Defemation And Libel

Front 1

What is defamation?

Back 1

The publication of material that would tend to hold one up to hatred, ridicule, contempt, or spite.

Front 2

What are the torts associated with defamation?

Back 2

Slander and Libel.

Front 3

What is defamation by written publication?

Back 3

Libel

Front 4

What is defamation by spoken words?

Back 4

Slander

Front 5

What is the most important rationale for libel law acts?

Back 5

They act as a deterrent on the publication of false and injurious speech through awarding of damages.

Front 6

Actual Malice - short definition

Back 6

Knowledge of falsity or reckless disregard of the truth.

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Before Times vs Sullivan in 1964, what were the basic requirements for a plaintiff in a libel suit?

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The defendant published a statement about the plaintiff that had a tendency to harm the plaintiff's reputation in the community or to discourage other people from associating with the plaintiff.

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What are the requirements in a modern libel action?

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A plaintiff must show that )1. a false and defamatory statement of fact concerning the plaintiff was published to a third party 2). the publication was not privileged and was made with fault on part of the publisher and 3). the publication caused actual injury.

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What has changed about falsity in relation to libel law?

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Traditionally, under common law, libel plaintiffs were able to assume that the statements were indeed false, but now under stricter constitutional law, libel plaintiffs must prove the falsity of the facts published.

Front 10

What is the first step in analyzing whether language was defamatory?

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Analyzing whether the readers (audience) could interpret the words to be defamatory and whether they did so. The audience is defined, at a minimum, as a substantial and respectable minority (rather than just a limited community, such as a prison community).

Front 11

Single act of misconduct

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In most states, not actionable unless special damages can be shown, because of a common-sense premise that all professionals make mistakes

Front 12

Libel per se versus Libel per quod

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Libel per se is a statement which is defamatory on its face.

Libel per quod - additional information is required before the statement can become defamatory. And a plaintiff must prove special damages.

Front 13

Can opinions be libelous?

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Mostly no, a defamatory statement must be actionable, that is a statement of fact rather than opinion. If, however, there is an implication of certain facts in route to what is otherwise an opinion, then the statement can be defamatory.

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Identification

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The plaintiff must prove that the defamation was "of and concerning" the plaintiff.

Front 15

Group libel action, size

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Maybe around 25 or 50, any more and the group certainly can not file a group libel action, but any less and they may be able to.

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Typical statute of limitations for libel

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two years in most states

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Single-publication rule

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A defendant can only be sued once for a defamatory statement that it republished many times over, for example, a newspaper can not be sued multiple times for a single libel simply because it prints multiple copies. Online authors are similarly protected, even though their content is continually available. Also a syndicated column would apply.

Front 18

Burden of proof for public officials and public figures

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Actual malice; knowledge of falsity or reckless disregard for the truth.

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Burden of proof for private persons in most states

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Negligence.

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Burden of proof to win punitive damages

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Actual malice, regardless of the type of person that is plaintiff.

Front 21

Case which originated actual malice rule for public officials

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New York Times vs Sullivan

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NY Times v Sullivan, history, outcome, implication

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Came from an advertisement in the NY Times. Sullivan sued, even though his name was not used in the advertisement, because he said accusations of police wrongdoing necessarily implicated him as a commissioner of police. US Supreme Court reversed alabama supreme court decision unanimously. Court reasoned that only some of the statements were false and that criticism of public officials needed a higher level of protection.

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Herbert v Lando, significance, background.

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A plaintiff could inquire as to a defendant's state of mind, why he/or she knew or believed certain things at time of publication, etc. Case when an officer was interviewed by 60 minutes.

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Misquotation, Masson v New Yorker

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Misquotation is not libelous unless the wording materially changes the meaning of what was said.

Front 25

Reckless disregard for the truth, definition

Back 25

publishing with a high degree of awareness of their probable falsity.

Front 26

Two definitions of negligence

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1. Failure to act as a reasonably or ordinary careful person would under similar circumstances. 2. Journalistic malpractice, failure to adhere to standards of reporting or writing that are common to the industry.

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Four types of damages offered and their definition

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Nominal - $1 type stuff.
Compensatory or General Damages - Awarded for actual injury, as in harm to reputation, humiliation, and suffering and mental anguish.
Special Damages - Aim to compensate for actual amount of money plaintiff lost because of defamation.
Punitive - Designed to punish defendant for libel, where largest damages are won.

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Public official definition

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Persons who are in or appear to be in policy making roles. Those among the hierarchy of government employees who have or appear to have , substantial responsibility for control over the conduct of government affairs.

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Public figures, definition

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Curtis Publishing Company v Butts, Supreme Court ruled that there was little difference between persons with widespread fame and notoriety- public figures, and public officials.

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Burden of proof for private citizens `

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States can determine, as long as it is at least negligence. Actual malice still needed to seek punitive damages. Established in Gertz.

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General or all-purpose public figures, definition

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Household names, celebrities

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Limited purpose public figures, definition

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Those who have "thrust themselves to the forefront of particular controversies in order to influence the resolution of issues involved"

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Involuntary public figure, definition

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Rare, but possible. Supreme Court has provided little guidance.

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Constitutional defense for libel, test phrase

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Does the speech contribute to the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open?

Front 35

Case which applied actual malice rule to public figures

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Curtis Publishing Company vs Butts

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Ollman test for opinion

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1. The inquiry must analyze the common usage of meaning of the words.
2. Is the statement verifiable - "objectively capable of proof or disproof"
3. What is the linguistic or journalistic context in which the statement occurs?
4. What is the broader social cntext into which the statement fits?

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Milkovich v Lorain Journal

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Limited opinion defense by stating that facts could exist or be implied by an otherwise opinion piece.

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Neutral Reportage defense

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Accurate, unbiased news reporting that prominent, responsible persons make against public figures. The mere fact of the accusation is newsworthy. Not available in all states.

Front 39

Fair comment and criticism defense.

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Protects things such as movie reviews, common law defense. Commentary must still be fair and made without common law malice and accurately reflect the opinion of the commentator.

Front 40

Truth defense

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The most complete libel defense. Substantial truth is all that is required- minor inaccuracies do not count.

Front 41

Wire-service defense, four aspects

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1. The defendant received the copy from a reputable news gathering agency.
2. The defendant did not know the story was false
3. Nothing on the face of the story could have reasonably alerted the defendant that it may have been incorrect.
4. The original wire service story was republished without substantial change.

Front 42

Libel-proof plaintiff

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Your reputation is so harmed that a defamation doesn't make a difference. An individual can also be libel-proof on a limited, specific behavior.

Front 43

Responsible reporting defense

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Often not enough to be an entire defense in itself, but it can be used to disprove negligence or disprove reckless disregard for the truth. Can also reduce damages.

Front 44

Retractions

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Depend on the state what type of effect they have on the libel verdict. Should at the very least reduce punitive damages.

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Summary judgement

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Occurs when there are not issues of fact at hand, most commonly to dismiss a frivolous suit