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  1. Elements of Libel • Defamatory statement • Of or concerning the plaintiff • Publication • Injury to reputation • Requisite level of fault

  2. Defamatory Statement • False statement • Tends to injure reputation • Libel per se • “Innocent construction” rule • Libel per quod • Libel by implication • Stevens v. Iowa Newspapers, Inc. • Knafel v. Chicago Sun-Times • Flamm v. AAUW [not in reading]

  3. Of/Concerning the Plaintiff • Reasonable person would understand statement to be about plaintiff • Reference to a group or member[s] of a group • What determines whether a plaintiff who has not been identified by name may sue?

  4. Publication • Communication to a third person • Person must understand what has been communicated • When will a republisher be liable? • Republication and the Internet • Note Cornell Chronicle complaint • Jackson v. California Newspaper Partnership

  5. Internet Postings • Internet libel cases increasing. • Usually about 15% of cases filed annually. • 60% of cases filed in 2010. • Application of CDA §230 • Can an OSP be required to reveal identity of anonymous posters?

  6. Injury to Reputation • Plaintiff must prove injury and damages. • What topics should be treated carefully?

  7. Fault Requirement • Reflects First Amendment interest in promoting speech and avoiding the chilling effect of strict liability for libel. • New York Times v. Sullivan (1964) • Established “actual malice” standard • First defined a “public official” [later extended to “public figure”] • Gertz v. Welch (1974) • Extended fault requirement to private persons

  8. Fault Requirement, con’t • Public persons must prove actual malice • Private persons must prove at least negligence • Therefore, need to define/classify plaintiffs. • Must also identify and understand levels of fault.

  9. Public Officials • How do you decide whether a plaintiff is a public official? • Are all public officials held to the actual malice standard?

  10. Public Figure • What is an “all-purpose public figure?” • Examples? • What is a “limited purpose or vortex public figure?” • Examples? • Can a plaintiff be considered an involuntary vortex public figure for purposes of a libel suit? • Lohrenz v. Donnelly

  11. Private Person • Anyone who doesn’t fit one of the prior categories. • Judges tend to presume one is private unless defendant media can prove otherwise. • Will courts embrace the concept of a “public personality” – one who seeks fame but fails?

  12. Levels of Fault • Actual malice • Public officials • Public figures – all purpose and vortex • Gross irresponsibility • Private persons in some states [NY] • Negligence • Private persons in the balance of the states [Calif]

  13. Actual Malice • What is meant by “actual malice?” • Is evidence of hatred, ill will or spite required? • How does a plaintiff prove actual malice was present?

  14. Gross Irresponsibility • To apply gross irresponsibility as a standard, what type of statement must be the subject of the litigation? • What is meant by “gross irresponsibility?”

  15. Negligence • Conduct that creates an unreasonable risk of harm. • Applied to private plaintiffs unless the state has affirmatively adopted “gross irresponsibility” as its standard.

  16. Defenses • Running of the statute of limitations • Truth • Neutral reportage • Fair comment or opinion • Privilege • Consent or right of reply • Apology and/or retraction

  17. Statute of Limitations • Period within which lawsuit must be filed • Begins to run with publication • Usually 1-2 years • Three years in Arkansas, New Mexico and Vermont • Six years in Hawaii • Can plaintiff from another state sue in Hawaii…?

  18. Truth As a Defense to Libel • No matter how damaging a statement, if it is true it can’t be libel. • Plaintiff has burden of proving falsity. • Even the truth may be actionable as an invasion of privacy. • Generally must only prove “substantial truth”

  19. Libel by Misquotation • Is there a defamatory remark? – if yes • Is it an opinion? – if no • Is it strictly true? – if no • Is it substantially true? • if yes, the “no material change in meaning” rule bars liability • If substantially false, was it published with actual malice?

  20. Neutral Reporting • Not available in every state [not in NY] • Must be a report [not a column, etc.] • Must be fair • Must be accurate • See Norton v. Glenn

  21. Opinion • “Under the First Amendment, there is no such thing as a false idea.” Gertz • What factors will a court look for in determining whether a statement constitutes a protected opinion? • See Flamm v. AAUW

  22. Fair Report Privilege • Applies to an accurate report/summary that is defamatory • What types of official statements are subject to a privilege? • Must the report or statement be verbatim to be privileged? • How does the “reporter’s privilege” intersect with libel law?

  23. Other Defenses • Consent • Seen as authorization to publish • Right of reply • Absolute defense for a broadcaster • Defense for print media if no actual malice • Apology/retraction • Rebuts allegation of actual malice • Mitigates damages

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