Defamation/Libel

1. Defamation/Libel Definition: The publication or broadcast of something that injures a person’s reputation or lowers someone’s esteem in the community… and is FALSE.

2. Character vs. Reputation • Character is part of your personality • Reputation is what other people think of you

3. Important fact… In USA:PLAINTIFF BEARS THE BURDEN OF PROOF In most other countries the DEFENDANT BEARS THE BURDEN OF PROOF

4. ELEMENTS OF LIBEL In USA—these elements must be proved by the plaintiff in order to win a libel case: • Identification • Defamation • Publication • Falsehood • Fault

5. ELEMENTS OF LIBEL • IDENTIFICATION • Plaintiff must be clearly identified • Group identification?

6. ELEMENTS OF LIBEL • DEFAMATION • Must damage reputation • Must be PROVED to damage reputation • Representative minority in the community believes publication damaged reputation

7. ELEMENTS OF LIBEL • PUBLICATION Writer or producer of the material in question Viewer, listener, witness (need only one) Person who was libeled

8. ELEMENTS OF LIBEL • FALSEHOOD • Must be able to be PROVEN false

9. ELEMENTS OF LIBEL • FAULT (unique aspect of U.S. libel law) Need to prove either: Actual Malice ~ or ~ Negligence

10. ELEMENTS OF LIBEL • FAULT (unique aspect of U.S. libel law) Need to prove either: Actual Malice(public person) ~ or ~ Negligence(private person)

11. Actual Malice …needs to be proven if plaintiff is PUBLIC person • knowledge of falsity • reckless disregard for the truth

12. Negligence … is proven if plaintiff is PRIVATE PERSON • failure to exercise reasonable care • reliance on untrustworthy source • not reading or misreading pertinent documents • failure to check with obvious source • carelessness in editing

13. NY Times v. Sullivan US Supreme Court Case • http://www.youtube.com/watch?v=FtqQWt7aoZ0

14. NY Times v. Sullivan (1964) • Public official standard recognized • What was happening at the time? • Some factual errors • 35 copies in Alabama • L.B. Sullivan Police Commissioner of Alabama • Advertisement Montgomery County Sheriff urging civil rights demonstrators to disperse in March 1960.  L. B. Sullivan, plaintiff in a celebrated defamation case, stands hatless to left of horse.

15. Times-Sullivan Rule • “Prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless s/he proves that the statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard whether it was false or not.” (Justices Black, Douglas and Goldberg wanted ABSOLUTE protection for speech critical of the government)

16. Rationale for Times/Sullivan ruling • Longstanding tradition of robust political discussion • Case was the same as seditious libel • Brennan “breathing space” • Government officials should expect criticism

17. ELEMENTS OF LIBEL • FAULT asks… Public official? All-Purpose public figure? Limited-purpose public figure? Private Person?

18. Public official • Elected • Persons who have control over government affairs • Story related to the job and the fitness of the plaintiff to do the job

19. All-purpose public figure • Movie stars • Celebrities • Persons who occupy persuasive power

20. Limited-purpose public figure • Votex-public figures (thrust oneself into the votex of an issue) • Public controversy BEFORE libel published • Plaintiff participated in attempting to resolve the controversy • Plaintiff was actively seeking publicity

21. Private person • No public recognition • Not seeking publicity

22. Defamation in cyber space • CONTENT PROVIDERS ARE DIVIDED INTO THREE CATEGORIES • Publishers (KNOW content) • Distributors (Not as aware of content) • Common carriers or conduits (Have NO knowledge of content)

23. Defamation in cyber space • Publishers (KNOW content) • Can be held responsible • Distributors (Not as aware of content) • Not responsible (section 230 Telecom Act of 1996) • Common carriers or conduits (Have NO knowledge of content) • Not responsible

24. DEFENSES IN LIBEL • Proof of TRUTH--FACTS • Privileged Statements • Absolute • Qualified • requires fairness and accuracy • Opinion • rhetorical hyperbole--too absurd to be true • pure opinion (Ollman test) • true/false • common meaning of the words • journalist and social context

25. DEFENSES IN LIBEL • Fair comment and criticism • opinion? • legitimate public interest? • factual basis for the comment?

26. Common libel danger zones • A media outlet can be held libel for reprinting or re-broadcasting comments made by others. • Remaining neutral is NOT sufficient • Obtaining denial from the subject may not be sufficient

27. Defamation Law in Azerbaijan • http://www.article19.org/pdfs/analysis/azerbaijan-defamation-osce.pdf • Suggestions that the law should be changed… • http://en.trend.az/news/society/1662568.html

28. Case studies • Super market owner Aydin Nanimanov said yesterday he had paid MP Rovshan Illiad 10,000 manat over five years to ask a series of questions in Parliament relating to planning policy. • Angry mother, Sabina Garafanov said yesterday her son, Ashan, eight, had to undergo an emergency operation after a school nurse blundered. She said nurse Jala had not realized Ashan’s leg had been broken when he limped off in a futbal match and sent him back to play on after bandaging his shin.

29. Case Study: McLibel • http://www.mcspotlight.org/case/pretrial/factsheet.html

30. Case Studies • USA Ambassador, Matthew Bryza, was see stealing a car near Sahil metro station. • Police fraud officers are understood to be investigating a senior council officer employed at the Baku civic centre. The woman, who has not been named, is understood to work in the housing department.