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CMCN 345 Communication Law and Ethics William R. Davie, Ph.D Lecture 5 Sept. 5, 2006

CMCN 345 Communication Law and Ethics William R. Davie, Ph.D Lecture 5 Sept. 5, 2006. Principles and Elements. Defamation Law:. CMCN 345 Lecture 5, Sept. 5, 2006. Libel/Slander Louisiana Criminal Defamation R.S. 14:47 Defined as “…the malicious publication or expression in any manner…

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CMCN 345 Communication Law and Ethics William R. Davie, Ph.D Lecture 5 Sept. 5, 2006

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  1. CMCN 345 Communication Law and Ethics William R. Davie, Ph.D Lecture 5 Sept. 5, 2006

  2. Principles and Elements Defamation Law:

  3. CMCN 345 Lecture 5, Sept. 5, 2006 • Libel/Slander • Louisiana Criminal Defamation • R.S. 14:47 Defined as “…the malicious publication or expression in any manner… • “To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or • “To expose the memory of one deceased to hatred, contempt, or ridicule; or • “To injure any person, corporation, or association of persons in his or their business or occupation.” • PENALTY: Maximum 6 months and $500.00

  4. Purpose of Libel Law • Designed to protect reputation. • Good name is precious property. • Public redress by peaceful means.

  5. CMCN 345 Lecture 5, Sept. 5, 2006 Basic Elements of Libel • • Publication of defaming message taken as fact? • • Identification of plaintiff? • • Defamatory and False? • • Fault of defendant?

  6. CMCN 345 Lecture 5, Sept. 5, 2006 • Libel/Slander • Defamation Defined • Reputation (damage to profession or persona) • Contempt and ridicule (humiliation) • Hatred (shunned)

  7. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Questions of Libel • Harmful damage to reputation? • -- false and injurious words; • -- exposure to hatred, scorn or ridicule; • -- lowered esteem and/or good will; • -- loss of association, business, etc.

  8. CMCN 345 Lecture 5, Sept. 5, 2006 Two Types of Defamation Libel Per Se -- on its face ("by itself") • Crime • Disease • Professional dishonesty • Immorality/Unchastity Libel Per Quod -- by circumstance -- contextual harm to reputation

  9. DEFAMATION Questions??? Libel or Slander: Print or Broadcast • Is the insult obvious or not? • A significant number of “right minded” audience members have to believe the slur.

  10. DEFAMATION TO REPUTATION • Headlines may be libelous; can pictures be libelous as well?

  11. Elements of a Libel Claim • Defamation • Identification

  12. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Question of Libel: • Identification of defamed? • -- Plaintiff’s name unnecessary; • -- Photos, titles, sketches, initials, other inferences; • -- Group identification: • USA Confidential & Nieman Marcus • Oklahoma Sooners & Inhalants

  13. IDENTIFICATION • Not always by name • Even fiction can “identify” • No libel against very large groups (e.g., “politicians”) • Case law is mixed concerning smaller groups

  14. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Question of Libel: • Identification of DEFENDANT? • Internet anonymity requires... • -- Possible “John Doe” litigation; • -- Proof suit will not be dismissed; • -- Extra effort in discovery phase.

  15. Elements of a Libel Suit: • Publication • Fault

  16. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Question of Libel: • Publication of defaming message? • -- Third person heard it. • -- Broadcast or internet counts. • (Any republications?) • -- Bearer of tales as liable as teller of tales.

  17. MORE About Publication • Only one THIRD PARTY must hear • Self Publication

  18. PUBLICATION • Publication VS Defamation • Reputation must be diminished in MANY minds

  19. PUBLICATION, continued • Republications are actionable too, with exceptions: • Wire services, bookstores, some internet service providers • Neutral Reportage and FAIR REPORT defenses

  20. Some Traditional Libel Defenses • Statute of limitations • Truth

  21. Some Traditional Libel Defenses • Consent • Fair Comment

  22. CMCN 345 Lecture 5, Sept. 5, 2006 • Sticks and Stones of Defamation? • Media costs • Damages in dollars • Confusion + Frustration + Media Mistrust = Trouble • SLAPP Initiatives

  23. DEFAMATION • “Libel-proof” plaintiffs (Dr. Kevorkian and Evel Knievel) • Look at words’ natural meaning

  24. Defamation of Groups, Corporations, & Products • Businesses can sue for libel when accused of dishonest practices, or insolvency.

  25. Defamation of Groups, Corporations, & Products • Trade libel [or product disparagement]: • Falsely criticizing a product line • Criticism of manufacturer’s motives

  26. CMCN 345 Lecture 5, Sept. 5, 2006 GROUP or CRIMINAL LIBEL Beauharnaisv. Illinois(1952)

  27. CMCN 345 Lecture 5, Sept. 5, 2006 • LIBEL'S DEFENSES AND DAMAGES • Truth • Privilege  • (Absolute and Qualified) • Tarnished Reputation • Opinion (Fair Comment & Criticism) • Other (Consent, Right of Reply)

  28. CMCN 345 Lecture 5, Sept. 5, 2006 • LIBEL'S DEFENSES AND DAMAGES • Privilege  • (Absolute and Qualified) • Official government records or proceedings, so long as accuracy, balance, reasonable completeness are evident. • • Criminal charges • • Courtroom proceedings • • Legislature, school board, parish, other public meetings.

  29. CMCN 345 Lecture 5, Sept. 5, 2006 • LIBEL'S DEFENSES AND DAMAGES • Fair Comment & Criticism: Milkovich v. LorainJournal (1990) • Columnist claimed a coach was lying about a brawl, which court held to be a fact-based statement.• Fair comments described as hyperbole, figures of speech, or statements incapable of being proven true or false, ugly.

  30. CMCN 345 Lecture 5, Sept. 5, 2006 • LIBEL'S DEFENSES AND DAMAGES • opinion statements will lose legal protection once they suggest that • A. some defamatory but undisclosed facts do exist; • B. opinions are based on false or incomplete facts, or…. • C. opinions are based on erroneous assessments of accurate information.

  31. Types of Damage Awards

  32. CMCN 345 Lecture 5, Sept. 5, 2006 • DAMAGES: Compensatory • ACTUAL: monetary relief for intangibles -- harm to reputation, mental anquish, other types of distress. • SPECIAL: compensation for specific financial losses. • PRESUMED: requires proof of actual malice in most cases • NOMINAL: plaintiff wins case but jury finds no evidence indicating true harm suffered. • DAMAGES: Punitive • PUNITIVE: Designed to punish the libeler rather than compensate the person libeled.

  33. Compensatory Damages • Designed to make the plaintiff “whole” • Presumed = no real proof of harm needed; harm is in the words themselves • Actual = plaintiff must make some showing of harm • Special = plaintiff must prove very specific loss [e.g., firing from a job]

  34. Punitive Damages:To punish and deter

  35. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Question of Libel • Burden of Proof • -- Falsity or Truth (Substantial)? • -- Common law required defendant prove truth. • -- Contemporary law requires plaintiff prove falsity.

  36. FAULT • U. S. libel law used to embrace “strict liability” • no finding of negligence required • if a damaged reputation resulted from a publication, there was liability. • New York Times v. Sullivan changed that principle.

  37. CMCN 345 Lecture 5, Sept. 5, 2006 • Key Question of Libel: • Was the defendant at fault? • -- Negligence defined as failure to exercise reasonable or ordinary care. • -- News media requirement of fact checking (verification); fair and balanced; seeking harmed party’s response, etc. • -- Evidence of ordinary malice.

  38. CMCN 345 Lecture 5, Sept. 5, 2006 New Standard of Fault: New York Times v. Sullivan(1964) Public Official’s “Actual Malice” Test: To show the Defendant had either ** Knowledge of Falsity, or ** Reckless Disregard of Truth or Falsity

  39. CMCN 345 Lecture 5, Sept. 5, 2006 PUBLIC OFFICIAL RATIONALE: • Public officials voluntarily enter public life and realize criticism may result. • Public officials have more access to media to correct wrongs and make statements of rebuttal.

  40. CMCN 345 Lecture 5, Sept. 5, 2006 • Public versus Private Persons • All-Purpose Public or Private Figures: Curtis Pub. Co. v. Butts (1967) • Limited-Purpose Public Figures (Paul “Bear” Bryant) • Rosenbloom case: Actual Malice if issue was of public importance

  41. CMCN 345 Lecture 5, Sept. 5, 2006 Public versus Private Persons Gertz v. Welch (1974) Principle: “A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability…”

  42. CMCN 345 Lecture 5, Sept. 5, 2006 • Two Louisiana Cases • Actual Malice Test 1: Garrison v. State of Louisiana (1964) • “high degree of awareness of probable falsity” • Actual Malice Test 2: St. Amant v. Thompson (1968) • “entertained serious doubts as to the truth” of the publication

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