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What You Must Know About Libel

What is Libel?

Libel is a
common law tort, governed by state law, in which an individual makes a written “publication”
of a defamatory statement of and concerning the plaintiff that damages the
reputation of the plaintiff.

What are the elements of a cause of
action for libel?

The elements
of a libel suit are:

  1. A defamatory statement;
  2. Published to a third party;
  3. Which the speaker knew or should have
    known was false;
  4. That causes injury to the subject of
    the communication

WHAT IS A
“PUBLICATION”

The legal
term for publication; when discussing a libel action, is the purposeful
communication of information to a third party.  The only criterion is that it is communicated
to a third party.

DOES THE
PUBLISHER NEED TO KNOW THE FALSITY OF THE STATMENT?

No, for an
action in libel to be upheld, the publisher of a defamatory statement need not
know that a statement is false or defamatory.
The law concerns the intent of the publisher in communicating a
defamatory statement and is not concerned with the knowledge of the
publisher.  The law states that a
publisher “knew or should have known” that the statement was
false.  Therefore, if an individual
publishes a libelous statement about someone; for example, that they have used
drugs, while under the impression that the statement is representative of a
positive characteristic, the publisher will be liable for libel if that
statement causes harm to the subjects character or reputation.  This is because the publisher should have
known that the communication was defamatory.

However, if
the individual were to publish a statement that would not normally be
considered defamatory; that the individual drives a station wagon for example,
and unbeknownst to the publisher, the individual finds the idea of driving a
station wagon insulting, there is an argument to be made that the publisher
could not have known that his/her statement was defamatory and therefore not
actionable as libel.

DOES THE
PUBLISHER HAVE TO INTENTIONALLY “PUBLISH” THE COMMUNICATION?

Yes, the law
concerning libel requires at least a negligence standard for publication.  The publisher must communicate the
information with the intent to have it read by a third party.  If an individual publishes a defamatory
statement when he/she reasonably believes that no one is going to read it and
the statement is overheard by a third party then it is not defamation.

The same
applies to communications with the subject of libel.  If an individual makes a defamatory statement
about an individual but the defamed individual is the only one the statement
was communicated to then it is not actionable.
The law requires publication to a third party.

 Are
there defenses to a claim of defamation?

There are 6
recognized defenses to a defamation suit.
These include:

  • Truth – the
    truth of a statement is a complete defense to any libel claim.  For example, if an individual publishes a
    statement stating that smoking tobacco can lead to emphysema a tobacco company
    may not sue on a defamation claim because the statement is true.

  • Opinion – if a
    person makes a publication under the color of an opinion it may be deemed
    un-actionable.  The law regarding opinion
    is not black and white.  Opinion
    statements can be actionable if the public who the statement was published to
    would believe that the publisher is a credible source and his statement should
    be taken as truth.  For example; if an
    individual’s states that he believes that someone is a cheater it is more
    likely to be taken as truth if the statement is made by the individual’s
    teacher rather than if the statement were made by an enemy of the individual.

  • Privilege – If a speaker/writer
    has a duty to communicate to a specific person or on a given occasion.
    In some cases the privilege is qualified and may be lost if the publication is
    unnecessarily wide or made with malice.

  • Consent – If a publisher has the
    authority, from the defamed individual, to make a statement it will be an
    absolute bar to a defamation action.  However, the publisher may not go beyond the scope of consent.

  • Innocent dissemination – this
    occurs when a party, unknowingly, transfers a defamatory publication.  An example of this would be when a postal
    worker delivers a sealed envelope with to a third party that contains
    defamatory statements about someone.

  • Poor reputation –
    Although this is not a complete defense to defamation, the defendant can
    mitigate damages by proving that the defamed individual had a bad reputation
    for the character trait at issue.  For
    example, if defendant published a statement that the plaintiff was a cheater,
    the fact that the plaintiff had been caught cheating in the past would go to
    the plaintiff’s bad character for that trait and may mitigate damages.

Defamation per se

Libel per se
means “libel on its face.” These are false statements that are
inherently harmful to one’s reputation and character that they do not need to
be proven.  Most states in the Union recognize
some form of libel per se.  The common
examples of libel per se include: statements that injure another’s reputation
in his trade, business or profession; statements claiming someone has a
“loathsome disease”; statements claiming that a person is
“unchaste”; and allegations that an individual has been involved in
criminal activity.

Seditious Libel

Seditious
libel was a criminal offense in England.
The law made it a crime, punishable by death to “criticize public
persons, the government, or the King.” The law was adopted in England in
1606 and, even though not enforced in modern times, wasn’t abolished until
2006.

The most
famous case involving seditious libel involved the arrest of John Zenger in
1734 after his newspaper publicly criticized the colonial governor of New
York.

The United
States also had its version of seditious libel that was incorporated in the Alien
& Sedition Acts of 1798.  The act,
which was law from 1798 until 1803 made it a criminal offense, subject to
penalties of fines and imprisonment
“to oppose the execution of federal laws; to prevent a federal officer
from performing his or her duties; to aid any insurrection, riot, unlawful
assembly or combination”; or to make any defamatory statement about the
federal government or the president.”

Veggie Libel Law

Food Label Laws,
commonly known as Veggie Libel laws, vary significantly from state to state,
but veggie libel laws typically allow manufacturer or processor to sue a
person/group who makes disparaging comments about their food products.  In a veggie libel action the plaintiff must
prove that the defendant is deliberately and knowingly spreading false
information.

The most famous
situation involving this was a suit initiated by a cattle rancher in Texas who
claimed that Oprah Winfrey’s public disparagement of beef in the context of the
mad cow scare caused financial harm to his business and sued for $12
million.  In order to win the case the
plaintiff had to prove that Winfrey knowingly and deliberately spread the false
information with malice.

Libel Lawsuits

The most famous case
involving libel is New York Times v.
Sullivan.
  In that case the Supreme
Court ruled against a public figure who claimed to be defamed.  The Court held that to prohibit the criticism
of public officials in their duties would have a “chilling effect” on
free speech.

Another important case
was that of Gertz v. Welsh.  In that case the Supreme Court distinguished
the protections against defamation associated with a public figure and a
private person.  According to the Supreme
Court a private person “is more vulnerable to injury, and the state
interest in protecting them is correspondingly greater” than a public
figure who has access to the media and a “more realistic opportunity to
counteract false statement than private individuals normally enjoy.”  For this reason the Supreme Court held that,
unlike public officials, private persons do not need to prove
“malice,” only the knowing or reckless dissemination of false
statements.

Filing a Libel Claim

In making a prima
facie case for libel first, the plaintiff needs to prove that the statement was false.  This can be difficult to prove, especially if
evidence has disappeared.  For some
claims that fall within “libel per se” these are easier to
prove.  The accusation that one is a
criminal can be easily proven false by submitting a lack of a criminal
record.

Second, a
plaintiff needs to prove that the statement was published by the
defendant.  Libel cases are easier to
prove than slander cases.  A perfect
example is when a newspaper makes libelous statements.  There is a printed copy of the statement,
with the authors name usually right under it.
Slander, however, does not create the same tangible evidence.

In order to
receive damages the plaintiff must only prove some type of damage.  This damage can be either emotional or
financial.  Juries can award nominal
damages, compensatory damages; and in some cases, often involving
“malice” by a major publisher against a private person, punitive damages.

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