Damage to Reputation: Defamation, slander and libel

Defamation: A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him Second Restatement of the Law of Torts

Philosophy of Libel Law 1. Protects individuals reputation, because defamation may: a. Interfere with existing relationships b. Interfere with future relationships c. Destroy a favorable public image d. Create a negative public image where none existed 2. Compensates for economic and emotional injury 3. Promotes human dignity (civilized forum to settle disputes) 4. Acts a deterrent on publication of false and injurious speech by the awarding of damages Note: Can be applied to businesses: trade libel or product disparagement

Defamation: State Law Slander Libel Defamacast Criminal Civil Libel Per Se Libel Per Quod Special Damages: Based on Specific Monetary Loss General and Actual Damages Punitive Damages

Categories of Defamatory Words: Libel Per Se Impute to another a loathsome disease Accuse another of serious sexual misconduct Impugn anothers honesty or integrity Accuse another of committing a crime, being arrested or indicted Allege racial, ethnic or religious bigotry Impugn anothers financial health or credit-worthiness Accuse another of associating with criminals or others of unsavory character Assert incompetence or lack of ability in ones trade, business, profession, or office

Common Law Elements of Libel Publication Single publication rule Doctrine of Republication Identification Defamatory Content (Words and thoughts) Falsity (Burden of proof on plaintiff) Actual Injury: Harm Fault Jurisdiction Timeliness

IC ARTICLE 15. CAUSES OF ACTION: DEFAMATION, LIBEL, AND SLANDER IC Chapter 1. Pleadings in Actions for Libel or Slander IC Allegation; burden of proof Sec. 1. In an action for libel or slander, it is sufficient to state generally that the defamatory matter published or spoken was about the plaintiff. If the defendant denies the allegation, the plaintiff must prove at trial the facts showing that the defamatory matter was published or spoken about the plaintiff. As added by P.L , SEC.10. IC Truth; mitigating circumstances; evidence Sec. 2. In an action for libel or slander, the defendant may allege: (1) the truth of the matter charged as defamatory; and (2) mitigating circumstances to reduce the damages; and give either or both in evidence. As added by P.L , SEC.10.

IC Chapter 3. Defamation Actions Against Radio and Television Broadcasters IC Applicability of chapter Sec. 1. (a) This chapter applies to a suit brought for: (1) publishing; (2) speaking; (3) uttering; or (4) conveying by words, acts, or in any other manner; a libel or slander by any radio or television station or company in Indiana. (b) Section 3 of this chapter does not apply to a case of libel or slander against a candidate for a public office in Indiana, unless the retraction of the charge is made in an audible or visible manner at least three (3) days before the election. As added by P.L , SEC.10.

IC Service of notice Sec. 2. At least three (3) days before filing a complaint in a suit described in section 1 of this chapter, the aggrieved party shall serve notice: (1) in writing; (2) on the manager of the radio or television station; (3) at the principal office of the radio or television station; and (4) that specifies the words or acts that the aggrieved party alleges to be false and defamatory. As added by P.L , SEC.10.

IC Retraction mitigates damages Sec. 3. The plaintiff in a suit described in section 1 of this chapter may recover only actual damages if it appears, upon trial of the action, that: (1) the words or acts were conveyed and broadcast in good faith; (2) the falsity of the words or acts was due to mistake or misapprehension of the facts; and (3) a full and fair retraction of any words or acts alleged to be erroneous was conveyed or broadcast: (A) on a regular program of the radio or television company; (B) within ten (10) days after the mistake or misapprehension was brought to the knowledge of the manager; and (C) at approximately the same time and by the same sending power so as to be as visible and audible as the original acts or words complained of. As added by P.L , SEC.10.

IC Chapter 4. Defamation Actions Against Newspaper Publishers IC Applicability of chapter Sec. 1. (a) This chapter applies to a suit for the: (1) publication of a libel by a newspaper; or (2) transmission of a libel by a news service; in Indiana. (b) Section 3 of this chapter does not apply to a case of libel against a candidate for a public office in Indiana, unless the retraction is made in the manner set out in section 3 of this chapter at least three (3) days before the election. As added by P.L , SEC.10.

IC Service of notice Sec. 2. (a) Before bringing a suit described in section 1 of this chapter, the aggrieved party shall: (1) at least four (4) days before filing the complaint against a news service; (2) at least six (6) days before filing the complaint against a daily newspaper; or (3) at least eleven (11) days before filing the complaint against a weekly newspaper; serve notice in writing specifying the factual statements in the article that are alleged to be false and defamatory, and correcting the falsity of the statements by reference to the true facts. (b) If the publication of the alleged libel was by a newspaper, the notice shall be served on the publisher at the newspaper's principal office of publication. If the transmission of the alleged libel was by a news service, the notice shall be served on the bureau chief at the news service's principal Indiana office. As added by P.L , SEC.10.

IC Retraction mitigates damages Sec. 3. The plaintiff in a suit described in section 1 of this chapter may recover only actual damages if: (1) it appears at the trial of the action that: (A) the article was published or transmitted in good faith; and (B) the falsity of the article was due to mistake or misapprehension of the facts; (2) a full and fair retraction of a factual statement alleged to be false and defamatory was published in a regular issue of the newspaper or transmitted to its members or subscribers by the news service: (A) within three (3) days by a news service; (B) within five (5) days, if the newspaper is a daily publication; or (C) within ten (10) days, if the newspaper is a weekly publication; after the mistake or misapprehension was brought to the knowledge of the publisher or bureau chief; and (3) the retraction was published in as conspicuous a place and type as the original item appeared in the newspaper or was transmitted by a news service to all members or subscribers to whom the original item was transmitted. As added by P.L , SEC.10.

IC Chapter 5. Actions for Certain False Charges IC Actionable charges Sec. 1. Every charge of incest, homosexuality, bestiality, fornication, adultery, or whoredom falsely made against any person is actionable in the same manner as in the case of slanderous words charging a felony. As added by P.L , SEC.10.

Times v. Sullivan (1964) The Protection of Editorial Advertising The First Amendment and Libel Per Se Partial Protection of False Statements (Heat of debate) The Plaintiff Must Prove Actual Malice with knowledge that it was false or with reckless disregard of whether it was false or not

Gertz v. Robert Welch, Inc. (1974) Libel is limited to false and defamatory assertions of fact States may establish lower standard of fault for private individuals who sue the news media Public figures are defined and categorized Private individuals must demonstrate some fault Private individuals must show harm or actual malice

Fault: The Status of Libel Plaintiffs Public Officials:1. Policymakers 2. Media Access Public Figures: All-Purpose (can be limited in geography) Limited: Vortex 1. controversy at issue 2. plaintiffs role 3. defamation came from participation Time Lapse

Libel: For the Defense Opinion Milkovich v. Lorain Hyperbole Hustler v. Falwell Retraction (since 1995, ABA has endorsed Uniform Correction or Clarification of Defamation acts) Neutral Reportage Privilege 1. Public controversy exists (or created by charges) 2. Allegation come from public official/figure 3. Assertion at issue aimed at public official/figure 4. Must be reported accurately and neutrally Fair-Report Privilege Anti-SLAP (Strategic Lawsuits Against Public Participation) Legislation

Libel in Cyberspace Telecommunications Act of 1996 No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Good Samaritan provision designed for offensive material removed upon request of named party Publisher:Responsible for content Distributor:Responsible only for content reviewed before distribution Common Carrier:Not responsible