Key Concepts in Libel and Privacy Law

actual malice

A statement made knowing it is false or with reckless disregard for the truth. As a general rule, public officials and public figures must prove actual malice as a standard of fault, and private individuals must prove negligence.

all-purpose public figures

A person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. All-purpose public figure libel plaintiffs are required to prove actual malice.

assertion of fact

A statement of information perceived as being capable of being proven true or false.

Bootstrapping

In libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit.

burden of proof

The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence.

Communications Decency Act

Part of the 1996 Telecommunications Act that largely attempted to regulate internet content.

damages

Compensation that may be recovered in court by any person who has suffered loss or injury. Damages may be compensatory for actual loss or punitive as punishment for outrageous conduct.

defamation plaintiff's case

A plaintiff must prove a false and defamatory statement of fact of and concerning the plaintiff was published with fault and caused harm to the plaintiff.

defamatory

A statement that is harmful to reputation.

duty of care

A standard applied in civic cases that means defendants should have foreseen negligence could cause harm to the person or people to whom they owed a duty.

emotional distress

Serious mental or emotional pain and suffering or mental anguish.

falsity

A statement perceived as fact that is not true.

fault

Liability or responsibility for making public an allegedly false and defamatory statement of fact.

identification

Being of and concerning a plaintiff.

intentional infliction of emotional distress

Extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiffs must show actual malice on the defendant's part.

involuntary public figure

A person who is involuntarily drawn into a given issue, or was drawn in without their intentional involvement. This category of plaintiff is rare.

knowledge of falsity

Awareness that information is inaccurate.

libel by implication

Individual statements that may be factually accurate, but taken together they paint a different picture. Through implication or innuendo, one can create libelous messages.

libel per quod

A statement actionable as defamation only when the plaintiff introduces additional facts to show defamation.

libel per se

A statement whose injurious nature is apparent and requires no further proof.

limited-purpose public figure

In libel law, a plaintiff who has attained public figure status within a narrow set of circumstances by thrusting themself to the forefront of particular public controversies in order to influence the resolution of the issues involved, this kind of public figure is more common than the all-purpose public figure.

motion to dismiss

A request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way.

Negligence

Acting with a failure to exercise due care or a failure to follow professional standards.

negligent

An act or statement made by mistake or without anticipating the possible harm the act or statement could cause.

negligent infliction of emotional distress

Careless breach of a duty that causes the plaintiff severe emotional harm.

outrageous and extreme conduct

Conduct that a reasonable person would consider beyond the scope of all possible bounds for decency.

prima facie

Latin for "at first look" or "on its face"; evidence before a trial that is sufficient to prove the case unless substantial contradictory evidence is presented.

private figure

A plaintiff who cannot be categorized as either a public figure or a public official. Generally, in order to recover damages, a private figure is required to prove negligence on the part of the defendant.

publication

Making a statement to more than the plaintiff and defendant.

public figures

In libel law, a plaintiff who is in the public spotlight, usually voluntarily, must prove the defendant acted with actual malice in order to win damages.

purposeful avoidance of the truth

Publishing information when there are obvious doubts about the accuracy of information and not taking obvious steps to check its accuracy.

Reckless

An action taken with no consideration of the legal harms that might result.

reckless disregard for the truth

Publishing information with serious doubts about whether information is accurate or purposefully avoiding the truth.

republication

Repeating libelous information.

Sedition Act of 1798

Federal legislation under which anyone 'opposing or resisting any law of the United States, or any act of the President of the United States,' could be imprisoned for up to two years. The act also made it illegal to 'write, print, utter, or publish' anything that criticized the president or Congress.

substantial truth

A statement that is primarily accurate in substance related to the sting of a defamatory statement despite having minor inaccuracies.

absolute privilege

A complete exemption from liability for defamation because the statement was made within the performance of official government duties.

anti-SLAPP laws

State laws meant to provide a remedy for a SLAPP. Plaintiffs have the burden to show that they will prevail in the lawsuit; otherwise, the suit is dismissed.

fair report privilege

A privilege for accurate and fair reports on the content of official records and proceedings. Sometimes called conditional privilege.

Federal Rules of Civil Procedure

General rules that govern all civil proceedings in the U.S. district courts.

libel-proof plaintiff

A plaintiff whose reputation is deemed to be so damaged that additional false statements of and concerning them cannot cause further harm.

neutral reportage

In libel law, a defense accepted in some jurisdictions that provides First Amendment protection for reporting of an accusation made by a responsible and prominent organization, even when it turns out the accusation was false and libelous.

retraction statutes

In libel law, state laws that limit the damages a plaintiff may receive if the defendant has issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good-faith effort of admitting a mistake.

single-publication rule

A rule that limits libel victims to only one cause of action even with republications of the libel in the same outlet; common in the mass media and on websites.

SLAPP (strategic lawsuit against public participation)

A lawsuit whose purpose is to harass critics into silence, often to suppress those critics' First Amendment rights.

appropriation

Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission.

artistic relevance test

A test to determine whether the commercial use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed work's artistic purpose.

Avatar

An icon or image that represents a person in a video game or other computer-generated content.

biometric data

This type of information relates to personal characteristics, such as fingerprints or unique facial features, that may be used to identify an individual.

class action lawsuit

A lawsuit in which a group of people with similar injuries caused by the same product or action sue a defendant as a group.

commercialization

The appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission.

data broker

An entity that collects and stores personal information about consumers, then sells that information to other organizations.

decisional privacy

An individual's interest in having independence to make important decisions, particularly decisions related to one's intimate life.

disclosure of private facts

Publicizing highly offensive, true private information that is not newsworthy or lawfully obtained from a public record.

fact finder

In trial, a judge or the jury determines which facts presented in evidence are accurate.

Fair Credit Reporting Act

A federal law that addresses the accuracy, fairness and privacy of information stored in consumer reporting agency files.

false light

A privacy tort, not recognized in all states, that involves making persons seem in the public eye to be persons they are not.

highly offensive to a reasonable person

Something that would outrage community notions of decency.

informational privacy

An individual's interest in avoiding having personal matters disclosed.

intrusion upon seclusion

Physically or technologically disturbing another's reasonable expectation of privacy.

mug shot

The law enforcement photograph of an arrested person's face.

newsworthy

Matters that are of legitimate public concern or interest.

post-mortem (After death)

Post-mortem right of publicity generally refers to famous persons' ability to control the commercial use of their name, picture, likeness, voice, and identity after death.

predominant use test

In a right of publicity lawsuit, to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression.

private facts

Information that is asserted as a true statement and is not newsworthy or of legitimate public concern.

probable cause

The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

public record

A government record, particularly one that is available for people to inspect.

reasonable person

The law's version of an average person.

right of publicity

The appropriation tort protecting celebrities' rights to have their name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission.

search warrant

A legal order by a judge to authorize law enforcement to search locations and seize items. Only issued with probable cause.

sound-alike

Someone whose voice sounds like another person's voice. Sound-alikes require permission or a disclaimer for commercial use.

third-party doctrine

A legal concept that holds that people who voluntarily give information to third parties, such as banks or phone companies, forfeit any reasonable expectation of privacy in that information.

transformative use test

A test to determine whether the First Amendment protects a work that uses a person's name, picture, likeness, voice, or identity for artistic purposes. Changing the original to give it new meaning or a different message justifies First Amendment protections.

widespread publicity

Making material available to a lot of people or the general public.