RU-MSTD 400 Media Law Defamation "Glass, china and reputation are easily cracked and never well mended." - Benjamin Franklin

WAS IT LIBEL? "The mouths of their rancid features opened like caverns and sounds like the wailings of damned souls issued therefrom." -- Des Moines Leader Addie, Jessie and Effie were the "Cherry Sisters" vaudville act. In 1901 they sued the Des Moines Leader, but the Iowa Supreme Court said "fair comment and criticism" could not be libelous.

Libel is a defamatory and untrue statement about a living person or existing institution or corporation. A libel injures reputation by exposing them to public hatred, shame, disgrace or ridicule.

Libel is one of the most significant dangers for content providers, but only about 23 full blown libel cases came to state or federal courts during the 1990s. Three out of five cases were won by media organizations, but the average award in cases where the media lost is now averaging around $3.4 million, up from $2.6 million in the 1990s. (Libel Resources Defence Council 2003 report)

Civil torts alleging libel in the mass media usually come from articles that describe or allege immorality, loathesome disease, crime, dishonesty or professional misconduct. People sue to restore their reputations, correct what they view as a falsehood, or for vengeance. (Iowa Libel Research Project, 1986)

There are two kinds of libel: direct (Per Se ) and indirect (Per Quod). Direct libel can be any untrue words that tend to hold a person up to contempt or ridicule. Indirect libel may be a circumstance or mistake that can be construed as holding a person up to ridicule, such as congratulating a woman on her pregnancy when she is not married.

What is libel? The following elements have to be present:

1. Identification of a person or very small group of individually identifyable people allegedly defamed.
2. Publication, broadcast or wide dissemination of defamatory material (Wide dissemination falls under libel; slander is neighborhood gossip).
3. Defamation, defined as untrue words that tend to harm a person's reputation or expose them to hatred, contempt or ridicule. Defamation means that a statement actually harms the reputation of another person, rather than being merely insulting or offensive
4. Fault on the part of the publisher or broadcaster, such as negligence or malice. It can't merely be false, as the court said in Gertz v. Welch (below).
5. Damages Three categories:

a) special damages / out of pocket expenses or losses
b) general (also called "actual") damages from loss of reputation in cases where malice is proven.
c) puntive damages which may be imposed by a court as punishment.

The defenses against libel are:

1. Truth -- If it's true, it's not defamation, and therefore it's not libel.  But how is the truth proven? Which side has the burden of proof?  Who wins if the case is a tie? In the US, the plaintiff  must prove that the alleged defamation is a falsehood. In the UK and much of Europe, the defendant must prove that what was written or broadcast is true. This makes the UK a much better venue for plaintiffs and the US a better venue for defendants, and you often see international ibel cases tried in London rather than the US. 
2. Priviledge -- Testimony in a courtroom, statements from the floor of a legislative body (but not press releases), and some executive documents have absolute priviledge. This means that people in these circumstances are free to give information which may be damaging or false without fearing libel suits. (For example, a divorce lawyer couldn't be sued for libel because of comments made during a trial). Reporters who accurately quote such testimony or statements are usually covered by a doctrine of qualified priviledge, which depends on accurate and professionally competent reporting. One important exception to qualified priviledge: In broadcast law, the Equal Time Rule extends absolute priviledge to stations carrying the comments of candidates for public office.
3. Fair Comment & Criticism -- Opinions about the public performance of people who voluntarily place themselves before the public (The Cherry Sisters, politicians, etc) are protected by the fair comment defense. But what is opinion and what is fact? In Janklow v. Newsweek, 1986, (below) a federal appeals court said there were four criteria for determining if a statement is a fact:

a) The precision and specificity of the statement. (Calling someone a "fascist" is indefinite, and therefore an opinion; saying they had AIDs would not be).
b) The verifiability of the statement is important in proving it a fact.
c) The literary context in which the statement is made. Here the Harvard Lampoon might be treated differently from the Wall Street Journal.
d) The public context of the statement, for example, as part of the political arena, would tend more to be protected opinion.

4. Minor defenses, technical issues & other circumstances

• Neutral reportage -- A fair attempt to be neutral in reporting both sides of a controversial issue. See, for instance, the Edwards v. National Audubon Society, 1977 case below. This defense varies considerably among states and federal jurisdictions and does not always apply.
• Right of reply -- When two parties (sometimes publishers) have already been exchanging libellous charges, and one finally sues the other, the defendant can claim to merely be responding and have a "right of reply." This is an old and no longer well accepted defense which varies from state to state.
• Libel-proof plaintiff -- Someone with an already ruined reputation, for example a convicted murderer, is libel proof.
• Rhetorical hyperbole -- In some states, courts will hold that language in the context of an editorial or opinion is understood by readers to be figurative and not literal.
• Retraction -- Nearly every state allows a libel defendant to retract or apologize for defamatory material. In some states, retraction made within a certain time frame in the same editorial context may bar any recovery, while in others it may limit puntive damages. In any event, if an editor finds something wrong or grossly unfair, a correction or retraction is at the very least the ethical thing to do.
• Consent -- If a plaintiff can be proved to have given consent to a libellous publication, he or she can't sue for libel.
• Statute of limitations -- States have various time limits for filing libel actions. In Virginia, like most states, it is one year.
• Death -- Yes, legally, it is no problem to speak ill of the dead. For example, in James Bamford's The Puzzle Palace, a book about the National Security Agency, a former government employee is called a Russian spy even though he was never convicted of anything other than contempt of court. The family considered a defamation lawsuit, but learned that it was impossible because the subject was dead. In some cases, a libel suit filed by a person who dies may be continued, but relatives of a dead person cannot bring a libel suit.

The following are NOT DEFENSES against libel:

a) The word "allegedly" does not offer any protection.

The phrase, "She allegedly has AIDS" is legally the same as "She has AIDS."

b) Official attribution does not protect repoters. For instance, in reporting an arrest, one reports the fact of the arrest. One does not say "Joe Smith was arrested for committing arson, police said" but rather: "Police have charged Joe Smith with arson." Reporting the charge (not an arrest for something) is factually correct and is also ethical in that you do not presume guilt.

Question: Does that mean you don't believe the police? Not exactly. It means that believing or not believing the police is irrelevant -- it's entirely up to the court to decide who to believe. Ethical reporters do not help police or prosecutors make their cases to the public.

c) Off the record attribution is dangerous.

It would be a serious mistake to report on the basis of an off the record comment that a prominent citizen had been stopped for drunken driving unless there is a clear record of the stop, a breathalizer test or some other documentation backing up the allegation. The documentation should be on paper in the police station. In general, reporters must refrain from repeating courthouse gossip, even if probably true, unless it is proveably true in court.

d) Claims of opinion do not shield a malicious statement of fact.

It would be libellous to say, "in my opinion, the person has AIDs," (if indeed this were untrue) because there is a factual allegation underlying the opinion. In fact, as you'll see below, courts don't really differentiate between fact and opinion.

e) Unofficial court documents lacking priviledge can be a problem. Affidavits or allegations concerning misconduct are not priviledged if the court has not admitted them into evidence or if the case is settled out of court. This doesn't mean that they cant be reported, but care must be taken in assessing their validity, in noting their unofficial status, in attributing their origin and in providing opportunity for rebuttal. A reporter should not report frivolous or obviously extraordinary charges that lack substance. In other words, don't let yourself be used for partisan purposes.

Defintion of and defense against libel in Virginia

8.01-45. Action for insulting words. All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

8.01-46. Justification and mitigation of damages. In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.

History of Libel Law

Libel used to be any words, true or not, that damaged reputatation. Seditious libel was a common charge in England and the U.S. from the 1500s to the early 1800s. It involved stirring up contempt or ridicule for government. It was punishable by imprisonment or execution.

Truth was established as a defense in seditious libel cases as a result of the John Peter Zenger trial in New York in 1735.

As sedition became a separate offense (for example, in the Alien & Sedition Acts of 1798) in the US and Europe, government agencies could no longer sue for libel, although public officials continue to bring suits on a private basis (The recent only case of criminal libel charges in the US was an unusual charge in 2002 against a Utah schoolboy).

Prior restraint (censorship before publication) was employed from time to time for alleged sedition or publication of obscene materials. In the 19th and early 20th century, a number of interesting civil libel trials involved artistic criticism, personal rivalries and social tensions. These are discussed on a separate page of this site, libel cases in history.

In 19th and early 20th centuries, libel plantiffs had a much easier time than today. Why?

1. The burden of proof was on the publisher. (Note: In the UK and most other Commonwealth nations, the burden is still on the publisher)
2. The case was judged under a "strict liability" standard -- defamation under any circumstances would result in judgement against the media.
3. Harm was assumed to a plaintiff's reputation; there was no need to prove general damages.

Because these rules had a chilling effect on freedom of speech, an offsetting system of privileges was developed under common law. Speeches by legislators, reports from official records, and fair comment about public officials or candidates for office became more or less tolerated under various state laws. Comments about literary or artistic works were also tolerated under the "fair comment" concept.

Despite this common law background, most state libel laws tended to lean towards the interests of the plantiff and not the news media.

When the Civil Rights movement emerged, this previous common law tolerance was severely tested when state officials attacked the news media for reporting the movement and their response to it. The case that helped codify a new approach to libel law was the landmark New York Times v. Sullivan case of 1964.

The case that changed the law of libel ...

**** New York Times v. Sullivan, 1964 -- An important civil rights advertising case became the "bedrock" foundation for most modern social and political discussion in the US. Sullivan is a crucial case in understanding how libel law is interpreted today. The case began with a March, 1960 advertisement (picture of the ad) placed by Alabama civil rights activists in the New York Times headlined "Heed their Rising Voices." The advertisement described resistance to the civil rights movement in the South, but it had some minor inaccuracies. The police commissioner of Birmingham, Ala., Louis Sullivan, was not named in the ad, but he sued anyway under the state's libel law. Sullivan won the case at the trial court level. Sullivan also won appeals brought by the New York Times in the Alablama appeals court and then the state supreme court.

The New York Times then petitioned for certiorari to the U.S. Supreme Court and the court heard oral arguments in January, 1964. In its decision supporting the Times, the U.S. Supreme Court held "... that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials." For a public official to successfully sue for libel, he or she would have to prove "actual malice,"

What is actual malice?

-- Knowingly publishing something that is false
-- Reckless disregard for the truth

Cases that clarified NYT v. Sullivan

Many questions remained after the Sullivan case. How do you define "reckless disregard?" Who is a public figure?

** Curtis Publishing Co. v Butts, 1967 -- Saturday Evening Post said a coach conspired to "fix" a game, but the magazine (owned by Curtis) had plenty of time to check facts. Thus, the circumstances of the report, including the time element, are important in determining reckless disregard.

** AP v. Walker, 1967 -- The opposite of the Curtis case, AP set a "hot news" standard for reckless disregard. The court basically said that an honest mistake made in a "hot news" situation involving a public figure is not reckless disregard for the truth.

** Gertz v. Welch, 1974 --An attorney suing Chicago police after a young black man was killed was described by American Opinion (an ultra-conservative John Birch Society magazine) as a "communist fronter" and a "Lenninist." Gertz claimed he was not a public figure because he had not sought public figure status. Thus, Gertz only had to prove negligence, and not malice as would be required in the case of a public official or public figure. Also, the case set a requirement of fault on the part of the media, rather than "strict liability." In other words, the media has to be guilty of something beyond a mere falsehood. There has to be some level of fault.

Important recent libel cases

Edwards v. National Audubon Society, 1977 -- The New York Times reported both sides of a heated dispute over pesticide science, and noted that the Audubon society said scientists consluting for industry were "paid to lie." The scientists sued the New York Times, which successfully defended itself with the"neutral reportage" defense.

Hutchinson v Proxmire, 1979 -- The doctrine of privilege is confined to floor debate, not press releases issued by U.S. senators. The case occurred when Sen. William Proxmire gave a "Golden Fleece" award to a scientist working on a federal grant and publicized it in a press release.

Janklow v. Newsweek, 1986 -- South Dakota Gov. William Janklow sued Newsweek after an article described his prosecution of Indian activist Dennis Banks as revenge after Banks (apparently falsely) accused him of raping an Indian woman. Courts found that the opinion expressed fell under the fair comment and criticism defense (See above)

Philadelphia Newspapers v. Hepps, 1986 -- Plaintiff has burden of proof to show that information is false; media doesnt even have to show its true in case where private person suing about public issue.

** Hustler Magazine and Larry C. Flynt v. Jerry Falwell, 1988 -- An ad parody was not a believable defamation, and the Virginia common law tort against "Intentional infliction of emotional distress" is not permissible as a form of libel action.

Michael Milkovich v. Lorain Journal Co, 1990 -- When "opinion" rests on facts known to be false, plaintiff can sue; some fear this is loss of "fair comment" defense. However, the court also reaffirmed the Philadelphia Newspapers decision (above, in this section) and said an expression of pure opinion which can't be proven false cannot be libel.

Recent "veggie libel" and SLAPP cases

Auvil v. CBS 60 Minutes, 1995 -- Federal court dismissed a suit by makers of Alar, a chemical used on apples to improve their appearance, saying that Auvil had to prove the CBS report detailing concerns over cancer causing pesticides was false.

Dixon v. Superior Court of Orange County, 1994 -- In a classic SLAPP case (strategic lawsuit against public participation) a retired college professor who questioned the competence of an environmental assessment company was sued. Since California law invites public comment on such environmental issues, the court held that the professor's comments were absolutely privileged regardless of his motives. Many similar cases have been heard in California and other states in recent years, and most have resulted in summary dismissal. A Virginia case involving a professor at Clinch Valley Community College dragged on for many years before it was dismissed last fall.

** Texas Beef Group v. Oprah Winfrey, 1998 -- A group of Texas cattlemen sued Oprah Winfree for violating a state law against "product disparagement." The segment of the show was called "dangerous foods," and Winfree invited several people concerned about mad cow disease and e-coli onto the show, along with others who defended the food industry. The suit was dismissed at the federal trial court level in Texas in Feb., 1998 and is under appeal. The Texas state legislature, meanwhile, may repeal the law.  

Cape Wind v. Donnelan, 2006 -- Not a path-breaking case, but more of an example of how libel law works on a day to day basis.  Donelan, a Massachusetts activist, sent out a fake press release saying a local business was boycotting Cape Wind, a wind energy development group that has a controversial project off Cape Cod.  Cape Wind hired an investigator and then sued for libel.  This was not a slap suit but rather a case of a company protecting its reputatation. 

Recent Virginia libel cases

Jordan v. Kollman, 2005  --  Virginia Supreme Court found that a political ad was not libelous, reversing a trial court's decision. The ad attacked J. Chris Kollman, III, the City's former mayor, for supposedly approving a low income housing project and said in part: "It's unbelievable that a massive housing project adjacent to a flood plain would be located in such a congested residential area . . . Think of the potential for crime, drugs, and demands on our school system . . . think of the impact on all of us . . . how much higher will reassessments go to pay the horrendous cost to the taxpayer . . . over $700,000 to widen Archer Avenue and untold costs for police, fire, and EMS services." In fact, Kollman was concerned about the project and attempted to have the city buy the land. The court held: "There is insufficient evidence in the record to support a finding under the clear and convincing proof standard that Jordan's ads in The Progress Index, which Kollman claimed as defamatory, were published with actual malice. Thus, the trial court erred ..."

Rappleyea v. WDBJ, 2001  --  Not a precedent-seetting case, but a typical Virginia libel suit.  WDBJ TV Roanoke did not defame a toy store employee by reporting that she had been charged with assaulting a 7-year-old shoplifting suspect, a jury found.  Charlene Rappleyea, an employee of Toys R Us in Lynchburg, filed a libel suit after a TV reporter filed a story based on the public record and also including comments from the store manager denying the allegations and an interview with the 7-year-old girl's parents.  Although the assault charge brought by the parents against Rappleyea was dismissed, Rappleyea claimed her reputation was harmed by WDBJ's coverage. A Roanoke Times article said:  "The girl's parents told WDBJ that their daughter was ordered to lift her shirt and unbutton her pants after Rappleyea questioned her in the store's restroom about a possible theft at the store.  Rappleyea then "allegedly stuck her hand into [the child's] pants to see if she was concealing any merchandise," the report stated. The longtime store employee denied the allegations, and an assault charge against her was later dismissed - as Channel 7 reported in a follow-up story....  Rappleyea's lawyer contended  [that the reporter] went too far by interviewing the child's parents without checking into the allegations or giving Rappleyea an opportunity to comment. 'He sent this story out to hundreds of thousands of people, and it was false' Richmond attorney Hayden Fisher said.

Recent internet libel cases

Defamation is a serious potential problem in cyberspace, especially when e-mail and chat rooms encourage freewheeling debate. However, participants rather than operators are at greatest risk. Participants should take care not to attack the character, morals or lifestyle of a private individual, but should feel no need to shy away from expressing opinions about public issues or publicly offered products. Operators of bulletin boards and chat rooms are not under any obligation to censor debate. In fact, just the opposite:

** Cubby v. CompuServe, 1991 -- A CompuServe contractor named Journalism Forum had a section called "Rumorville USA" which made remarks about Cubby, Inc. that were allegedly defamatory. CompuServe did not create or edit the Rumorville newsletter, but simply transmitted it. The New York district federal appeals court dismissed the suit. It compared the computer bulletin board to a bookstore, and said: "The requirement that a distributor must have knowledge of the contents of a publication before liability can be imposed for distributing that publication is deeply rooted in the First Amendment." Having knowledge is called the doctrine of scienteur, and it also pops up in obscenity cases involving bookstores. (See Smith v. California, 361 U.S. 147, 1959)

** Stratton Oakmont v. Prodigy, 1995 -- Stratton Oakmont is an investment banking group based in New York. One one of Prodigy's bulletin boards, MoneyTalk, someone anonymously posted a mesage saying that Stratton engaged in criminal fraud. Stratton Oakmont sued Prodigy claiming that Prodigy was a "publisher" of the MoneyTalk bulletin board and thus was liable for its content. Prodigy said it was only a passive conduit for material posted on its bulletin boards, but the problem was that it used automatic editorial filters for obscene words, and therefore acted as a publisher. The New York federal court said that since Prodigy exercised some editorial control, it was liable as a publisher of the defamatory statements.

Partly in response to the Prodigy case, 1996, Congress included in the Telecommunications Act of 1996 a "good samaritan" provision that distinguished between automatic filters and editorial control in libel suits. The provision was tested and upheld in the Zeran case.

** Zeran v. AOl, 1997 -- When an anonymous AOL poster repeatedly said that Kenneth Zeran was selling t-shirts praising the Oklahoma City bombers, Zeran's home phone was innundated with death threats. An Oklahoma radio station even broadcast the false information. Zeran tried to get AOL to change the material but that did not happen quickly enough to prevent damage to Zeran's reputation. He sued AOL for libel. The trial court said that the Communications Decency Act of 1996 ("CDA") -- 47 U.S.C. § 230 -- barred Zeran's claims. Zeran appealed, arguing that the CDA still makes providers liable if they possess notice of defamatory material posted through their services and do not take action. But Section 230 "plainly immunizes computer service providers like AOL from liability for information that originates with third parties," The US Fourth District Court said. The Supreme Court denied cert. (Also see AOL's views on the case: "Section 230 of the Telecommunications Act of 1996 was passed to ensure that ISP's would not have to pre-screen all member communications to avoid legal liability and, at the same time, leave ISP's free to take responsible measures to screen or block objectionable content.").

United States :

• Student Press Law Center / Libel and Invasion of Privacy
• Media Law Resource Center
• Law offers internet publishers scant guidance on libel (Online Journalism Review)
• Libel and Slander by Charles A Armgardt, 09-21-1998
• Libel Defense Resource Center
• West Law case updates: Cyberlaw and Constitutional Law.
• Iowa Libel Research Project / Why People Sue the Media

United Kingdom :

• News Desk UK article on Libel
• Basic UK libel law for idiots
• Spiked online article about libel law in London:  A town called sue...