Mass Media Law 17 th Edition Don Pember Clay Calvert Chapter 4

2 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Libel Landscape Defamation (libel) –The publication or broadcast of any statement that: Injures someone’s reputation, or Lowers that person’s esteem in the community

3 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Libel Landscape Time and Money –Expensive and time consuming –Often brought by plaintiffs who make outrageous damage claims to win enormous awards –Complicated and confusing; jurors and even judges don’t always understand the law

4 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Libel Landscape Time and Money –Odds are better than 50/50 that press will lose case if it goes before jury, because: Libel law is extremely complex. Jurors are more likely to be swayed by tangible damage to a person’s reputation than abstract First Amendment principles. Many citizens do not hold mass media in high regard.

5 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Libel Landscape The Lawsuit as a Weapon –Many plaintiffs file libel suits to silence critics. These are referred to as Strategic Lawsuits Against Public Participation or SLAPP suits. –Growing number of SLAPP suits filed in past two decades, and more than 20 states have anti-SLAPP laws on the books. –California has broadest anti-SLAPP law.

6 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel To win a libel suit, a plaintiff must prove: –The libel was published –The words were of and concerning the plaintiff –The material is defamatory –The material is false –The defendant was at fault

7 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Publication –When one person, in addition to the writer and the person defamed, sees or hears the material –Presumed publication – if the material appears in a mass media outlet, it is automatically presumed by the courts to be published

8 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Publication –Republication 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

9 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Publication on the Internet –Online service providers (OSPs) are liable for libelous information if they are the creator or originator of the material –OSPs are protected from libel actions if they are merely transmitting other’s content

10 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Identification –The defamatory statement is “of or concerning him/her” –Can be identified by: Name Nickname Photograph References that would identify only one person

11 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Group Identification –Statements made about a very large group cannot be used as the basis for a libel suit by one member of the group –If the group is small, individual members of the group may be able to bring a libel suit for comments made about the entire group

12 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Defamation –Libel per se – words that are libelous on their face –Libel per quod – words that are innocent on their face and only become defamatory when other facts are known

13 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Defamation: Considerations –Juries and judges consider: Words in light of their ordinary meaning Innuendo as potentially defamatory Words in context of entire piece Pure opinion is not defamatory

14 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Defamation: Sources Of Libel Suits –Libel suits can arise from: Imputations of criminal behavior Sexual references and implications Personal habits Ridicule

15 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Defamation: Business Reputation –Libel law goes furthest in protecting persons in their business and occupations –Single mistake rule – stories that suggest someone make one mistake in their business dealings may not be defamatory; stories that suggest a pattern of incompetence would be defamatory

16 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Defamation: Trade Libel –Criticism of a product is called “trade libel” but is not really libel at all, as it focuses on the product itself. –To prove trade libel, a plaintiff must show: Statements about the product are false Specific monetary loss because of the false statements False comments were motivated by ill will or actual malice

17 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Falsity –Not every plaintiff must meet this requirement. Private-person plaintiffs only need to prove falsity if statements are “matters of public concern.” If not of public concern, defendant must prove it is true. –If the proven truth leaves a different impression of the plaintiff in the minds of the jury than the impression created by the defamatory falsehood

18 © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Elements of Libel Falsity –Evidence presented in court must go to the heart of the libelous comments; the “sting” of the libel must be false –Minor errors, unless they are at the heart of the libel, will not result in a finding of falsity