Media Law Study Guide

Front 1

Defamation, libel, and slander definition.

Back 1

Defamation is the publication of material that hurts the reputation - hatred, ridicule, contempt or spite - of another person. Communication that injures a person’s reputation.
Communication that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of others, causes the person to be shunned, or injures him in his business or profession.
Libel is more associated with written communication. Slander is associated with spoken communication. However the twin torts have become more overlapping in an age of increased technology.

Front 2

Who can sue for libel?

Back 2

Any living person. A personal right that doesn't survive death
A corporation Defaming a company or a product
An unincorporated association, organization, or society, such a as a labor union, fraternal organization.
government can't sue for libel, though an individual in the government can.

Front 3

The six elements a plaintiff in a libel suit must usually prove.

Back 3

Libel plaintiff must prove that:
Publication Communication to at least one person.
Identification
Defamatory content Content must be of the type to harm reputation
Fault
Falsity
Actual injury

Front 4

The “republication rule.”

Back 4

“The bearer of tales is as guilty as the teller of tales.”
Each person who participates in the repetition or republication of a libelous statement can be held legally liable.
Every person that publishes the defamation is just as liable as the first person. Wire-service defense. Individual is most likely to sue the person with the most money to lose.

Front 5

Group libel.

Back 5

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.. Depends on size of group, nature of the statement.

Front 6

The three categories of defamatory statements under North Carolina law: libel per se; libel per quod; and statements susceptible of two meanings.

Back 6

1. Libel per se, “obviously defamatory” publications.
2. “Publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not”.
3. Libel per quod, “publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances.”
Libel susceptible of two meanings: Plaintiff must prove the defamatory meaning was intended by the defendant and understood by the audience.
Libel per quod: Plaintiff must prove the special circumstances, that the audience understood the defamatory connotation, and special damages, that is, actual monetary loss.

Front 7

Libel per se in NC

Back 7

The N.C. Supreme Court has identified four specific types of libel per se:
accusing a person of having committed “an infamous crime.”
charging that a person has “an infectious disease.”
impeaching a person in his or her trade or profession.
a catchall category consisting of communication that “tends to subject one to ridicule, contempt or disgrace.”

Front 8

Trade libel or product disparagement.

Back 8

Also known as product disparagement
All the usual elements PLUS special damages, that is, actual monetary loss due to the libel

Front 9

Who must prove falsity in a libel action.

Back 9

Originally, plaintiff’s accusations were considered true. But constitutional law has rejected that assumption of fault and libel plaintiffs today must affirmatively prove falsity, even if the statements were made with ill-will.

Front 10

What may constitute injury in a libel action.

Back 10

Usually intangible, loss of reputation, standing in community, mental harm, emotional distress, etc.
Sometimes actual monetary loss.
All plaintiffs must prove some injury unless they can prove actual malice, which we’ll define and discuss later.

Front 11

The correct legal definitions of public official and public figure (both types).

Back 11

Public official: 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.
Public figure: 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. Our house-hold names, celebrities.
Limited-Purpose public figure: Those who have "thrust themselves to the forefront of particular controversies in order to influence the resolution of issues involved"

Front 12

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

Back 12

1. What is the subject of the report, and is that subject a public controversy?
2. Did the plaintiff voluntarily inject himself or herself into the controversy?
3. 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 13

Public Controversy

Back 13

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.”
D.C. Court of Appeals

Front 14

The fault levels required in libel actions against the media, who must prove those fault levels, and the correct legal definitions of those fault levels, that is, the legal definitions of actual malice and negligence. What those definitions mean and how fault is proven.

Back 14

There are two levels of fault – negligence and actual malice. The burden of proof for fault, as for all six elements of libel, rests on the plaintiff.
Actual Malice – legal definition, acting with knowledge of falsity or reckless disregard for the truth.
Negligence – two different definitions. Failure to act reasonably or how an ordinarily careful person would act in similar circumstances. Another definition is failing to adhere to standards of reporting, or common-practices in the news industry, a “ journalist malpractice”
Fault is proven by the plaintiff examining and investigating the defendant’s state of mind at the time of publishing. This can be done by cross-examining the defendant as a witness or through discovery, that is, looking at the reporter’s or publisher’s notes. Plaintiffs try to show that defendants had doubt about the story they were publishing. Plaintiffs can question the reliability of sources, look at the reasonability of the story, etc. Defendants now protect themselves by proving that they followed leads, or they can be protected by the common-practice of destroying notes or materials on a regular schedule.

Front 15

The factors courts consider in determining whether actual malice is present in a libel action — direct, state-of-mind evidence and indirect or circumstantial evidence.

Back 15

Look at the defendant’s state of mind. Call into question the reputablness of the writers or sources. Try to show that defendants had doubts about the truth of their articles. Inherent implausibly of the allegation can also be a factor. Try to show that the publisher did not care at all about the truth of the allegation or had actual doubts.
In Herbert v. Lando, 1979, the U.S. Supreme Court said a libel plaintiff could inquire into a journalist’s state of mind.
a. the source(s) used or not used;
b. the nature of the story, especially whether the story was “hot news” being prepared under deadline pressure;
c. the inherent probability or believability of the charges.

Front 16

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

Back 16

Same factors considered as with reckless disregard — sources used or not used, nature of story, believability of allegations — 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 17

The “wire service defense” and its status in N.C.

Back 17

Ordinarily, courts hold that it is not negligent to publish a wire service story without checking the facts in the story. This is not really a separate “defense,” but an absence of negligence.

Front 18

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

Back 18

Pre-Trial: Statute of limitations
Dismissal/summary judgment: If the suit is frivolous, or matches that of another previous case, libel defendants may ask for these options

At trial:
1. Best case is to defeat an element of plaintiff's case. And the best case here is to prove truth.
2.You can also establish an affirmative defense.
a. fair report privilege
b. Truth.
c. Fair comment and critcisim.
d. Opinion.
e. Mitigating factors

Front 19

Fair Report Privilege, defintion, limitations

Back 19

Fair report or reporter’s privilege protects reports of official government proceedings & records if the reports are:
1. accurate
2. fair or balanced
3. substantially complete
4. 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 20

Truth defense, definition, limitations

Back 20

Once you meet substantial proof, a defendant is in the clear. Truth is a complete defense. Is being limited by plaintiffs that file non-libel torts.

Front 21

Fair comment and criticism, definition, limitations

Back 21

Protects nonmalicious statements of opinion about matters of public interest.
The opinion must be “fair.” Often courts say that means the opinion must have a factual basis either
1. provided
2. generally known OR
3. readily available to the public
Some courts (but none in N.C.) have ruled that the defense protects only the originator of an opinion, not a repeater.

Front 22

Opinion, defense, definition, limitations

Back 22

First ammendment defense.

Key case: Milkovich v. Lorain Journal, 1990, U.S. Supreme Court
Columnist said a coach lied under oath about his role in a brawl.
Newspaper argued the column was constitutionally protected as a statement of opinion.
Supreme Court said calling someone a liar was an assertion of fact, not opinion.

In Milkovich, Supreme Court said two types of opinion statements are protected by the First Amendment:
1. exaggerated, loose, figurative language, rhetorical 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, ugly.


However, even unverifiable statements of opinion can lose their protection if they
imply the existence of false, defamatory but undisclosed facts
are based on disclosed but false or incomplete facts OR
are based on erroneous assessments of accurate information.

Front 23

The types of damages available in libel actions

Back 23

Nominal damages - $1 stuff.
Compensatory damages/General damages - Damages awarded for actual injury to repuation, humilation, suffering, and mental anguish.

Special dmaages - compensate for actual pecuniary loses. How much did the plaintiff lose as a result of the libel?

Punitive damages - designed to punish the libeler. Actual malice. big money. Some satates don't allow it, others require both types of malice to be proven.

actual: compensation for intangible harm, i.e., loss of reputation, mental suffering, emotional distress.
special: compensation for actual monetary loss.
presumed: requires proof of actual malice in most cases
nominal: plaintiff wins but jury feels no real harm suffered.
In N.C. plaintiffs claiming libel per quod must show special damages. In trade libel suits, plaintiffs show special damages.

Front 24

The effects of printing a retraction under N.C. law.

Back 24

N.C.’s retraction statute provides that if a “full and fair” retraction is run in accordance with state law, a plaintiff cannot collect punitive damages.

Front 25

Four privacy torts

Back 25

Appropriation.
False light.
Intrusion/Trespass.
Disclosure of private facts

Front 26

Appropriation, definition

Back 26

The use of an individual’s name, likeness or identity for trade or advertising purposes without consent. Oldest privacy tort, traces back to early 1900s.

Front 27

False light, definition

Back 27

False light is the tort of publication of highly offensive false information.

A very problematic tort because it so often is used as an “add-on” to a libel claim.

Not recognized in NC.

Defining case is time v hill

Front 28

Intrusion/Trespass, definition.

Back 28

Definition — A highly offensive physical or electronic intruding into someone’s private space or solitude.

An information-gathering, not a publication, tort.

The legal wrong occurs at the time of the intrusion.

No publication is necessary.

Front 29

Intrusion, questions the court asks in determining whether intrusion occurred

Back 29

Did the plaintiff have a legitimate 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 30

disclosure of private facts, definition

Back 30

Definition: Publishing non-newsworthy, private facts that would be offensive to a reasonable person.


Publishing — widespread dissemination
Non-newsworthy — not of public interest. Judges are very reluctant to second-guess editors re: what is newsworthy.
Private — truly private, little-known info, not part of public records or proceedings
Offensive — for a reasonable person, a jury determination


not recognized in NC

Front 31

disclosure of private facts, notable cases

Back 31

Cox Broadcasting v. Cohn, 1975
Georgia girl was raped annd killed, matter of public record, US Supreme Court ruled that newspaper could not be restricted from publishing public records.

Hall v Post, NC does not recognize the disclosure of private facts tort because:
It is constitutionally suspect because it allows recovery for the publication of truthful information and

It duplicates or overlaps with the tort of intentional infliction of emotional distress.

Front 32

Does the use of hidden cameras or tape recorders violate a person’s right of privacy?

Back 32

Tape recorders - phone conversations, in most states, you are allowed to tape your phone conversations.

Taping or in any way intercepting a phone conversation, email, voice mail, etc., to which you are not a party violates U.S. and state law

hidden cameras is more tricky. Consider Food Lion compared to Desnick v ABC, similar cases with different verdicts. Courts are going to look at the nature of the area and what was recorded, the expectation of privacy associated with those factors, and they are going to look at the means that the reporters engaged in to get the story. Privacy expectation is important.

Front 33

Bartnicki v. Vopper, 2001

Back 33

U.S.S.C.: A journalist who played a tape of an illegally intercepted cell phone conversation on the radio was not liable for wiretapping because
he did not intercept the call himself;
he obtained the tape lawfully; and
the subject matter was of public concern.

Front 34

Does the First Amendment immunize a reporter from punishment for trespassing on private property to obtain information for a story?

Back 34

No. The first Amendment was never designed to immunize people, or reporters, from breaking laws.

Front 35

types of libel recognized in nc

Back 35

NC recongizes three types of defematory content. Libel per se, publications which are suceptible of two reasonable interpretations, one is libelous and the other is not, and libel per quod

Front 36

questio

Back 36

answer

Front 37

Zeran v AOL

Back 37

Internet providers aren't held liable via 1996 congressional law. Anonymous posting on AOL message board listed a phone number and name, man sued AOL, aol was not liable.

Front 38

What must the plaintiff prove in establihsing libel in words that are susceptible of two meanings??

Back 38

"Defamatory meaning was intended and was so understood by those to whom the publicaiton was made"

Front 39

Special damages

Back 39

Actual monetary loss as a result of the libel

Front 40

Four specific types on libel per se in NC

Back 40

1. Accusing a person of having committed an infamous crime [not every felony counts[. 2. Chargint athat a person has an "infectious disease. 3. Impeaching a person in their trade or profession. A catch-all category consisting of the communication that "tends to subject one to ridicule, contempt, or disgrace."

Front 41

All-purpose public figure

Back 41

is an individual with widespread fame or notoriety or special prominence in society, one who has "persuasive power and influence", or occupies a position of continuing news value

Front 42

Limited-purpose public figure

Back 42

An individual who has thrust themselves to the forefront of a public controversy in order to affect the resolution issues involved. The defematory statement must relate to the public controvesy, the libel plaintiff must have voluntariyl injected thesmleves, and the plaintiff must have wanted to influence the outcome

Front 43

Public Controversy, definition

Back 43

A real dispute over an issue affecting a segement of the general public , the resolution of which will have real and substantial ramifiactiaons for nonparticipants

Front 44

Philadelphia Newspapers v. Hepps, 1986.

Back 44

Case in which the United States Supreme Court definted the falsisty requirement in libel suits. A libel plaintiff is required to prove the falsisty of the defmatory statement if the statement involves a matter of public concern. Plaintiff was linked to organized crime and couldn't disprove accusation.

Front 45

Milkovich v. Lorain Journal, 1990.

Back 45

Limited the opinion defense, football coach that was accussed of lying in an op-ed piece, this still constituted defamation.

Front 46

Masson v. The New Yorker, 1991.

Back 46

Famous woman (all-purpose public figure) could not prove actual malice when a New Yorker reporter was caught intentionally changing direct quotes. Intentionally changing direct quotes and chanigng the meaning, however would probably be enough to prove reckless disregard.

Front 47

Reckless disregard for the truth, three definitions

Back 47

1. A high degree of awareness of probable falsity, 2. Serious doubts as to the truth of the publication, 3). Puirposeful avoidance of the truth

Front 48

In using the fair report privilege, what four criteria must the defendant meet?

Back 48

In NC, the publication of matters of public interest is privileged if fair, accurate, complete, and not published for the purposes of harming the person involved, even if the material in the report are false.

Front 49

Privilege for communications of mutual interest.

Back 49

"Privilege for communications of mutual interest:

Front 50

Neutral reportage defense

Back 50

If a public figure makes an accusation about a public figure, and the accusation is newsworthy in itself, then the neutral reportage may be allowed

Front 51

Opinion defense

Back 51

Constitutional and fair comment and criticism.

Front 52

Fair comment and criticism

Back 52

Requires an opinion relate to a matter of legitimate public interest, that it be based on facts, done fairly and with an honest purpose, and not contain malice.