Chapter Five-Libel

Libel–a published false statement that could potentially ruin the person’s reputation. We have all heard about cases that deal with libel in which the plaintiff often wins because the published statement by the defendant was extremely out of line. However, journalists and others sued for libel, have defenses that can be used in the courtroom and have privileges to protect themselves while reporting and publishing. An important key to remember is that a plaintiff must prove every element of the case to be proven libel, while a defendant only needs one solid defense. Simply put, a defendant just has to ‘turn the case inside out’.

In some cases, defendants can protect themselves by simply proving that the information published was done in a fair and truthful way.

Fair Reports Privilege

• reporting events based on official records made by law enforcement, government officials, etc.
• a defendant cannot be sued if the information is given in an accurate reflection of the record
• if this privilege is neglected and the information published does not match a report, the case can continue

Fair Comment and Criticism

• common law privilege that protects critics from libel by individuals
• by placing work in the public, individuals set themselves up for criticism from everyone
• critics have to be careful that their comments are not false statement of facts and that the underlying goal is not to cause harm

Opinion

• protected by the First Amendment and therefore more effective in a court setting
  • in fact, expressing opinion is a right guaranteed by the First Amendment
  • there is no such thing as a false idea
• statements of fact vs. statements of opinion (slippery slope)
  • Ollman test- four parts
    • Is the statement verifiable?
    • What is the common usage or meaning of the words?
    • What is the journalistic context in which the statement occurs?
    • What is the broader social context into which the statement fits?
  • more than just “In my opinion” or “I believe”

Innocent Construction

• potentially libelous words that are capable of being interpreted in a different way
• as long as the words at issue have one innocent meaning, the defendant wins
• example- changing someone’s name a in a published work
• laws of this vary between states
  • have to be consistent

Letters to the Editor and Online Comments

• generally ruled in the same fashion
• most deal with whether or not comments are opinions or false statements

Rhetorical Hyperbole, Parody and Satire

• the idea that the libel statements are so outrageous that no person would ever believe what was published
  • damage to the plaintiff reputation could not have happened

The next defense for defendants against libel is republication.

Neutral Reporting

• recognizes the importance of free flow of information through the First Amendment
• this has been controversial and sometimes inconsistent in certain jurisdictions
• protects the media after republication of false information/accusations if the information was published in a fair and objective manner to serve as public interest

Wire Service Defense

• similar to neutral reporting
• protects a defendant in which he/she republished information from a major news source
  • defendant did not know that the story was false
• only accepted in a number of jurisdictions

Single Publication Rule

• plaintiff can only have one claim for each publication, not every publication in that run
  • example- can only sue for one libel suit for an entire edition of a magazine

Libel-Proof Plaintiff

• the reputation of the plaintiff is already so damaged that one additional false accusation will cause no harm
  • example- a plaintiff is listed as a thief, arsonist, and a kidnapper (which are all true) but the publisher also listed he/she is a tax evader; this additional accusation, even though false, does not hurt the reputation of the plaintiff any more than it already is

 

There are also types of defenses that do not involve the fairness of the defendant or the republication of a particular story. These can include jurisdiction and retractions.

Summary Judgement

• granting the judge the right to review a case and dismiss it without going through the process of having a jury
• usually in this situation, a plaintiff is unable to meet elements in their libel case
  • judge takes into account the burden the plaintiff must meet at a trial
  • protects free expression especially when plaintiffs have been harassing the defendants

Jurisdiction

• in the past, plaintiffs have been able to initiate a lawsuit in any court, including courts that might be most favorable to the plaintiff
• significant restrictions have since been made especially with libel cases involving the internet
• these restrictions are met with a test to determine the correct jurisdictions
  • Whether the defendant purposefully conducted activities in the state
  • Whether the plaintiff’s claim arises out of the defendant’s activities here
  • Whether the exercise of jurisdiction would be reasonably constitutional
• bottom line, jurisdiction rest where the publication’s intended audience is located

Section 230 Immunity

• offers legal protection to website and Internet Service Providers (ISPs) when issues come from the content created by others
• the key here is to identify the source of the content and the extent to which the ISP interacted with the content
  • example- bloggers are protected when a third party account comments on their content

Statutes of Limitations

• claims for libel suits can only be filed within a certain amount of time after the violation
• old claims are usually dismissed

Length of Statutes of Limitations in Libel Actions

• depending on the state, limitations can go anywhere from 1-3 years
• the time period starts as soon as the material is given to the public
  • this is true for information that is republished- libel claims can only be made from the original date of publication

Retractions

• retractions and corrections can be made to a published work even after the public has seen it
  • when a defendant makes a retraction or correction in a reasonable amount of time, the claim can be dismissed
  • this shows that the defendant is trying to reduce the harm done to a plaintiffs reputation
• retractions can sometimes be viewed as an admission of guilt, proving that the defendant did in fact know that the information published was libelous
  • retraction statutes were put in place to encourage defendants to retract information and as a result, the court would view a retraction as an admittance of a mistake

Responsible Reporting

• a defense against libel in which the defendant proves that he/she gathered and reported the information in a responsible way
  • defendant must show the information was investigated thoroughly, biases were not used, no intention to harm the plaintiff, etc.

 

Reporters and journalists have many different ways to protect themselves when it comes to libel claims. As long as the defendant puts together information in a fair, responsible, and unbiased way, most libel cases will favor the defendant. Defendants have to understand that each state is different when it comes to dealing with libel claims, and that testimonies must be thought out and put together in a way that clearly shows no libel publications were intended.