NY Times v. Sullivan in both your textbooks!

NEW YORK TIMES v. SULLIVAN (1964):


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Curtis Publishing Co. v Butts (1967) clarified “reckless disregard”

Cases that clarified NEW YORK TIMES v. SULLIVAN (1964):


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Found that circumstances of reporting including the time element involved in checking facts are important in determining reckless disregard

Curtis Publishing Co. v. Butts:


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The court said an honest mistake made in a “hot news situation” involving a public figure is NOT reckless disregard for the truth.

Associated Press v. Walker (1967):


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Gertz claimed he was not a “public figure” so he had only to prove “negligence” not NY Times Malice

Gertz v. Welch (1974):


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Established the principal that media must be guilty of something beyond a mere falsehood…there had to be a finding of “fault”

Gertz v. Welch (1974):




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Fault for public figure cases is to show reckless disregard for the truth or that the media published something they knew was untrue (New York Times Actual Malice)

REMEMBER:


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Cherry Sisters v. Des Moines Leader (1901) disregard for the truth or that the media published something they knew was untrue (New York Times Actual Malice)

Victory for the right to criticize public performers/performances

Some Famous Libel Cases:


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Carol Burnett v. National Inquirer (1983) disregard for the truth or that the media published something they knew was untrue (New York Times Actual Malice)

Called her “drunk and rude.” She was awarded $150,000

Some Famous Libel Cases:


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Gen. Westmoreland v. CBS (1984) Deceived the public about Viet Nam?

He sued for $120 million but settled for an apology from CBS ($18-million spent on legal fees)

Some Famous Libel Cases:


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Wayne Newton v. NBC (1990) Mafia ties? Viet Nam?

He sued for $5.3 million. He won, but no damages were awarded as it was reversed on appeal.

Some Famous Libel Cases:


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Libel: Defenses and Damages Viet Nam?

Chapter Six:


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Defenses against libel Viet Nam?

  • Truth

  • Opinion

  • Privilege

  • Statutes of limitation

  • Consent


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Truth as a defense Viet Nam?

  • Normally absolute

  • No time limitations


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Opinion as a defense Viet Nam?

  • Not provably false

  • Figurative language

  • Fair comment


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OLLMAN TEST Viet Nam?

  • Can statement be proved true or false?

  • What is the common meaning of the words?


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OLLMAN TEST Viet Nam?

  • What is the journalistic context of the remark?

  • What is the social context of the remark?


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Privilege as a defense: Two types Viet Nam?

  • Absolute Privilege

  • Qualified Privilege


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Absolute Privilege: Viet Nam?

protects:

  • Government Officials doing their jobs

  • Persons speaking in a legislative or judicial forum


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Qualified Privilege Viet Nam?

Protects media when reporting information from a privileged proceeding (court hearing, official meeting, or official document)


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BUT: Viet Nam?

The Report must be fair and accurate to come under qualified privilege protection


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Statute of Limitations as a defense in a libel suit: Viet Nam?

Usually one or two years…two years in Indiana, one year in Illinois and Kentucky


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Summary Judgment: Viet Nam?

Usually in favor of mass media defendants…


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Summary Judgment: Viet Nam?

Unless the summary judgment is appealed and reversed…there is no trial


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What happens Viet Nam?

if you lose a libel suit?


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If you lose the libel suit: Viet Nam?

  • You may have to pay damages


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Know the kinds of damages: Viet Nam?

  • Actual

  • Special

  • Presumed

  • Punitive


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Actual Damages: Viet Nam?

  • Based on money loss, loss of reputation, pain and suffering, reputation damage etc.


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Special Damages: Viet Nam?

  • Usually sought in trade libel cases


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Presumed Damages: Viet Nam?

  • Usually sought in cases involving a public concern


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Punitive Damages: Viet Nam?

  • To punish defendants for their actions and to make an example out of them…often BIG BUCKS!


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Plaintiff cannot win libel suit if: Viet Nam?

  • They gave consent to publication of libelous material


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How to prevent getting sued for libel: Viet Nam?

  • Handle complaints properly

  • Retractions “may” help

  • Ombudsmen to “smooth things over”


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General tips on: How to prevent getting sued for libel: Viet Nam?

  • Handle complaints properly

  • Retractions “may” help

  • Ombudsmen to “smooth things over”


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5 Goals of Libel Law: Viet Nam?

  • Monetary damages for the plaintiff

  • Restoring reputation

  • Make for greater responsibility for speakers


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5 Goals of Libel Law: Viet Nam?

  • Punish defamatory speakers

  • To force media to seek the truth


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Specific tips on how to avoid Libel Suits Viet Nam?

  • Check sources

  • Verify, even if subject is public figure or official

  • Understand criminal procedure and terminology


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How to avoid Libel Suits Viet Nam?

  • Be cautious when editing

  • Watch for defamatory headlines or promos


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How to avoid Libel Suits Viet Nam?

  • Don’t use generic file footage or photos when reporting on an activity that might be questionable


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How to avoid Libel Suits Viet Nam?

  • Be cautious about defamatory statements made on the air or in letters to the editor


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How to avoid Libel Suits Viet Nam?

  • Be cautious about words connoting dishonest behavior or immorality


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How to avoid Libel Suits Viet Nam?

  • Don’t put anything in your notes that you would not want a court to see


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How to avoid Libel Suits Viet Nam?

  • Remember “allegedly” may not save you from a finding of libel

  • “She allegedly has AIDS” is legally the same as “She has AIDS.”


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How to avoid Libel Suits Viet Nam?

  • Watch how you use attribution.

  • “Police say they have arrested Joe Smith for arson.” (presumes guilt)

  • “Police have charged Joe Smith with arson.” (better)


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How to avoid Libel Suits Viet Nam?

  • Off the record attribution is dangerous in crime coverage.

  • Don’t take anyone’s word for it…check the written record


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How to avoid Libel Suits Viet Nam?

  • Unofficial court documents lacking privilege can be a problem

  • Don’t let yourself be used. Some allegations are false. Report them when the suit is filed, not before.


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If confronted by someone threatening a libel suit: Viet Nam?

  • Be polite

  • Don’t admit error


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If confronted by someone threatening a libel suit: Viet Nam?

  • Talk to supervisor or your attorney immediately and follow procedures established by your place of employment


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The tort of Defamation Viet Nam?

Libel

Quick Review


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Libel occurs: Viet Nam?

When a false and defamatory statement about an identifiable person is published/broadcast to a third party, causing injury to the subject’s reputation.


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Civil libel: Viet Nam?Plaintiff’s burden of proof:

  • Publication

  • Identification

  • Defamation

  • Fault/Falsity


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Publication: Viet Nam?

  • Defamatory information is communicated by print or electronic media to someone other than the person defamed


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Publication: Viet Nam?

  • Internet service providers not responsible for libelous information unless they exercise editorial control over content.


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Identification: Viet Nam?

  • Defamatory material must be “of and concerning” the plaintiff or there is no case.


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Group Identification: Viet Nam?

  • No magic number exists to protect media from claim of “identification”


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Group Identification: Viet Nam?

  • Be especially careful with small groups because it is easier to prove “identification”


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Falsity: Viet Nam?

  • “Small errors usually not actionable” unless…


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Falsity: Viet Nam?

  • they directly relate to the loss of reputation (defamation).


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Falsity: Viet Nam?

  • in other words, information must be substantially true…absolute accuracy not required


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Falsity: Viet Nam?

  • Public figures and public officials must always prove “information was false”


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Falsity: Viet Nam?

  • Private figures must prove “information was false” if information was “a matter of public concern”


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Falsity: Viet Nam?

  • Media must prove information was TRUE with Private figures when information was “NOT a matter of public concern”


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Harm to reputation must be proved by the plaintiff…sometimes a monetary loss is claimed

Defamatory Comment


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Are punitive…to punish the media and to send a cautionary message to other media outlets

Most damages awarded:


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Remember: “Fault” is defined differently depending on whether the plaintiff is a private or public person

The complexities of “Fault”


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Elected officials whether the plaintiff is a private or public person

Appointed officials who effect policy

Celebrities

Public persons include:


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Just because they have been accused of a crime whether the plaintiff is a private or public person

The person is not automatically a “Public Person”


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Just because they are well known whether the plaintiff is a private or public person

“Everybody around here knows farmer brown” does not make him a public figure

The person is not automatically a “Public figure”


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Plaintiff must prove negligence (failure to exercise reasonable care)

“Fault” for private person plaintiffs:


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Actual Malice (New York Times Malice) knowledge of falsity or reckless disregard for the truth

“Fault” for public person plaintiffs:


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Must prove “New York Times Malice” with “clear and convincing evidence”

To win a libel suit public persons:


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made it harder for public persons to win a libel suit convincing evidence”

NEW YORK TIMES v. SULLIVAN (1964):



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Defenses against libel prove NYT Malice

  • Truth

  • Opinion

  • Privilege

  • Statutes of limitation

  • Consent


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Remember: prove NYT Malice

  • Qualified privilege (if report is fair and accurate)

  • Consent (unless they are minors or wards of the state)

  • Fair Comment and Opinion (unless presented as fact and is false)


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Truth as a defense prove NYT Malice

  • Normally absolute

  • No time limitations


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Privilege as a defense prove NYT Malice

  • Absolute Privilege

  • Qualified Privilege


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Statute of Limitations as a defense in a libel suit: prove NYT Malice

Usually one or two years…two years in Indiana, one year in Illinois and Kentucky


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