Libel

1. Libel What reporters need to know

2. Libel is a “tort” • A tort is not a dessert. • It is a wrong done to another person for which there is a remedy in civil -- not criminal -- law. • Examples of torts: Breach of contract, invasion of privacy, denial of civil rights. • Examples of crimes: Murder, assault. • Some wrongs can be both civil and criminal -- i.e. Nicole and O.J.

3. Torts • Not punishable by incarceration or fine • Punishable only with “damages” • Actual damages are money lost, pain and suffering, court costs, lawyers’ fees • Punitive damages -- meant to sting so that the tort is not committed again.

4. The Elements of Libel • Published false defamation of an identifiable living person with fault. • Note: Businesses and corporations may also file libel suits, but do so less frequently than individuals.

5. Publication • A statement must be “published” to be libelous. • “Published” means communicated to any third person by any means, written or spoken.

6. Falsity • At one time, truthful libels were punished more severely than false libels. • Now, however, truth is a perfect defense against a charge of libel.

7. Defamation • A statement about a person that tends to injure his or her standing or reputation in the community. • For example: Claims of dishonesty, moral turpitude, drunkenness, addiction. • Not all defamation is libelous -- because some defamation is true.

8. Identification • To successfully sue, a person must be identifiable. • Not necessarily identified by name. • Members of large groups generally can’t be libeled • Members of small groups can be.

9. Living person • The dead can’t be libeled. A libel case will be dismissed on the death of the plaintiff. • Governments can’t be libeled.

10. Fault • Fault means the defendant did something wrong • Was negligent -- failed to exercise the care a responsible reporter would exercise • Was grossly negligent -- failed even worse • Committed “actual malice” -- published a defamatory falsehood knowing it was false, or with reckless disregard of its truth or falsity.

11. Recap • For a statement to be libelous, it must be • Published • False • Defamation • Of identifiable • Living person • With fault

12. Two kinds of libel law • Common law • “Judge-made” law, based on precedent built up in cases over the years. • Constitutional law • Based on U.S. Constitution • Applicable to libel after Times v Sullivan decision in 1964

13. Common law libel • To bring a charge of libel, only three elements were needed -- publication, defamation, identification. • “No-fault” libel -- the presence of the statement in the story was enough, even if it was an honest mistake.

14. Common law defenses • Truth -- basically, accuracy • Fair comment -- opinion, but on an accurate factual basis. • Privilege -- a fair and accurate account of a public proceeding • Note: All of these depend on accuracy -- no protection for erroneous statement.

15. Times v. Sullivan • Landmark Supreme Court decision • No more “no-fault” libel • Switched burden of proof of falsity from defendant to plaintiff • Said public officials had to prove actual malice

16. Rationale for decision • Public officials enjoy “privilege” of open comment • The people are the real government • They should be privileged to criticize public officials • Common law libel chills robust and vigorous public debate

17. Fallout from Times v Sullivan • Standards later extended from public officials to include public figures • Those who seek the limelight or thrust themselves voluntarily into the public arena • Even private citizens must prove some standard of fault to prevail -- at least negligence

18. Recap: Since Times v Sullivan • To prevail in a libel action • Public officials • And public figures • Must prove not only publication, defamation and identification • But also falsity and actual malice.