COM 505 - Exam 2 (Defamation, Libel & Privacy)

Burden of Proof

*is on the plaintiff the plaintiff has the burden of proof to present evidence

Libel Defenses

- Opinion - Truth - Fair Report Privilege - Hyperbole, Satire, Parody - Neutral Reportage - Fair Comment - Statute of Limitations - Wire Service Defense

Defamation

- injuring a person's name and reputation - lowering reputation in the esteem of the community - exposes person to hatred, ridicule or contempt

Private Facts

- publishing highly offensive/embarrassing - true private information that is not newsworthy or lawfully obtained from a public record Private Facts Claim - publicizing, widespread - private, intimate facts highly offensive to a reasonable person - are not a legitimate concern to the public defense: first amendment (truthful information obtained from public records

Libel by implication

Although every fact in a publication may be true, the arrangement of the facts or the omission of some facts creates a false and defamatory impression.

Neutral Reportage (libel defense)

An emerging libel defense or privilege that states that it is permissible to publish or broadcast an accurate account of information about a public figure from a reliable source even when the reporter doubts the truth of the libellous assertion. The defense is not widely accepted. - newsworthy charges that create or are associated with the public controversy - by a responsible and prominent source. - reported accurately and neutrally - about public official or public figure

absolute privilege

An immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties

Falsity

The plaintiff must prove the defamatory statement is false

Katz v. US

This 1967 Supreme Court case prohibited illegal eavesdropping and extending the zone of privacy to include the home, office, person, and immediate public arena. "reasonable expectation of privacy test" The test: 1. The person must have exhibited an actual expectation of privacy and 2. the expectation must be reasonable

truth (defamation )

Truth is frequently considered an absolute defense. That is, the defendant cannot be held liable for defamation, regardless of whether damages result, if the statement made was true.

Appropriation

Using a person's name, picture, likeness, voice or identity for commercial or trade purposes without permission for commercial purposes To win appropriation case: - name/likeness used for advertising or commercial purposes without permission - of/concerning her/him, identifying - widely distributed

False Light

invading a person's privacy by implying something untrue about him or her False Light Claim Must prove: (1) published, widely distributed (2) plaintiff was identified (3) False (4) highly offensive to a reasonable person (5) actual malice for private and public defenses: truth, libel defenses

Masson Case

quoted statements, deliberate altercation of the words uttered by a plaintiff does not equate go with knowledge of falsity, unless altercations result in a material change in the meaning conveyed by the statement

Libel/Slander (difference)

spoken word - slander written word - libel

Fault

the plaintiff must show the defendant was at fault in making public the allegedly false and defamatory statement of fact -Public officials and public figures must prove actual malice as a standard -Private individuals must only prove negligence.

All-Purpose Public Figures

those who "occupy positions of such pervasive power and influence that they are deemed public figures" at all times must prove actual malice in order to win damages

reckless disregard for the truth criteria

urgency of the story source reliability number of sources story believability

AP v. Walker (1967)

walker was found to be a public official, actual malice was not proven- Supreme Court took actual malice from only public officials, to public figures as well Edwin Walker, an Army officer and politician, was angered by negative publicity he was receiving for his conservative political views. He began to file libel lawsuits against various media outlets. One of these suits was in response to coverage of his participation in the University of Mississippi riot, specifically that he had "led a charge of students against federal marshals" and that he had "assumed command of the crowd." A Texas trial court in 1964 found the statements false and defamatory. The decision was appealed, as Associated Press v. Walker, all the way to the United States Supreme Court, but the Court ruled against Walker and found that although the statements may have been false, the Associated Press was not guilty of reckless disregard in their reporting about Walker. The Court, which had previously said that public officials could not recover damages unless they could prove actual malice, extended this to public figures as well.

Republication Rule

you can be held responsible for the republication of a libellous comment vendors and distributors cannot be sue for libel based on the works they make available because they don't control the content of the products

Ontario v. Quon

A United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. Quon used his work-issued pager to send sexually explicit text messages not related to work. Quon paid overage charges, and thought he had a reasonable expectation of privacy. His company looked through the texts and disciplined Quon. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.

prima facie case

A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces contradictory evidence.

Private Figures

A libel plaintiff who is not a public figure or public official. In most states, a private figure libel plaintiff need prove only that the defendant acted negligently.

artistic relevance test

A test to determine whether the use of a celebrity's name, picture, likeness, voice or identity is relevant to a disputed work's artistic purpose. It is used in cases regarding the infringement of a celebrity's right of publicity.

Curtis Publishing Co. v. Butts

Article was published claiming that UGA coach, Butts, and UA coach, Bryant, had conspired to fix a game. Butt claimed libel and sued. This case determined that public figures are held to the same standard as public officials. Had to prove actual malice to receive damages. Curtis Pub. Co. won.

How to answer law hypotheticals

I: would Sullivan prevail in libel suit against the New York Times? R: To determine libel, a court must first determine what kind of figure the person is as different standards apply to different kinds of people. For public officials the standard is they have to prove actual malice for a statement to be libelous against them. For private figures, only negligence must be proven for a statement to be libelous. A person is public official when he/she is [where you would put in that rule]. Actual malice is when a when [whatever the rest of the rule for actual malice is]. Minor errors that do not alter the meaning of a statement and that are substantially do not give rise to actual malice. A: Because Sullivan was a police officer and fireman commissioner he is a public official. His occupations allow him to be in a role ordering society with easy access to the media. Because Sullivan is likely a public official, he would need to prove actual malice to prevail on a libel claim against the New York Times. No facts suggests that the New York Times [this is where you would apply the actual malice rule]. Though there were errors in the publication, those errors were minor and the statement was substantially true, therefore those minors errors are not enough to satisfy actual malice. C: Therefore, because Sullivan is a public official and cannot prove actual malice, he is unlikely to prevail in libel suit against the New York Times. *example from Marissa, some rules missing****

Privacy Torts

Intrusion on an Individual's Affairs or Seclusion False Light Appropriation for Commercial Gain Public Disclosure of Private Facts

Gertz v. Welch (1974)

Lawyer sued for libel when outrageous charges were printed, tried to label him a limited-purpose public figure, but he was simply doing his job as a lawyer and had no influence on the outcome making him a private figure. private figure does not have to prove actual malice, just negligence

Elements of a Libel Claim

Libel law meant to protect an individual's reputation 1. statement of fact 2. that is published 3. of and concerning the plaintiff, 4. defamatory 5. false 6. cause damage or harm 7. fault of defendant

Defenses for Appropriation

Newsworthiness, consent, 1st amendment News Public Domain (baseball stats/names) First Amendment (satire/parody/artistic expression) Incidental Use (brief, fleeting) Advertising for a mass medium Consent

Statement of fact requirement

Making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than a personal opinion

Publication (libel)

Means that one person, in addition to the source of the libel and the person who is defamed, sees or hears the defamatory material.

substantial truth

Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of libellous charge can be justified a statement cannot be held to be slanderous or libellous if it is true; the substantial truth doctrine extends this protection by holding that a statement with "slight inaccuracies of expression" do not make the alleged libel false.

Section 230 of the Communications Decency Act

Protects Internet service providers (ISPs) from libel when others create potentially libelous content, although the protection is not absolute protects distribution not creation Immunity applies if: - ISP is content distributor not creator - ISP did not interact directly with the contnet also applies if: - meaning isn't substantially altered - users are encouraged to submit

Cox Broadcasting v. Cohn (1975)

Rape victim Cynthia Cohn was identified in public records and Cox used her name in its coverage of her assailant's trial She sued under Georgia law that made it illegal to publish the name of a rape victim Court stated that it is right to publish truthful info obtained in public records

Third Party Doctrine

You forfeit any reasonable expectation of privacy when you share information voluntary to third parties

Fair Comment Privilege

a common law defense to libel; a privilege to make statements of honest opinion on matters of public interest

Ollman Test

a four-part test to determine whether a statement should be regarded as the assertion of a fact or as simply the speaker's or writer's opinion. 1. Verifiability (true or false) 2. Common meaning 3. Journalistic context 4. Social context Emerged from the case of Ollman v. Evans - up for promotion, someone called him a Marxist, offer rescinded, said it was protected by opinion The four parts: 1) Can the statement be proved true or false? 2) What is the common or ordinary meaning of the words? 3) What is the journalistic context of the remark? 4) What is the social context of the remark?

Summary Judgement Standard

a judge must view points most favourable to the defendant

limited purpose public figure

a plaintiff who has attained public figure status with a narrow set or circumstances by thrusting themselves to the forefront of particular public controversies

Libel-proof plaintiff

a plaintiff whose reputation is deemed to be so damaged already that additional false statements of and concerning him or her cannot cause further harm

Libel per se

a statement whose injurious nature is apparent and requires no further proof

Actual Malice

in libel law, a statement made knowing it is false or with reckless disregard for its truth meaning of words should not be changed

Public Officials

an elected public officer or is an appointed public official who has or appears to have considerable responsibility for or control over the conduct of governmental affairs. must prove actual malice in order to win damages

Fair report privilege - elements

journalists can report ANYTHING said in official government proceedings even if they are defamatory or slanderous protects the media if defamatory material is published in an article based on an official report *sometimes called conditional privilege Elements: - information must come from official record or proceeding - news report must fairly and accurately reflect information from public record or proceeding - source of the statement should be clearly noted in police report

Communications Decency Act

largely attempted to regulate internet content

NYT vs. Sullivan

libel case, civil rights movement 1960s, AA seeking racial equality under the law, standard: to readily punish a media organisation for publishing criticisms of government officials was contrary to "the central meaning of the First Amendment", set the actual malice standard

Wire Service Defense

libel defense; - not responsible if received from a reputable news-gathering agency, - did not know story was false - nothing in story to make suspect/alert, no substantial changes to the original

Libel per quod

libel that is actionable only when the plaintiff introduces additional facts to show defamation or claims special damages

Damages (consequences for libel)

monetary compensation that may be recovered in court by any person who has suffered loss or injury. Damages may be compensatory or punitive

Public Figures

people who assume roles of prominence in society or thrust themselves to the forefront of public controversy must prove actual mterm-27alice in order to win damages

Intrusion

physically or technologically disturbing another's reasonable expectation of privacy defense: consent

Identification

plaintiff is requited to show that he or she was the specific person or part of a small group whose reputation was harmed

Commercialization (Appropriation)

prohibits using another person's name or likeness for commercial purposes without permission the appropriation tort used to protect people who want privacy dies with individual

Rights of Publicity (Appropriation)

protects the value of a person's name and likeness by preventing others from using them without permission; protects a person's hard-earned value of their name *for celebrities, doesn't die with individual