The tort of defamation
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The tort of Defamation

Libel and Slander

Chapter 4-5-6


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


Tort of Defamation

  • Libel-published or broadcast defamation

  • Slander-spoken defamation


Kinds of Libel

  • Civil

  • Criminal


Kinds of Libel

  • Civil: lawsuits for harming reputation

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


Elements of Libel

  • Defamation

  • Identification

  • Publication

  • Falsity/fault


Civil Libel & Slander cases involve:

  • Judge

  • Plaintiff

  • Defendant

  • Jury


Can the government sue for Libel?

No!

Chicago v. Tribune Co.

1923


Can the government sue for Libel?

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


Who can be libeled?

  • Person? Yes

  • Charity? Yes

  • The Government? No

  • Corporation? Yes

  • Club or group? Yes


Definition of criminal libel

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


Criminal libel

a.k.a. Seditious Libel


Criminal Libel

  • Judge

  • State

  • Defendant

  • Jury


Civil libel:Plaintiff’s Burden of Proof

  • Publication

  • Identification

  • Defamation

  • Falsity

  • Fault


Publication means material was sent in any of the following :

  • The Print Media

  • Broadcast Media

  • Internet

  • Newsletters


“Publication” presumes:

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


Identification:

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


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


Group Identification:

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


Group Identification:

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


Group Identification:

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


Falsity:

  • “Small errors are usually not actionable” unless…


Falsity:

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


These can be libelous:

  • Newspapers

  • Broadcasting

  • Photographs

  • Cartoons

  • Paintings


These can also be libelous:

  • Sculpture

  • Graffiti

  • Effigies

  • Advertising

  • Billboards


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


Business: “Jones Auto Mart is a rip-off.”

Trade libel: “Tobacco companies are murderers.”

Defamatory Comment


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

The complexities of “Fault”


All purpose public persons (George Bush)

Limited (President Hoops of USI)

Some kinds of public persons:


Famous entertainers and Athletes (especially pro athletes)

Other kinds of public persons:


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):


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

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


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

Curtis Publishing Co. v. Butts:


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):


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

Gertz v. Welch (1974):


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):


everyone must prove falsity and fault…but public persons must also prove NYT Malice

REMEMBER:


Fault for private person cases is to show “negligence” on the part of the media

REMEMBER:


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:


Cherry Sisters v. Des Moines Leader (1901)

Victory for the right to criticize public performers/performances

Some Famous Libel Cases:


Carol Burnett v. National Inquirer (1983)

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

Some Famous Libel Cases:


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:


Wayne Newton v. NBC (1990) Mafia ties?

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

Some Famous Libel Cases:


Libel: Defenses and Damages

Chapter Six:


Defenses against libel

  • Truth

  • Opinion

  • Privilege

  • Statutes of limitation

  • Consent


Truth as a defense

  • Normally absolute

  • No time limitations


Opinion as a defense

  • Not provably false

  • Figurative language

  • Fair comment


OLLMAN TEST

  • Can statement be proved true or false?

  • What is the common meaning of the words?


OLLMAN TEST

  • What is the journalistic context of the remark?

  • What is the social context of the remark?


Privilege as a defense: Two types

  • Absolute Privilege

  • Qualified Privilege


Absolute Privilege:

protects:

  • Government Officials doing their jobs

  • Persons speaking in a legislative or judicial forum


Qualified Privilege

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


BUT:

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


Statute of Limitations as a defense in a libel suit:

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


Summary Judgment:

Usually in favor of mass media defendants…


Summary Judgment:

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


What happens

if you lose a libel suit?


If you lose the libel suit:

  • You may have to pay damages


Know the kinds of damages:

  • Actual

  • Special

  • Presumed

  • Punitive


Actual Damages:

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


Special Damages:

  • Usually sought in trade libel cases


Presumed Damages:

  • Usually sought in cases involving a public concern


Punitive Damages:

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


Plaintiff cannot win libel suit if:

  • They gave consent to publication of libelous material


How to prevent getting sued for libel:

  • Handle complaints properly

  • Retractions “may” help

  • Ombudsmen to “smooth things over”


General tips on: How to prevent getting sued for libel:

  • Handle complaints properly

  • Retractions “may” help

  • Ombudsmen to “smooth things over”


5 Goals of Libel Law:

  • Monetary damages for the plaintiff

  • Restoring reputation

  • Make for greater responsibility for speakers


5 Goals of Libel Law:

  • Punish defamatory speakers

  • To force media to seek the truth


Specific tips on how to avoid Libel Suits

  • Check sources

  • Verify, even if subject is public figure or official

  • Understand criminal procedure and terminology


How to avoid Libel Suits

  • Be cautious when editing

  • Watch for defamatory headlines or promos


How to avoid Libel Suits

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


How to avoid Libel Suits

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


How to avoid Libel Suits

  • Be cautious about words connoting dishonest behavior or immorality


How to avoid Libel Suits

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


How to avoid Libel Suits

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

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


How to avoid Libel Suits

  • Watch how you use attribution.

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

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


How to avoid Libel Suits

  • Off the record attribution is dangerous in crime coverage.

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


How to avoid Libel Suits

  • 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.


If confronted by someone threatening a libel suit:

  • Be polite

  • Don’t admit error


If confronted by someone threatening a libel suit:

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


The tort of Defamation

Libel

Quick Review


Libel occurs:

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


Civil libel:Plaintiff’s burden of proof:

  • Publication

  • Identification

  • Defamation

  • Fault/Falsity


Publication:

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


Publication:

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


Identification:

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


Group Identification:

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


Group Identification:

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


Falsity:

  • “Small errors usually not actionable” unless…


Falsity:

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


Falsity:

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


Falsity:

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


Falsity:

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


Falsity:

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


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

Defamatory Comment


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

Most damages awarded:


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

The complexities of “Fault”


Elected officials

Appointed officials who effect policy

Celebrities

Public persons include:


Just because they have been accused of a crime

The person is not automatically a “Public Person”


Just because they are well known

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

The person is not automatically a “Public figure”


Plaintiff must prove negligence (failure to exercise reasonable care)

“Fault” for private person plaintiffs:


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

“Fault” for public person plaintiffs:


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

To win a libel suit public persons:


made it harder for public persons to win a libel suit

NEW YORK TIMES v. SULLIVAN (1964):


everyone must prove falsity…but public persons must also prove NYT Malice

REMEMBER:


Defenses against libel

  • Truth

  • Opinion

  • Privilege

  • Statutes of limitation

  • Consent


Remember:

  • 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)


Truth as a defense

  • Normally absolute

  • No time limitations


Privilege as a defense

  • Absolute Privilege

  • Qualified Privilege


Statute of Limitations as a defense in a libel suit:

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


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