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75 Cards in this Set
- Front
- Back
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Tort
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Civil wrong, typically seeking money
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Libel
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Language in print that ruins someone's reputation (harder to prove, but get more money)
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Slander
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The spoken word
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Defamation: Time and Money
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Expensive and time consuming - prolonged legal battles
4-6 months to see the inside of the court room, some last 1-3 years defense fees: avg. 2-6,000 damage awards: avg. 500-800,000 |
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Defamation Strategy
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Settle or proceed
Alternative to court -mediation - 3rd party mediator who facilitates discussion b/w plaintiff and defendant SLAPP suit |
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SLAPP Suits
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Strategic Lawsuits Against Public Policy
Can use defamation lawsuit as a tool to prevent public comment; know you're wrong but want other company to spend time and money Anti-SLAPP legislation has been passed and is now a defense in court |
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Living Individuals
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In the US your reputation dies with you
Exceptions: Family members can continue suits which were filed prior to death. Also family members can sue if it effects their income |
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Defam. Plaintiff: Corporations
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Must impact the business of the corp.
More limited |
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Defam. Plaintiff: Libel-Proof Plaintiff
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People whose reputation is so bad that they cannot be defamed
Limited Ex. Ex-call Girl -Called premiscuous - libel proof -Accused of beating a child - not libel proof |
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Defamation Elements (to win)
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1. Publication
2. Identity of plaintiff 3. "Defamatory" statement of fact ------> up until 1964 this was all you had to prove - NYT vs. Sullivan 4. Falsity 5. Fault 6. Damages |
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Def. Elements: Publication
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Need 3 people to witness/read/hear/etc.
Includes the 2 people involved Republication is publication Publisher/distributor distinction -distributors cannot be sued for selling defamatory materials Who published it Who's the defendant |
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Def. Elements: Identification
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Who is being defamed?
"of and concerning" -if at least the minority of the community recognizes it to be a certain person - by title, name, photo, physical description -fictional characters -group libel - how small of a group do we need - Nieman-Marcus v. Lait Models (9) Saleswomen (340) Salesmen (38) ***no magic number, typically groups are 25 or less (to win), 100 or less to cont. Words like all, some, most matter w/ size of group |
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Def. Elements: Defamatory Statement of Fact
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A statement that lowers reputation in the community, and/or causes loss of association
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Libel Per Se
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Libel by itself, don't need any other info
Statement on its own in libelous Words and phrases that are always damaging Ex. Liar, racist, terrorist, etc. |
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Libel Per Quod
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Libel because there are other facts known
Ex. birth notice in paper and couple was married 1 mo. ago |
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Libel by Implication
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The way you say/frame things can imply something other than what happened
See PP for Nichols case |
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Defamatory Statements: Problem Areas
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Crime
Occupation/competence (ability to do the job) Business/trade libel Characteristics/habits Beliefs Sexuality |
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Defamatory Statements: Forms of Defamation
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Quotes
Headlines Ads Photos, cartoons Layout |
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NYT v. Sullivan
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Advertisement by civil rights activists seeking support for Dr. King
-Depicted scenes from Alabama State College -Described Dr. Kings arrests -Charged southern officials w/ violence and abuse of power Ruling: -Trial court judge gave narrowly instructed jurry -Jury found the NYT guilty -Sullivan awarded $500,000 NYT Appealed Shifted burden of "truth" to require plaintiffs to prove falsity |
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Def. Elements: Falsity
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Burden falls on plaintiff
Substantial truth (then won't always be considered false - doesn't have to be 100% truthful for defen. to win) Falsity by omission Falsity by implication |
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Def. Elements: Fault: Types of Plaintiffs/Fault
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No one after Sullivan - strict liability
Private persons-negligence Public Officials - "actual malice" |
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Public Official
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Mayor? Yes, elected official
City manager? Yes, make public policy DMV employee? No, just carrying out policy Police officer? Yes, Have discretion i enforcing/applying the law/policy Governor? Yes Secretary of transportation? Yes, in state cabinet Child welfare agent? No, similar to DMV employee |
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Public Figures
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All purpose: Always must prove malice
- Angelina Joli, Bill Gates, Uber-celebrity Limited Purpose: Prove malice when defam. statement effects public life |
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Defamation: Defenses
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Truth (the best defense)
Opinion Qualified privileges (must meet qual. and balancing test) Absolute privileges (anything said in a debate on legislation floor) |
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Defamation Defense: Truth
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Less important after NYT v. Sullivan
Best defense Hard to prove Statement need not be 100% accurate Key omission can negate truth (Mrs. Newton example) |
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Defamation Defense: Opinion
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Ollman Test (4 parts)
Adopted by the supreme court in Milkovich Opinion can be deemed factual, if the reasonable person believes it to be so |
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Totality of Circumstances
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Alternative to the Ollman Test
Common usage/meaning Objectivity of statement Social context Linguistic context Format of statement (where it appears) |
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Fair Comment & Criticism
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Qualified protection
Three part test: -Is the comment an opinion? (go through Ollman or Totality) -Does the defamatory comment focus on a legitimate public interest? (almost anything that people are interested in/mass media almost always passes this part) -Is there a factual basis for the comment? (If yes, then these facts must be given as well - allows reader to have informed perception - best to lay out why, your reasoning) |
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Qualified Priv: Fair Report Privilege
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Typically dealing with fault - Qual. protection
Defam. info was from official proceedings or documents and must seem true Accuracy and fairness Attribution |
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Qualified Priv: Neutral Reportage Privilege
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Only 5 circuits use it, about 7 or 8 states
Newsworthy and related to public controversy Made by a reasonable person/org. About a public official or figure Accurately reported alongside opposing views Reported impartially |
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Other Qualified Privileges
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Self-defense - "they started it defense"
-must be on the same playing field Mutual interest -ex. labor negotiations |
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Absolute Privileges
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Gov't officials
-Debating a law in Congress, can say defam. info w/i room -only in official proceedings, must be acting in official capacity, during official business Broadcast political candidate speech -broadcast can't be held responsible for defam. statements in political candidate's ads during election pd. -candidate is held responsible Consent -can't be held responsible for defam. statements if the subject gives their consent -ex. Entourage - Eric tries to advertise in Variety and they make him seem bad |
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Media Liability: Right to Privacy
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Right to be left alone
To be free from unwarranted publicity 1st detailed in the Right to Privacy, Harv. L.R. (1890) -Samuel Warren and Lewis Brandeis -Constitutional right to privacy -Daughters covered negatively in press for attending a party -article is the origin of the right to privacy laws |
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Do we have a constitutional right to privacy?
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No, but S.C. created zones, interpreting the 1st amendment to mean that we get privacy
Zones have also been created in the 3rd and 4th amendment Also, a zone in the 9th amend., which says that the 1st-8th amen. aren't the only rights the people have as citizens (Penumbral Right - in the shadows) |
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Areas of Media Liability
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Right to Privacy
Physical Harm Emotional Harm |
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Privacy Torts
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Public Disclosure of Private Facts
Portrayal in a False Light Intrusion into Seclusion Commercial Appropriation |
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False Light
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Dissemination of (must be widely dissem. - jury decides)
Highly offensive (don't have to show harm, just that it is offensive to the reasonable person) False publicity about someone (plaintiff must prove falsity-plaintiff must be identified) With knowledge of or reckless disregard for its falsity (must show actual malice, may differ from state to state) Ex. Time Inc. v. Hill |
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Defamation
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Publication
Defamatory Actual Malice, Negligence Shorter claim period (2yrs from pub date) |
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False Light
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Dissemination
Highly offensive Actual malice Claim time extended (4-5 yr.) |
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Private Facts
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Plaintiff must prove:
Publication of a private fact Publication would be highly offensive to a reasonable person (decided by jury based on facts) AND...Information is not of legitimate public concern *must show widespread dissemination *no truth defense *level of intimacy in the fact determines offensiveness *info in birth/death cert. is not private *no longer private if not in your control (public record, posted on internet) *sealed court docs are private |
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Private Facts Defenses
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Public Domain (public record, etc.)
Lawfully Obtained Truthful Information (LOTI) -has legitimate concern to public -police records, interviews, public records -investigative reporting -BJF vs. Florida Star Newsworthiness |
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Physical Harm
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General rule: media are not liable for harm that results from their negligence.
Exception: may be held liable if it is clear that substantial damage or harm to the public could result. Braun v. Solider of Fortune |
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Negligence
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Must prove in physical and emotional harm
-duty -neg. action -injury -cause |
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Negligence: Physical Harm
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Duty
-was action forseable? Neg Action Proximate Cause -did the pub cause the injury? -is it reasonable to hold the defendant liable? *start looking at outside facts *ex. someone runs a red light and you break your arm --> are they liable? were trees covering the light? did the light malfunction? |
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Negligence: Emotional Distress
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Duty
-Forseable? Neg action Injury -ED -How to prove? show physical harm that resulted from ED (ex. insomnia, eating disorder); or can attach ED to false light or defam. claim Proximate Cause -did the pub cause the ED -Is it reasonable to hold the defen. liable? |
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Emotional Distress
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Intentional Infliction
Conduct so outrageous and extreme that it shocks the conscience. Emotional harm is, at the least, an evident result. Negligent Infliction Negligent conduct that results in emotional distress. The emotional distress was not foreseen. Hyde v. City of Columbia |
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Intentional Infliction of ED
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intentional or reckless conduct (publication)
conduct was so outrageous (shocks the conscience) Conduct caused severe emotional distress (decided by jury) Constitutes NYT Actual Malice -only true for public official or figure Ex. CASE, private figure Armstrong v. H & C Communications Ex. CASE, public figure Hustler v. Falwell |
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Copyright Law
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Article I, Section 8 of U.S. Const.
- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Copyright Act of 1976 - “Original works of authorship fixed in a tangible medium of expression...from which they can be perceived, re-produced or otherwise communicated.” |
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What gets copyright?
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Literary works
Musical works Dramatic works Pantomimes Choreography Sound recordings Pictorial/graphic work Sculptural work Motion/AV work Architectural works |
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Requirements for Copyright
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Originality
Fixation “Expression” (not ideas) |
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Copyright: Originality
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-Author creates her own work, modicum creativity
-Cannot be simply reproducing -Compilations, collective work, derivative work -No requirement of uniqueness or novelty -No requirement of “quality” *must show some effort, sweat of the brow |
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Copyright: Fixation
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Tangible medium
-Need not be written -Can be recorded, taped, “saved” -Info stored even temporarily on computer |
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Copyright: Expression
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-History cannot be copyrighted
-Facts cannot be copyrighted - want more than one person to report on it -Ideas cannot be copyrighted |
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Copyright Ownership
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Individual Authors
Employers -Works for Hire Freelancers Corporate Authors Licensees |
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Copyright: Owner's Rights
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-Reproduction (act of copying)
-Distribution (act of distibution, location, amount) -Derivative Works (using someone elses work to create a new work - JKR and Harry Potter Encyclopedia -Public Display (reprint of art) -Public Performance (permission to use scripts) -Public Digital Performance (singing song and posting it on YouTube) |
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Copyright: Length of Ownership
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Individual Author
-Life of the Author plus 70 years Corporate Author -120 years from creation OR 95 years from publication |
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Copyright: Registration of Works
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Registration is not required to possess a valid
copyright, BUT you must register before you can sue for infringement. Steps for registration: -Fill out form -Pay fee (~$35) -Deposit copies at Copyright Office (Library of Congress) |
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Copyright Notice
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Correct form
Copyright © 2009 Courtney A. Barclay Notice is NOT required for protection, but is recommended (rules out inncocense defense) |
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Proving Infringement
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Valid copyright
Registered copyright Infringement -direct copy of work (copying of textbook) - no defense -access and similarity (proving someone had access and new work is similar) |
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Infringement: Proving Access
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Assumed when work is widely distibuted
Inferred when there is a striking similarity (squeeler the pig beanie baby) W/o dissemination, plaintiff must show reasonable possibility of access -mail receipts -relationship w/ studio -attendance at a gallery |
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Infringement: Proving Substantial Similarity
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Extrinsic
-plot is the same, music is similar -dialogue -musical notes (George Harrison "my sweet lord") Intrinsic -reasonable person is able to identify the similarity -jury answers this question **judge doesn't review intrinsic at trial (only at appelate level) **1st look at extrinsic then intrinsic **extrinsic can go to jury |
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Copyright: Fair Use Defense
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Purpose and character of the use
Nature of the work Amount taken/Sunstantiality of amount taken Effect on the potential market |
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Fair Use: Purpose
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2nd most important part
For what purpose did you use the work? News and comment (acceptable use) Harper & Row v. Nation Parody (qualification: must be connection b/w orig. work and infringing work) -2 Live Crew=parody -Cat Not in the Hat=not parody Teaching and research personal entertainment |
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Fair Use: Nature of the Work
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What is the original work?
-creative? (typically receives more protection) -inofrmative? Published? (unpub. receives more protection) |
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Fair Use: Amount Taken
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How much was taken?
What was taken? -Harper & Row v. Nation -Sampling (not okay) -Thumbnail images (okay) |
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Fair Use:Effect on Market
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Most important factor
Does it diminish the likely profits from the orig? -2 Live Crew (passed) -Course packs (must be copyrighted, not fair use) -Zacchini human cannonball (Zacchini won) |
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Copyright Damages
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Actual Damages
-actual profit lost (typically shown by corps., hard for indivs. to prove) Statutory Damages (list made by Copyright Act, work must be registered b4 infringement took place - include copying, distribution, display, etc) -intentional-higher damages paid -innocent Attorney Fees Injuctions Criminal penalties |
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Organizations: Public or Private Plaintiff?
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Size of the organization
Volume and character of advertising Controversy in history of the organization Type of industry |
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Public Figures Test
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Test
Did the individual voluntarily inject him/herself into a public issue in an effort to affect its outcome? Was the individual heavily involved in an area of high community concern? Has the individual achieved a broad community reputation involving the activity upon which the libel suit is based? |
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Negligance: Definition
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Failure to act as a reasonable person under the
circumstances. Relies on an ‘average person’ approach OR average professional standard A single lapse in journalistic practice can constitute negligence. |
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Actual Malice
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Knowingly publishing falsehoods, or
Publishing information with a reckless disregard for the truth Indicators: Did altering the quote materially change the meaning? Was the publication urgent? How reliable was the source of the information? Was the information probable? |
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Defam: Damages/Injury
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Presumed Damages
Compensatory Damages Actual damages Special damages Punitive Damages |
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NYT v. Sullivan
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Ad by civil righst activist seeking support for Dr. King
Depicted scenes from Alabama State College Described Dr. King's arrests Charged southern officials w/ violence and abuse of power Sullivan demanded the NYT print a retraction Times refused b/c Sullivan was not named Sullivan sued for Libel in Alabama -At this time only had to prove top 3 requirements Ruling: Jury found the NYT guilty NYT appealed: 9 to 0 vote to overturn Sullivan's award Commercial speech is deserving of some protection under teh FA Libel is not a talisman against the FA Truth should be the burden of the plaintiff |
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MGM v. Grokster
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Under what circumstances is the distributor of a product capable of both lawful and unlawful use liable for acts of copyright infringement by 3rd parties using the product?
Outcome: One who distributes a product with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, IS LIABLE for the resulting acts of infringement by 3rd parties. |
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The Ollman Test
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Verifiability: Is teh statement objectively capable of proof or disproof? Can teh statement be proved true or false?
Common meaning: What is the common usage or meaning of the words? Journalistic Context: What is the linguistic or journalistic context in which the statement occurs? The entire article must be considered as a whole Social contect: What is the broader social context into which the statement fits? |
