Mass Media Law 18th Edition Don Pember Clay Calvert Chapter 4 Libel: Establishing a Case McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. 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 4-2 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 4-3 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. 4-4 The Libel Landscape The Lawsuit as a Weapon – The injured party, or the plaintiff, initiates the lawsuit to: • Repair any damage to reputation • Collect money damages to compensate for harm to reputation 4-5 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 4-6 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 4-7 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 4-8 Elements of Libel Libel 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 4-9 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 4-10 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 4-11 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 4-12 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 4-13 Elements of Libel Defamation: Sources Of Libel Suits – Libel suits can arise from: • • • • Imputations of criminal behavior Sexual references and implications Personal habits Ridicule 4-14 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 4-15 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 4-16 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 4-17 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 4-18