Defamation (Libel) - The publication or broadcast of any statement that injures someones reputation or lowers that persons esteem in the community !Libel, Slander, Defamation: Civil wrongs (tort) •Used to be handled with duals •Less damages for slander (spoken) vs libel (written) •Now the burden is on plaintiff to prove falsity or defendant to prove truth !•Expensive & time consuming •Washington Post spent $23million defending libel •Phillip Morse won $10billion •Outrageous awards •Complicated and Confusing •Jury’s are likely swayed !SLAPP (strategic lawsuits against public participation)- protects poor people from hiring lawyers for frivolous lawsuits !To win a libel suit, a plaintiff must prove: •The libel was published •A third person (other than the plaintiff and defendant) must hear or see •Must reach a significant majority of the public •The words were of and concerning the plaintiff •Identification: name, nickname, references to identify an individual, descriptions •Group identification: small enough group to identify •Once people are dead you are free to defame their name •The material is defamatory •The words are hurtful and can lower someones reputation •Libel Perse: words that are libel on the face (murderer, rapist, etc.) •Libel Perquod: under the circumstances make a libelous statement (pregnant) •Both burden of proof on the plaintiff; Evidence •The material is false (falsity) •Private persons who sue the media must prove negligence (failure to exercise reasonable care) •Individuals who have been deemed a public persons in a libel suit has to prove the defendant had actual malice. Evidence has to go to the “Sting” (what was said) Minor errors don't go to the Sting •The defendant was at fault•Republication rule: Anyone who reproduces a libel statement is guilty (including the person the statement was said about) •Centar “Guilty knowledge”: You must know, or should have known, it was a defamatory/false statement before distribution •It is tough to stop publication before it is published •Communication decency act: holds harmless the internet service providers, unless Centar is involved, or unless they are the author of the site •Harm (lower reputation) 6th •Implying criminal behavior •Sexual references and implication to sexual activity •Personal habits •Ridicule •Rhetorical hyperbole- silliness !Jury trials: A. Words in light of their ordinary meaning B. Innuendo: implied defamation C. Words in content D. Pure opinion is constitutionally protected but provable fact is not protected, can be defamatory !Sources of Libel: Defamation in business: Professionals protected more than regular individuals •Single mistake rule: one time is okay, pattern of incompetence is not protected •Trade libel: criticism of a product (must prove it caused you to lose money) 1. Statement about the product were false 2. Specific monetary laws has to be attributed to the statement 3. Comments were motivated by ill will or actual malice (knowledge of falsity or reckless disregard for the truth) !Defamation- any communication that holds a person up to contempt. hatred, or ridicule or scorn and lowers a persons reputation in the community !Tort- civil wrong against another person or property of another !Libel- published or broadcast communication that lowers reputation of an individual by holding him or her up to contempt ridicule or scorn !Slander- oral defamationSurvival statues- a statute that permits an heir to continue to maintain a lawsuit if the plaintiff dies after the suit was filed but before it was resolved !NY Times v. Sullivan- Shifted strict liability to plaintiff to actual malice. •Actual malice- proof of knowledge of falsity or proof of reckless disregard for the truth •Public officials (plaintiff) has to prove clear and convincing evidence of actual malice (recklessness for the truth) !•Seditious Libel- Debate on public issues should be wide open and public officials should expect their work to be scrutinized & criticized !Public official categories: Public figure: •Anyone elected to office is a public official •Depending on nature of job, those hired for government job may qualify as public persons in a libel action •Not everyone who works for government is a public official (substantial responsibility or great control over government) All-purpose public figures: (celebrity/athlete) - people who occupy persuasive power and influence in the community Limited purpose figures: (Hutchenson v. Proxmire) 1. public controversy must exist before the publication of the libelous matter and have impact on the individuals beyond those directly involved 2. plaintiff must have voluntarily participated in this controversy 3. plaintiff took a role in influencing public opinion regarding controversy, accomplished through access to mass media !Nature of the story- Plaintiff must prove actuarial malice if statement concerns 1. Manner in which the plaintiff conducts him/herself in office 2. Plaintiffs general fitness to hold that job !Public person vs. private persons depends on: •Nature of controversy •The Plaintiff’s Role •Was the plaintiff actually involved in the controversy that gave rise to the defamation or was he simply the periphery? •Was the participation voluntary or was he/she drawn into the controversy by the mass media? !Businesses as public figures: (Standards 1-5) 1. Did the business use a highly unusual advertising or promotional scheme to draw attention to itself? 2. Is the business well known to the average person in the area where it has a presence? 3. Is the business regulated by the government? 4. Did the libelous comment about the business focus on a matter of public concern? 5. Has the business undergone frequent and intense scrutiny by the media? !Public figures maintain status over time only in regard to the issues that generated the public person’s status today !!Gertz vs. Robert B. Welch- mere negligence vs. gross negligence: implies a greater degree of carelessness on the part of the defendant !Negligence: 1. reliance on untrustworthy source 2. not reading misreading pertinent documents 3. failure to check with obvious source 4. carelessness in editing & new handling 5. whether theres time to investigate the story 6. whether it sounded probable !Actual Malice: •Knowledge of Falsity •Reckless Disregard for Truth A.
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