Defamation

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Defamation Rules

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1) For the most part Defamation deals with the reputation of a person, corporation, or organization. The definition of reputation is intangible-it changes from one person to another, one area of a nation to another, one profession to another, one jury to another.
2) Words that defame can be contained in almost all comm. tools avail. to the PR and Adv. prof.
3. The damages awarded for defamatory words reach into the millions of dollars and the legal fees for a defense against a defamatory suit also can be prohibitive. A person or organ. found liable for defamatory words often suffers embarrassment within its industry and it supporters.
4) Legal opinions governing defamation differ by degree from state to state, from one fed. district to another, leaving practitioners looking for local application of important restraints governing comm.

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Defamation

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communication that tends to diminish the respect, good will, confidence, or esteem in which he is held, or to excite, adverse or unpleasant feelings about him.

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Libel

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(the principle branch of Defamation)
Derogatory statements-printed or made permanent.

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Slander

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Spoken words or insulting gestures
(much less important than libel)

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defamacast

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Radio and TV have the potential for damaging a reputation that was more akin to print than to oral expressions.

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Restatement, Second, Torts Sec. 568

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1. Libel consists of publication of defamatory matter by written or printed words, or embodiment in physical form, or any other form of comm. which has the potentially harmful qualities or written or printed words.
2. Slander consists of the publication of defamatory matter by spoken words, transitory gestures or any other form than those stated in 1.
3. the area of dissemination, the deliberate and premeditated character of its publication and the persistence of the defamation are factors to be considered in determining whether a publ. is libel rather than slander.

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Summit hotel sued NBC

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"that's a rotten hotel" Jolson show. Broadcast company that leases its time is not liable for a interjected defamatory remark, had no reason for the remark to be made. If it is an employee or agent that makes the remark - the station is liable.

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Who many be defamed

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Any living person, including children. Dead cant be defamed (except in TX), but if living person is mentioned with story of deceased, and references to the living are defamatory the living may recover damages.
- corporation, non-profit, labor union
-A city cant bring civil libel action.
-small group (25) any individual member can sue
-NO govt organizations

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Hutchinson v. Proxmire

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(The most common PR tool- the news release)
"Golden Fleece of the Month Award"- wasting tax payers money.
-the defamatory statement was also carried by the newsletter published by the senators office.

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The Elements of Defamation

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1. Publication
2. Identification
3. Defamation that include fault and damages.

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1. Publication

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(word of art) doesnt mean print, writing or even publicity, but communication of the defamatory words to someone other than the defamed.
-Publication includes: printed, written, movies, broadcast and internet.
-Man dictated letter to his secretary accusing addressee of grand larceny- publication took place at time secretary took notes, read and typed them.

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single publication rule

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is a single communication and can give rise to only one action for libel. To protect the defendant from excessive liability based on a single publication run

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Title V of the Telecommunications Act of 1996

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Internet Service providers are not to be treated as publishers and held liable for the content of the messages they carry.

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2. Identification

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For a defamation suit to succeed, plaintiff must prove defamatory words applied to the person or organ.

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3. Defamation

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Reputation can be damaged: publication that can bring hatred, ridicule, contempt, loss of esteem, humiliation, or damages to ones trade, reputation, or profession.
(liar, skunk, heartless,neglectful of family)
(aids, venereal disease, alcohol/drug addict, paranoid)

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Esteem or social standing in which one is held

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-print falsely that a person is held in jail for forgery, say incorrectly one has sold or distributed narcotics.
-accused of "shakedown attempts" of elected officers, committing bigamy, perjury, murder without legal basis for statement.
-hipocrite, liar, skunk, drunkard

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Ridicule as defamation

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"sting and quickly forgotten"
"Nuts to you- you old witch"
-disease or mental illness
-falsely or without legal cause, to say someone has a venereal disease or is paranoid is defamatory

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Defaming one's trade, Occupation or profession

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A plaintiff must show fault on the part of the person or organization responsible for the publication.
"university was a degree mill","attorney was incompetent"
2 standards of Fault:
1. Malice must be demonstrated by public officers or public figures.
2. negligence by the private person

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Damages

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Publisher of the defamatory material may be named in a suit along with organization that provided the info - multiple defendants.
3 most common classifications of damages-

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1. General or compensatory damages

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loss of reputation, shame, hurt feelings, embarrassment, and pain and suffering. Awards are often high reach hundreds of thousands-even millions of dollars.

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2. Special or actual damages

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tangible loss-loss of salary or clients. Damages must be proven to the court and usually are out of pocket losses only

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3. Punitive damages

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any additional damages assessed by the court as punishment. may be extremely high and assessed by the court for intentional defamation or defamation with malice.

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Retraction

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-not a complete defense. 60% of states have these
-publishing a retraction in a timely manner restricts the plaintiff to special damages.

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Libel per se

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-on the face of it- it is obvious

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Libel per quod

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words that need extrinsic circumstances outside the otherwise innocent material to make them defamatory.
-married woman had given birth to twins. Most people knew she was only married a month.
-a person must plead and prove special damages to collect for a libel per quod.

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Statute of limitations for defamation

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-time in which plaintiff must initiate a legal action
-most states 1 yr after publication; a few states 2 or 3yrs
-Florida 4 yrs, New Hampshire 6yrs.

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Defamation Defenses

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Private individuals are plaintiffs they need only to show ordinary negligence on the part of the defendant.
Public officials or public figures must prove actual malice

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Defenses for Private individuals

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1. Truth
2. Privilege
3. Fair comment
4. Consent

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1. Truth

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-some courts, truth alone is a complete defense.
-defense must be proven as substantially true by the defendant.
-truth is not the same as accuracy.

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2. Fair comment and criticism

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an opinion may be false, abusive, and unpleasant without being defamatory- hard boiled egg
-Milkovich case highschool coach sue sports columnist accused him of lying under oath-court said more than an expression of opinion- there were false factual allegations.

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guidelines to determine fact from opinion

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1. Precision and specificity of disputed statement. calling someone a fascist- indefinite therefore an opinion.
2. Verifiability of statement- not verifiable, it is opinion.
3. literary context in which statement is made- rhetorical hyperbole
4. Public context of the statement- made in a public political arena or implicates core values of first amendment

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3. Privilege

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Communicating in the public interest
- day to day activities of individuals and businesses are important enough for some members of the public to know about.

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Absolute Privilege

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an immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties
-press releases informing public of governor, state attorn. general are doing. No liability as long as publication is within "outer perimeter" of officials "line of duty"
-Hutchison case- privilege protected senators remarks then lost his privilege when included remarks in press release and newsletter

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Qualified Privilege

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defense for persons covering an abosolute privilege circumstance with substantial accuracy and w/o malice.

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4. Consent

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ordinary negligence applies.- Negligence is the omission to do something which a reasonable man would do.

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Public Figure

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the standard of negligence increased to "actual malice" with NY times v Sullivan- prohibits public official from recovering defamatory falsehood unless proven statement was made with actual malice

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Limited public figures

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1. Plaintiff must have voluntarily injected himself into the resolution of an issue or controversy
2. controversy can affect the general public.
3. defamation must have grown out of or be related to such an issue.

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Public Figure Category

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1. Size of the organization
2. Volume and character of the organizations advertising
3. organizations history of controversy
4. Government regulation of the industry or whether the organization is publicly owned.

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Actual Malice

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In New York Times Co. v. Sullivan (1964), the Supreme Court defined actual malice as a state of mind in which a person or publication makes an untrue and defamatory statement about a person "with knowledge that it was false or with reckless disregard of whether it was false or not." In order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendant acted with actual malice.

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Curtis Publishing co v Butts

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"story of a college football fix"
-insurance agent heard phone convo btwn athletic director of Univ. of Georgia and Univ. of Alabama because of electronic error.
-Fell under public figure
-editors did not check the allegations "reckless disregard" met standard for malice

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Associated Press v Walker

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US army general walker-Assoc. press covered walker speaking to a group of whites at UM during desegregation of the campus- whites attacked fed. marshals who were protecting blacks-Walker denied leading charge
-Public figure
-reporter was meeting deadline and had no time to check info. court said it was "hot news" gave this kind of reporting 1st amendment protection.

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private figures have to prove

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negligence and damages

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public figures have to prove

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actual malice and damages

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NYT v. Sullivan

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libel landmark case that established that public figures must prove actual malice

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Libel-proof

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a person may be so notorious as a criminal- or their reputation is so bad- that it could not get worse.
-courts wont accept his libel action.

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Texas Libel

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the only difference is the memory of the dead.
There can be defamation suit after death

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5 Things a Plaintiff Must Prove in a Libel Suit

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The libel was published (Publication), the words were of and concerning the plaintiff (Identification), the material is defamatory (Defamation), the material is false (Falsity), and the defendant was at fault.