Chapters 5, 6
NYT v. Sullivan (1964)
Libel and slander are not protected, and you need to prove malicious intent. - Supreme Court ruled in favor of NYT
What must a private person prove for compensatory damages?
Negligence
Appropriation
Privacy tort that discourages use of one's name, likeness or identifying features for commercial gain without consent.
Intrusion
Privacy tort that protects people from invasion of personal space and solitude. The offense is viewed as the invasive act itself, so publication is not required.
SLAPP Laws
Strategic Lawsuit Against Public Participation - lawsuits that are often nothing more than a form of intimidation - an attempt to silence corporation critics
Right of Publicity
The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission. - protect famous people and those who wish to protect their likeness, voice or image from others exploiting it for commercial gain.
Fault
either the lower fault level of "failure to exercise reasonable care" or the higher level of fault of "intentional lying" or "reckless disregard for the truth"
Trespass
entry to another's property without right or permission - common law tort protecting people against interference with their person, land and possessions
Rhetorical hyperbole
exaggeration or exaggerated statements of opinion - the use of exaggeration as a rhetorical device or figure of speech
Negligence
failure to take proper care in doing something
Retraction
formally taking back something which was said or done - correction - admit something is wrong over any platform - can help reduce damage award
Public Disclosure of Private Facts
highly offensive publicity of private information - protects people against the unwarranted dissemination of intimate personal information that offends the public sense of decency.
Reckless disregard for the truth
if you knew that what you were saying was false but said it anyway
Absolute Privilege
immunity from the charge of defamation even if the statement is malicious -officials doing official business and those testifying a witness stand in judicial proceedings - most often claimed by legislators
Compensatory (Actual) Damages
monetary compensation designed to remedy the losses suffered by the plaintiffs
When proving publication in a libel case, how many people must have seen the damaging information?
one or more
Consent
permission to do/say something
Garrison v. Louisiana (1964)
public officials and those running for office are public figures
Publication
refers to any dissemination of a defamatory statement, not strictly in print. In order to damage someone's reputation, a defamatory remark must be communicated to a third party.
Slander
the action or crime of making a false spoken statement damaging to a person's reputation. -private media SPOKEN
False Light
the intentional false portrayal of someone in a way that would be offensive to a reasonable person - false light case, only embarrassment, not defamation, needs to be claimed
Booth Rule
the media may use previously published newsworthy materials in later advertising of the publication itself as long as no endorsement is implied
Right to Reply
the opportunity for permitting a person criticized in a story to respond to that criticism in the same story - right to defend oneself against public criticism in the same venue where it was published.
The President cannot alter libel laws because...
there are no federal libel laws.
Libel tourism
traveling to a foreign venue to file a defamation action that would not succeed in this country - going to other states or countries for it to be easier to prove actual malice
4th Amendment
unlawful search and seizures by the government
Ohlman Opinion Test
verifiability of the statement -"literary context" in which the statement was made - "public context" of the statement - the precisions and specificity of the disputed statement
Actual Malice
when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth
Libel Per Se
written communication that is considered obvious libel - consists of those words which in and of themselves are so damaging as to be considered defamatory OBVIOUS
Fraud
wrongful or criminal deception intended to result in financial or personal gain - an intentional material misrepresentation of fact by the defendant that the plaintiff relies on to his or her detriment.
Criteria for Defamation
• Publication - to one or more persons • Identification - not necessarily by name • Damages - to professional reputation; lawfulness; honesty; virture. Can be based on inaccurate questions, story out of context or just plain falsehood. • Fault - intentional lying or reckless disregard for the truth.
Primary Defenses
• Truth • Fair Report and Neutral Reportage (reporting and not taking a side) • Absolute Privileges
Defamation applies to:
• existing relationships • future relationships • public image destroyed • negative public image created
Secondary Defenses
•Consent • Retraction • Right to Reply • Proof of bad reputation • Reliance upon reliable source e.g. "wire service" defense • Settlement out of court
Privacy
- the right to be left alone - freedom from unwarranted publicity
Group Libel *approx.*
1-25 people - actionable 26-100 people - grey zone 101+ people - rarely if ever - applies when an identifiable group is libeled
To sue for libel, what 4 things must a plaintiff prove?
1. Defamation 2. Publication 3. Identification 4. Fault
How long do libel claims have to gather information and evidence?
2 years
Criminal Libel
A crime in which a publisher could be charged with defamation by the government.
Innocent Construction Rule
A rule some courts use to interpret allegedly libelous statements that might have multiple interpretations according to the most innocent interpretation, or the one that most favors the defendant.
Summary Judgement
A ruling by the court that no trial is necessary because some essential facts are not in dispute - no way a plaintiff will win - judge makes an executive decision
Defamation
Act of harming or ruining another's reputation communicating false statements about a person that injure the reputation of that person
Electronic Communications Privacy Act (ECPA)
Act that makes it unlawful to intercept messages in transmission, access stored information on electronic communication services, or disclose this information.
What must a private person prove for punitive damages?
Actual Malice
What must a public person prove for punitive damages?
Actual Malice
what must a public person prove for compensatory damages?
Actual Malice
Libel Per Quod
Consists of word or phrases that require contextualization in order to identify the harm. NEED CONTEXT
Falsity
In defamation law, a defendant cannot be found liable for defamation unless his/her statement was false. - in libel claims, the person or entity quoting false words that harm a reputation can be held just as accountable for defamation as the person making the original statement.
Identification
In libel law, plaintiffs must show that they were identifiable from the libelous material. - names are not necessary in order to prove identification because context, circumstance or association can reveal the real person.
Limited Purpose Public Figure
In libel law, plaintiffs that are not otherwise public figures might be considered to be if they have gained notoriety by voluntarily injecting themselves into a matter of public controversy in an attempt to influence the outcome.
Privilege
In libel law, privilege is an affirmative defense in which the defendant asserts a justification for having defamed the plaintiff.
Defamatory Language
In libel law, the plaintiff must show that the libelous material was defamatory, meaning it asserts an untrue fact that would cause harm to the plaintiff's reputation in the mind of "right thinking persons." - in order to be considered libelous, the statement has to be an assertion of fact and not mere opinion or humor.
Neutral Reportage
In some jurisdictions, this is recognized as a defense to libel which asserts that so long as a medium accurately recounts all sides of an argument it acts as a neutral conveyance of information and should not be responsible.
Right of Privacy
The right to a private personal life free from the intrusion of government.
Qualified Privilege
a legal right allowing journalists to report judicial or legislative proceedings even though the public statements being reported may be libelous
Plaintiff
a person who brings a case against another in a court of law.
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
a published false statement that is damaging to a person's reputation; a written defamation. -mass media WRITTEN
Florida Star v. BJF
a state may not punish the media for publishing truthful information lawfully obtained unless there is a need to serve the interest of the highest order. -police officials mistakenly gave the name of a rape victim to a reporter; the Court held that the receipt of this information by the press was lawful
Tort
action causing injury
Settlement out of court
an official agreement intended to resolve a dispute or conflict - can take place before lawsuit is filed - "one the side" deals
FCC rule about recording conversations
before you record your conversation, or air it live, inform the other person of your intent.
Punitive Damages
damages exceeding simple compensation and awarded to punish the defendant.