Damage to Reputation: Defamation, slander and libel

Defamation: A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him Second Restatement of the Law of Torts

Philosophy of Libel Law 1. Protects individual’s reputation, because defamation may: a. Interfere with existing relationships b. Interfere with future relationships c. Destroy a favorable public image d. Create a negative public image where none existed 2. Compensates for economic and emotional injury 3. Promotes human dignity (civilized forum to settle disputes) 4. Acts a deterrent on publication of false and injurious speech by the awarding of damages Note: Can be applied to businesses: trade libel or product disparagement

Defamation: State Law Slander Libel Defamacast Criminal Civil Libel Per Se Libel Per Quod Special Damages: Based on Specific Monetary Loss Presumed and Actual Damages Punitive Damages

Common Law Elements of Libel Defamatory Content (Words and thoughts) Falsity (Burden of proof on plaintiff) Publication Identification Fault Harm Jurisdiction Timeliness

The Libel Action Publication of a false and defamatory statement Publication was not privileged and was made with fault Publication caused actual injury Actual malice v. Common law malice

Categories of Defamatory Words: Libel Per Se Impute to another a loathsome disease Accuse another of serious sexual misconduct Impugn another’s honesty or integrity Accuse another of committing a crime, being arrested or indicted Allege racial, ethnic or religious bigotry Impugn another’s financial health or credit-worthiness Accuse another of associating with criminals or others of unsavory character Assert incompetence or lack of ability in one’s trade, business, profession, or office

Times v. Sullivan (1964) The Protection of Editorial Advertising The First Amendment and Libel Per Se Partial Protection of False Statements (“Heat of debate”) The Plaintiff Must Prove Actual Malice “with knowledge that it was false or with reckless disregard of whether it was false or not”

Gertz v. Robert Welch, Inc. (1974) Libel is limited to false and defamatory assertions of fact States may establish lower standard of fault for private individuals who sue the news media Public figures are defined and categorized Private individuals must demonstrate some fault Private individuals must show harm or actual malice

Fault: The Status of Libel Plaintiffs Public Officials:1. Policymakers 2. Media Access Public Figures: All-Purpose (can be limited in geography) Limited: “Vortex” 1. controversy at issue 2. plaintiff’s role 3. defamation came from participation Time Lapse

Libel: For the Defense Opinion Milkovich v. Lorain Hyperbole Hustler v. Falwell Retraction (since 1995, ABA has endorsed Uniform Correction or Clarification of Defamation acts) Neutral Reportage Privilege 1. Public controversy exists (or created by charges) 2. Allegation come from public official/figure 3. Assertion at issue aimed at public official/figure 4. Must be reported accurately and neutrally Fair-Report Privilege Anti-SLAP (Strategic Lawsuits Against Public Participation) Legislation

Libel in Cyberspace Telecommunications Act of 1996 “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Good Samaritan provision designed for “offensive material” removed upon request of named party Publisher:Responsible for content Distributor:Responsible only for content reviewed before distribution Common Carrier:Not responsible