Media Law Exam 2

Front 1

Defamation

Back 1

Communication that injures a person’s reputation. Includes libel (written), slander (spoken). It is a state law, not federal defamation laws—all states have similar laws. False statements of fact.

Front 2

who can sue for defamation?

Back 2

any living person (cannot sue on the behalf of a dead person), a corporation an unincorporated association, organization or society, including a labor union, charitable foundation and fraternal organization. Government employees can sue for defamation, but government as a whole cannot.

Front 3

The six elements a plaintiff in a defamation suit must usually prove

Back 3

Burden of proof in on plaintiff in most situations. Each step is individual, and the court moves step by step. KNOW THEM SEPARATE FROM ONE ANOTHER
1) Publication
2) Identification
3) Defamatory content
4) Injury
5) Fault
6) Falsity

Front 4

Publication

Back 4

when at least one person other than the defamed person has received/heard the words—when you communicate. (Only need three people for a defamation suit, person to say it, person for it to be about, and person to hear it).

Front 5

Identification

Back 5

Is the statement ‘of and concerning’ the plaintiff? Identification can be by name, picture, initials, penname, nickname, sketch drawing, even a description. Do other people recognize the plaintiff?

Front 6

Defamatory content

Back 6

In court, a judge determines whether a message is capable of being defamatory
-If yes, a jury decides if the words, in their everyday meaning, actually defamed the plaintiff

Front 7

Injury

Back 7

usually intangible, loss of reputation, standing in community, mental harm, emotional distress, etc.

Front 8

Fault

Back 8

Prior to 1964, the plaintiff only had to prove they were identifies and defamed and the defendant published it.
-Two concerns of proving level of fault: Who are you talking about, and what are you talking about?

Front 9

Basic Rules of Fault

Back 9

--Public officials and public figures must prove actual malice to win their lawsuits and collect ANY damages.
--Private persons must prove at least negligence to win their lawsuits and collect compensatory damages—compensate you for your injury.
--All plaintiffs, public and private, must prove actual malice to collect punitive damages (damages intended to punish the defendant) if the subject of the report is a matter of public concern
-Types of levels of fault (actual malice and negligence), types of people (private and public officials), and damages (punitive and compensatory).

Front 10

The "republication rule"

Back 10

-“The bearer of tales is as guilty as the teller of tales”. Each person who participates in the repetition of republication of a libelous statement can be held legally liable. Journalists must check their facts!

Front 11

Section 230 of the CDA

Back 11

1996 Communications Decency Act (CDA): ISP exception=ISPs are not treated as publishers or republishers of information provided on their systems by others. ISPs=Internet Service Providers… includes AOL, Yahoo, etc. Section 230 of the CDA=ISP exception. A website that hosts publication from a third party cannot be guilty of republication rule

Front 12

The single publication rule (Publication)

Back 12

Even multiple copies of the same publication count as one charge. If NYT prints 500 copies of libelous material, then that still only constitutes one charge

Front 13

Group Libel (Identification)

Back 13

Can a member of a group sue for libel if the entire group is defamed but the member is not mentioned individually? Maybe. Depends on size of group (no magic number), nature of the statement.

Front 14

What may constitute injury in a libel action?

Back 14

sometimes actual monetary loss. All plaintiffs must prove some injury unless they can prove actual malice, in which injury is assumed.

Front 15

The two main categories of defamatory statements

Back 15

1) Libels per se—”obviously defamatory” words, are defamatory on their face. Accusations of criminal conduct or activity, allegations of crimes, unethical practices or incompetence related to one’s occupation, attacks on one’s character traits or lifestyle, including claims of sexual promiscuity or marital infidelity, claims that one has an undesirable or contagious disease.
2) Libel per quod—words that are not ordinarily defamatory but become damaging because of facts or circumstances extrinsic to the story. Plaintiff must prove the special circumstances, that the audience understood the defamatory connotation, and special damages, that is, actual monetary loss.
-Businesses can sue for communications that damage their corporate reputations (poor service, poor products, allegations of unstable finances, allegations that products could damage the public health and safety. (Opera got sued for ‘defaming’ beef)
-Advertisements that claim a competitor’s product or service is of poor quality ca

Front 16

Public Officials

Back 16

SCOTUS--Defined in Rosenblatt vs. Baer: holds that public official category includes ‘ at the very least…those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs’

Front 17

Public Figures (both types)

Back 17

-All purpose public figures (Angelina Jolie): From Gertz, persons who ‘occupy positions of such pervasive power and influence that they are deemed public figures for all purposes.”
--an individual with widespread fame or notoriety
--or persuasive power and influence
--or occupies a position of continuing news value
---**Must prove actual malice when alleged defamation relates to a matter of public concern (broadly defined) regarding that figure.
-Limited-purpose public figures—individuals who ‘have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

Front 18

How courts determine if a plaintiff is a limited-purpose figure, that is, the questions they ask.

Back 18

--What is the subject of the report, and is that subject a public controversy? (The allegedly defamatory statement must relate to a public controversy)
--Did the plaintiff voluntarily inject themselves into the controversy?
--What was the nature of the plaintiff’s involvement in the controversy? Did he or she try to affect the outcome or influence public opinion?

Front 19

The definition of "public controversy"

Back 19

A public controversy is a ‘real dispute’ over an issue affecting a segment of the general public, the resolution of which will have “foreseeable and substantial ramifications for nonparticipants”

Front 20

"Bootstrapping"

Back 20

-A person cannot be made public by the actions of the media. This is referred to as ‘bootstrapping’
-In Hutchinson v. Proxmire, the Court wrote, “Clearly, those charged with defamation cannot, by their own conduct create their own defense by making the clamant a public figure”

Front 21

Fault levels required in libel actions

Back 21

Negligence and Actual Malice (harder to prove)

Front 22

Actual Malice

Back 22

Publishing with
--Knowledge of falsity
--Reckless disregard for the truth

Front 23

Negligence

Back 23

Unlike actual malice, negligence does not inquire about states of mind…
--Failure to exercise ordinary care or to act as a reasonably prudent person would under similar circumstances would under similar circumstances (the reasonable person standard)
--Failure to follow accepted professional standards and practices—The professional standard or ‘journalistic malpractice’ standard.

Front 24

The factors courts consider in determining whether actual malice is present in a libel action

Back 24

1)direct, state-of-mind evidence

2)Indirect or circumstantial evidence

Front 25

direct, state-of-mind evidence

Back 25

what the journalist(s) though, believed, felt, said at the time the story was being produced.
-In Herbert v. Lando the US SC said a libel plaintiff could inquire into a journalist’s state of mind.

Front 26

Indirect or circumstantial evidence

Back 26

typically including (but not limited to):
--A source(s) used or not used
--The nature of the story, especially whether the story was ‘hot news’
--The inherent probability or believability of the alleged defamation
----Compare Curtis Publishing Co vs. Buts & AP vs. Walker

Front 27

The three definitions of reckless disregard for the truth provided in class

Back 27

The Supreme Court has defined reckless disregard for the truth as:
1) Serious doubts as to the truth of the publication
2) A high degree of awareness of probably falsity; or…
3) Purposeful avoidance of the truth

Front 28

The factors courts consider in determining if negligence is present in a libel action.

Back 28

-Same factors considered with reckless disregard of the truth—but lower threshold
-Is there a discrepancy between what source says he told the journalist and what the journalist reported?
-Did the journalist try to contact the subject of the allegations?
-Did the journalist get all the information he/she should have?

Front 29

The “wire service defense” --fault

Back 29

-Ordinarily, courts hold that it is not negligent to publish a wire service story without checking the facts in the story. This is not a separate ‘defense’, but as absence of negligence.

Front 30

The traditional defenses to libel, their definitions and their limitations.

Back 30

-Truth
-Fair report privilege: based on common law—libel law is primarily state common law
-privilege for communication of mutual interest: based on common law
-neutral reportage: based on FA
-Fair comment and criticism: based on common law
-constitutional protection for opinion: based on FA

Front 31

Fair report (or reporter’s) privilege—all standards must be met

Back 31

-Fair report of reporter’s privilege protects reports of official government proceedings and records if the reports are:
--Accurate
--Fair and balanced
--Substantially complete
--Not motivated by malice
-Courts in some states have said the report must be attributed to the official record or meeting for privilege to apply.

Front 32

Privilege for communications of mutual interest-all standards must be met –think of a letter of recommendation from a teacher

Back 32

-A statement is privileged if
1) it is about something in which the speaker has an interest or duty;
2) the hearer has a corresponding interest or duty;
3) the statement is made in protection of that interest or performance of that duty;
4) the speaker honestly believes the statement to be true.

Front 33

The protection available for statements of opinion under both the fair comment defense and the First Amendment (as discussed in Milkovich v. Lorain Journal).

Back 33

-Protects nonmalicious statements of opinion about matters of public interests
-The opinion must be ‘fair’. Often courts say that means the opinion must have a factual basis either:
-Provided
-Generally known OR
-Readily available to the public
Some courts have ruled that the defense protects only the originator of an opinion, not a repeater.

Front 34

The neutral reportage defense-all standards must be met-RECOGNIZED IN THE 10th CIRCUIT

Back 34

-The charges must be:
1) Newsworthy and related to public controversy,
2) Made by a responsible person or organization
3) Made against a public official or public figure
4) Accurately reported with opposing views, AND
5) Reported impartially.

Front 35

The types of damages available in libel actions and any special requirements associated with certain types of damage awards.

Back 35

Compensatory
-Actual: Compensation for intangible harm, i.e., loss of reputation, mental suffering, and emotional stress.
-Special: compensation for actual monetary loss.
-presumed: requires proof of actual malice if subject of report was a matter of public concern
-nominal: plaintiff wins but jury feels no real harm suffered.

Punitive
-designed to publish the libeler rather than compensate the person libeled.
-all plaintiffs, public and private, must prove actual malice to collect punitive damages if the libel suit resulted from publication of a report on a matter of public concern.

Front 36

Who must prove falsity in a libel action.

Back 36

-Public officials, public figures and private persons involved in matters of public concern must prove falsity.
-Whenever the subject of the report that gave rise to the libel suit is a ‘matter of public concern,’ the plaintiff, whether public or private, must prove the falsity of the defamatory statements.

Front 37

New York Times Co. v. Sullivan (Fault)

Back 37

-Established a fault requirement for public officials and made libel constitutionally protected.
-Sullivan sued with intention of putting NYT out of business.
-The 1st amendment requires that when public officials sue for libel the must prove actual malice—that the defendant acted with knowledge of falsity or reckless disregard of the truth.
-Court says “thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open. (in order to be sure that everything true is said, then we have to protect some lies or else people may be afraid to speak).
-Justice Brennan says that Sullivan’s suit looked a lot like a seditious libel claim, and that as a public official, Sullivan voluntarily took on a job that invited public attention and criticism. As a public official, Sullivan had ready access to media to rebut defamatory statements.

Front 38

Curtis Publishing Co. v. Butts & AP v. Walker (Fault-actual malice extended to Public figures)

Back 38

-Public figures also have to prove actual malice, but no definition of public figure provided

Front 39

Gertz v. Robert Welch (Fault)

Back 39

-Court explains what a public figure is
-Ruled that private plaintiffs DO NOT have to prove actual malice (only public officials and public figures must prove actual malice to win their libel lawsuits
-FA also requires private figure plantiffs to prove some degree of fault, at least negligence, when the issues are a public concern
-States can require a higher standard
-Punitive damages—All plaintiffs, including private people, must prove actual malice to collect presumed or punitive damages.

Front 40

Dun & Bradstreet v. Greenmoss Builders

Back 40

-Punitive damages information inferred from Gertz—Actual malice presumed and punitive damages applies only when the defamation involves a matter of public concern.

Front 41

Herbert v. Lando

Back 41

-In Herbert v. Lando the US SC said a libel plaintiff could inquire into a journalist’s state of mind.

Front 42

Philadelphia Newspapers v. Hepps

Back 42

-In Hepps, the SC provided no definition of the term for “a matter of public concern”, but merely asserted news about crime clearly was of public concern.
-Plaintiffs involved in matters of public concern must prove falsity

Front 43

Milkovich v. Lorain Journal

Back 43

Supreme Court said two types of opinion statements are protected by the FA
1) exaggerated, loose, figurative language, rhertorical hyperbole or parody, e.g., calling a worker who crossed picket lines ‘a traitor to his God, his country, his family and his class.”
2) Statements incapable of being proven true or false, such as imprecise evaluations like good, bad, or ugly.
However, unverifiable statements of opinion can lose their protection if they
--imply the existence or false, defamatory but undisclosed facts.
--are based on disclosed but false or incomplete facts OR
--are based on erroneous assessments of accurate information.

Front 44

Masson v. New Yorker Magazine

Back 44

Even changing quotes in a quotation mark is not actual malice.

Front 45

Appropriation

Back 45

The use of an individual’s name, likeness or identity for trade or advertising purposes without consent. Arises most often in advertising, oldest form of invasion of privacy

Front 46

What qualifies as name, likeness or identity?

Back 46

-Name
-Photo
-But also much more…
-Whether a likeness or representation of a plaintiff has been appropriated is often a jury question.

Front 47

What about sound-alikes or look-alikes? (Appropriation)

Back 47

-Vana White sued Samsung for using her likeness. Samsung said that some things will be around forever, and included a game show that was identical to wheel of fortune and used a robot to replace her. She won.

Front 48

What constitutes trade or advertising purposes?

Back 48

-Advertisements on television, radio, billboards, websites, etc.
-Fictional uses: novels, movies & TV shows; characters based on real people
-Products: t-shirts, posters, mugs
-Endorsements/testimonials

Front 49

What about news, information, history, biography? Media self-promotions? (appropriation)

Back 49

-Using an individual’s name or picture in a news story, work of history, biography or other factual use is NOT a commercial use.

Front 50

What constitutes 'incidental use'?

Back 50

-Using an individual’s name or photo to promote a news use is not commercial use unless the promotion implies the individual endorses the publication. (Cher agreed to do an interview with a freelancer, and he told her that he was going to sell it to readers digest. But they didn’t buy it, so Forum (article version of Penthouse) magazine bought it. Cher sued because they used her likeness, but court disagreed. Then Forum advertized that Cher liked the magazine, and that is appropriation because it was the use of an endorsement.

Front 51

The right of publicity: How does it differ from the right of privacy? Does it survive death?

Back 51

-Right to Privacy
--Personal right
--The ‘right to be left alone’
--Violation causes mental harm
-Right to publicity
--Property right
--Right to profit from one’s publicity/celebrity
--Violation causes monetary loss
-Some states protect the right of publicity after the death of a person involved
-For example, CA law protects the right of ‘deceased personality’ in Cal. Civil Code 990
-The CA law also makes clear that the rights of ‘deceased personality’ are ‘property rights’ freely transferable.

Front 52

Is appropriation recognized in Colorado?

Back 52

Never had to consider it

Front 53

Intrusion and trespass

Back 53

-A highly offensive physical or electronic intruding into someone’s private space or solitude
-And information-gathering tort. NOT a publication tort.
-The legal wrong occurs at the time of the intrusion
-No publication or publicity necessary.


Trespass
--for the media, this can often arise in ‘ride along’ or ‘follow along’ situations undercover investigations
-- Permission must com from:
-Owner of the property, or…
-–Lawful possessor (renter or operator) of the property

Front 54

Can a mass medium be held liable for the intrusive acts of another if the medium prints or broadcasts the fruits of the intrusion, e.g., copies of stolen documents?

Back 54

See Bartnicki v. Vopper

Front 55

What factors/questions do courts generally consider in determining if intrusion has occurred?

Back 55

-The determining whether intrusion has occurred, courts often consider three questions:
1) Did the plaintiff have a legitimate expectation or reasonable expectation of privacy?
2) Was the defendant invited in, or did she or he actually intrude? If invited in, did the defendant exceed the scope of the invitation or refuse to leave after being told to do so?
3) Did the defendant use deception to gain admission? Did the defendant engage in misrepresentation or fraud?

Front 56

Dietmann v. Time, Inc

Back 56

-Life magazine reporters pose as husband and wife and went to a man’s house who was practicing medicine out of his home. One reporter secretly photographed the home. After the man was arrested, he sued time for the photos.
-Reasonable expectoration of privacy? They were invited into the house, but they were posing as people who they were not.
-Court says that the FA is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office

Front 57

Desnick v. ABC, 7th Cir. .

Back 57

-ACD did news about an eye clinic called Desnick. They had a reputation for performing unnecessary procedures on senior citizens. ABC news had senior citizens wear wires and go in.
-ABC ran the story, and Desnick sued for intrusion.
-Different because its not in a home,
-court rules that it’s not intrusion because a place of business is not like a home and the ye clinic was going around and recruiting senior citizens to come into the clinic. Doctor patient agreement is designed to protect the patient, not the doctor.

Front 58

Food Lion v. Capital Cities/ABC, 4th Cir.

Back 58

-Food Lion approached employees of ABC and said that Food Lion was profitable because they had faulty practices
-ABC posed as applicants and found that there were horribly unsanitary methods…ABC had cameras, etc.
-Food Lion sued for intrusion (not defamation)
-Guilty of intrusion, but damages reduced to $2—the ABC guys worked as proper employees, and Food Lion should have done background checks. Damages was due to the fact that they were doing two jobs instead of the one they were hired for.

Front 59

Schulman v. Group W. Productions Inc.

Back 59

-Where does privacy exist?
-On Scene Emergency Response was a show that follow EMTS.
-Accident scene filmed on highway and a woman is airlifted on a helecoptor.
-Mic’ed up nurse and camera man get on helecoptor
-Sues for intrusion
-Court says no reasonable expectation of privacy at accident scene. However, they did have a reasonable expectation of privacy onboard the helicopter

Front 60

Is it legal for a non-participant to intercept or record a phone conversation?

Back 60

-Federal law & CO law permit participant taping—as long as one person knows it’s ok.
-12 states require consent of all parties for taping. If you call one of those states, assume you are bound by the all-party rule
-FCC rules require broadcasters to inform people if conversations are being taped for on-air use.

Front 61

Bartnicki v. Vopper

Back 61

-Wiretapping
-Taping or in anyway intercepting a phone conversation, email, voice mail, etc, to which you are not a party violates federal and state law
-A journalist who played a tape of an illegally intercepted cell phone conversation on the radio was not liable for wiretapping because
[1] he did not intercept the call himself;
[2] he obtained the tape lawfully; and
[3] the subject matter was of public concern

Front 62

Colorado statutory law dealing with participant and non-participant recording

Back 62

Colorado statute—Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail.

Front 63

Wilson v. Layne

Back 63

said that individuals can win lawsuits on privacy grounds when law enforcement officers take journalists into private homes.
-concluded that the presence of third parties with no legitimate law enforcement roles during the execution of a search warrant violated the Fourth Amendment's core interest in residential privacy