Defamation: A PrimerLegal foundationsInternet ResourcesDepartment of Telecommunication, Information Studies & MediaMichigan State University - Bauer - Fall 2003LAW AND POLICY OF THE MEDIADefamation: A PrimerLegal foundations- Power to promulgate defamation laws with states.- Dealt with in common law as a tort.- Dealt with after the fact.- Slander is oral defamation.- Libel is written defamation (since 1950s defamation on radio and television is consideredlibel).Plaintiff’s burden of proof- Defamation (communication that harms a person’s reputation, ability to enjoy social contact with others, or the ability to work or engage in business practices).- Libel per se (communications that are defamatory on their face value).- Libel per quod (communications that have defamatory meaning only when other factsare considered)- Categories of defamatory communications are:. Communications involving criminal activity. Sexual slurs. Other personal behaviors and characteristics. Politics and religion. Communications involving business dealings- Trade libel (product disparagement)- Publication (occurs when one or more persons other than the plaintiff or defendant see or hear the communication)- Identification (does not necessarily require publication of a person’s name of picture, see New York Times v. Sullivan, 1964)- Fault (private libel plaintiff must establish that the communication was false and was published with negligence; public officers and figures must establish actual malice).First Amendment concerns- New York Times v. Sullivan (1964) established that public officials must prove actual malice (publication with knowledge of falsity, or with reckless disregard for whether the 1statement was true or false) in order to win a libel suit. Subsequent decisions have helped clarify the meaning of the two definitions:- Garrison v. Louisiana (1964) suggested that “knowledge of falsity” means that the message was published with a high degree of awareness of its probable falsity.- St. Amant v. Thompson (1968) suggested that “reckless disregard” means that the defendant entertained serious doubts about the truth of the defamatory comments.- Tavoulareas v. Washington Post Co. (1985) provided the following examples of what could be considered reckless disregard:. Journalist deliberately slants and ignores evidence contrary to the false premise ofthe story. A journalist is, in the opinion of the court, out to get the plaintiff.. The journalist’s notes contradict the published statements of interviewees.. The media outlet refuses to retract the story of publish a letter written by the plaintiff in response to the story.- Public officials and persons- Public officials are (1) anyone elected to public office and (2) anyone who is a government employee.- All-purpose public persons are those who have achieved widespread notoriety and who exercise general power or influence and occupy a position of continuing news value (need to prove actual malice).- Vortex (limited) public persons are those who have voluntarily thrust themselves into discussion of a public controversy with specific intent to affect the outcome of that controversy.Defenses against libel suits- Statute of limitations (in most states, libel suits must be filed within two years)- Truth (but: burden of proof rests with plaintiff)- Absolute privilege (statements by public officials during official deliberations, judges, attorneys, witnesses, and other participants in judicial proceedings, even made with ill will, knowledge of falsity, or reckless disregard).- Qualified privilege (in most states, media cannot be sued for libel when broadcasting or publishing fair and accurate summaries of legislative, judicial, executive, or other governmental proceedings.- Consent by the plaintiff.- Opinion and fair comment have received more protection against libel suits although there is no separate protection against statements of opinion (Milkovich v. Lorain Journal, 1990).- Neutral reportage (some states have recognized a neutral reportage privilege allowing journalists to accurately report comments by public persons even if there is doubt as to their truthfulness).2DamagesMoney awards are only made if the plaintiff can establish damages.- Compensatory (actual) damages are paid for injury to the reputation of the defamed person, for mental anguish, and for monetary losses. Special damages are awarded if the plaintiff can prove specific monetary losses.- Presumed damages (can be awarded to public persons in case of communications that is libelous per se and if actual malice is established).- Punitive damages.Internet Resourceshttp://www.ldrc.com/ (Libel Defense Resource