Peter,
I am afraid I have to make some retractions first -- must have had one too many sips of Vermouth when I was typing the previous post.
A little mea culpa first. Since the statues governing libel are established by the government, it does bring any dispute related to the subject within the First Amendment. When two parties are involved in litigations over libel, it is the court's duty to balance the protection of a person's reputation against the First Amendment values of freedom of expression, ideas and speech.
Libel occurs when a false and defamatory statement about an identifiable subject is published to a third party, causing injury to the subject's reputation. A defamatory communication exposes a person to hatred, ridicule, or contempt; it lowers him in the esteem of his fellows, causes him to be shunned, or injures him in his business or calling. Defamation can take the form of libel -- published or
broadcast communication, or slander -- oral communication.
In most states in the US, the plaintiff must establish, with a preponderance of evidence, all of the following elements (with the possible exception of 2, which depends on the court's finding of whether Tava is a public figure or whether the case involves a matter of public concern).
1. Publication. Publication can take many forms. A headline, drawing, cutline or photograph can be defamatory. Courts are split on whether a headline standing alone can be defamatory or whether it must be read in conjunction with the story before it is considered defamatory.
2. Falsity. Under the common law, the defendant has the burden of proving that the statements challenged by the plaintiff were true.
The Supreme Court changed that practice for libel suits involving public officials and public figures. Now these plaintiffs must
prove that the statements of fact were false, and were made with knowledge of, or reckless disregard for, their falsity.
As a result of the Supreme Court's decision in Philadelphia Newspapers Inc. v. Hepps, private individuals suing for libel must also prove the statement was false if it involved a matter of public concern. A few states require private figures suing over a statement involving a matter of public concern to also establish that the defendant made the statement with knowledge of, or reckless disregard for, the falsity of the statement. In the case of Tava, the presiding court would have to decide whether Tava is a public figure and to what extent the case involves a matter of public concern.
3. Identification. A plaintiff must prove that the alleged defamatory publication refers to him or her. A corporation may bring a libel claim if the alleged defamatory statement raises doubts about the honesty, credit, efficiency or prestige of that business. However, if the statements refer only to corporate officers, the corporation cannot litigate on their behalf.
4. Damage. The essence of a libel suit is the claim that someone's reputation has been injured. In some states, harm does not need to be
shown if the statements in question concern a criminal offense, a loathsome disease, a female's unchastity, or matters harming a
person's business, trade, profession or office. Damage to the plaintiff's reputation is presumed.
For example, accusations of fraud, incompetence or improper behavior by business or professional people would be considered to be libelous on their face in most states. However, in some jurisdictions, a professional charged with ignorance or lack of skill on only a single occasion cannot claim defamation. This is known as the single instance rule.
5. Fault. The Supreme Court has recognized different standards for different types of libel plaintiffs, with public officials and public figures required to show a high degree of fault. But determining if other people are private or public figures is not always easy. In some instances, there may be overlapping in the private and public category. For example, a business person who has high visibility because of fundraising efforts in a community may or may not be a public figure for all purposes.
A plaintiff who is considered a public figure or official must prove that the publisher or broadcaster acted with "actual malice" in
reporting derogatory information. "Actual malice" does not mean ill will or intent to harm. Instead, the term applies to whether the defendant knew that the challenged statements were false or acted with reckless disregard of the truth.
Courts may examine reporting procedures in testing for actual malice. While carelessness is not usually considered reckless disregard, ignoring obvious ways of substantiating allegations could be considered reckless.
Let's take a look at the defendant's defenses.
1. Truth is generally a complete bar to recovery by any plaintiff who sues for libel. Making sure that any potentially libelous material can be proven true can avoid needless litigation.
2. Fair Report. Libelous statements made by others in certain settings are often conditionally privileged if the reporter, in good faith, accurately reports information of public interest. This privilege usually applies to official meetings such as judicial proceedings, legislative hearings and grand jury deliberations. Publicly available judicial documents are the proper subject of public dissemination, in turn enabling public discussion. In a democracy this should be an unassailable truism, not a proposition for debate.
3. Opinion is still protected speech under the First Amendment, although the Supreme Court limited the formerly broad reach of opinion protection in Milkovich v. Lorain Journal. The court ruled that there is no separate opinion privilege, but because factual truth is a defense to a libel claim an opinion with no "provably false factual connotation" is still protected.
As a result of this decision, courts will examine statements of opinion to see if they are based on or presume underlying facts. If
these facts are false or defamatory, the "opinion" statements will not be protected.
4. Consent. If a person gives permission for the publication of the information, that person cannot later sue for libel. However,
denial, refusal to answer or silence concerning the statement do not constitute consent.
5. The statute of limitations for bringing libel suits varies from state to state. Generally the time limit for filing a libel lawsuit starts at the time of the first publication of the alleged defamation. If the plaintiff does not sue within the statutory time period, the
litigation can be barred.
6. Although a retraction is not usually considered a defense to a libel claim, it may reduce the damages a defendant must pay if found liable for defamation.
Kimberly |
