Com360: Defamation

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Com360 Defamation
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Protection of Persons Reputation

• Basic human dignity protection of ones
  reputation from unjustified invasion and wrongful
  hurt

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Defamation of character

• Wrongfully hurting a persons good reputation
  Slander and Libel
• Defamation is a civil wrong (tort)
• The most common legal problem faced by a person
  who work in the mass media about 75 lawsuits
  filed against the media

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Libel suits are troublesome

• Take a lot of money and time
• Damage claims are often outrageous
• Libel law is complicated and confusing (often
  judges make erroneous decisions)
• Some plaintiffs file frivolous libel lawsuits to
  silence the critics in the media

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Erroneous decisions

• For most judges a libel case is a new experience
• Jurors are confused by the legal concepts e.g.,
  actual malice
• Thus
• 75 of libel cases are overturned by appeal courts

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The Lawsuit as a weapon

• Strategic Lawsuits Against Public Participation
  (SLAPP) Run that story and we will take you to
  court
• Although 90 of SLAPP lawsuits fail, they are
  intended to intimidate and silence a less
  powerful critic by so severely burdening them
  with the cost of a legal defense that they
  abandon their criticism.

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Laws against SLAPP

• In 1992 California enacted a statute intended to
  prevent the misuse of litigation in SLAPP suits.
• It provides for a special motion to strike a
  complaint where the complaint arises from conduct
  that falls within the rights of free speech

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Elements of defamation

• Publication
• Identification
• Defamatory content
• Falsity
• Fault
• Harm / Compensation

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Publication

• Who made the statement?
• Who disseminated it?
• Who repeated it?
• Question of transmission No provider of an
  interactive computer service shall be treated as
  the publisher or speaker

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Identification

• Plaintiff explicitly named
• Suggesting plaintiffs actual name
• Picture, drawing, description
• Similarities to fictional characters
• Group Identification

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Defamatory content

• A communication which has
• the tendency to so harm the reputation
• of another as to lower him/her in
• the estimation of the community or
• to deter third persons from associating
• with him/her

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Defamatory content

• Imputations of criminal behavior
• Sexual references and implications
• Personal habits (honesty, integrity, etc)
• Ridicule (showing someone uncommonly foolish or
  unnatural)
• Business reputation
• Disparagement of property (product)

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Falsity

• Public Persons versus Private Persons
• Public-Person plaintiff must prove that the
  libelous remarks are false
• Private-Person plaintiff must prove the falsity
  of the libelous statement only when the subject
  of the statement is a matter of public concern

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Fact versus Opinion

• Expressions of pure judgments are not subject to
  libel lawsuits
• But
• Expressions of opinion may often imply an
  assertion of objective fact. Couching such
  statements in terms of opinion is often not
  sufficient.

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Fault standard for truth/falsity

• Straightforward in cases of private persons
• Actual malice in cases of public persons

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New York Times v. Sullivan (1964)

• The 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 government and
  public officials
• (from Justice Brennans opinion)

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New York Times v. Sullivan (1964)

• Public officials may not recover damages for
  defamatory falsehood relating to their official
  conduct unless they can prove actual malice
• that the statement was made with knowledge that
  it was false or with reckless disregard of
  whether it was false or not.

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Public persons and officials

• Public figures are those who thrust themselves
  into the forefront of particular public
  controversies in order to influence the
  resolution of the issues involved
• Public officials are those who have substantial
  government responsibility

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Rosenbloom v Metromedia (1971)An expansion of
public

• Public in reference not only to the person, but
  the content
• If the content of the offending communication is
  of general public concern, the actual malice
  standard may be applicable.
• Later the court clarified the standard in Gertz,
  limiting the Rosenbloom approach

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The Gertz Ruling (1974) (the new standard)

• Libel cases filed by private people can be judged
  by the standards imposed by individual state
• Most states use negligence (lesser degree of
  fault)
• A few states use actual malice

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Classifying the Plaintiff A Rough Guide (from
your book)

• Public Official Government Employee
  Substantial Control or Responsibility
• All-Purpose Public Figure Career of Courting
  Media Pervasive Fame and Influence
• Vortex Public Figure Public Controversy
  Voluntary Leadership Role
• Involuntary Public Figure Pattern of Notorious
  Conduct Prior (Undesired) Media Coverage
• Private Persons Most Others

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Hustler Magazine v. Falwell (1988)

• In a parody that appeared in Hustler magazine the
  prominent fundamentalist evangelist Reverend
  Jerry Falwell was depicted as a drunk in a sexual
  liaison with his mother in an outhouse

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From the Campari Ad

• But your mom? Isnt it a bit odd?
• I dont think so. Looks dont mean that much to
  me in a woman.
• Go on.
• Well, we were drunk off our God fearing asses on
  Campari, ginger ale and soda And mom looked
  better than a Baptist whore with a 100 donation.

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From the Campari Ad

• Did you try it again?
• Oh, yeah. I always get sloshed before I go out
  to the pulpit. You dont think I could lay down
  all that bullshit sober, do you?

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Hustler Magazine v. Falwell (1988)

• Falwell sued for
• 1. libel,
• 2. invasion of privacy,
• 3. intentional infliction of emotional distress.
• In the trial court he lost on (1) and (2) but
  prevailed on (3). He was awarded 200,000
  damages for emotional distress

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Hustler Magazine v. Falwell (1988)

• The Supreme Court reversed (8 to 0)
• a public figure or official may not recover for
  intentional infliction of emotional distress
  arising from a publication unless the publication
  contains a false statement of fact that was made
  with actual malice.

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Hustler Magazine v. Falwell (1988)

• That the material might be deemed outrageous and
  that it might have been intended to cause severe
  emotional distress were not enough to overcome
  the First Amendment.

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Hustler Magazine v. Falwell (1988)

• Vicious attacks on public figures are part of the
  American tradition of satire and parody, a
  tradition of speech that would be hamstrung if
  public figures could sue them anytime the
  satirist caused distress.

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