Chapter Four Libel Establishing a case This is an old concept that comes from common law this chapter focuses on the requirements that the plaintiff must establish for a libel lawsuit The Libel Landscape Defamation It is a tort a civil wrong that either injures someone s reputation or lowers that person s esteem in the community Most common legal problem Usually end in a settlement Usually between private parties Libel law is complicated confusing Many libel law is filled with poorly defined amorphous concepts Libel lawsuits take time and money Examples Knight Ridder Company 23 year case Simon Schuster 1 million The Washington Post 1 3 million Plaintiffs sometimes claim exaggerated damage and seek extraordinary sums Examples Phillip Morris Co v ABC 10 billion Church of Scientology v Time Warner 416 million Damage claims this high are never awarded In many instances the judge or court will lower these amounts Bloggers do not have the ability or inclination to consider potential libel in the material they publish Why would someone not initiate a lawsuit Going to trial is not a good strategy most of the time most try to have the case dismissed before going to trial and then try to settle the case It is rarely a happy experience Lawyers can take as much as 50 of their winnings Publicity about the lawsuit only reinforces the negative attitudes many people have about the news media If you take it to the jury the ordinary citizen begins thinking the media is unfair Why would someone initiate a lawsuit 1 To protect their reputation 2 To collect damages 3 To block more libel in the future silence critics Anti SLAPP statues permit the defendant to ask a judge to dismiss the complaint immediately Retraction statues laws have been adopted in about 30 states that reward the press for publishing a correction or retraction These laws also make it harder for those who claim to have been defamed to win damages in a lawsuit if they fail to ask for a correction or retraction Law of Defamation Includes both libel written and slander spoken Usually treated alike Defamation is any communication that holds a person up for contempt hatred ridicule or scorn 1 Damages reputation not necessarily character 2 Must be proof that reputation was harmed elusive task sometimes the jurors are willing to assume 3 At least a significant minority of the community must believe that the reputation has been damaged the minority must not be an unrepresented minority 4 Material is false and defamatory 5 Words were of and concerning the plaintiff 6 Defendant was at fault Right to reply when defamed a person under law has the right to strike back using the columns of the same newspaper to tell his or her side of the story Europe sometimes US Libel law is a state law and differs per state Libel proof Sometimes the plaintiff has such a poor reputation that nothing anyone could say or write could harm it further Most common is a convicted criminal Common law bars suits by relatives of someone who has died on behalf of the deceased If someone starts a suit and then dies their relatives can continue to pursue the lawsuit called survival statues Publication one person in addition to the source of the libel and the person who is defamed sees or hears the defamatory material Republication of false facts threatens the targets reputation as much as the original publication Neither a reference to an article or providing the link to it constitutes a republication of the libel Example Dominick Dunne repeated that he heard from a third party that implicated a US congressman in the disappearance of a legislative intern on a radio program and was sued Publishers and vendors cannot be held responsible for republishing the defamation unless the plaintiff can show that these people or institutions knew the printed matter contained defamation or should have had reason to know Scienter guilty knowledge Courts regard communication on the WWW the same way they regard material published in newspapers magazines or books If the OSP is the author they will be treated like a newspaper publisher If an OSP merely transmits what another party has posted they will be regarded as a vendor or distributer rather than a publisher More common Examples can be found on page 160 If a site requires users to post illegal content it would loose CDA immunity Not when they simply encourage the posting of such content British courts have been friendlier to libel claimants It is unlikely to protect the OSPs from lawsuits filed in other countries Libel tourism traveling to a foreign venue to file a defamation action that would not succeed in this country SPEECH act require a plaintiff to show that a defendant suffered substantial harm from the alleged defamatory publication and give defendants additional defenses Identification the injured party must show the court that the allegedly defamatory statement is of and concerning him her or it It is possible for the plaintiff to put two or more stories together to establish identification Libel in fiction rare not explicit identification just says it refers to him or her Example lawyer shown on Law and Order but not named they just looked alike and had a similar case Group identification One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it but only if the group or class is so small that the matter can be reasonably understood to refer to the individual or the circumstances of publication give rise to the conclusion that there is a particular reference to him Example St Regis Mohawk Tribe three members sued because of a comment made about a gambling casino Harry Hudson drinking on the job a dozen workers were fired a TV station reported that they had been terminated no names were given but the mill was named Caution is urged to reporters who describe a group large or small Words 1 Words can be libelous in their face like cheat and thief 2 Words can be innocent on their face and become defamatory only if the reader or viewers knows other facts Stating a women is unchaste is libelous less protective of men but may be changing Innuendo can be defamatory Words that are capable of a defamatory meaning must convey the defamatory meaning A libel suit cannot be based on an isolated phrase wrenched out of context Keep in mind that times change and the meanings of words can change Opinions pure opinion is protected by the first amendment because it cannot be
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