Chapters 4-6
| Defamation | |
| Publication or broadcast of a statement that injures someone's reputation or that lowers that person's esteem in the community | |
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Reputation – actual harm? character – are some people libel proof? |
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Defamation is State law (though there
are some elements that are federal) |
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Community – which one applies? |
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Libel (written), Slander (spoken) |
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Statements of FACT (we'll deal with opinions
later) |
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Chilling effect of lawsuits – costs,
time, settlements |
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| A. Elements of Libel | |
| State law (Minnesota statutes – 541.07, 544.043, 548.06, 609.765) | |
| In some states, a plaintiff must first ask for a retraction before suing (doesn't stop the suit). | |
| If a plaintiff can't demonstrate the possibility of proving their case, it may be dismissed (summary judgment) | |
| There is typically a time limit of 1-3 years from publication | |
| Mostly civil (one person suing another) Criminal (when the state sues) |
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| 1. Publication | |
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minimum of three (plaintiff, defendant,
one other) |
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(easy to show for the media) |
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what about republication? |
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what about distributors? |
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| 2. Identification | |
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"of and concerning him, her or it" |
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explicitly named |
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described (ex. Position named) |
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pictured (recognizable) |
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even descriptive characteristics |
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misidentification |
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| 3. Defamation | |
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Words that are libelous on their face
(libelous per se) – thief, murderer etc. (esp. words that imply or
state criminal conduct) |
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Words that are innocent on their face
and become defamatory only if the reader/viewer knows other facts. (libelous
per quod) |
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In either case, the plaintiff must show
harm |
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Context is important, so is innuendo
or perception of the reader. |
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single mistake rule |
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Opinion? Something that can't be proven
true or false (Ch. 6) |
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| 4. Falsity | |
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plaintiff must generally prove that the
defamatory statements are false (for private persons, the defendant may
have to show the material is true) |
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distinctions between persons |
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| a. public persons | |
| 1) public officials (elected government officeholders, policy makers, public employees – if their conduct at work or fitness to hold the position is in question) | |
| 2) public figures | |
| i. all-purpose – have continuing news
value people follow them with interest can be national, regional, local have access to the media |
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| ii. limited – those who voluntarily involve
themselves in a public issue/controversy invite scrutiny only that is relevant to their involvement in that issue |
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| b. private persons | |
| everyone else | |
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| "substantially true" rather than absolutely true, (still must be defamatory) | |
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| 5. Fault | |
| a. for private persons | |
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negligence – convincing evidence
that the persons responsible for the defamatory material failed to exercise
reasonable care in doing their jobs |
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conduct of a reasonable person under
reasonable circumstances |
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journalistic standards are very important |
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failure to follow, carelessness, relying
on untrustworthy sources etc. |
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a focus on conduct (not state of mind) |
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timing is important (more leeway for
hot news) |
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an easier standard |
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| b. for public persons | |
| actual malice – publishing with knowledge of falsity or with reckless disregard for the truth | |
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key idea – serious doubt |
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did the defendant seriously doubt the
truth of the libelous material? |
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Should the defendant have seriously doubted
the truth of the libelous material? |
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Involves getting inside the head of the
defendant – tough! |
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| B. Defenses | |
| 1. Truth | |
| 2. Privileged communications | |
| a. absolute privilege – can't be sued for defamation if material is in a govt. forum | |
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ex. In a city council meeting, in a courtroom |
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some protection for private communications
(more on this later – privacy) |
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| b. qualified privilege – an individual may report what happens at an official govt. proceeding or transmit the substance of an official govt. report or statement and remain immune from libel even if the publication of the material defames someone (reporter privilege) | |
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fair, accurate, truthful summary |
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not to off the record comments, comments
made during recess, etc. |
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juvenile courts will raise some issues
(often closed proceedings) |
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| privilege presumes fair and accurate and true | |
| selectivity, bias etc. may negate the privilege | |
| clarity – make it clear that info is from a privileged forum | |
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| 3. Protection of Opinion | |
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critics, reviewers, op-ed page writers,
editorial cartoonists, satirists, parody |
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opinion is part of our media culture |
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is it protected? |
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| a. Rhetorical hyperbole | |
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Unbelievable statements |
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Something a reasonable person wouldn't
accept as reasonable |
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can tie in with "Intentional infliction
of emotional distress" |
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Hustler v. Falwell |
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So, is it "better" to be outrageous?! |
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How identify? |
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"pure opinion" |
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Milkovich |
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A statement incapable of being proven
true or false |
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Does it assert or imply a fact? |
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"In my opinion…" |
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| b. Ollman test | |
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Can the statement be proved true or false? |
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What is the common or ordinary meaning
of the words? |
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What is the journalistic context of the
remark? |
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What is the social context of the remark? |
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Mostly applying common sense! |
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| Tips on avoiding a libel suit… | |
| good common sense advice! | |
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| 4. Fair Comment and Criticism | |
| seldom used anymore (common law v. First Amendment privilege) | |
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| 5. Consent if the plaintiff agreed to the publication, can't sue | |
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| 6. Right of Reply – I was only responding to libelous material by libeling back! | |
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| C. Damages | |
| 1. Actual (general in Minnesota) – impairment of reputation, mental suffering, humiliation – vague! | |
| 2. Special – pecuniary (monetary) damages
that can be established in precise terms |
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ex. Lost a job (paychecks are precise) |
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| 3. Presumed – no proof needed! Compensation for the libel in general. | |
| 4. Punitive – to punish the defendant, serve as a warning to others | |
| Defamation cases |