" … a great deal of the law of defamation makes no sense. It contains anomalies and absurdities for which no legal writer ever has had a kind word…"

William Prosser Handbook of the Law of Torts

 

 

 

Libel is a lawsuit based on written defamatory communications--communications that tend to injure someone’s reputation.

 

Slander is a lawsuit based on spoken defamatory communications--communications that tend to injure someone’s reputation.

A libel occurs whenever the elements of libel are present. As you look at the list of these elements, you will realize that many libelous statements are published and broadcast every day. But that doesn’t mean numerous libel suits are filed against the mass media every day. Instead, most libelous publications and broadcasts are unlikely to produce lawsuits because one or more of the legal defenses that applies in libel law covers them.

Thus, to decide whether a given item is likely to produce a libel suit, you must ask yourself the following:

Are the elements of libel present?

Does a viable defense exist?

Identification

Defamation

Communication/Publication

Fault

Damages

 

At least some readers or listeners must understand to whom the defamatory statement refers

The right to sue for libel is what is called a personal right, not a property right. This means that the right dies with the individual: most states follow the common law rule that the heirs cannot sue on behalf of a deceased person unless they also were personally libeled.

The first step in analyzing any potentially libelous item is to determine whether there is a plaintiff—a party who may sue for libel. Generally, the rule the following may sue:

Any living person

Any private legal entity

Corporations

Unincorporated businesses

Government officials but not governments

Groups

 

The group must be small enough that the libel affects the reputations of the individual members

Libelous statement must refer particularly to the individual who is suing.

A communication which exposes a person to hatred, ridicule, or contempt, lowers him/her in the esteem of his/her fellows, causes him/her to be shunned, or injures him/her in his business or calling.

 

A communication which has the tendency to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him/her.

 

Defamation is a communication that damages the reputation of a person, but not necessarily the individual’s character

Your character is what you are

Your reputation is what people think you are.

Reputation is what the law protects.

 

Words must actually damage a reputation

Must be some harm done to the individual’s reputation

At least a significant minority of the community must believe that the plaintiff’s reputation has been damaged

Minority must not be an unrepresentative minority

Libel per se

Libel per quod

Words themselves will hurt a person’s reputation

Is the statement actionable on its face?

Murderer

Rapist

Racist

Extortionist

Accusing person of heinous crime

Public or private immorality

Insanity

Infection by some loathsome disease

Professional incompetence

Not immediately apparent that the words are libelous

Additional facts are needed to understand that a defamation has occurred

Any time someone besides the party making the defamatory statement and the victim sees or hears it, publication has been made

Anyone who furthers the dissemination of a libel can be sued

Online services are exempt from liability under state libel laws for any message posted by a third party

World of libel plaintiffs is divided into two groups

Public Persons

Private Persons

Malice

Negligence

Reckless disregard--publishing a story when you strongly suspect it to be false

Party’s failure to do something that he has a duty to do, and that a reasonable person would do

Failing to check facts

Injury to reputation

Emotional distress

Economic hardship

Punitive damages

All plaintiffs must prove actual malice

What are the Major Libel Defenses?

Truth

Privilege

Fair Comment and Criticism

No state may require the media to prove that a statement is true

The person suing must prove that the statement is false

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Immunity from legal liability

Journalists should be exempt from being forced to testify about sources of information and unpublished notes

Lawyers and doctors should be exempt from testifying about much of what their clients and patients tell them in confidence

Absolute

Public officials

Qualified

Journalists

Libel defense that allows the media to report on government proceedings and records without fear of a libel suit

However, media must give a fair and accurate account

Protects expressions of opinion about the public performances of persons such as entertainers and politicians who voluntarily place themselves before the public

As the courts expanded this defense, it came to protect even hostile expressions of opinion as long as two qualifications were met:

· The expression had to be based on facts that were correct and accurate.

· It had to be a critique of the person’s public performance rather than his or her private life.

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Neutral reportage

Right of reply

Consent

Statute of limitation

Retraction

Publication attempts to be neutral in its reporting both sides of a controversy

Though accepted as a new libel defense in some jurisdictions, it has not yet gained

broad acceptance

When two parties have been exchanging libelous charges and one of them sues

Defendants point out they were merely replying in kind

CONSENT

What prompted this landmark decision?

What threats were these?

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What about public figures who hold no office?

Curtis Publishing v. Butts and AP v. Walker, 1967

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What was the difference?

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Actual Malice v. Negligence

Private Persons and Public Figures

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Hutchinson v. Proxmire, 1979

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Bosie v. Consumers Union, 1984

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Dun & Bradstreet v. Greenmoss Builders, 1985

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Actual Malice and Direct Quotations

Is it possible to libel people by misquoting them?

Masson v. New Yorker Magazine, 1991

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Hustler Magazine v. Falwell, 1988

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A number of California cases received national attention. One alarmed journalists all over the country.

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