Mass Media Law18th Edition

Don Pember

Clay Calvert

Chapter 6Libel: Defenses and Damages

McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

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Summary Judgment

A judgment is granted to a party in a lawsuit when the pleadings and other materials in the case disclose no material issue of fact between the parties.

– All facts of the case must be agreed upon for a summary judgment to be made.

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Summary Judgment

Procedure for Summary Judgment:

1. Plaintiff makes initial written allegations to the court

2. Defendant may argue for a summary judgment if:

• The plaintiff has failed to prove what is necessary to sustain the libel suit

• There is a legal defense that blocks the suit

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Summary Judgment

Procedure for Summary Judgment:

3. Court determines if a reasonable juror, acting reasonably, could find in favor of the plaintiff

• If “yes” could find in favor of the plaintiff, case goes to trial.

• If “no” could not find in favor of the plaintiff, a summary judgment is granted.

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Statute of Limitations

A law that requires that a legal action must begin within a specified period of time.

– For libel, statutes of limitations vary from state to state.

– Most often one or two years.

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Statute of Limitations

In a libel action, a statute of limitations begins when:

– The material is published or broadcast for the first time.

– Magazines are distributed to a substantial portion of their audience, not the date printed on the publication.

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Jurisdiction

A libel suit can be brought in any state in which the libel has been circulated regularly

– Venue Shopping – choosing a state that has laws favorable to your legal action

– Keeton v. Hustler (1984)

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Jurisdiction and the Internet

• The U.S. Supreme Court has passed on at least three cases involving libel jurisdiction and the Internet.

• Lower courts are still sorting out where Internet-based libel suits can or should be heard.

• Typically, jurisdiction questions are based upon where the message content was aimed, where harm was caused, and where message was downloaded.

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Truth

Privileged Communications

•Absolute Privilege—immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties.

– Includes communication and documents from legislative, judicial and executive branch officials and proceedings.

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Truth

Privileged Communications

•Qualified Privilege

– A media outlet is protected by qualified privilege if:

• The material comes directly from the report of a privileged proceeding or document.

• The material is a fair and accurate summary published or broadcast as a report of the proceedings or documents.

– Official portion of legislative proceedings, judicial proceedings and executive actions are generally privileged.

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Privileged Communications

Neutral Reportage

– When the press reports newsworthy but defamatory allegations made by a responsible and prominent sources, these reports may be privileged. The charges must be reported accurately and neutrally, and must be about a public official or public figure.

– This is not a viable defense in most jurisdictions.

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Protection of Opinion

Rhetorical Hyperbole

– Language so expansive that the reader or listener knows it is only an opinion, and that it is not an assertion of fact.

• The tone of the language is usually key, and this can be difficult to establish.

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Protection of Opinion

• “Pure Opinion” and the First Amendment

– The Supreme Court’s Milkovich ruling (1991) stated that pure opinion is a statement incapable of being proven true or false.

– Majority of lower courts have subsequently indicated dissatisfaction with this standard, suggesting that the criterion is far too conservative.

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Protection of Opinion

The Ollman Test

1. Can the statement be proved true or false?

2. What is the common or ordinary meaning of the words?

3. What is the journalistic context of the remark?

4. What is the social context of the remark?

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Protection of Opinion

Fair Comment and Criticism

– This common law defense for opinion worked for several centuries, but is currently in legal limbo.

– Fair comment defense requires three-part test:

1. Is it an opinion?

2. Is it a subject of legitimate public concern?

3. Is there a factual basis for the comment?

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Protection of Opinion

Tips On Avoiding Opinion-Based Libel Suit

– Attorney David Utevsky suggests:

• Make it clear that opinion is being stated.• Don’t rely on protection of journalistic context.• Clearly summarize facts providing basis for

opinion.• Make certain facts are true.

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Defenses

Consent

– An individual cannot sue for libel if he or she explicitly consented to publication of the defamatory material.

– Indirect or implied consent is constructed on sound legal theory, but only a handful of courts have accepted this theory.

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Defenses

Right of Reply

– Right of reply is sometimes called the “self-defense.”

– If an individual has been libeled, he/she may answer the defamation with a libelous communication and not be subject to a successful libel suit.

– The reply must be equal in magnitude and effect.

– Not accepted by many courts.

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Damages

Actual Damages

– Actual damages are damages for actual injury:

• to reputation• standing the community• monetary loss• personal humiliation• mental suffering and anguish

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Damages

Special Damages

– Special damages are specific items of pecuniary loss caused by published defamatory statements.

– This is most common in trade libel.

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Damages

Presumed Damages

– Presumed damages are damages that a plaintiff can receive without proof of injury or harm.

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Damages

Punitive Damages

– Punitive damages punish the defendant for misconduct and warn others not to act in a similar manner.

– The damage awards are usually very large, and thus lawyers frequently term them the “smart money.”

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Retraction Statutes

Retractions

– A retraction is a statement published to retract or correct previously published libelous material.

– 33 states have retraction statutes.

– Under a typical retraction statute, a publisher must be given an opportunity to retract a libelous comment before a suit can begin.

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Criminal Libel

Criminal Libel and State Intervention

– Founded on the theory that the state should sometimes act on behalf of the injured party of the libel and bring criminal charges against the defendant.

– In 2009, only 16 states had criminal libel laws on the books.

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Criminal Libel

Differences From Civil Libel

– You may criminally libel the dead.

– You can be charged with criminal libel if you provoke a breach of the peace.

– Garrison v. Louisiana (1966) was a potent blow against criminal libel.