Survey of Broadcasting: Assignment 2, Question 3. Discuss the elements of libel and the possible defenses one can mount if accused of libel.–Videos

Posted on June 30, 2011. Filed under: Defamation, Law, Libel | Tags: Consent, Defamation, Defenses To Libel, Fact, Fault, Harm, Identification, Libel, Offence, Opinion, Privilege, Publication, Truth |

Libel is defamation by written or printed words, pictures or in any form but spoken words or gestures.

A person must establish four elements–publication, identification, harm and fault to prove he or she has been defamed.

Each of the four elements must be proven in court.

More precisely the elements of libel are as follows:

1. The statements in question must have actually defamed the person and caused some harm.
2. The statements must have been published.
3. The statements must have identified the person in the story.
4. The person defamed must show some degree of fault or error on the part of the media organization.
5. The statements broadcast or published were false.

The possible defenses to libel are as follows:

1. Consent
2. Truth
3. Privilege
4. Opinion vs Fact

Consent is a seldom used defense  and is based on the premise that the claimant consented to the dissemination of the statement.

Truth is a commonly used defense and is based on the premise that the statements made about the claimant are in fact true.

The claimant must prove that the statements are false.

Privilege is either absolute or qualified.

Statements made in a court would be an example of absolute privilege and is a complete bar to defamation claims.

Statements made by a journalist may be qualified privileged when they are based on local government  documents, statements made in public meetings, and information relating to public entities such as police and fire departments.

Statements that are opinions is a common defense for opinions cannot be proven to be true or false and are not statement of fact.

Statements that are facts are not a defense unless they are in true.

There are several other defenses to claims of defamation including:

1. Statements made in a good faith and reasonable belief that they were true
2. Fair comment on a matter of public interest
3. Claimant is incapable of further defamation
4. Statute of limitations
5. No Third-party communication
6. No actual injury.

Claimants that are in the public arena such as politicians, public officials, artists, singers, columnists, professional sports figures, and other who invite public scrutiny are subject to the fair comment on a matter of public interest defense.

However, journalists cannot report factual matters erroneously.

Furthermore, public officials must prove that false and defamatory statements were made with “actual malice” as a result of the 1964 New York Times v. Sullivan decision.

The Supreme Courts defined “actual malice” to mean the publishing or broadcasting of statements with the knowledge that it was false or with “reckless disregard: of whether it was false.

Latter court decisions went further and found that public figures must prove actual malice to win a libel suit.

Background Articles and Videos

Defamation

“…Defamation—also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. It is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).^[1]

In common law jurisdictions, slander refers to a malicious, false,^{[2][not specific enough to verify]} and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.^[3] Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. “Unlike [with] libel, truth is not a defense for invasion of privacy.”^{[4][not verified in body]}

False light laws are “intended primarily to protect the plaintiff’s mental or emotional well-being.”^[5] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.^[5]

In most civil law jurisdictions, defamation is dealt with as a crime rather than a tort.^[6]

A person who destroys another’s reputation may be referred to as a famacide, defamer, or slanderer. The Latin phrase famosus libellus means a libelous writing. …”

“…Types

Slander

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech), each of which gives a common law right of action.

“Defamation” is the general term used internationally, and is used in this article where it is not necessary to distinguish between “slander” and “libel”. Libel and slander both require publication.^[12] The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.

Libel

Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures.^[13] The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel.^[14]

Cases involving libel

An early example of libel would be the case of John Peter Zenger. Zenger was hired to publish New York Weekly Journal. When he printed another man’s article that criticized William Cosby, the governor of New York at the time, Zenger was accused of seditious libel.^[15] The verdict in the 1735 case was returned as “not guilty” on the charge of seditious libel, having proved that all the statements Zenger had published about Cosby had been true, so there was not an issue of defamation. Another example of libel would be the case of New York Times Co. v. Sullivan (1964) which involved a newspaper publication. The Supreme Court overruled a state court in Alabama that had found the New York Times guilty of libel for printing an advertisement that criticized Alabama officials for mistreating student civil rights activists. Even though some of what the New York Times printed was false, the Supreme Court ruled in favor of the Times, saying that libel of a public official requires proof of actual malice, which was defined as a knowing or reckless disregard for the truth.^[16]

 How to prove libel

There are several ways a person must go about proving that libel has taken place. For example, in the United States, the person first must prove that the statement was false. Second, that person must prove that the statement caused harm. And, third, they must prove that the statement was made without adequate research into the truthfulness of the statement. These steps are for an ordinary citizen. In the case of a celebrity or public official trying to prove libel, they must prove the first three steps, and must (in the United States) prove the statement was made with the intent to do harm, or with reckless disregard for the truth. Usually specifically referred to as “proving malice”.^[17]

Criminal defamation

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. ARTICLE 19, a free expression advocacy group, has published global maps^[18] charting the existence of criminal defamation law across the globe, as well as showing countries that have special protections for political leaders or functionaries of the state.^[19]

It should be noted that there can be regional statutes as well that may differ from the national norm. For example, in the United States, defamation is generally limited to the living. However, there are ten states (Colorado, Idaho, Georgia, Kansas, Louisiana, Nevada, North Dakota, Oklahoma, Utah and Washington) that have criminal statues regarding defamation of the dead.^[20]

The OSCE (Organization for Security and Co-operation in Europe) has also published a detailed database on criminal and civil defamation provisions in 55 countries, including all European countries, all member countries of the Commonwealth of Independent States, the United States and Canada.^[21]

Defenses

Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.

Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libellous.^{[citation needed]} Proving adverse public character statements to be true is often the best defense against a prosecution for libel or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements made as “facts” are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. From ‘Other Defenses’ (below), under the ‘Opinion’ section: “However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.[17]” To win damages in a libel case, the plaintiff must first show that the statements were “statements of fact or mixed statements of opinion and fact” and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.

Under English common law, proving the truth of the allegation was originally a valid defence only in civil libel cases. Criminal libel was construed as an offence against the public at large based on the tendency of the libel to provoke breach of peace, rather than being a crime based upon the actual defamation per se; its veracity was therefore considered irrelevant. Section VI of the Libel Act 1843 allowed the proven truth of the allegation to be used as a valid defence in criminal libel cases, but only if the defendant also demonstrated that publication was for the “Public Benefit”.^[22]

In some systems, however, notably the Philippines, truth alone is not a defense.^[23] Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements “tending to blacken the memory of one who is dead” or “expose the natural defects of one who is alive”.^[24]

It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not “what the public is interested in”, but rather “what is in the interest of the public”.^{[25] [26]}

Noonan v. Staples^[27] is sometimes cited as precedent that truth is not always a defense to libel, but the case is actually not valid precedent on that issue because for some reason Staples didn’t argue First Amendment protection for its statements. (see footnote at bottom of page 15 of the courts decision) The courts often don’t decide cases on issues not argued by the parties, and thus the court assumed for the sake of that particular case that the Massachusetts law was constitutional under the First Amendment.

Privilege and malice

Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted.

There are two types of privilege in the common law tradition:

• “Absolute privilege” has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as ‘Parliamentary privilege’ in Commonwealth countries).
• “Qualified privilege” may be available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.

Other defenses

Defences to claims of defamation include:

• Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources.
• Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.^[28]
• Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.
• Consent is an uncommon defense and makes the claim that the claimant consented to the dissemination of the statement.
• Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defense can be defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter.
• Claimant is incapable of further defamation–e.g., the claimant’s position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be “libel-proof”, since in most jurisdictions, actual damage is an essential element for a libel claim. Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the statement.
• Statute of limitations. Most jurisdictions require that a lawsuit be brought within a limited period of time. If the alleged libel occurs in a mass media publication such as a newspaper or the Internet, the statute of limitations begins to run at the time of publication, not when the plaintiff first learns of the communication.^[29]
• No Third-party communication: If an employer were to bring an employee into a sound-proof, isolated room, and accuse him of embezzling company money, the employee would have no defamation recourse, since no one other than the would-be plaintiff and would-be defendant heard the false statement.
• No actual injury: If there is third-party communication, but the third-party hearing the defamatory statement does not believe the statement, or does not care, then there is no injury, and therefore, no recourse.

In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not actually harm someone’s reputation is prima facie not libelous. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense.

Public figure doctrine (absence of malice)

Special rules apply in the case of statements made in the press concerning public figures, which can be used as a defense. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).^[30]

Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff was directly or indirectly identified, the remarks were defamatory towards the plaintiff’s reputation, the published information is false, and that the defendant is at fault.

The Associated Press estimates that 95% of libel cases involving news stories do not arise from high-profile news stories, but “run of the mill” local stories like news coverage of local criminal investigations or trials, or business profiles.^{[citation needed]} Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits.

Freedom of speech

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech when necessary to protect the reputation or rights of others.^[31]

Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue.^[32]

There is a broader consensus against laws that criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws that criminalize defamation.^[33][34] The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986). …”

http://en.wikipedia.org/wiki/Defamation

SPLC Legal Brief
Libel Law

http://www.splc.org/knowyourrights/legalresearch.asp?id=27

Los Angeles Internet Defamation Lawyer: What Are The Elements of A Claim For Defamation?

Los Angeles Defamation Lawyer: Truth As A Defense To A Claim Of Defamation

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