Chapter 4 Libel Establishing a Case The Libel Landscape Defamation or libel what lawyers call a tort or a civil wrong o Most common legal problem with those in mass media Libel is the publication or broadcast of any statement that o Injures someone s rep o Or lowers that person s esteem in the community A settlement rather than a protracted court fight normally resolves the issue Time and Money Expensive and time consuming The Knight Ridder Company settled a libel suit in 1996 brought by a former Philadelphia prosecuting attorney o Case began 23 year earlier enormous awards Often brought by plaintiffs who make outrages damage claims to win Defending a libel suit is much more complicated than writing a will or seeking damages for a car accident Complicated and confusing jurors and even judges don t always understand the law Simon Shuster and author James B Stewart were sue in 1990 o Attorney claimed he was defamed in Stewart s book Den of Thieves o Defendants had spent more than one million defending themselves The Washington Post spent 1 3 million is mid 1980s against libel suit brought by the then president of Mobil Oil Company for a story it has published about the executive s son o The Post won case Damages Sought and Won Plaintiffs seeks huge sums of money for exaggerated claims Phillip Morris Co sought 10 billion in damages in a libel action against ABC Damage claims this high are never rewarded Morris settled for a televised apology and 3 million June 2007 Boston Herald paid 3 4 million to Massachusetts judge who won libel suit over articles contending that he had made insensitive remarks about a teenage rape victim CAN USE THIS FOR YOUTUBE DISCUSSION The Libel Puzzle Likelihood of defamatory material published or broadcast today is extremely high Libel law is filled with many poorly defined amorphous concepts Based on common law it is infused with statutory and constitutional elements Most judges will never hear a libel case Lawyers who represent press follow this strategy o First try to have case dismissed before it goes to trail o If that fails offer to settle the case This can save money o Odds are better than 50 50 that the press will lose the case if it goes before a jury Why Because law is complex and errors are sometimes made by jurors and judges Important libel defense are anchored in 1st Amendment A juror can see damage to a person s reputation much more clearly than the value inherent in freedom of press Mass media today are not held in high regard by many people A lot of people don t like the press o Going on trail is not a good strategy most of the time The Lawsuit as a Weapon In typical libel suit the injured party plaintiff initiates lawsuit to 1 repair any damage to reputation and 2 collect money damaged to compensate for the harm to reputation Plaintiff is far more interested in blocking the defendant from publishing further harmful comments than winning damages Strategic Lawsuits Against Public Participation SLAPP suits Rather than sending the dispute to trail so called Anti SLAPP statutes or what are sometimes called Citizen Participation Acts permit the defendant to ask a judge to dismiss the complain immediately o 1 Defendant must prove the court the challenged activity arose from a constitutionally protected activity o If court agrees then plaintiff must convince court that he she or it has brought forth a legally sufficient claim o Court will then consider whether plaintiff can establish facts to meet its burden of proof and whether there are defenses that would likely defeat the libel suit Resolving the problem Typical cases take about 4 years to litigate Press isn t happy o Defense costs and damage awards cut into revenues o Reporters and editors are immobilized o Publicity only reinforces negative attitudes many people have about People usually don t like to admit their wrong and thus are reluctant to news media publish a correction o Laws have been adopted in about 30 states to reward the press for publishing a correction or retraction o They make it harder for the plaintiff to win damages in lawsuit if they fail to ask for a correction or retraction Laws of Defamation Libel law is essentially state law The law of defamation includes both libel written defamation and slander oral defamation All published communication is treated today as libel Elements Libel o Defamation is any communication that holds a person up to contempt hated ridicule or scorn o Important elements Defamation is a communication that damages the reputation of a person but not the individual s character To be actionable defamation the words must actually damage a reputation There must be proof offered that the reputation was harmed At least a significant minority of the community must believe that the plaintiff s reputation has been damaged but the minority must not be an unrepresentative minority o Any living person can bring a civil action for libel o Survival Statutes for relative to continue the lawsuit if a living person is defamed brings suit and then dies before the matter is settled by the court o In a libel case the plaintiff bears the initial burden of proof o He or she must establish five separate elements of the case in order to have a chance of winning To win a libel suit a plaintiff must prove o The libel was published o The words were of and concerning the plaintiff o The material is defamatory o The material is false o Defendant was at fault Publication o Before the law recognizes a statement or comment as a civil libel the statement must be published o Publication means that one person in addition to the source of the libel and the person who is defamed sees or hears the defamatory material o Presumed Publication if the material appears in a mass media outlet it is automatically presumed by the courts to be published o Republican Rule every republication of a libel is a new libel Attributing a libel to a third party will not shield people from a lawsuit Distributors are exempt from the republication rule as long as they did not have scienter guilty knowledge of the contents before distribution Libel on the Internet o Online service providers OSPs are liable for libelous information if they are the creator or originator of the material o OSPs are protected from libel actions if they are merely transmitting other s content Settled this in 1996 when it adopted the Communications Decency Act CDA No provider of an interactive computer service shall be treated as
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