Media Law Exam 2

What constitutes intentional infliction of emotional distress?

(1) extreme and outrageous conduct,... (2) which is intended to cause, and... 3) does cause severe emotional distress to another. Plaintiff must show the emotional injury is very serious or severe. That he/she experienced mental pain or anguish. Merely being upset or embarrassed is not enough. § Usually psychologist § Hard to prove psychological emotional damage. Defendant's actions must have been outrageous. o Most journalist defendants win because courts do not find their actions to be outrageous. Most conduct not extreme and outrageous

Special rules regarding fault in Colorado

*Four states (CO, Alaska, Indiana, and NJ) require private persons involved in matters of public concern to prove actual malice. Only private figures involved in matters of private concern must prove negligence to win.

The six elements a plaintiff in a defamation suit must usually prove

1. Publication 2. Identification 3. Defamatory content 4. Injury 5. Falsity 6. Fault

Does the First Amendment immunize a reporter from punishment for trespassing on private property to obtain information for a story?

1st amendment DOES NOT protect a journalist, filmmaker, or anyone anyone else from trespass laws that are applicable to the general public

What elements or factors must be present for a plaintiff to win a suit for invasion of privacy based on the disclosure of private facts?

Disclosure of private facts: giving publicity to non-newsworthy, private facts that would be highly offensive to a reasonable person.

What constitutes a private fact? Publicizing?

Disclosure of private facts: giving publicity to non-newsworthy, private facts that would be highly offensive to a reasonable person. Giving publicity: widespread dissemination (internet, published, etc) Non-Newsworthy: not of legitimate concern to the public. Matter of public concern. what is newsworthy varies by locality. Private: truly private, little-known info, not part of public records or proceedings. As soon as talk about, not private Offensive: for a reasonable person, a jury determination

Food Lion v. Capital Cities/ABC, 4th Cir.

Grocery store Employees claim unsafe food practices (expiration) Two reporters use false names and false applications to gain entry to a Food Lion grocery store; wear hidden recording devices to tape employees. -Ask supervisors what to do with spoiled food- put in bleach, marinade in bbq sauce, don't clean meat knife ABC publishes-Food Lion sues for intrusion Jury awards Food Lion $5 million! Reasonable expectation of privacy for those working behind a business. Look at damage to reputation, calculate how much lost due to circulation. Sounds like compensatory...would need to prove defamation (But true statements) Higher court says: guilty of intrusion, but damages reduced to $2 for "breach of loyalty".

How a plaintiff can be identified

Incorrect pictures and captions: Using someone's picture to illustrate a story that is not about them might be libelous. Putting the wrong picture and using the correct captions might be libelous. Using the right picture and the wrong captions might be libelous. By putting picture by story, identifies by association!

Florida Star v. B.J.F. (1989)

Police accidentally released name of rape victim, reporter got info, published Rape victim sued, Lawsuit against police department successful, against paper failed A state may not punish the publication of truthful information lawfully obtained unless necessary to further a state interest of the highest order (a compelling interest).

The right of publicity

Property right Right to profit from one's publicity/celebrity Violation causes monetary loss Protects famous or well-known individuals Used by famous people when suing for monetary harm because image used w/o compensation.

Post-mortem right of publicity

Property right can be inherited/is transferable EX: Michael Jackson gave family right to control image, most valuable dead person

Absolute privilege

Protects anyone speaking in a 1)legislative forum (federal, state and municipal) 2)courtroom proceeding 3)individuals who work in the administrative or executive branches of govt To conduct govt business, have to be able to speak mind w/o fear of lawsuit. Have to have truth in govt for govt to operate properly. Speaker can't be sued for defamation. Does not apply if you say the same thing in a different setting (EX: statement on the floor vs statement in press release, ads)

The factors courts consider in determining if negligence is present in a libel action.

Reliance on an untrustworthy source; Not reading or misreading pertinent documents; Failure to check with an obvious source, perhaps the subject of the story; and Carelessness in editing and news handling. Did the reporter make a good faith effort to determine the truth or falsity of the matter?

The "republication rule" and section 230 of the CDA

"the bearer of tales is as guilty as the teller of tales" Each person who participates in the repetition or republication of a libelous statement can be held legally liable. Includes accurately quoting a source. Idea is it's just as bad to spread false info as to originate false info. ISP exception: Section 230 of CDA: "Common carriers are not liable". Bookstores, newspaper stands, telephone companies are not libel, same with retweets. Can't be sued for content posted for any reason. Intended for big companies, interpreted to apply to all websites. 1996: communications decency act (harder for minors to find porn): Asked providors to edit content to make it harder to find porn. Said no, we will not edit it so we can't be sued for libel. OSPs are not treated as publishers or republishers of information provided by their systems by others. Therefore, an ISP cannot be held liable for defamation by a third party, just as a library or news vendor is not liable. Very broad exception and applies to a long list of web sites and torts other than defamation. Hyperlinks to defamatory content are not liable. Retweets are not liable (although some argue this should change). Came from 90's false statement of fact on AOL page, said they are like telephone company, common carrier, didn't directly publish material. EX: Roommate.com. One question asked abt preferred race, illegal! Discrimination. Therefore, not a common carrier.

Philadelphia Newspapers v. Hepps

*defamation - falsity* newspaper claimed that Hepps convenience stores benefited from gov't favoritism; PA law required defendants to prove statements true/false; court ruled that plaintiff must prove falsity, otherwise, chilling effect on reporting matters of public concern; created Hepps rule - plaintiff must prove falsity. Whenever the subject of the report that gave rise to the libel suit is a matter of "public concern", the plaintiff, whether public or private, must prove the falsity of the defamatory statements.

Rosenblatt v. Baer

- Supreme Court declared that a former supervisor of a county-owned ski resort might be a public official - SC said that public officials are government employees who "have or appear to the public to have, substantial responsibility over government affairs" - Does not have to be fancy title - The supervisor's position might invite public scrutiny and/or discussion of himself

What about accompanying public officials onto private property?

-COPS For the media, issues can arise in "ride along" or "follow along" situations or "undercover investigations" You may film public traffic stops. · getting pulled over by cops, even taken into custody In private areas, permission must come from: · Owner of the property, or... · Lawful possessor (renter or operator) of the property Also raises Fourth Amendment concerns-if bringing journalists, violates warrant, no evidence can be used against you · Wilson v. Layne (1999): Warrants grant police right to enter; not journalists

Dun & Bradstreet v. Greenmoss Builders

A Supreme Court case which held that a credit reporting agency could be liable in defamation if it carelessly relayed (i.e. publish) false information that a business had declared bankruptcy when in fact it had not.**established that public and private companies are treated like private people in defamation cases, meaning it makes it easier for them to win defamation cases.*** The requirement for actual malice for presumed and punitive damages applies only when the defamation involves a matter of public concern -if private individual with a matter of public concern and wants presumed or punitive damages, must prove actual malice.

Trade libel or product disparagement.

A communication that defames a commercial product rather than the company that makes it. Some states have laws against the communication of false information about food safety "veggie libel laws" EX: Texas, against the law to defame beef or beef products. Oprah was sued, defense was "it was an opinion statement based on fact". EX: Georgia, illegal to defame olives or olive oil. Dr. Oz Advertisements that claim a competitor's product or service is of poor quality can be libelous. This includes political ads and communications from nonprofits, including emails, news letters, etc.

Internet Jurisdiction

A court must establish "personal jurisdiction" over you to make you come to court to defend yourself. There are a variety of tests for determining when a court has jurisdiction over you. You must sue in the district where both the plaintiff and defendant live. Must satisfy these tests to prove that they live there.

Libel proof plaintiffs

A plaintiff with such a poor reputation that nothing anyone could say or write about the person could harm the reputation further. Very limited category of plaintiffs. EX: Pittbull and Lindsey Lohan, said "locked up like Lindsey Lohan". Defense was that nothing he said abt her could lower her reputation.

What constitutes trade or advertising purposes?

Advertisements on television, radio, billboards, website banner ad, etc. Ads in stores. Products (t-shirts, posters, mugs). Endorsements/testimonials. Commercial entertainment EX: "come buy a car like 50 did" deemed illegal

The correct legal definitions of public official

All elected officials and candidates for office are public officials. To be a public official, you must be employed by the government. BUT not all government employees are public officials unless you are ELECTED to your position. Rosenblatt v Baer 1966: SCOTUS held that the public official category includes "at the very least...those among the heirarchy of govt. employees who have, or appear to the public, substantial responsibility for or control over the conduct of govt. affairs" EX: secretary of the mayor NOT a public official, the mayor IS Courts look at... -Does the individual control expenditure of public money? -Does the individual have the ability to set govt policy or make govt decisions? -Does the indvidual have control over citizens (responsible for health, safety, welfare)? -Are they highly publicly visible

Statute of limitations and defamation

All states have a statute of limitations on defamation claims, typically ranging from one to three years. In Colorado, it's one year from the date of publication. Material on the internet is considered published when it is first posted, even if the material remains available. EX: blogs, only cite the original defamatory information date of publication, not any updates.

Who can sue for defamation?

Any living person: can't sue on behalf of dead relative. Generally, only living people can sue for defamation. In some countries where family reputation important, can sue them. If plaintiff dies in the middle of a case, case can go on. A corporation: EX: United Airlines could sue you An unincorporated association, organization or society, including a labor union, charitable foundation, or fraternal organization: EX: say something about another non-profit, they can sue you for defamation. Can be sued both as an individual and the org you work for.

Hustler v. Falwell (1988)

Campari advertisements "first time" Campari, an Italian aperitif, runs ad campaign consisting of fake "interviews" with celebrities who discuss "their first time." In 1983, Hustler Magazine printed a parody of the advertising campaign for Campari, an Italian aperitif. The fake Hustler ad featured a fake "interview" with the Protestant minister Jerry Falwell. Falwell sued for invasion of privacy, defamation, and intentional infliction of emotional distress. Under the First Amendment, can a nationally known minister who has been active as a commentator on politics and public affairs sue the magazine and its publisher to recover damages? Not appropriation, not intrusion, not embarrassing private facts, not defamation, BUT YES IIED · Lawyer argues this is matter of taste. Designed to make people feel bad abt themselves. If allow this to proceed, all political satire gone! · Rule in favor of hustler magazined · In a suit for intentional infliction of emotional distress, a public official or public figure cannot win unless he or she can show that a false statement of fact was published with actual malice. NOTHING WAS TRUE NO FACTHustler won!

Group libel

Can a member of a group sue for libel if the entire group is defamed but the member is not mentioned individually? Maybe...depends on the size of the group (no magic number), nature of the statement. If explicitly say "all members of the group", then everyone defamed. EX: Elias v Rolling Stone. Published store about a rape on campus as an initiation for a frat. Proved to be untrue, sued by both the university and the frat. Could individuals of the frat sue? Yes, readers could conclude that each member was implicated, so every single member could sue. Generally, more likely to succeed in small communities or when the statement is broad.

The definition of "public concern" in Colorado.

Colorado courts have indicated "a matter is of public concern whenever it embraces an issue about which information is needed or is appropriate, or when the public may reasonably be expected to have a legitimate interest in what is being published."

Milkovich v. Lorain Journal

Columnist said a coach lied under oath about his role in a brawl. Newspapers argued the column was constitutionally protected as a statement of opinion. Court focused on single question: Can the statement be proven true or false? Supreme Court said calling someone a liar was an assertion of fact, not an opinion. Replaced by the Ollman test

The definition of defamation

Communication that injures a person's reputation; communication that exposes a person to hatred, ridicule, or contempt, lowers him in the esteem of others, causes the person to be shunned, or injures him in his business or profession. False statement of fact that damages reputation. Individuals have a right to their reputation. All about balancing right to reputation with a right to free expression. Takes Meiklejohn approach-political speech gets most protection! EX: NOT Trump's tax returns b/c true statement of fact. Can't just make fun of or make feel bad

Privilege for communications of mutual interest.

Communications between business associates or others who have a professional relationship recieve a qualified privilege. Statement is privileged if... -it is about something in which the speaker has an interest/duty -hearer has a corresponding interest or duty -statement is made in protection of that interest or performance of that duty -speaker honestly believes the statement to be true EX: Natalie asks for letter of rec for grad school. Dr. Silver thinks bad student, accidentally writes letter saying bad, and got D. She sues, he would say this privilege. Dr. Silver speaker, school is hearer.

The types of damages available in libel actions and any special requirements associated with certain types of damage awards.

Compensatory: designed to compensate for harm caused by allegedly defamatory statements. General or actual: actual damages are damages to reputation itself. Mental suffering, stigma that comes with losing place in community. Special compensation for actual money loss. EX: salary from losing jobs Presumed: from common law, old. Presuming that whatever was said was very bad. Large compensatory damages. Requires proof of actual malice (knowledge falsity, reckless disregard of truth) if subject or report was matter of public concern. Punitive: designed to punish the defendant rather than compensate the plaintiff. All plaintiffs, public and private, must prove actual malice to collect punitive damages if the libel suit resulted from publication of a report on a matter of public concern.

Consent

Consent: law prohibits unauthorized use of name or likeness for commercial or trade use. Contracts or release: *best* outlines the way in which the photos can be used, includes compensation. Written permission: not unilaterally binding like a contract Oral permission: In ag, oral permission seen as a binding contract. In Hollywood, used to be this way for movie deals. May not be valid at future dates. Some individuals can't get consent: children, unstable elderly, developmentally delayed people, intoxicated people.

Consent and the types of consent

Consent: law prohibits unauthorized use of name or likeness for commercial or trade use. Contracts or release: *best* outlines the way in which the photos can be used, includes compensation. Written permission: not unilaterally binding like a contract Oral permission: In ag, oral permission seen as a binding contract. In Hollywood, used to be this way for movie deals. May not be valid at future dates. Some individuals can't get consent: children, unstable elderly, developmentally delayed people, intoxicated people.

Internet and anonymous posters

Courts are required to balance the first amendment right to anonymous speech with a plaintiff's right to their reputation. Courts have developed numerous tests for balancing these competing rights. Can't sue the website for the anonymous poster. "John Doe" lawsuit-can ask court to unmask anonymous poster, forcing websites to reveal the identity. Must demonstrate a high likelihood of winning. Sometimes websites just give up names, don't want hassle of court. (Can get super messy)

The constitutionality of laws punishing newspapers or broadcast stations for revealing the names of rape victims if such information is obtained through public records or is otherwise lawfully obtained.

Cox Broadcasting v. Cohn (1975) -Georgia allowed printing names of rape victims, couldn't broadcast. Guy snuck in, heard and then talked about it on air -Family lost -Information obtained from public records does not constitute private facts and, therefore, cannot be the basis for a disclosure of private facts lawsuit. EX: Spotlight

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

Curtis Publishing Co. v. Butts (1967) · evening post gets told abt secrete phone call between ath. director of Georgia and alabama, don't check with sports reporters, run story as is. § NOT breaking news-game had already happened § Source was accountant from atlanta (not credible) § Didn't even look up score/do background research) § Why would he sell this team out? How likely stumble upon this info? (not very probable) § ACTUAL MALICE!

Desnick v. ABC, 7th Cir. .

Desnick v ABC Desnick eye clinic tricked elderly to get eye surgery, gathering govt. funding "PrimeTime Live" uses fake patients to get access to an eye clinic with hidden recording devices. In doctor's office, reasonable expectation of privacy for patient, not doctor *note not defamation, b/c true (lol) The picking up, driving around, gave up reasonable expectation of privacy NO INTRUSION

Dickerson v. Dittmar

Dickerson p.i. hired to catch people having affairs Hired by Dittmar to watch wife, documented affair. Used pics in newsletter advertising company Wife sued for appropriation, lost Colo. Sup. Court: Although the use had commercial and non-commercial uses, it was primarily a non-commercial use involving an issue of public concern and thus protected.

What factors/questions do courts generally consider in determining if intrusion has occurred?

Did the plaintiff have a legit expectation or reasonable expectation of privacy? (If no reasonable expectation of privacy, no intrusion) Was the defendant invited in, or did she or he actually intrude? If invited in, did the defendant exceed the scope of the invitation or refuse to leave after being told to do so? Did the defendant use deception to gain admission? Did the defendant engage in misrepresentation or fraud?

The factors courts consider in determining whether actual malice is present in a libel action — direct, state-of-mind evidence and indirect or circumstantial evidence.

Direct, state-of-mind evidence — what the journalist(s) thought, believed, felt, said at the time the story was being produced. o Directly ask defendant on the stand o In Herbert v. Lando (1979) the U.S. Supreme Court said a libel plaintiff could inquire into a journalist's state of mind. Indirect or circumstantial evidence, typically including (but not limited to) (factors considered) o Story Timeliness: Was the news breaking? Was it "hot" news? o Source Credibility: How credible or reliable were the sources used? How reliable was the source of the story? o Story Probability: Was the story inherently believable or probable?

Single Publication Rule

Every distribution of a libelous statement is not a separate publication. You may only sue once. An internet publication is a single publication, even if the website is later updated with new, non-defamatory information. Can only sue within one jurisdiction.

The protection available for statements of opinion under both the fair comment defense and the First Amendment

Fair comment and criticism: Oldest form of protection for opinion-now not so important. Under common law, non-malicious statements of opinion, about matters of public interest are privileged (non-actionable). Protects non-malicious statements of opinions about matters of public interest. With advent of 1st amendment based privilege for statements of opinion, courts rarely cite this as a libel defense anymore. Opinions must be "fair", meaning have a factual basis either provided, generally known, or readily available to the public. EX: swimmer from hungary, iron woman. Report suggested she was taking steroids. Protected speech! Opinion based on fact. Two types of opinion statements protected by first amendment: parody (exaggeration, loose figurative language, rhetorical hyperbole {ex: picket line for mail carriers, when crossed, a "traitor to God, country, family, class. people who crossed sued, lost. Not literally espionage National Association of Letter Carriers v. Austin (1974).} or statements incapable of being proven true or false {world's dirtiest hotel, worst professor, ugliest sweater}) Even unverifiable statements of opinion can lose protection if... -imply existence of false, defamatory but undisclosed facts -are based on disclosed but false or incomplete facts, or -are based on erroneous assessments of accurate information

The traditional defenses to libel, their definitions and their limitations.

For most situations, burden of proof on plaintiff..fyi Truth: less important now b/c of falsity requirement placed on plaintiffs Absolute Privilege: Certain statements in a govt setting can't be sued for defamation (constitutionally) Fair report privilege: when you report on absolute privilege you are protected! Privilege for communication of mutual interest: business relationships Neutral reportage: in some controversial situations, if defamatory statement itself is newsworthy, can sometimes be protected. Rhetorical Hyperbole: more outlandish the statement, more protected it is Fair comment and criticism: was protection in common law, allowed criticism, restaurant reviews, etc.

Cox Broadcasting Co. v. Cohn (1975)

Georgia allowed printing names of rape victims, couldn't broadcast. Guy snuck in, heard and then talked about it on air Family lost Information obtained from public records does not constitute private facts and, therefore, cannot be the basis for a disclosure of private facts lawsuit. Cox won!

Gertz v. Robert Welch

Gertz was an attorney representing a family that had their child killed by a Chicago police department. "American Opinion," a communist conspiracy group claimed Gertz was a communist because he was part of the American Bar Association. Welch tried to prove Gertz was a public figure to make it harder for him to win. Court ruled Gertz was a private citizen and did not have to prove "actual malice," just "negligence" ("reasonable person standards"). **Established the standard of First Amendment protection against defamation claims brought by private individuals.** Court defined the term "public figure" and rule that private plaintiffs do not have to prove actual malice.

The elements of the false light ; identification; falsity; publicity; fault; highly offensiveness

Giving publicity to a matter concerning another that placed the other in a false light. MUST PROVE ALL The false light in which the other was placed would be highly offensive to a reasonable person, AND... The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other was placed. (actual malice). identification from above falsity: Are the words or images that caused the humiliation or embarrassment substantially not true? Wrong captions, photos etc mass publicity! widespread dissemination fault: actual malice highly offensiveness: Did the words cause embarrassment or humiliation? Was it highly offensive to the right to be left alone of a reasonable person? EX; active shooter, Dr. Silver "saved", wrong publication

What constitutes "publication" in a defamation suit?

Has occurred when at least one person other than the defamed has receive/heard the words. Print, online, broadcast, cable, satellite, and internet. Press releases, emails, advertisements, Twitter, Facebook, etc. Very specific for this area of law: communicated to one other person besides the person who was defamed. Only three people needed: person who said it, who it was said about, and person who heard/received it. One person hearing it is all it takes. EX: said something bad to Britney about her in personal office, not published. Said in hall, someone overhears it, published

Does the use of hidden cameras or tape recorders violate a person's right of privacy?

Hidden cameras: One can lawfully film, photograph and record that which can be easily observed in public places. The use of powerful electronic recording devices that allow you to observe that which cannot be seen by the naked eye could lead to an intrusion claim. Tape recorders: Depends on the state -All party vs one party consent rules -12 states require consent of all parties for taping. If you call one of those states, assume you are bound by the all-party rule. -In CO, one party taping state. Technically don't have to ask if okay to record them. Still polite thing to do. Taping in Colorado: -Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. -THIRD PARTY-against the law to record if not a part of convo Secret recordings: Depends on where you are, what doing, context of recording. no black/white answers.

Time, Inc. v. Hill (1967)

Hill family experienced home invasion by three convicts, took family hostage for a day. Author heard, wrote book based on it. Play made too. Three convicts made to appear worse than reality News story written abt play, said book is what happened to family. Family sues, not true. COURT: In a suit for false light invasion of privacy based on a report that is a matter of public concern, the plaintiff can win only if he or she proves the material was published with actual malice, that is, knowledge of falsity or reckless disregard for truth. Hill family lost!

Denver Publishing Co. v. Bueno (Colo. 2002)

In 1994, the Rocky Mtn. News ran a story about the criminal activities of the family of Pete and Della Bueno. § 15 of their 18 children had criminal records (one died in 1977). Eddie Bueno, one of the two sons who did not have an arrest record, sued for false light invasion of privacy. Court said no-will not recognize tort in Colorado. "We believe false light is too amorphous a tort for Colorado, and it risks inflicting an unacceptable chill on those in the media seeking to avoid liability." Bueno should have sued for defamation. No false light in CO!

Snyder v. Phelps (2011)

In 2011, members of the Westboro Baptists Church of Topeka, Kansas peacefully picketed the funeral of Marine Lance Corporal Matthew Snyder. "God Hates the USA," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "God Hates Fags," "Fag Soldiers," "You're Going to Hell," and "God Hates You" Snyder for defamation (nope-no false statement of facts abt individual), not publicity to private life (no facts), not intrusion (no info gathered), no IIED (b/c not talking directly about mourners, talking abt matters of public concern) "While these messages may fall short of refined social or political commentary, the issues they highlight . . . are matters of public import." "Such speech cannot be restricted simply because it is upsetting or arouses contempt."-Chief Justice John Roberts Court ruled in favor of phelps (baptist church)

US Supreme Court definition of "public concern"

In Hepps, Supreme Court provided no definition of the term, merely asserted that news about crime clearly was of public concern. "The boundaries of the public concern test are not well defined."-San Diego v. Roe (2004) "Speech that can be "considered as relating to any matter of political, social, or other concern to a community."-Connick v. Myers (1983)

Transformational use

In some situations, you may use a celebrity likeness if the user adds other elements to the image to significantly transform the work or use the individuals likeness as a vehicle for free expression. EX: Tiger Woods; individual created artistic work of him, sold outside of golf course. Caddy included too. Company sues artist artist company, protected because transformed! Added enough to make it freedom of expression, protected under the law EX: Hart v. EA; NCAA football game used more than 100 virtual teams that used real college's names, uniforms, etc. EA argued protected under transformative use, court disagreed! Lost had to pay $40 million. NOT transformative

What about sound-alikes or look-alikes?

Included too! EX: Kim Kardashian reached a settlement with Old Navy over a TV commercial featuring another actress meant to be Kim K. What is her likeness? Bottom! EX: Lindsey Lohan, Grand theft auto. Character wants to be picked up, drunk from party so she can have sex with boyfriend. Used heavily in marketing. Lohan sues (drunk socialite is in image and likeness). All about right to privacy. Court rules that video games are not trade or advertising purposes. Works of art, creative, not subject to appropriation. On appeal, ruled that not actually in her image/likeness. Instead, epitome of beach-going woman.

What constitutes identification in a defamation suit?

Is the statement "of and concerning" the plaintiff? Identification can be b name, picture, initials, penname, nickname, sketch, drawing, even a description. Do other people recognize the plaintiff?

How do courts determine if a plaintiff is a limited-purpose public figure, that is, the questions they ask?

Is the subject matter of the defamatory statement a preexisting public controversy? Story itself can't create controversy, but must already exist. The allegedly defamatory statement must relate to a public controversy. Did the plaintiff voluntarily inject himself or herself into the controversy? Had to have done this before allegedly defamatory statement. Did he or she try to affect the outcome or influence public opinion about the public controversy? Only including a person in the article doesn't make them a part of the movement before. A person cannot be made public by actions of the media (called bootstrapping).

When does the legal wrong occur?

Legal wrong occurs at the time of intrusion! Intrusion: highly offensive physical or electronic intruding into someone's private space or solitude. Doesn't matter how its used, all about gathering!! No publication/publicity necessary.

difference between libel and slander

Libel: written defamation Slander: spoken defamation Distinction has faded over years. Been around since the 1200's under British common law. Slander at first considered worse (no one could read/write). Then libel got worse (lasts longer, can be circulated). TV, internet made complicated to distinguish. *When there is a distinction, internet is formally libel. Defamation law is state law, no federal defamation laws. Many states do have similar laws.

Date of "publication" on the Internet

Material on the internet is considered published when it is first posted, even if the material remains available.

Edwards v. National Audubon Society, Inc.

NYT runs a story abt accusations being made by National Audobon Society. NYT was sued for defamation. NYT was protected, won the case. Created neutral reportage standard: All five must be met to apply: -newsworthy and related to a public controversy -made by a reasonable person or organization -made against a public official or public figure -accurately reported with opposing views -reported impartially

Examples of public officials, public figures and private figures discussed in class and the textbook

NYT v Sullivan: US established fault requirement for public officials. Civil Rights and defamation. Ad ran in NYT, placed by agency works a lot with, doesn't fact check. Newspaper distributed in Alabama. Sullivan is county comissioner, suggests defames him, asks NYT retraction. NO, sues for $500,000. Lost case in Alabama! Takes to SC. First Amendment requires that when public officials sue for libel they must prove actual malice (defendant acted with knowledge of falsity or reckless disregard for the truth). Must prove with convincing clarity. Brennan says requiring the press to know 100% certainty everything is true will silence free debate. Sometimes, false statements of facts which damage reputation allowed. National commitment to uninhibited, roust debate on public issues and Sullivan-type suits would stifle such debate (seditious libel). SULLIVAN LOST. As public official, Sullivan voluntarily took on a job that invited public attention and criticism. He had ready access to media to rebut defamatory statements.

What qualifies as name, likeness or identity?

Name, photo, voice or distinctive characteristics, basically is the individual (or their characteristics) recognizable? Does the jury believe the identity is of and concerning the individual? EX: photo of back for lotion, is it a recognizable back? if not, then legally allowed. EX: Midler v Ford Motor Co. After failing to come to an agreement with Midler to perform song for ad, they hire her backup singer. An advertiser who deliberately imitates the distinctive voice of a widely known professional singer to sell a product is liable under California law. Several witnesses testified they thought Midler was singing in the commercial. Sued for appropriation, Midler won!

The definition of "public controversy."

Never defined by SCOTUS, instead from DC Court of Appeals: "public controversy": real dispute over an issue affecting a segment of the general public, the resolution of which will have foreseeable and substantial ramifications for nonparticipants. EX: Climate change, gun control, BLM

Will the First Amendment protect a journalist from a trespass charge?

No! 1st amendment DOES NOT protect a journalist, filmmaker, or anyone else from trespass laws that are applicable to the general public. Can only be charged with trespassing if notice of property lines or implied private property (fences, gates). Applies to middle of the woods, where don't know lines of property are. COPS -For the media, issues can arise in "ride along" or "follow along" situations or "undercover investigations" -You may film public traffic stops. · getting pulled over by cops, even taken into custody -In private areas, permission must come from: · Owner of the property, or... · Lawful possessor (renter or operator) of the property -Also raises Fourth Amendment concerns-if bringing journalists, violates warrant, no evidence can be used against you · Wilson v. Layne (1999): Warrants grant police right to enter; not journalists

What does it mean to say the "sting" of the defamation must be false?

Not every part must be truthful, only the part that carries the "sting" of the libel EX: It is not false to say someone embezzled $1,050,000 if they only embezzled $900,000. They are both large amounts of money.

Schulman v. Group W. Productions, Inc.

On Scene: Emergency Responses" records a car accident and rides with the victims on board a rescue helicopter. Car wreck-bring in helicopter to hospital. No room for crew, put a mic on nurse. DIDN"T ASK PATIENT. Family sues for intrusion Accident occurred on public highway so victims had no reasonable expectation of privacy at accident scene. However, they did have a reasonable expectation of privacy onboard the helicopter (like a hospital room). No consent given by victim, only first responder

The legal definition of the three types of public figures (all three types)

Public figures must prove actual malice to win their defamation lawsuits and collect any damages. Must prove actual malice to collect punitive damages if the subject of report is matter of public concern (higher standard) All purpose public figures: From Gertz v. Robert Welch 1974: "persons who occupy positions of such pervasive power and influence that they are deemed public figures for all purposes". An individual with widespread fame or notoriety, individuals who occupy a position of continuing news value. Limited-purpose public figures: individuals who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Try to affect the public opinion. Look for questions below Involuntary limited-purpose public figure: Individuals who are drawn into a public controversy rather than those who have thrust themselves into a public controversy voluntarily. Most courts don't include this category of plaintiff. Hutchinson v. Proxmire: "there may be an exceedingly rare" category of public figures: involuntary public figures. (Hutchinson v Proxmire, Proxmie says look at this guy, wasting govt money on "golden fleece award". Hutchinson sues, Proxmire argues that by including him in the article, he's a part of the movement. NOT TRUE, loses).

The fault levels required in libel actions, who must prove those fault levels, and the correct legal definitions of those fault levels, that is, the legal definitions of actual malice and negligence. What those definitions mean and how fault is proven.

Public officials and public figures must prove actual malice to win their lawsuits and collect any damages. Private persons must prove at least negligence to win their lawsuits and collect compensatory damages. All plaintiffs (public and private) must prove actual malice to collect punitive damages if the subject of the report is a matter of public concern. Actual malice: All about inquiring into the state of mind of defendant at time statement was "published". Publishing with knowledge of falsity OR reckless disregard for the truth. Reckless disregard for the truth: Serious doubts as to the truth of the publication; St. Amant v. Thompson (1968); · A high degree of awareness of probably falsity; or...Garrison v. Louisiana (1965); Purposeful avoidance of the truth Harte-Hanks Comm. v. Connaughton (1989). Must be proved with clear and convincing evidence. Falsity: Courts look at direct, state-of-mind evidence (what journalist thought, believed, felt, said at the time the story was being produced by asking defendant on the stand) or indirect or circumstantial evidence (typically including story timeliness (breaking/hot), source credibility, story probability). Carelessness, failure to verify facts, sloppy reporting, ill-will or intent to harm/bad motives, failure to retract a story. None of these alone enough to prove reckless disregard for truth. Could be used in combination. EX: Curtis publishing co vs butts; not breaking news, source was accountant from atlanta, didn't even do score/background research, why would he sell his team out? how likely to stumble upon info? ACTUAL MALICE EX: AP v Walker; breaking news, best reporter, high probability, NOT ACTUAL MALICE Negligence: All abt how you behave, not state of mind . Failure to exercise ordinary care or to act as a reasonably prudent person would under similar circumstances (reasonable person standard) EX: breaking leg walking to class, didn't brush sidewalk OR Failure to follow accepted professional standards and practices (journalistic malpractice). Includes: reliance on an untrustworthy source, not reading or misreading pertinent documents, failure to check w/ an obvious source, carelessness in editing and news handling. Did the reported make a good faith effort to determine the truth or falsity of the matter?

The rules regarding the burden of proof for the falsity element: Who must prove falsity in a libel action?

Public officials, public figures, and private persons involved in matters of public concern must prove falsity (is it a factually incorrect statement?) Whenever the subject of the report that gave rise to the libel suit is a "matter of public concern", the plaintiff, whether public or private, must prove the falsity of the defamatory statements (Philadelphia Newspapers v Hepps, 1986). Philidephia newspapres vs hepps: Philly inquirer said Hepps was in mafia, printed story that hepps liquor store opened faster b/c in mafia. Appeals court, determined matter of public concern, burden of proof shifted to plaintiff. LOST! Couldn't prove not in mafia

Dietmann v. Time, Inc., 9th Cir.

Seminal case for secret recordings Two reporters cooperate with LA police investigation of man practicing medicine without a license in his own home. NO MEDICAL LICENSE Reporters posed as husband/wife, went to house, husband recorded during house He sued TIME for invasion of privacy Reasonable expectation of privacy in home? yes. Invite people into home, is there privacy? no. Deceive to get into home? hmmm... Reporters argued matter of public concern Court rules: 1st amend doesn't protect invading home. B/c in home, right in privacy violated by use of deception. Dietmann won

The three definitions of reckless disregard for the truth provided in class

Serious doubts as to the truth of the publication; St. Amant v. Thompson (1968) A high degree of awareness of probably falsity; or...Garrison v. Louisiana (1965) Purposeful avoidance of the truth Harte-Hanks Comm. v. Connaughton (1989)

The difference between a false light claim and defamation.

Similarities to Defamation -Proof of falsity and identification required -Proof of fault required -Opinion and truthful statements are not actionable -Plaintiffs often sue for defamation and false light (and other privacy torts) together Distinctions from Defamation -"Publicity" does not equal "publication" -"Highly offensive" does not equal "defamatory content" -Designed to protect privacy not reputation -Possible the "gist" of a story could be considered false even if the facts are all true.

Sipple v. Chronicle Publ'g Co. (Cal. Ct. App. 1984)

Sipple active in gay community San Fran. Saw guy with gun in crowd, saved assassination attempt on President Ford. Refused to thank him. Because gay? Against typical stereotype, critical of Ford Sipple was out to community, not family. Sipple sued for publication of embarrassing public facts. Court ruled couldn't because wasn't private fact · Intimate personal information cannot normally be the basis for a privacy claim if it is already widely known. In addition, what happens in public or appears in the public record is not private, even if you don't want people to know about it.

The two main categories of defamatory statements: libel per se (and the four kinds); libel per quod. What must be shown when alleging libel per quod?

Some states, including Colorado, recognize two different categories of libelous content: Liber per se: "obviously defamatory" words, defamatory on their face. These don't need to be prove defamatory, damages are assumed. Includes accusations of criminal conduct or activity, allegations of crimes, unethical practices or incompetence related to one's occupation, attacks on one's character traits or lifestyle, including claims of sexual promiscuity or marital infidelity, claims that one has an undesirable or contagious disease (EX: AIDS) Libel per quod: words that become defamatory for some other reason. Plaintiff must prove the audience understood the defamatory connotation, must show harm was caused.

The right of privacy in Colorado. Is it recognized through statutory or common law?

Statutory: o Using or disclosing information obtained through illegal wiretapping is prohibited if there is reason to know the information was obtained illegally. Colo. Rev. Stat § 18-9-304. § Colorado specifically carves out an exemption for news media from its eavesdropping and wiretapping statutes. § Laws are not to be "interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event." Colo. Rev. Stat. § 18-9-305. § Gives lots of privilege to media, CO statues protect the media, specific abt who is media o Anyone who is not "visibly present" during a conversation who overhears or records the conversation without the consent of at least one of the parties commits a felony carrying the same punishment as a telephone interception, as does anyone who discloses the contents of such a conversation. Colo. Rev. Stat § 18-9-304. § Because no reasonable expectation of privacy (Clippers, derogatory statement black bball players, was sued)

Colorado statutory law dealing with participant and non-participant recording

Taping in Colorado: -Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. -THIRD PARTY-against the law to record if not a part of convo

Is it legal for a non-participant to intercept or record a phone conversation?

Taping in Colorado: § Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. THIRD PARTY-against the law to record if not a part of convo

What makes a statement defamatory in a community?

There is no list of defamatory words. Depends on context and time in which it's uttered. EX: in 1950's, defamatory to be called slacker (b/c meant dodging the draft). Not anymore. EX: different based on each jurisdiction. The judge determines whether a message is capable of being defamatory. A jury decides if the words, in their everyday meaning, actually defamed the plaintiff. Must damage the plaintiff's reputation to "a substantial and respectable minority". There must be proof that an individual's reputation was actually harmed. EX: being called gay in Utah vs. in New York City. Reasonable construction rule: Words should be considered in light of their ordinary meaning and in light of the communication as a whole. What would someone reasonably believe the words to express? EX: Seventeen magazine tried to defend themselves using the original meaning of slut, lost, not applicable. Words taken in context. Avoid defamation by innuendo: Don't imply things you don't know to be true. Don't let vague writing lead your readers/viewers to erroneous conclusions.

Where do you have a reasonable expectation of privacy?

There is no privacy in a public place, even if don't want to be recorded. One can lawfully film, photograph and record that which can be easily observed in public places The use of powerful electronic recording devices that allow you to observe that which cannot be seen by the naked eye could lead to an intrusion claim. EX: ladder You typically don't have a reasonable expectation of privacy when you share things online Schulman v. Group W. Productions Inc. (Cal. 1998) -On Scene: Emergency Responses" records a car accident and rides with the victims on board a rescue helicopter. -Car wreck-bring in helicopter to hospital. No room for crew, put a mic on nurse. DIDN"T ASK PATIENT. -Family sues for intrusion -Accident occurred on public highway so victims had no reasonable expectation of privacy at accident scene. -However, they did have a reasonable expectation of privacy onboard the helicopter (like a hospital room). No consent given by victim, only first responder

Roberson v. Rochester Folding Box Co.

Thousands of pictures of young girl Abigail all over Rochester on a flour advertisement. 25,000 copies in saloons, stores, etc without telling her. She lost the ability to be left alone. Nothing derogatory, nothing against reputation. Taken to NYC court, but nothing against the law. Outcry in media! So NY legislature passes statutory law saying appropriation is illegal; use of an individual's name, likeness, or identity for trade or advertising purposes without consent. DEFINITION OF APPROPRIATION

Ollman v. Evans

US Court of Appeals for DC Circuit 1984 - Professor Ollman wanted a promotion, denied because of what he though (libelous article written about him), journalist protected - Separation of a statement of opinion from statement of fact Created Ollman test for opinion: 1. Can the statement be proven 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?

Herbert v. Lando

US Supreme Court said a libel plaintiff could inquire into a journalists' state of mind when inquiring abt actual malice. This is direct,state-of-mind evidence (what the journalist thought, believed, felt, said at the time the story was being produced)

What constitutes an "incidental use"? What is the "Booth rule?"

Using an individual's name or photo to promote a news use is not commercial use unless the promotion implies the individual endorses the publication. Advertising for non-commercial use is protected even though it's advertising unless suggests endorsement. Using an individual's name or picture in a news story, work of history, biography or other factual use is NOT a commercial use. EX: Picture of Trump on cover of book, even if sells more copy Even if an image or likeness is used to increase the value of a news use, it is not appropriation. EX: Cher on Forum magazine cover, ad and endorsement. Court said no, cover is non-commercial use, ad is ad for non-commercial use, BUT implying support for magazine goes too far.

What about news, information, history, biography? Media self-promotions?

Using an individual's name or picture in some news story, work of history, biography or other factual use is not a commercial use. Even if an image or likeness is used to increase the value of a news use, it is not appropriation. EX: Picture of Trump on cover of book allowed, even if it sells more copies "Incidental use", sometimes called Booth rule: using an individual's name or photo to promote a news use is not commercial use unless the promotion implies the individual endorses the publication. EX: Cher on "Forum" magazine cover, ad, and false endorsement. Court said no-implying support for magazine goes too far, while cover and ad are non-commercial). Blurring of advertisement and editorial content can become an issue. Social media posts might be considered a commercial use. If the material has legit news interest (even w/ commercial elements), it will probably not be considered commercial use BUT it must be a legitimate public interest. When in doubt, get consent.

What may constitute injury in a libel action

Usually intangible. Loss of reputation, standing in a community, mental harm, emotional distress, etc. Sometimes actual monetary loss (job loss) All plaintiffs must prove some injury unless they prove actual malice (defined later) or libel per se, then injury is assumed

Wilson v. Layne

Wilson v. Layne (1999): Warrants grant police right to enter; not journalists

Cape Publ'ns, Inc. v. Bridges (Fla. Ct. App. 1982)

Woman held hostage by boyfriend naked. Heard gun go off, broke down door. Took photo of woman coming out "Even though the plaintiff's role of 'actor' in an event having news value was not of his own volition . . . the fact remains that he was in a public place and present at a scene where news was in the making." Matter of public concern: not in private, newsworthy. Not intrusion or publication of private facts

Reasonable construction rule

Words should be considered in light of their ordinary meaning and in light of the communication as a whole. What would someone reasonably believe the words to express?

Defamation and fiction

You can be sued for creating fictional characters based on real characters. Disclaimers don't work. EX: Bryson v News America Publications. Fictional story from Seventeen Magazine. Character based on real person, called her a slut. Young Woman sued and won! EX: Tamkin v CBS. CSI placeholder case, never changed the name of real estate couple. Saw the episode, sued for defamation. Not enough evidence to identify as them, didn't win.

The 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. Emerged from the case of Ollman v. Evans. The four parts: 1) Can the statement be proved true or false? 2) What is the common or ordinary meaning of the words? (ex: Turkey or Moron) 3) What is the journalistic context of the remark? (some types of commentary where audience expects facts, others not so much, ex: tucker carlson) 4) What is the social context of the remark? (ex: political debates, more opinions than facts.

Ag-gag laws

illegal to record what happens in animal processing facilities Numerous states have passed criminal statutes that make "agricultural interference" a crime. In addition, some states have banned "interfering with a hunter." · People would follow and record Currently challenged in courts, as content-based restrictions. Many state statues are being overturned These laws have either been struck down or are currently being challenged in court, most frequently by professors in the University of Denver Sturm college of law.

The neutral reportage defense

in some controversial situations, if defamatory statement itself is newsworthy, can sometimes be protected. Only recognized in 9 states. All five must be met for privilege to apply: newsworthy and related to public controversy, made by a responsible person or organization, made against a public official or public figure, accurately reported with opposing views, AND reported impartially Opinion § Edwards v. National Audubon Society, Inc., 556 F. 2d 113 (2nd Cir. 1977) · NYT runs a story about accusations that were being made by the National Audubon Society. The New York Times, whilst attempting to report both sides of the dispute, was sued for defamation. · Audubon scientists accused of working for pesticide companies, making up data. · NYT is protected! Can't be sued.

Examples of the types of actions found to be actual malice and negligence, as discussed in class and in the books.

o EX: Curtis Publishing Co. v. Butts (football) § NOT breaking news-game had already happened § Source was accountant from atlanta (not credible) § Didn't even look up score/do background research) § Why would he sell this team out? How likely stumble upon this info? (not very probable) § ACTUAL MALICE! o AP v. Walker (desegregation) § Breaking news § Best reporter § High probability-did right what said would do § NOT ACTUAL MALICE!

New York Times Co. v. Sullivan

o NYT v Sullivan (1964)- civil rights and defamation. Only defamation 9-0 § Ad ran in NYT. § Placed by agency NYT works a lot with, doesn't fact check. § Newspaper distributed in alabama § Sullivan is county commissioner, suggests defames him, asks nyt for retraction § Sues for $500,000 § 3rd defamation brought against NYT by white public officials in south. Previous cases has been successful in state court. Cases specifically attacking NYT for discussing civil rights in the south. § Take diversity of citizenship, move out of alabama, can't, do in alabama. § LOST CASE in Alabama, takes to SC § SCOTUS: starts establishing rules · The First Amendment requires that when public officials sue for libel they must prove actual malice - that the defendant acted with knowledge of falsity or reckless disregard for the truth. · must prove with convincing clarity (super high standard of proof) · Justice Brennan says requiring the press to know with 100% certainty everything is true will silence free debate. Sometimes, false statements of fact which damage rep allowed § National commitment to uninhibited, robust debate on public issues, and Sullivan-type suits would stifle such debate. · looks like seditious libel (suing for criticism, seditious act 1798, we should have made that unconstitutional) § As a public official, Sullivan voluntarily took on a job that invited public attention and criticism § As a public official, Sullivan had ready access to media to rebut defamatory statements. · Market place of idea: use media to get opposing truth out, public decides Truth

Fair report (or reporter's) privilege/qualified privilege.

qualified privilege for reporting abt. govt meetings, hearings, proceedings, reports, statements Even if reporting on defamatory statements, protected by this. Applies to legislative proceedings, judicial proceedings, executive actions. In order to be privileged, report must be accurate, fair/balanced, substantially complete, not motivated by malice (common-law definition, as in ill-will). Courts in some states have said the report must be attributed to the official record or meeting for privilege to apply. EX: Mitch McConnell said ___ on senate floor. Defendant has to prove that privilege applies to libelous material. Again, does not apply to statements made by official sources outside of these settings. Really about the republication rule-protected by publishing when privileged.

Bartnicki v. Vopper: Can a mass medium be held liable for the intrusive acts of another if the medium prints or broadcasts the fruits of the intrusion, e.g., copies of stolen documents?

talking abt schoolboard vote, if doesn't go our way, bomb porches recorded by third party, sent to another parent, send to news, play over air two women sued radio station for playing tape abt matter of public concern A journalist who played a tape of an illegally intercepted cell phone conversation on the radio was not liable for wiretapping because · [1] he did not intercept the call himself; · [2] he obtained the tape lawfully; and · [3] the subject matter was of public concern You can publish information that was gathered illegally.