MEJO 340 Libel

Libel formula

Defamation plus falsity.

Parties who can sue for libel

Living individuals, businesses, and nonprofit groups.

Can the government sue for libel?

No, the government cannot successfully sue for libel.

Six essential elements of a libel suit

Defamation, identification, publication, fault, falsity, and injury/damages.

Libel per se

Words that are obviously defamatory on their face.

Libel per quod

Words defamatory only through innuendo, context, or explanatory circumstances.

Product disparagement (trade libel)

Defaming the quality or usefulness of a commercial product.

Elements required for product disparagement

Must prove both actual malice and actual financial loss.

Identification requirement in libel

Requires third-party recognition showing the statement is of and concerning the plaintiff.

Group libel rule: fewer than 25 members

An accusation against the group identifies every individual member.

Group libel rule: 25 to 100 members

Blanket slurs allow identification, but limited accusations do not.

Group libel rule: more than 100 members

No individual identification is recognized.

Publication requirement in libel

The allegedly libelous charge must reach at least one third party.

Republication rule

Republishing a libelous statement generally carries the same liability as the original.

Communications Decency Act Section 230(c)(1)

Protects interactive computer services from publisher liability for third-party content.

Communications Decency Act Section 230(c)(2)

Good Samaritan protection for voluntary, good-faith restriction of objectionable content.

When does CDA Section 230 not protect platforms?

When editing alters meaning, creating discriminatory content, or certain product defects.

New York Times v. Sullivan (1964)

Established that public officials must prove actual malice to recover damages.

Actual malice

Knowledge of falsity or reckless disregard for the truth.

Definition of a public official

Government employees with policy control, public fund authority, or high public visibility.

Curtis Publishing Co. v. Butts & AP v. Walker

Extended the actual malice standard of fault to public figures.

All-purpose public figure

An individual with widespread fame, special prominence, and continuous media access.

Limited or vortex public figure

Someone who voluntarily thrusts themselves into a public controversy to influence its outcome.

Negligence standard in libel

Failure to exercise ordinary or reasonable care under the circumstances.

Libel fault standard for private persons in NC

Negligence.

Philadelphia Newspapers v. Hepps (1986)

Placed the burden of proving falsity on the libel plaintiff in matters of public concern.

SLAPP suit

Strategic Lawsuit Against Public Participation meant to silence protected speech through litigation costs.

Statute of limitations for libel in NC

One year from the date of publication.

Fair report privilege

Protects accurate republication of statements from privileged official proceedings and public records.

Milkovich v. Lorain Journal (1990)

First Amendment opinion defense protects hyperbole and statements incapable of being proven true or false.

Fair comment and criticism

Common law defense protecting opinion reviews of books, performances, food, and public activities.

Retraction statute remedy in NC

Publishing a timely retraction prevents the award of punitive damages.

Six Elements of a Libel Case

1. Defamation

2. Identification

3. Publication

4. Fault

5. Falsity

6. Injury and Damages

Publication Tort

1. Appropriation

2. False light

3. Public disclosure of embarrassing private facts

What is the third-party doctrine?

1. Lawfully held information by a third party is DIFFICULT to be re-obtained.

2. Can subpoena the third party, secure their consent or by other means of legal discovery.

3. No search warrant is required (Smith v. Maryland, 1979)

4. The person who surrenders info to a third party consents to the third party's disclosure of this info to others.

appropriations tort

1. Use of a person's name or image for commercial purposes without that person's permission

   1. News purposes get permission

2. Celebrities will suffer a violation of 'right of publicity'

3. Private people suffer emotional distress for shame and humiliation

4. Recognized in NC

Defenses: It’s news, not commercial or consent

Hustler v. Falwell

Hustler magazine had a satirical article accusing evangelist Jerry Falwell of incest. He sued for defamation. The Supreme Court struck down Falwell’s initial victory and said that parody was protected from libel cases and did not reach actual malice.

Third-Party Doctrine

People who voluntarily give information to third parties, such as banks and phone companies, generally have "no reasonable expectation of privacy" in that information.

False Light Tort

Publication of information that is highly offensive and substantially false and puts plaintiff in a “false light”

Defenses: Consent

Publication Disclosure of Embarrassing Facts Facts

Publication of an outrageous story, highly offensive, not a a legitimate concern of the public

Defenses: Fair report, newsworthy, consent

Bartnicki v Vopper

An unknown person recorded a phone call between the chief union negotiator and the union president, which was played on the radio. Plaintiff sued for wiretapping.

Courts ruled that parties that did not participate in the illegal wiretapping could publish as the information was a legitimate concern of the public.

Newsgathering Tort: Intrusion

Intrusion of ones private affairs.

Defense: In public space or consent

Gertz v. Robert Welch

Splits public figures into all-purpose and limited or vortex public figures

All public figures must prove actual malice.

States can decide standard of fault for private person libel plaintiffs.

What journalistic behaviors constitute actual malice?

High degree of awareness of the probable falsity of accusations

journalist has serious doubts about the truth of a story

accusations so improbable that only a reckless person would have published

purposefully avoided the truth by ignoring obvious sources

A study of libel cases showed negligence is likely to be found when

There is a discrepancy between what a reporter says he was told by a source and what the source said he told the reporter

when a journalist makes little or no effort to contact the subject of the defamatory charges,

when a story is based on only one source or when information is not verified through official or reliable sources

Damages for Reckless Disregard

Compensatory: Remunerative for loss of a job, income, or future

Punitive: Punishing the writer to discourage further action

Gonzales v Google

SCOTUS declined to rule on whether targeted recommendations by a social media company’s algorithms would fall outside the liability of SEC 230.

Twitter v. Taamneh

SCOTUS ruled that social media companies did not “aid and abet” an ISIS terrorist attack because their algorithms recommend ISIS content or they failed to remove content that recruited members

Netchoice cases

Content moderation is a protected editorial activity under 1A