Chapter 4 Libel Establishing a Case THE LIBEL LANDSCAPE Defamation or libel is a tort or a civil wrong Defamation Any communication that holds a person up to contempt hatred ridicule or scorn and lowers the reputation of the individual defamed Tort A civil wrong not based on a contract against the person or property of another Typical torts are libel invasion of privacy trespass and assault Defamation is the most common legal problem faced by people who work in the mass media Allegations of libel are the basis of about 2 3 of all legal complaints filed against mass media defendants in a given year Libel is the publication or broadcast of any statement that injures someone s reputation or lowers that person s esteem in the community Libel Published or broadcast communication that lowers the reputation of an individual by holding him or her up to contempt ridicule or scorn Anyone who speaks or publishes including material on the internet or broadcasts anything can become the target of a defamation action Libel can lurk in a news story or editorial press release company newsletter advertising copy letters to the editor comments made in an internet chartroom or in a blog or even statements made orally at a public gathering such as a public meeting Allegations of libel aimed at material carried online disputes are typically between private parties and a settlement rather than a protracted court fight normally resolves the issue especially if the publisher of the libel agrees to remove the offending material from the web Public or mainstream press media enjoy some First Amendment protections that may not accrue to those who publish defamation in a company newsletter or press release a personal blog or a posting on Facebook Libel suits cause problems The protracted nature of many libel cases plus the high cost of defending against such suits can result in a heavy financial burden for the defendant Plaintiffs often make outrageous damage claims and at times even win enormous damage awards Libel law is especially complicated and often confusing to the point that sometimes jurors and even judges don t understand the law and make erroneous decisions Some plaintiffs file frivolous libel lawsuits to try to silence their critics in the press and the public TIME AND MONEY Protracted litigation is always a threat in a defamation action because of the complex nature of libel law And while the case goes on the defense lawyers remain on the job racking up billable hours Page 1 Time example The Knight Ridder Company libel suit took 23 years to settle Time example Consumers Union the publisher of Consumer Reports settled a libel suit after 8 years that had been brought by the Suzuki Motor Corporation Money example Book publisher Simon Schuster and author James B Stewart were sued by an attorney who claimed he was defamed in Stewart s book Den of Thieves By the time the lawsuit was dismissed the defendants spent more than 1 million defending themselves Money example The Washington Post spent 1 3 million defending itself in a libel suit brought by the then president of the Mobil Oil Company for a story it had published about the executive s son The Post won the case after a trial and an appeal DAMAGES SOUGHT AND WON Plaintiffs sometimes claim exaggerated damage and seek extraordinary sums Example Phillip Morris Co sought 10 billion in damages in a libel action against ABC This was settled for a televised apology and 3 million The Church of Scientology sued Time Warner for 416 million because it described the church as a global racket Damage claims unreasonably high like these are never rewarded But the lawsuits have to be defended And damage rewards are often very high The trial judge or an appellate court will often lower libel damage awarded amounts THE LIBEL PUZZLE The likelihood of defamatory material being published or broadcast today is extraordinarily high There is a time crunch to get a story out so decisions regarding the liability in a story have been compressed Lawyers who represent the press usually follow the same strategy First try to have the case dismissed before it goes to trial Failing that offer to settle the case The cost of settling a case can be much lower and a settlement before a trial makes sense because according to MLRC research the odds are better than 50 50 that the press will lose the case if it goes before a jury The law is complex and errors are sometimes made by jurors and judges Important libel defenses are anchored in the First Amendment and abstract concept to many people A juror can often see damage to a person s reputation much more clearly than the theoretical value inherent in freedom of the press The mass media today are not held in high regard by a great many people in the nation A lot of people don t like the press There is a lot of bad news out there today and people have always had a tendency to want to shoot the messenger A libel trial can provide an opportunity for a juror to express his frustrations with the press by awarding damage to a libel plaintiff The jury box has been called the mass media s Achilles heel Page 2 THE LAWSUIT AS A WEAPON In the typical libel suit the injured party or the plaintiff initiates the lawsuit to 1 repair any damage to reputation and 2 collect money damages to compensate for the harm to reputation and 2 collect money damages to compensate for the harm to reputation To reach either of these ends the plaintiff must either win a settlement or a court case Strategic Lawsuits Against Public Participation or SLAPP suits A different kind of libel action that has recently emerged where the plaintiff is far more interested in blocking the defendant from publishing further harmful comments than winning damages Example of a SLAPP suits an unhappy customer creates a Facebook page and the company sues for libel In SLAPP suits it is not important for the plaintiff to win these cases most don t expect to But by forcing their critics to mount a costly defense they hope to silence these critics Anti SLAPP statutes or what are sometimes called Citizen Participation Acts have been devised as a means to thwart such lawsuits by passing laws that permit a court to expedite a judicial review of the plaintiff s allegations Rather than sending the dispute to trial they permit the defendant to ask a judge to dismiss the complaint immediately Anti SLAPP statutes require the judge to undertake a 2 step examination of the complaint The defendant must
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