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
Criminal
Libel Per Se
General and
Actual Damages
Defamacast
Civil
Libel Per Quod
Punitive
Damages
Special Damages:
Based on Specific
Monetary Loss
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
Common Law Elements of Libel
•Publication
Single publication rule
Doctrine of Republication
•Identification
•Defamatory Content (Words and thoughts)
Falsity (Burden of proof on plaintiff)
•Actual Injury: Harm
•Fault
•Jurisdiction
•Timeliness
IC 34-15
ARTICLE 15. CAUSES OF ACTION: DEFAMATION,
LIBEL, AND SLANDER
IC 34-15-1
Chapter 1. Pleadings in Actions for Libel or Slander
IC 34-15-1-1
Allegation; burden of proof
Sec. 1. In an action for libel or slander, it is sufficient to state
generally that the defamatory matter published or spoken was about
the plaintiff. If the defendant denies the allegation, the plaintiff must
prove at trial the facts showing that the defamatory matter was
published or spoken about the plaintiff.
As added by P.L.1-1998, SEC.10.
IC 34-15-1-2
Truth; mitigating circumstances; evidence
Sec. 2. In an action for libel or slander, the defendant may allege:
(1) the truth of the matter charged as defamatory; and
(2) mitigating circumstances to reduce the damages;
and give either or both in evidence.
As added by P.L.1-1998, SEC.10.
IC 34-15-3
Chapter 3. Defamation Actions Against Radio and Television
Broadcasters
IC 34-15-3-1
Applicability of chapter
Sec. 1. (a) This chapter applies to a suit brought for:
(1) publishing;
(2) speaking;
(3) uttering; or
(4) conveying by words, acts, or in any other manner;
a libel or slander by any radio or television station or company in
Indiana.
(b) Section 3 of this chapter does not apply to a case of libel or
slander against a candidate for a public office in Indiana, unless the
retraction of the charge is made in an audible or visible manner at
least three (3) days before the election.
As added by P.L.1-1998, SEC.10.
IC 34-15-3-2
Service of notice
Sec. 2. At least three (3) days before filing a complaint in a
suit
described in section 1 of this chapter, the aggrieved party
shall serve
notice:
(1) in writing;
(2) on the manager of the radio or television station;
(3) at the principal office of the radio or television station;
and
(4) that specifies the words or acts that the aggrieved party
alleges to be false and defamatory.
As added by P.L.1-1998, SEC.10.
IC 34-15-3-3
Retraction mitigates damages
Sec. 3. The plaintiff in a suit described in section 1 of this chapter
may recover only actual damages if it appears, upon trial of the
action, that:
(1) the words or acts were conveyed and broadcast in good
faith;
(2) the falsity of the words or acts was due to mistake or
misapprehension of the facts; and
(3) a full and fair retraction of any words or acts alleged to be
erroneous was conveyed or broadcast:
(A) on a regular program of the radio or television company;
(B) within ten (10) days after the mistake or
misapprehension was brought to the knowledge of the
manager; and
(C) at approximately the same time and by the same sending
power so as to be as visible and audible as the original acts
or words complained of.
As added by P.L.1-1998, SEC.10.
IC 34-15-4
Chapter 4. Defamation Actions Against Newspaper Publishers
IC 34-15-4-1
Applicability of chapter
Sec. 1. (a) This chapter applies to a suit for the:
(1) publication of a libel by a newspaper; or
(2) transmission of a libel by a news service;
in Indiana.
(b) Section 3 of this chapter does not apply to a case of libel
against a candidate for a public office in Indiana, unless the
retraction is made in the manner set out in section 3 of this chapter
at least three (3) days before the election.
As added by P.L.1-1998, SEC.10.
IC 34-15-4-2
Service of notice
Sec. 2. (a) Before bringing a suit described in section 1 of this
chapter, the aggrieved party shall:
(1) at least four (4) days before filing the complaint against a
news service;
(2) at least six (6) days before filing the complaint against a
daily newspaper; or
(3) at least eleven (11) days before filing the complaint against
a weekly newspaper;
serve notice in writing specifying the factual statements in the
article
that are alleged to be false and defamatory, and correcting the
falsity
of the statements by reference to the true facts.
(b) If the publication of the alleged libel was by a newspaper, the
notice shall be served on the publisher at the newspaper's
principal
office of publication. If the transmission of the alleged libel was
by
a news service, the notice shall be served on the bureau chief at
the
news service's principal Indiana office.
As added by P.L.1-1998, SEC.10.
IC 34-15-4-3
Retraction mitigates damages
Sec. 3. The plaintiff in a suit described in section 1 of this chapter
may recover only actual damages if:
(1) it appears at the trial of the action that:
(A) the article was published or transmitted in good faith;
and
(B) the falsity of the article was due to mistake or
misapprehension of the facts;
(2) a full and fair retraction of a factual statement alleged to be
false and defamatory was published in a regular issue of the
newspaper or transmitted to its members or subscribers by the
news service:
(A) within three (3) days by a news service;
(B) within five (5) days, if the newspaper is a daily
publication; or
(C) within ten (10) days, if the newspaper is a weekly
publication;
after the mistake or misapprehension was brought to the
knowledge of the publisher or bureau chief; and
(3) the retraction was published in as conspicuous a place and
type as the original item appeared in the newspaper or was
transmitted by a news service to all members or subscribers to
whom the original item was transmitted.
As added by P.L.1-1998, SEC.10.
IC 34-15-5
Chapter 5. Actions for Certain False Charges
IC 34-15-5-1
Actionable charges
Sec. 1. Every charge of incest, homosexuality,
bestiality,
fornication, adultery, or whoredom falsely made
against any person
is actionable in the same manner as in the case of
slanderous words
charging a felony.
As added by P.L.1-1998, SEC.10.
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
Publisher:
Responsible for content
Distributor:
Responsible only for content
reviewed before distribution
Common Carrier:
Not responsible
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