Libel is the printed or visual defamation of a person If the defamation is spoken – that is slander.

What is defamation? When someone feels ridiculed or their reputation has been harmed

Stories, pictures, cutlines, headlines or cartoons can be libelous Editorials & letters to the editor can be libelous

If the person’s respect, esteem or goodwill in the community is lowered If the statement implies the person committed a crime

If the material provokes others to feel negative or derogatory towards him If it implies the person has a disease that would make others shun him

If the person is deprived of the right to earn a living If the statement damages a person’s credit

If the statement indicates a lack of chastity or mental capacity

There are three types of libel 1.Libel per se 2. Libel per quod 3. Criminal libel

Libel per se This means the statement alone caused injury & no additional proof is needed to show damages. It is the most serious type of libel. Libel per se

John T. Smith of 2345 Main Street was arrested yesterday for robbery. What if the robber was John T. Smith who lived at 2345 Moore Street? This story has libeled the John T. Smith of Main Street. This is Libel per se.

Libel per quod This would be a statement that is harmless except for special circumstances that could cause damage. This is the most common form of libel & usually occurs because of a mistake that is not obvious. Libel per quod

For example: It is reported that your schools’ tennis star Jared Allred won a tennis match against Justin Todd on Saturday. But the match was actually on Friday. Just based on that alone the statement does not seem libelous, but….

What if one of those athletes is a member of a religion that observes their Sabbath on Saturday which is suppose to be a day of meditation & rest? This statement is now libelous because it makes him seem as if he is not a devote member of his church. This has damaged his reputation in his church.

Another example: If a newspaper calls the Hilton Hotel a firetrap & this frightens guests away, the newspaper would face a libel suit because the circumstances damaged the hotel owners.

However, if the dangerous building was an empty warehouse whose owners do not have a business there, there is no basis for a libel suit. No damage to a reputation has occurred.

THE PIHF CHECKLIST u There are four elements a person must establish in order to prove he or she has been defamed: (1) Publication, (2) Identification, (3) Harm and (4) Fault. Each of the four elements must be proven. For example, even if a story you have written meets the publication, harm and fault elements, a libel claim will still fail if you have not identified the claimant.

I. Publication u A statement is "published" if it is communicated to someone other than the person whom the statement is about. u Publication can take many forms and does not simply mean that the statement has been printed in a newspaper or other document. For example, a defamatory statement's presence on a computer screen in the newsroom where it is read by other students could constitute publication.

II. Identification u A statement "identifies" a person if it is shown that it is "of and concerning" that person. Disguising a Subject's Identity Where you successfully omit or alter a subject's identity, they cannot successfully sue you for libel. Care should be taken that: (1) the subject's identity has been disguised enough so that no one can reasonably make an identification and (2) the disguised subject does not resemble some third party who would then have cause for complaint. Every story should clearly state what facts have been altered.

Publication u Group Libel Individuals can be defamed; groups of people cannot be. The key question is whether a statement about a group can reasonably be interpreted to refer to a specific individual in the group. While there is no hard rule, several courts have indicated that individual members of a group larger than 25 will have a difficult time proving that they have suffered individual harm. On the other hand, individuals in a smaller group may be able to claim that their reputation has been damaged. For example, the generic statement, "the tennis team is being investigated for substance abuse" could subject a publication to a libel suit if the team consists of just 12 members.

III. Harm u A statement is harmful if it seriously shames, ridicules, disgraces or injures a person's reputation or causes others to do so. Statements that are mildly embarrassing or merely confusing or inaccurate will not meet the "harm" test. u The following are examples of "Red Flag" statements that could cause significant harm to a person's reputation; extra caution is advised: u Statements regarding improper sexual conduct. (For example, printing that an unmarried student is pregnant.) u Statements that associate someone with a vile disease. u Statements that accuse someone of illegal behavior. u Statements that hurt someone's livelihood. u Statements that allege racial or religious bigotry.

IV. Fault u In order to be "at fault" in publishing a statement, the person suing must prove that the reporter either did something they should not have done or that they failed to do something that they should have done. If the reporter did everything a "reasonable reporter" should have done to verify the information in his or her story before publishing it - for example, talked to all sides, obtained and read all relevant documents, took accurate notes, etc. - the reporter is not legally "at fault." u People suing for libel who are either public officials or public figures will often have to prove a higher level of fault than an ordinary person.

The Public Official/Public Figure Standard u New York Times Company v. Sullivan, 376 U.S. 254 (1964). In order for a public official or a public figure to prove defamation, they must prove actual malice. Actual malice requires that the person suing prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy.

The Public Official/Public Figure Standard u Who is a Public Official? The Supreme Court has said that a public official is one who, at the very least, has or appears to the public to have, a substantial responsibility for or control over governmental affairs.

The Public Official/Public Figure Standard u Who is a Public Figure? There are two categories: (1) General Purpose Public Figure: a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word." (2) Limited Purpose Public Figure: someone who has voluntarily assumed a leading role in a particular public controversy.

Standard for Private Persons (everyone else) u In most states, a private person need only prove that a reporter was inattentive, that is, that the reporter made a mistake - perhaps an innocent one - that a "reasonable" reporter should not have made.

DEFENSES TO LIBEL CLAIMS u If a libel plaintiff proves each of the four PIHF elements, the burden then shifts to the publication to offer one of the following defenses: u (1) Consent: A person who consents to the media's use of a libelous statement about him cannot later sue if the statement does, in fact, injure his or her reputation. Note that special issues can arise when dealing with a younger person's ability to provide valid consent. (See discussion at: SPLC Legal Brief: Invasion of Privacy.)SPLC Legal Brief: Invasion of Privacy

DEFENSES TO LIBEL CLAIMS u (2) Truth u Truth, while it must still be proven, is an absolute defense to libel. In many cases involving media defendants the burden is actually on the person suing - not on the publication - to prove the falsity of specific statements.

DEFENSES TO LIBEL CLAIMS u (3) Privilege u Subject to several requirements, which may vary by state, the media is protected from liability when they publish fair and accurate accounts of official public proceedings and reports even if the information reported later turns out to be false. For example, if a police report states that "Jack Smith was arrested" and a newspaper accurately reports the information, the newspaper will not be held liable even if it is later revealed that police actually arrested Jack Brown and officers made a mistake when they wrote down his name. To qualify for the privilege:

DEFENSES TO LIBEL CLAIMS u The information must be obtained from a record or proceeding recognized by the state as "official". u The media report must be fair and accurate. A "fair" report is one that is balanced and presented in context. u The source of the statement should be clearly noted in the media report.

DEFENSES TO LIBEL CLAIMS u (4) Opinion Versus Fact u Statements of pure opinion cannot be libelous. However, simply leading off an article with "In my opinion...", publishing something on the opinion page or using the word "alleged" provides no automatic protection from a libel charge. The test is whether the expression is capable of being proven true or false. Pure opinions, by their very nature, cannot be proven true or false. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

Criminal libel This is when a person or company publishes material that causes a riot or disturbs the peace. The suit is brought by the U.S. Government. Criminal Libel

Lawsuits can be filed against the person or newspaper committing libel. The payment is not usually in jail time, but in monetary damage – up to millions of dollars.

Case study During the 1996 Goodwill Games in Atlanta a bomb exploded. Richard Jewell’s name was released to the media through an unnamed source. He was only a suspect & had not been charged with a crime. Is this libel?

Yes it is libel. He was only a suspect & in fact was cleared of all charges. Jewell sued many news organizations which released his name. He won.

NBC $500,000 – agreed to pay to protect unnamed source New York Post (cartoon) – Undisclosed. Sued for $15 million CNN – Undisclosed amount Claims coverage was fair & accurate

To win a libel suit, the person must prove all of the following: 1)The reporter was negligent 2) The information was false 3) The information was printed or spoken 4)It referred to a specific person, business or product 5) The person’s reputation was damaged

For public figures, it also has to be proven the information was published intentionally, with actual malice. Private people do not have to prove actual malice. Public figures are anyone who has put themselves in the public spotlight.

Photos can be libelous. At one high school, a yearbook photo of three girls had mustaches & armpit hair added. As a result, the school had to recall 500 yearbooks already printed, or the school would have had to pay thousands of dollars in reimbursement to the girls.

The best defense against libel is to avoid publishing anything for which you or the school could be sued. Check facts carefully, make sure you consult more than one source & avoid publishing something maliciously. Avoid the danger words.

If you do publish something libelous, a respectful attitude & publishing a retraction will often help prevent a court case from being filed.

If you have questionable material, the best defense is double checking & referring the article to a lawyer. Students can use the Student Press Law Center

Defenses

Truth - This is an absolute defense. If the statement is true, then you are not guilty. The problem occurs in proving the truth. Your witness may not testify (unnamed sources) or may not be believed. Your documents may not be allowed as evidence.

Also, be careful. Your proof may be that someone said it, & you have that on tape. Attribution is not a defense. You still have to prove the statement is true.

Privilege – If the statement was said during an official judicial or legislative session, you are safe from a libel suit. The reason is the public has a large stake in knowing what goes on in a courtroom or in the legislature.

Question: If one senator calls another senator a liar in the lobby of the state legislature & you print it, is that libel?

Fair Comment – You are free to give opinions in reviewing books, records, events, movies, etc.

Careful! If you say the cookbook is poorly written because it does not include healthy items & it does - that is libel. Facts must be true. If you just say the recipes tasted bad (your opinion) that is protected.

You also can only attack what is being reviewed & not the person behind it. You can only attack the ‘public’ part of the performance (book, music, movie). You can not say the author is a bad writer because he is an immoral person.

Question: You review a concert & say “the music sounded like a preschooler wrote it.” Is that libelous? What if you say “the lead singer is a drug addict who can’t write songs”?

Admission of Error – You made a mistake, but you correct your mistake immediately. This doesn’t always work, but it can help. It shows it was not malicious (done on purpose). Often it will reduce the judgment against you. Some states allow it as a stronger defense.

Are these statements libelous? - Actor John Smith is a wife abuser. -The meal tasted like dog food. - The President is an idiot. He said the South won the Civil War. (He was in the Supreme Court when he said it.)